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Expected Immigration Changes Under the Incoming Biden Administration (1/3)

1/20/2021

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On January 20th, 2021, former Vice-President Joseph Biden will be inaugurated and sworn in as the 46th President of the United States, taking the mantle from President Donald Trump. As many around the world are aware, American foreign and domestic policy can undergo considerable change as the federal government transitions from one Presidential administration to the next. One of the most controversial policy matters of the last two decades has been the US immigration system; this system affects both domestic and foreign peoples looking to travel to, immigrate to, and do business in the United States. This series will outline the upcoming changes that can be expected over the next four to eight years, as well as some of the factors that may influence their implementation and effects.

President Biden has announced that immigration reform is one of the cornerstones of his tenure in office, and has so far announced numerous policy points, both long-term and short-term. Much media attention is currently being paid to the short-term policy changes, and this article will focus on those changes. It has been announced that in the first hundred days of the Biden Administration, the immigration system will see the reversal of many of the travel bans and immigration restrictions that were enacted under the Trump Presidency.

Most notably, President Biden plans to rescind the Executive Order 13769, which banned nationals from numerous Muslim-majority countries around the world from entering the United States. It is likely that this Executive Order will be repealed in the first days of the Biden Administration. In that light, it should also be expected that the Biden Administration will reverse any additional Executive Orders that were enacted during the Trump Presidency and will begin issuing its own orders in the initial stages of the Presidency pertaining to immigration restrictions and policy. However, it should be noted that some analysts and experts do not expect these reversals to be implemented immediately, as winding down previous immigration policy will take time. President Trump also imposed several additional restrictions on visa issuance during the beginning of the United States’ COVID-19 lockdown, such as restrictions on Non-immigrant L-1 and H-1 visas, which can be expected to be lifted as well.

The next focus of immediate change will likely be centered around the Deferred Action for Childhood Arrivals (DACA) program, which prevents the deportation of approximately 645,000 people who migrated to the United States as children, typically with their parents. Several Executive Orders relating to the immediate reinstatement of this program can be expected in the first hundred days of the Biden Administration, although substantial changes and expansions to the program will also likely require Congressional support and legislative change, a process that will take time. Among the immediate changes to expect is the expansion of Temporary Protected Status (TPS), which allows migrants displaced by natural disaster or conflict to be granted temporary green cards. President Biden previously also stated that he planned to extend automatic green cards to all members of the DACA program and people with TPS from Venezuela currently in the United States upon inauguration.

The final short-term immigration policy change that is expected in the early days of the Biden Administration is the reversal of several Trump-era refugee and asylum policies, in particular the policy that heavily throttled the number of refugees and asylees that are granted entry to the United States each year. 

At current levels, the United States allows only 15,000 applicants for refugee status to be accepted per year; however, this number is expected to be increased dramatically by the Biden Administration in the initial days of the new term to 125,000 per year, although it remains to be seen how this will be accomplished logistically. However, the Biden Administration has not announced that it will lift immigration restrictions enacted by the CDC that prevent all potential migrants from entering the United States. These CDC restrictions expel any immigrants or asylum seekers after they reach the border and require them to wait in border towns before receiving hearings before immigration judges. Due to the high number of infections and deaths due to COVID-19, it is possible that this policy will remain in place for the present, if only to reduce the number of potentially infected individuals entering the United States. 
​

Part 2 of this series will cover the projected long-term policy changes that the Biden Administration can be expected to pursue, and Part 3 will explain the factors that may expedite or slow the implementation of these changes and will include a list of all programs that could potentially see changes in the coming years.
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international entrepreneur parole rule

9/13/2016

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Life in an Ivory Tower was once a romantic and attainable pursuit for researchers, professors, and scientists who desired to transform their academic and scientific passions into a profession. Increasingly, however, researchers’ and scientists’ everyday lives are trending away from academia, and towards the private sector. World-famous professors and scientists are frequently assuming the CEO role in new rapidly growing organizations. Graduate students, post-docs, and scientists are frequently invited to join the ranks of various new entities that are, increasingly, turning out to be some of the most successful new ventures of our time. Placing researchers and scientists into high-level, executive roles is undoubtedly a natural step for any scientist attempting to commercialize a new technology or research while, simultaneously, finding practical applications for novel ideas and technology in the real world. Massachusetts, which is an epicenter of highly educated biology and medical researchers with entrepreneurial spirit, accordingly touts pharmaceutical, medicinal, and life sciences as some of its top industries.

If you, however, are an immigrant researcher or scientist whose Visa status is tied up with, or more appropriately tied to, your current employer, then this is not your story. The Visas provided to immigrant researchers and scientists often do not allow an individual to work outside of their employment; the Visa rules do not provide individuals with the freedom to even moonlight for their own ventures. Innovative ideas of researchers and scientists, ideas that often originate at, yet are completely distinct from, an employee’s place of employment, more often than not belong to the employee’s employer in accordance with an Intellectual Property Assignment Agreement or Confidentiality Agreement. While individuals may not mind if their employer actually owns their distinct and novel invention, so long as they are provided with a certain percentage of royalties in connection with future licensing and sales, such individuals often find that their employer will simply act as a passive-entrepreneur. This passive-entrepreneurial role, which is assumed by the employer, unfortunately, is antithetical to how the researcher or scientist himself would have acted if provided with the freedom that is necessary to market and sell their idea.

Therefore, many immigrant researchers and scientists, those with serious intentions to launch a startup entity, will often choose to obtain a green card through either the EB-1 or EB-2 immigration process. EB-1 and EB-2 immigration Visas, while much more flexible in terms of secondary employment, unfortunately require immigrants to endure a prolonged and protracted immigration process. This lengthy process takes not only time, but resources and energy; once this process is complete, many researchers often find that they have run out of both the steam and energy required to launch a business (and they simply end up with a salaried position, which, of course, still pays slightly better than their old position). The flawed prohibitions against secondary employment, and the lengthy time-consuming immigration processes, are plainly against the American ideal; they discourage, and ultimately prevent, significant potential public benefits that would accrue to the citizens of the states. Fortunately, the Obama administration has recognized the pitfalls and hindrances the currents rules pose on potential immigrants, and the American public, and, accordingly, the Department of Homeland Security has released proposed rules surrounding a new entrepreneurial immigration program: the International Entrepreneur Rule(s).  

Immigrant researchers, scientists, and professors, those with ideas, inventions, and technologies that are able to create jobs, advance the economy, and enhance innovation, will soon be eligible to apply for the parole to stay in the United States to develop their businesses. They will have to first, however, prove that they: (i) formed their business within the three years immediately preceding the filing of the parole application; (ii) own at least 15% of the business at the time of the application for parole; (iii) maintain at least a 10% level of ownership through the duration of parole; and (iv) demonstrate the potential for rapid and substantial business growth and job creation (which must be evidenced by the receipt of a significant investment of capital (at least $345,000.00) from certain U.S. private investors with established records of successful investments, or by receiving significant grants (at least $100,000.00) from U.S. governmental entities, or by partially satisfying these criteria and showing other compelling evidence that the business has potential for rapid growth and job creation)

Researchers, professors, and scientists with an entrepreneurial spirit have been long awaiting a so-called entrepreneur Visa since the announcement by the Obama administration of Executive Actions in November 2014. Even though this rule does not amount to a promised Visa status, and is somewhat risky to take, it is clearly a worthwhile opportunity for any immigrant entrepreneur to take. After all, entrepreneurial achievements and risk taking go hand in hand. ​
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Who is Subject to the New J-1 Visa Exchange Visitor Program Rules?

6/25/2015

 

On October 6, 2014, the Department of State (“DOS”) announced newly enacted amendments to Subpart A of the J-1 visa exchange visitor program rules and regulations. The new rules applicable to J-1 visa exchange visitor programs and program participants require: (1) independent annual audits; (2) annual reports; (3) criminal background checks of responsible officers and alternate responsible officers; (4) increased duties of responsible officers and alternate responsible officers; (5) increased monitoring of exchange visitors; (6) increased notification requirements; (7) increased monitoring of, and requirements pertaining to, third-party service providers; and (8) objective requirements to determine exchange visitors are proficient in English.  Most importantly, effective May 15, 2015, the new rules require increased minimum insurance requirements that specifically mandate that exchange visitors have: (1) medical insurance coverage of at least $100,000 per accident or illness; (2) repatriation of remains coverage in the amount of $25,000; (3) medical evacuation coverage in the amount of $50,000; and (4) a $500 ceiling on deductibles.

Due to the inherent nature of how the J-1 visa program operates, however, a few of these requirements cannot be applicable, from a practical standpoint, if the effective date occurred after an exchange visitor had entered the US and begun participating in a program. For example, the new rules surrounding the English proficiency requirement would likely not apply to current exchange visitors as the previous English proficiency rule required sponsors to make an “english proficiency determination” prior to an exchange visitor's arrival in the US. Accordingly, there has been some unavoidable confusion from the viewpoints of both visa sponsors and exchange visitors. The Department of State has compounded this confusion, in several instances, by providing inconsistent guidance pertaining to the applicability of the rules to exchange visitors who had already begun a J-1 visa exchange visitor program prior to the effective date of the amendments.

The vast majority of the rules and requirements, however, are undoubtedly applicable to both exchange visitors and sponsor programs regardless of whether the exchange visitor entered the U.S. and began a program prior to the date that the rule became effective.

If you have any questions surrounding the new exchange visitor program rules, guidance you received from DOS, or any of the content written in this article, please contact
us at (703)-595-2836 or admin@bjkanglaw.com

A Tug-of-War: The Impact of § 247(b) of the Immigration and Nationality Act on IRC § 893 Exemption 

8/29/2014

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In 1935 the Austrian government sought to impose Austrian income tax on several employees of the United States whom were working in Austria. The U.S., in an attempt to appease the Austrian government and secure some sort of reciprocal agreement, amended §116 of the Revenue Act of 1934. This amendment, now codified in the Internal Revenue Code (“IRC”) in § 893, provides an important U.S. income tax exemption to certain employees of a foreign government whom are working in the U.S.

IRC § 893 (“U.S. Income Tax Exemption”) gives a U.S. income tax exemption to individuals who are employees of a foreign government, working in the United States, and who: 
  1. Are not citizens of the United States;

  2. Perform similar services of a character that employees of the U.S. government in foreign countries would do; and

  3. Are employed by a foreign government that grants an equivalent exemption

The usefulness of this exemption is relatively straightforward for most individuals working in the U.S. on behalf of their governments. However, for a few individuals, this exemption is absurd. Why would a tax exemption ever be absurd? Well, the individuals who find it absurd are most likely looking at it in conjunction with the Immigration and Nationality Act (“INA”).

Section 247(a) of the INA requires the Attorney General to adjust the immigration status of an “immigrant” to a “nonimmigrant” if, at any point in time, the immigrant acquires an occupational status entitling him or herself to a non-immigrant status. Such occupational statuses are those which pertain to A (Government Officials), E (Treaty Traders), or G (International Organization Representatives) visas.

The impact of changing someone from an “immigrant” to a “nonimmigrant” is substantial since only immigrants may become permanent residents and obtain permanent residency. Permanent residency is a key requirement for naturalization. The question then became: how can The U.S. government give these individuals some leeway to work around this automatic change in immigration status? The U.S. government knew that many A, E, and G visa holders may want to eventually become U.S. citizens after spending time in the States. Section 247(b) of the INA, consequently, was enacted to provide these individuals some leeway.

Section 247(b) of the INA opens up an opportunity for an individual affected by § 247(a) to file a waiver “of all rights, privileges, exemptions, and immunities...” that would accrue to the individual vis-a-vis their occupational status. By submitting this waiver, the Attorney General does not adjust the individual's status as an “immigrant” to a “nonimmigrant.” A resident employee of a foreign government who is, or becomes, eligible for an A, E, or G visa may file the §247(b) waiver in order to preserve their status as an immigrant and remain eligible for U.S. naturalization – if such individual desires, or believes that one day they may desire, to become a U.S. citizen.

The effect of such waiver, however, results in this individual losing their U.S. Income Tax Exemption as such exemption arises from their occupational status as a non-U.S. citizen employee and the individual, by signing the waiver, has waived all exemptions accruing from their occupational status. Fortunately, there are ways around the loss of the coveted U.S. Income Tax Exemption – mainly U.S.-Foreign government treaties. Many immigrants, however, who are unsure whether they actually want to become a naturalized U.S. citizen in the future find themselves in a tricky situation: to sign the waiver (and possibly lose their U.S. income tax exemption) or not to sign the waiver (and possibly lose their ability to become a U.S. citizen in the future).
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    Authors


    ​B.J. Kang JD, CPA
    Josh Portman JD, LL.M
    Habeeb Syed JD
    Nora Ji Li LL.M
    Nathaniel S. Johnson

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