New Executive Order Suspends Entry of Certain Persons Connected with Certain Industries in Iran

The President has issued an executive order imposing sanctions against certain persons connected with the construction, mining, manufacturing, or textiles industries in Iran. This executive order includes the suspension of the immigrant or nonimmigrant entry of such persons into the United States. The entry of Iranian immigrants and nonimmigrants in these fields is hereby suspended, except when the Secretary of State determines that the person’s entry would not be contrary to the interests of the United States. This includes when the Secretary determines, based on a recommendation of the Attorney General, that the person’s entry would further United States law enforcement objectives. 

In furtherance of the government’s foreign policy objectives towards Iran, the United States is seeking to deny Iranian government revenues, including revenues derived from the export of products from key sectors of Iran’s economy that may be used to fund and support its nuclear program, missile development, terrorism and terrorist proxy networks, and malign regional influence. In his executive order, the President stated that this new policy is based on a finding that Iran continues to be “the world’s leading sponsor of terrorism” and Iran “has threatened United States military assets and civilians through the use of military force and support to Iranian-backed militia groups.” 

The President’s executive order will have an impact on Iranian immigrant and nonimmigrant entry into the United States for the foreseeable future. As we continue to monitor the status of this executive order, be sure to contact Berardi Immigration Law if you have any questions or concerns about entering the United States. Our attorneys are happy to advise on your immigration needs! 

CBP Begins Pilot Program to Collect DNA from Some Migrants

On January 6, 2020, U.S. Customs and Border Protection (CBP) initiated a pilot program to assess the operational impact of proposed regulatory changes that would require the collection of DNA samples from certain individuals in CBP custody.  This “limited, small-scale pilot program” will last 90-days in only two locations: the U.S. Border Patrol in the Detroit Sector and the Office of Field Operations at the Eagle Pass Port of Entry in Southwestern Texas.  

In late October 2019, the Department of Justice (DOJ) sought to amend regulations to mandate DNA collection for almost anyone detained, even temporarily, while crossing at official entry points.  This proposed amendment would significantly expand CBP officials’ power to collect DNA samples, which was previously only permitted for migrants prosecuted in federal court for criminal offenses.  Additionally, this proposed amendment would remove a provision that authorizes the Secretary of Homeland Security to exempt certain aliens from whom the collection of DNA samples was previously not feasible due to operational exigencies or resource limitations.  Further, it restores the Attorney General’s absolute legal authority to authorize and direct all relevant federal agencies to collect DNA samples from individuals who are arrested, facing charges, or convicted, and from non-U.S. persons who are detained under the authority of the United States. 

The pilot program which began earlier this week is intended to assess the operational impact of the amended regulation that requires the collection of DNA samples from certain individuals and the submission of those samples to the Federal Bureau of Investigation’s (FBI) Combined DNA Index System (CODIS).  The regulation applies to any individuals who are arrested, face charges or are convicted (including U.S. Citizens and lawful permanent residents), as well as to non-U.S. persons detained under the authority of the U.S., including certain aliens in CBP custody.  For the U.S. Border Patrol, this will include individuals between the ages 14-79 who are apprehended and processed within the Detroit Sector.  For the Office of Field Operations, this will include individuals who present at the Eagle Pass Port of Entry for consideration of admissibility and are subject to further detention or proceedings.  

As we continue to monitor the implementation of this pilot program, be sure to contact Berardi Immigration Law if you have any questions or concerns about entering the United States.  Our attorneys are happy to discuss tips for smooth border crossing.   

Iranian Nationals Undergoing Increased Scrutiny at Ports of Entry

Iranian nationals are increasingly hesitant to travel after dozens of Iranian citizens were held by U.S. immigration agents at the Canadian border in Washington state this past weekend.  On Saturday, January 4, 2020, dozens of Iranians and Iranian-Americans were held for hours in secondary screening at the Peace Arch Border Crossing in Blaine, Washington.  It is estimated upwards of 60 travelers, many returning home to the United State from work trips or vacations, were held for additional questioning about their political views and allegiances.  Most of the detained travelers were released following the extra scrutiny, however some were denied entry into the United States. 

Many of the detained travelers, who wish to remain anonymous for fear of retaliation, said that after checking their documents, border officials would bring them inside the port to a room filled with other Iranians and Iranian-Americans.  Many also faced similar questions regarding their background, citizenship, military experience, travel history to Iran, and details about their parents and siblings, including dates of birth and employment. 

Matt Leas, a spokesman for Customs and Border Protection (CBP), disputed the accounts from advocacy groups that the Department of Homeland Security (DHS) has issued a directive to detain those with Iranian heritage entering the United States, despite their citizenship status. While border officers are not permitted to refer someone for a “secondary screening” based solely on national origin, it is one of multiple factors they are directed to consider.  These other factors, when choosing whom to refer for additional scrutiny, include travel documents, travel history or suspicious behavior.  

While these referrals for extra scrutiny happen daily, former commissioner of Custom and Border Protection, Gil Kerlikowske said CBP agents would put an added emphasis on a traveler’s country of origin when that nation was singled out as a national security threat.  That is exactly what happened Saturday when DHS updated its National Terrorism Advisory System to warn of Iran’s ability to retaliate against the U.S. through terrorism or cyberattacks by homegrown extremists.  This large-scale detention of Iranians and Iranian-Americans seemed limited to Blaine, Washington. 

CBP officials say the extended wait times at the port of entry this past Saturday—ranging from two to four hours—were the result of staffing shortages and high border traffic during the holiday, and an “enhanced posture” of security implemented at border crossings because of “the current threat environment.”  Masih Fouladi, an executive director of the Council on American-Islamic Relations, a Muslim civil rights and advocacy organization, said some individuals were held in a waiting room and questioned for up to 10 hours on Saturday. 

Matt Adams, the legal director for the Northwest Immigrant Rights Project, a nonprofit legal services group in Seattle who was involved in efforts to help people at the port of entry on Sunday, said both U.S. citizens and lawful permanent residents who were either born in Iran or traveling with people born in Iran were still being singled out for additional questioning on Sunday.  However, Mr. Adams said these individuals were being processed much more quickly than the night before.  

Berardi Immigration Law is located just minutes away from the U.S.-Canadian border in Buffalo, New York.  If you have any questions or concerns about entering the United States, be sure to contact Berardi Immigration Law.  Out attorneys are happy to discuss tips for smooth border crossing.  

New H-1B Lottery Registration Tool: What You Need to Know

Background 

On January 31, 2019, U.S. Citizenship & Immigration Services (USCIS) issued a final rule making significant changes to the H-1B visa lottery process.  This rule added an electronic registration requirement for petitioners seeking to submit H-1B cap-subject petitions and reversed the order by which USCIS selects petitions under the H-1B cap and the advanced degree exemptions.  In September 2019, USCIS published a proposed rule that would require petitioners seeking to file H-1B cap-subject petitions to pay a $10 fee for each electronic registration they submit to USCIS for the H-1B selection process.  The registration fee is part of an agency-wide effort to modernize and more efficiently process applications to live or work in the United States. 

What is it?

On December 6, 2019, USCIS announced it has completed a successful pilot testing phase and is implementing the electronic registration process in the upcoming H-1B lottery.  Employers seeking to file FY2021 H-1B cap-subject petitions, including those eligible for the advanced degree exemption, must first electronically register and pay an associated $10 fee for each electronic registration they submit to USCIS.  

When will it start?

Under this new process, employers seeking H-1B workers subject to the cap, or their authorized representatives, will complete a registration process that will require only basic information about their company and each requested worker.  USCIS will open an initial registration period from March 1 through March 20, 2020.  

How will it work? 

Previously, employers filed their full H-1B petitions with USCIS, after which USCIS would select eligible petitions through a random selection process.  Now, in an effort to streamline the H-1B cap selection process with this new electronic registration system, following this initial registration period, USCIS will conduct a random selection of all the registrations received.  The number of registrants selected will be greater than the 85,000 visas allotted each year—generally between 95,000 to 100,000 to account for denied petitions.  Unselected registrations will not carry over to the next fiscal year, employers will be required to re-register their unselected beneficiaries the following year.  

If a registrant is selected, USCIS will notify the registrant and his/her counsel that the employer is eligible to file an H-1B cap-subject petition on behalf of the name beneficiary with the designated filing period.  This notice of selection will also indicate a filing location and the designated filing period which the H-1B petition must be filed. Employers will be provided at least 60-days to properly file a completed H-1B petition. 

What are next steps?

It is important that H-1B employers be aware of this process and understand its implications on their future use of the H-1B visa program.  If you or any of your employees anticipate applying for an H-1B visa through the lottery process, we recommend reaching out to Berardi Immigration Law as soon as possible. Our attorneys are happy to discuss any questions or concerns you may have regarding this new process.  

Tax Relief for Accidental Americans

Who is an “Accidental American”? 

There are on occasion individuals born inside the United States to non-U.S. parents or individuals born outside the United States to U.S. citizen parents, are often unaware of their status as U.S. citizens for years.   These individuals are commonly referred to as “Accidental Americans.”  While this can initially feel quite exiting for these individuals to discover they are U.S. citizens, the excitement soon fades as they discover they have been U.S. tax residents since birth.  U.S. citizens, wherever in the world they reside, are subject to U.S. individual income tax on all sources of income, regardless of where this income is sourced (within or outside the U.S.), as U.S. tax residents.  At this point, the value of U.S. citizenship may drop for Accidental Americans, as they must come into compliance with U.S. tax law. 

New Option: Relief Procedures 

On September 6, 2019, the Internal Revenue Service (IRS) announced procedures to provide a measure of tax relief for certain Accidental Americans.  While the Streamlined Foreign Offshore Procedures could be utilized to bring Accidental Americans into compliances with (a) the requirements to file U.S. income tax returns and FBARs, and (b) the Exit Tax Regime, many Accidental Americans had strong motivations to renounce their U.S. citizenship for reasons unrelated to the complex U.S. tax system.  The Relief Procedures provide (a) a targeted mechanism for certain low-income and low-net-worth Accidental Americans to come into compliance (i) the requirements to file U.S. income tax returns and FBARs, and (ii) the Exit Tax Regime and (b) relief from all tax, interest, and penalties that otherwise would accrue from the Accidental American’s failure to file U.S. income tax returns, FBARs, and from the Exit Tax Regime.  

There are seven principal criteria of the Relief Procedures Accidental Americans must satisfy in order to utilize these Relief Procedure: 

  1. Accidental American Must Have Relinquished U.S. Citizenship Prior to Claiming Relief Under the Relief Procedures, but After March 18, 2010.  
  2. Accidental American Has No Filing History as a U.S. Tax Resident. 
  3. Accidental American Does Not Satisfy the Tax Liability Test Under the Exit Tax Regime. 
  4. Accidental American Does Not Satisfy the New Worth Test Under the Exit Tax Regime.  
  5. Accidental American Has an Aggregate Total Tax Liability of $25,000 or Less for (A) the Five Tax Years Preceding the Accidental American’s Expatriation Date and (B) the Year Including the Accidental American’s Expatriation Date. 
  6. Accidental American Submits All Required Tax Returns for (A) the Five Tax Years Preceding the Accidental Americans Expatriation Date and (B) the Year Including the Accidental American’s Expatriation Date.  
  7. Accidental American’s Past U.S. Tax Compliance Failures Must Be Due to Non-Willful Conduct. 

Under the Relief Procedures, the relief is limited to an Accidental American who likely has low income and low net worth, and it requires the Accidental American to have relinquished U.S. citizenship.  

Old Option: Streamlined Foreign Offshore Procedures 

The best-case U.S. tax relief for an Accidental American was the Streamlined Procedures, issued initially on June 18, 2014.  Many Accidental Americans never filed a U.S. income tax return as a tax resident or a Report of Foreign Bank. Financial Accounts (FBAR), a subset of the Streamlined Procedures known as the “Streamlined Foreign Offshore Procedures,” could help Accidental Americans come into compliance with their requirements to file U.S. income tax returns and FBARs.  

Accidental Americans who are eligible to use the Streamlined Foreign Offshore Procedures are not subject to failure-to-file and failure-to-pay penalties, accuracy related penalties, information return penalties, or FBAR penalties, all of which can be substantial.  The downside of this option is it does not address directly the Exit Tax Regime, in the event Accidental Americans wish to renounce their U.S. citizenship. 

To utilize the Streamlined Foreign Offshore Procedures, an Accidental American has to satisfy four conditions: 

  1. The Accidental American’s failure to file timely U.S. income tax returns and FBARs was non-willful. 
  2. For one or more of the most recent three years for which the U.S. income tax due date has lapsed, the Accidental American (a) must not have a U.S. abode and (b) must have been physically outside the U.S. for at least 330 full days. 
  3. The Accidental American files past due FBARs for the immediately prior six years for which the FBAR filing deadlines have lapsed. 
  4. The Accidental American must file U.S. income tax returns for the immediately prior three years for which the U.S. income tax return filing deadline has lapsed, including payments for all tax dues, including interest thereupon. 

It is important any Accidental American fully explore their options for coming into compliance with their requirements under the Streamlined Foreign Offshore Procedures before filing a Submission under the Relief Procedures.

Employment Based Visas

Every fiscal year, approximately 140,000 employment-based immigrant visas are made available to qualified applicants under the provisions of US immigration law. Employment based immigrant visas are divided into five preference categories. These five preference categories include priority workers and persons with extraordinary ability, professionals holding advanced degrees and persons of exceptional ability, skilled workers, professionals, and unskilled workers, certain special immigrants, and immigrant investors. 

Certain spouses and children may accompany or follow-to-join employment-based immigrants. Based on your approved petition, your spouse and minor unmarried children, younger than 21, may apply for immigrant visas with you. Like you, they must fill out required application forms, obtain required civil documents, pay the required fees, and undergo medical examinations. 

To be considered for an immigrant visa under some of the employment-based categories listed above, the applicant’s prospective employer or agent must first obtain a labor certification approval from the Department of Labor. Once received (and if required), the employer must then file an Immigrant Petition for Alien Worker, Form I-140, with the U.S. Citizenship and Immigration Services (USCIS) for the appropriate employment-based preference category. However, persons with extraordinary abilities category may file their own petitions.

Employment based immigrant visa cases take additional time because they are in numerically limited visa categories. The length of time varies from case to case and there are cannot be precise predictions for individual cases. Some cases may be delayed for an applicant’s failure to follow instructions, while some visa applications take additional time if the application requires further administrative processing. 

For help navigating the employment-based immigration process, for assistance with filing and scheduling appointments, please contact our office. We specialize in employment-based immigration matters and can help you with all of your immigration needs! 

Travelling While on a Work Visa

If you are currently working in the U.S. on one of many non-immigrant visas, it is important to know whether your category imposes any restrictions on your activities while present here. The general rule of thumb is that you must remain in compliance with the purpose for which your visa was originally issued for the entire length of your stay. For example, if you are in the U.S. on a work visa, you may not use that same visa for any other purpose – for example, to study.

One of the most popular non-immigrant work visas is the H-1B for skilled, educated individuals. This is a temporary visa that allows foreign nationals to work for one specific employer. The H1-B applicant is required to continuing working for the sponsoring employer for their entire duration of their stay. If they wish to switch employers, they must submit an H1-B Change of Employer petition to the government.

If you hold an H-1B, or another type of temporary work visa like an E, H, L, O or TN, and you would like to take a vacation in the U.S. either after your job ends or before you switch to a different employer, there are a couple of items you must keep track of. First, it is critical to know when your authorized period of stay expires. This date always controls, and you must depart the country prior to this date. Next, if you hold the E, H, L, O, or TN visa, it is possible that your immigration officer granted you a ten-day grace period, allowing you to enter the U.S. ten days before your job starts, and permitting you to stay ten-days after it ends. This pre- and post-employment grace period is intended to enable foreign workers to prepare for their jobs and later settle their affairs, but ultimately, it’s up to the visa holder to decide how to spend this time. 

Those who hold E, H, L, O and TN visas and who leave one employer to join a different one are generally granted a 60-day grace period to stay while in between jobs, provided their authorized period of stay has not expired. However, if you are in one of these visa categories and you leave an employer, you are required to be actively and expeditiously arranging for different employment, and the U.S. Citizen and Immigration Services has discretion to shorten this 60-day period.

If you hold a temporary work visa and would like to know whether your travel plans will impact your immigration status, please call one of our knowledgeable and experienced attorneys at Berardi Immigration Law today.