August 2024

DHS Adds Environmental Economics to STEM Designated Degree Program List

Effective July 23, 2024, the Department of Homeland Security (DHS) has amended its STEM [Science, Technology, Engineering and Mathematics] Designated Degree Program List by adding “Environmental/Natural Resource Economics” to the qualifying fields of study, and the corresponding Department of Education Classification of Instructional Programs code for that field:

The list is used to determine whether a degree obtained by certain F-1 nonimmigrant students following the completion of a program of study qualifies as a STEM degree as determined by DHS, as required for the F-1 student to be eligible to apply for a 24-month extension of their post-completion optional practical training (OPT) work authorization (EAD).

Details:

• DHS notice, 89 Fed. Reg. 59748 (July 23, 2024).

USCIS Increases Investment and Revenue Thresholds Under International Entrepreneur Rule

In a final rule effective October 1, 2024, U.S. Citizenship and Immigration Services (USCIS) will increase the investment and revenue thresholds under the International Entrepreneur Rule (IER), as required every three years. The application fee will not change.

The IER allows the Department of Homeland Security (DHS) to “grant a period of authorized stay [parole], on a case-by-case basis, to noncitizen entrepreneurs who show that their stay in the United States would provide a significant public benefit through their business venture and that they merit a favorable exercise of discretion.” Under the rule, entrepreneurs granted parole are eligible to work only for their startup businesses. The spouses and children of a noncitizen entrepreneur may also be eligible for parole.

USCIS will make the following adjustments:

• For an initial application, entrepreneurs must show at least $311,071 (currently $264,147) in qualified investments from qualifying investors, at least $124,429 (currently $105,659) in qualified government awards or grants, or, if only partially meeting the threshold investment or award criteria, alternative reliable and compelling evidence of the startup entity’s substantial potential for rapid growth and job creation.
• For a second period of authorized stay under the IER, the entrepreneur generally must demonstrate that the startup entity has either:
  • Received a qualified investment, qualified government grants or awards, or a combination of such funding, of at least $622,142 (currently $528,293);
  • Created at least five qualified jobs; or
  • Reached annual revenue in the United States of at least $622,142 (currently $528,293) and averaged at least 20% in annual revenue growth.
• The definition of a “qualified investor” requires the investor to have a history of substantial investment in successful startup entities. USCIS generally considers such an individual or organization a qualified investor if, during the preceding five years, the following apply:
  • The individual or organization made investments in startup entities of at least $746,571 (currently $633,952) in total, in exchange for equity, convertible debt, or other security convertible into equity commonly used in financing transactions within the startup entities’ respective industries; and
  • After such investment by such individual or organization, at least two such startup entities each created at least five qualified jobs or generated at least $622,142 (currently $528,293) in revenue with an average annualized revenue growth of at least 20%.

Details:

• USCIS final rule, 89 Fed. Reg. 60298 (July 25, 2024).

DOS Clarifies Guidance on Easing the Nonimmigrant Visa Process for College Graduates

On June 18, 2024, the Biden administration announced actions to more efficiently process employment-based nonimmigrant visas for those who have graduated from college in the United States and have a job offer. As part of this initiative, on July 15, 2024, the Department of State (DOS) clarified existing guidance to consular officers related to when they should consider recommending that the Department of Homeland Security grant a waiver of ineligibility under INA § 212(d)(3), where applicable. 

The DOS guidance explains that there is a clear and significant U.S. public interest in requesting a waiver on an expedited basis “if the applicant has graduated with a degree from an institution of higher education in the United States, or has earned credentials to engage in skilled labor in the United States, and is seeking to travel to the United States to commence or continue employment with a U.S. employer in a field that requires the education that the applicant attained in the United States.”

Details:

• DOS notice (July 15, 2024).
• DOS Foreign Affairs Manual guidance (July 15, 2024).
• White House Fact Sheet (June 18, 2024).

USCIS Issues New Policy Guidance on Noncompliance With EB-5 Regional Center Program

U.S. Citizenship and Immigration Services (USCIS) has issued policy guidance, effective immediately, on new provisions in the Immigration and Nationality Act (INA) that cover consequences for noncompliance with the EB-5 regional center program.

The guidance updates Part G, Investors, in Volume 6 of the Policy Manual, to incorporate statutory reforms included in the EB-5 Reform and Integrity Act of 2022 (RIA). USCIS explained:

The guidance interprets the provisions related to sanctions, including terminations, debarments, and suspensions, for noncompliant regional centers, new commercial enterprises, job-creating entities, investors, and others. The guidance also explains what may be considered threats to the national interest, fraud, intentional material misrepresentation, deceit, and criminal misuse in the context of discretionary determinations that require us to take adverse action on certain EB-5 petitions, applications, and benefits. It also outlines special considerations for good-faith pre-RIA investors to retain eligibility under INA sec. 203(b)(5)(M) after we terminate or debar their regional center, new commercial enterprise, or job-creating entity due to non-compliance.

Details:

• USCIS alert (July 16, 2024).

USCIS Publishes FAQs on H-1B Nonimmigrant Status

U.S. Citizenship and Immigration Services (USCIS) released frequently asked questions (FAQs) that address common questions by individuals in H-1B nonimmigrant status, particularly related to applying for lawful permanent resident (LPR) status, job changes or terminations, international travel, and dependent family members.

For example, USCIS noted that:

• An eligible H-1B worker can change employers as soon as the new employer’s nonfrivolous H-1B petition is properly filed with USCIS.
• USCIS will not revoke a Form I-140 petition approval solely due to termination of the petitioner’s business or the employer’s withdrawal, as long as the petition has been approved for at least 180 days or the associated adjustment of status application has been pending for at least 180 days and the petition approval is not revoked on other grounds. In this scenario, the H-1B worker would retain their priority date.
• When an H-1B worker’s employment is terminated (either voluntarily or involuntarily), they typically may take one of several actions to remain in a period of authorized stay in the United States beyond 60 days.

A chart in the FAQs summarizes some common scenarios for H-1B workers.

Details:

• USCIS FAQs for Individuals in H-1B Nonimmigrant Status (July 17, 2024).

USCIS Updates Public Information on International Entrepreneur Rule

U.S. Citizenship and Immigration Services (USCIS) recently updated its public information under the International Entrepreneur Rule (IER). USCIS noted that the rule allows the Department of Homeland Security (DHS) to “grant a period of authorized stay [parole], on a case-by-case basis, to noncitizen entrepreneurs who show that their stay in the United States would provide a significant public benefit through their business venture and that they merit a favorable exercise of discretion.”

Under the rule, entrepreneurs granted parole are eligible to work only for their startup business. The spouse and children of the noncitizen entrepreneur may also be eligible for parole, USCIS noted. The agency listed several “threshold criteria and key elements” of the rule:

• Entrepreneurs may be either living abroad or already in the United States.
• Startup entities must have been formed in the United States within the past five years.
• Startup entities must demonstrate substantial potential for rapid growth and job creation by showing at least $264,147 in qualified investments from qualifying investors, at least $105,659 in qualified government awards or grants or alternative evidence.
• The spouse of the entrepreneur may apply for employment authorization after being paroled into the United States.
• The entrepreneur may be granted an initial parole period of up to 2½ years. If approved for re-parole, based on additional benchmarks in funding, job creation, or revenue described in the guidance, the entrepreneur may receive up to another 2½ years, for a maximum of five years. (At that point or earlier, there are other Options for Noncitizen Entrepreneurs to Work in the United States, USCIS noted.)
• Up to three entrepreneurs per startup can be eligible for parole under the rule.

Details:

• USCIS guidance (July 12, 2024).

Visa Bulletin: No Further Retrogression in EB-3 Category for August

The Department of State’s Visa Bulletin for August 2024 shows no further retrogression in the EB-3 visa category following retrogression in July. However, the August bulletin notes:

• As readers were informed in Item D of the July 2024 Visa Bulletin, demand and number use have remained high in the EB-3 visa category. Although retrogression has not been necessary for August, it will likely be necessary to either retrogress the final action date or make the category “Unavailable” in September. This situation will be continually monitored, and any necessary adjustments will be made accordingly.

DHS Proposes Expansion of Hefty Fees on H-1B and L-1 Visas Under 9-11 Response and Biometric Entry-Exit Requirements

The Department of Homeland Security (DHS) has proposed to amend and clarify regulations concerning the 9-11 Response and Biometric Entry-Exit fee for H-1B and L-1 visas. The proposed regulatory changes would require covered employers to “submit the 9-11 Biometric Fee for all extension-of-stay petitions, regardless of whether a Fraud Fee applies, to include extension-of-stay petitions that do not involve a change of employer. The 9-11 Biometric Fee would continue to apply unchanged to petitions seeking an initial grant of status.”

Reaction. Commenting on the proposed rule on July 8, 2024, the American Immigration Lawyers Association (AILA) noted that “DHS is proposing to significantly change its interpretation regarding when the 9-11 Biometric Fee, implemented under Public Law 114-113 for H-1B and L-1 visas, is required. This law created an additional fee of $4,000 for H-1B petitions and $4,500 for L-1 petitions when H-1B or L-1 workers comprise more than 50% of the petitioner’s U.S. workforce (Covered Employers). This fee is in addition to the other filing fees associated with these petitions.” In 2019, AILA explained, “in response to the DHS proposed revisions to the USCIS fee schedule that was ultimately enjoined, AILA urged DHS not to adopt the same statutory interpretation it proposes now, citing, among other reasons, the significant harm it would cause for certain U.S. employers, and that it was contrary to the plain language and intent of the statute.” In its comment, AILA delineated the reasons for its disagreement with the current proposal, which would require covered employers to pay the 9-11 Biometric Fee “not only for initial benefit requests with which all employers must include the Fraud Fee but also for requests by the same Covered Employer to extend the same worker’s H-1B or L-1 status, even though in the latter scenario the Fraud Fee is not required.”

Details:

• DHS proposed rule (U.S. Customs and Border Protection), 89 Fed. Reg. 48339 (June 6, 2024).
• AILA comment (July 8, 2024).

USCIS Seeks Comments on Revisions to Application for Employment Authorization

U.S. Citizenship and Immigration Services (USCIS) seeks additional comments on its revisions to Form I-765, Application for Employment Authorization. Comments are due by August 12, 2024.

The notice states that instead of going to a Social Security Office, an applicant for work authorization can now apply for a Social Security Number (SSN) and Social Security card using Form I-765. If the relevant data elements are filled out, USCIS will send the applicant’s information to the Social Security Administration (SSA) upon approval of the employment authorization request. If the applicant already has an SSN and requested a Social Security card on Form I-765, SSA will issue a replacement SSN card.

Details:

• USCIS 30-day notice, 89 Fed. Reg. 57159 (July 12, 2024).

OFLC Releases Technical Notes on How It Will Apply the 2018 Standard Occupational Classification to Wages

The Department of Labor’s Office of Foreign Labor Certification (OFLC) released technical notes that explain how OFLC will apply the 2018 Standard Occupational Classification (SOC) structure to Occupational Employment and Wage Statistics (OEWS) wages for the July 2024 through June 2025 wage year.

OFLC said that OEWS has aggregated certain 2018 SOC detailed occupations into a single broad occupation. OFLC will apply the single broad occupation wage estimate to each of the 2018 SOC detailed occupations. OEWS has published a list of OEWS occupations and definitions that include 2018 SOC detailed occupations that have been aggregated; a link to the list is included in the technical notes.

OFLC also explained that in certain instances, the 2018 SOC codes “may be aggregated, may not have wage estimates due to OEWS data limitations, may not have American Competitiveness and Workforce Improvement Act (ACWIA) Higher Education wage estimates due to OEWS data limitations, or may not have Job Zone data due to the Occupational Information Network (O*NET) data limitations.” The technical notes include examples of such instances.

Colombia: An Emerging Haven for Foreign Retirees

In recent years, Colombia has emerged as one of the most attractive destinations for foreign retirees, consistently ranking high in various international listings. The country’s appeal lies in its diverse climate, rich biodiversity, affordable cost of living, excellent culinary offerings, and vibrant cultural scene. Foreign retirees often highlight the warm and welcoming attitude of Colombians, which greatly facilitates their integration into local communities. Cities like Medellín, Cartagena, Santa Marta, and those in the coffee-growing region are particularly popular among this demographic.

Visa Options for Retirees

Colombia offers a specific migrant visa category for retirees, outlined in its current immigration regulations. This visa is available to foreigners with a steady monthly income from a pension granted by a government or private pension fund. The visa is valid for up to three years and can be renewed indefinitely. Importantly, this visa allows multiple entries into the country. Retirees who have held this visa continuously for at least five years are eligible to apply for a permanent resident permit.

Requirements for the Retiree Visa

To obtain the retiree visa, applicants must provide:

1. Pension Certification: Proof of a monthly pension payment of no less than USD 1,000.
2. Police Clearance: A document confirming the applicant has no criminal record duly apostilled and sworn (translated).
3. Medical Certificate: This document can be issued from a doctor abroad and must come apostilled and sworn (translated if needed) or issued in Colombia.
4. International Medical Insurance: Confirmation of coverage within the national territory against all risks in case of accident, illness, maternity, disability, hospitalization, death, or repatriation, for the duration of stay in Colombia.

Colombia’s unique blend of natural beauty, cultural richness, and welcoming atmosphere makes it an ideal retirement destination. The retiree visa facilitates a smooth transition for foreigners looking to make Colombia their new home, offering benefits such as long-term stay options and the potential for permanent residence.

Digital Nomads in Colombia

The Ministry of Foreign Affairs issued Resolution 5477 on July 22, 2022, which established new provisions on types of visas, application processes, and issuance, among others. One of the main changes to the Colombian immigration regime introduced by Resolution 5477 is the inclusion of the Visitor Visa for Digital Nomads. Since October 21, 2022, the date on which the new immigration regime entered into force, foreigners, whether independently or labor-related, who wish to enter to provide remote work or teleworking services from Colombia, through digital media and the internet, exclusively for foreign companies, or to start a digital content or information technology venture of interest to the country, may request and obtain a Visitor Visa for Digital Nomads at a Colombian consulate abroad or directly at the Ministry of Foreign Affairs.

Among other requirements, the applicant must demonstrate through bank statements a minimum income equivalent to minimum monthly wages (approximately USD 1,220) during the last three months, and health insurance with coverage in Colombia against all risks in case of accident, illness, maternity, disability, hospitalization, death, or repatriation, for the planned duration of stay in Colombia.

This multiple-entry visa is valid for up to two years. The authorized period of stay is the same time for which it is granted. It allows beneficiary visas for the spouse, permanent partner, and children of the holder. The holder of this visa may not work or carry out any paid activity with a natural or legal person in Colombia. According to Resolution 5477, this visa is apparently only applicable to those foreigners who are exempt from short-stay visas to enter Colombia, such as those listed in Resolution 5488 of 2022.

Similarly, nationalities that do not require a short-stay visa may enter without a visa and remain in Colombia with an entry and stay permit granted by Migración Colombia. With this permit, Digital Nomads can stay in the territory for up to 90 days (continuous or discontinuous), extendable for another 90 days as long as the activities they carry out do not generate payments from Colombian companies. Despite the above, it is not certain whether this type of activity can be carried out with a tourist permit (PT), integration and development permit (PID), or permit for other activities (POA), since those currently do not specifically allow this type of activity. Thus, authorization by the competent authorities must be obtained before carrying out digital nomad activities with the aforementioned permits. Possibly a new permit will be created that explicitly authorizes the execution of this type of activity.

Klasko News

FIRM NEWS

Klasko Immigration Law Partners is celebrating its 20^th anniversary! Explore the firm’s milestones and staff features here.

IN THE NEWS

William A. Stock

Managing partner William (Bill) Stock was quoted in this Law360 article titled Justices’ SEC Ruling Unlikely to Bear on Immigration Actions.

Bill Stock was also quoted in this Law360 article titled Immigration Attys Cautiously Optimistic After Chevron Ruling.

RECENT SPEAKING ENGAGEMENTS

H. Ronald Klasko

Ron Klasko spoke at the IIUSA Open Forum on USCIS NOITs regarding integrity fee payments.

Ron was also a guest speaker in this Global Relocation webinar hosted by Stonehage Fleming.

ICYMI: RECENT BLOG POSTS AND ALERTS

20th Anniversary Staff Feature: Carmen Del Valle
In honor of Klasko’s 20^th anniversary, staff who have been with the firm long term are receiving recognition for their dedication to the firm. Read about Carmen Del Valle here!

The 2023 Lisa Felix Award: Amanda Reddick
Amanda Reddick received the 2023 Lisa Felix award. Read about the award and her peer nominations here.

20th Anniversary Staff Feature: Kristin Peresta
In honor of Klasko’s 20^th anniversary, staff who have been with the firm long term are receiving recognition for their dedication to the firm. Read about Kristin Peresta here!

Klasko Immigration Law Partners Announces 20th Anniversary
Klasko Immigration Law Partners is thrilled to acknowledge and celebrate its 20th anniversary since its formation as a firm in 2004. Read the full release here.

The Biden Administration’s New Parole in Place Program Removes Significant Roadblock to Lawful Permanent Residency for Family Members of U.S. Citizens
In this article, Grace Waweru addresses the Biden Administrations announcement of a new policy to be launched later this summer.

FIRM FEATURE

Klasko Immigration Law Partners is celebrating its 20^th anniversary! Follow us @klaskoimmigrationlaw for upcoming staff features of our honorary team.

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This newsletter was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers, of which Klasko Immigration Law Partners is an active member.