New Green Card! Still Green!

Green Card

She’s having some well-founded second thoughts.

USCIS announced last week that the green card and employment authorization document (or EAD) would receive a makeover, in order to increase security and reduce the likelihood of tampering. The green card is granted to foreign nationals who wish to remain in the United States permanently, and who have passed through all of the (varied, but mostly lengthy) processes needed to become a permanent resident. The Employment Authorization Document, or EAD, is a document which is used to show that a foreign citizen is permitted to work in the United States.

The new green card remains largely green, and shows the Statue of Liberty. The EAD card will display the bald eagle and be red according to the USCIS, although they look a little more pink/purple to me. While the new cards will become available May 1, 2017, the USCIS will continue issuing the older-format cards for a while, in order to use up the existing inventory of card stock. Older green cards remain valid until they expire.

As a side note, I have to give them credit for that. For years, as a teenager, I cleaned the office of our local Congressman. At some point during that time the government clearly changed letterhead (as far as I can tell, it was a change from blue to black, that’s it). Either way, I ended up carrying out huge piles of pristine and unused stationary, letterhead, and envelopes to the trash for no sensible reason whatsoever.

Anyway, will have photos front and back, and will no longer display the individual’s signature. For more information about the green card, check out the USCIS webpage. Apparently, the cards were issued as part of the “Next Generation Secure Identification Document” project being carried out by the Department of Homeland Security, but I wasn’t able to find a single reference to that project other than announcements of the new green card.

How will the new H-1B rules impact German companies?

Zeit Online recently ran an article about announcement by the Trump administration that H-1B visas will be more closely screened than before, and that the focus on protecting US workers will increase. While these changes will (eventually) impact some companies, particularly in the tech area, many German investors will be impacted only indirectly by changes to the H-1B program.

Most small to mid-sized German companies (the so-called Mittelstand) look to two other options for their personnel needs in the USA – the L visa and the E-visa. Neither visa has a separate mechanism to protect US workers because of their limited scope and purpose, and because other limitations (such as specific qualifications or business requirements) limit their use. Neither visa has been subject to the same level of alleged abuse as the H-1B visa (although the L visa has suffered some collateral damage), and thus far neither program has been subject to the same level of animosity from the Trump administration.

The L-visa allows current or recent employees of a German company to be transferred to a US subsidiary or affiliate if they meet certain qualifications. Since the visa is for the transfer of an existing employee, and is to further the exchange of knowledge between related companies, typically only a relatively small number of people can qualify. As a result, there should be little threat to US workers on a larger scale, who wouldn’t have the knowledge necessary for the position anyway since it is specific to the transferring company.

The E-visa allows German companies who trade extensively with the US (E-1) or invest in the United States (E-2) to hire a German national in the US to oversee that trade or investment. The idea is that the investment or trade would not happen without the assistance of someone whom the investor trusts, or someone who has at least the same cultural background as the investor/trader. Since the program is limited to nationals of a specific country with specific qualifications, the overall risk posed by the program to US workers is also limited.

This is not to say that the kerfuffle over H-1B visas doesn’t impact German companies at all. First of all, when H-1B visas become difficult to obtain the strain on other visa categories becomes much greater. The L-1B visa for non-managerial workers in particular has been utilized by companies who can’t obtain enough H-1B visas, often in ways which weren’t really intended uses for the visa. As L-1Bs become more difficult to get, more employers seek to obtain the more preferable L-1A (for managers), which increases scrutiny of that category as well. Not surprisingly, all of the extra scrutiny in the L category makes the E-visa a more attractive option for German companies which, in turn, makes those more difficult to obtain.

Of course, German companies who have already managed to establish a subsidiary in the US (especially in the IT industry) often find that their help wanted ads are answered by foreign nationals, who in turn require a visa (often an H-1B) for employment. As one of my clients once mentioned to me, the German headquarters was not at all happy about having established a US entity at great effort and cost, for the purpose of having an “American” presence, only to turn around and hire Indian nationals and spend money on additional visa applications.

Overall, German companies with a solid business plan and a real need can still obtain the visas they need, although with a little more effort and scrutiny. So far, most (but not all) of those German nationals can still enter the US without too much trouble, although sometimes with more scrutiny and effort there as well. The bigger question for the US is whether the constant barrage of bad news and border control horror stories will make Germans reconsider investing in the US at all.

Huge Crackdown on H-1B visas!!! Not really.

For a moment, it looked like the H-1B filing deadline was going to pass without much change from the previous administration. Other than a shot across the bow the Trump administration did little to indicate any real changes to the program. Yesterday’s announcements didn’t really change that in any substantive way, although they did add a new sense of concern over whether – and how – the administration would go after companies it perceives are putting US workers in a “disfavored status.” DoNotEnter

After all, the tests for obtaining an H-1B visa don’t really measure, or even attempt to measure, whether an available US worker was overlooked. Rather, the goal is to ensure that there is no wage incentive to hire foreign workers over similarly qualified US workers, the idea being that market forces would do the rest. In some sense, that’s a very Republican approach to regulation, and for some time it worked pretty well.

Since the late nineties, however, the H-1B visa program has become much more controversial. For many it’s seen as a vehicle to bring in cheaper workers with lesser qualifications to unfairly complete for US jobs. The tech industry, on the other hand, insists that these visas are critical for the US IT industry.

There’s no doubt that there is abuse in the H-1B program (and, as a result, the L-1B visa program as well), and that the program could readily be improved. There’s also little doubt that the pool of ready, willing, and qualified US workers looking to step into these positions is limited. Indeed, many of my clients, coming in from overseas to start doing business in the United States, have been extremely frustrated to find that the pool of qualified workers in their area is made up largely of other non-US workers for whom expensive and time-consuming visa applications are required. The program would definitely benefit from a balanced review by Congress and some smart modifications, as have been proposed by any number of practitioners and law professors. A good start might be limiting the use of H-1B visas and L-1B visas by so-called body shops, since those employers have the market power to push down H-1B wages significantly over time.

Unfortunately, that’s not what’s happening, and the administration’s ad hoc method of changing immigration law is sowing uncertainty while giving companies neither the time nor the tools to plan for change. Had this announcement been made in January, companies whose use of the H-1B visa was perhaps unnecessary or improper would have at least had the chance to test the US market and determine whether the non-US worker was actually needed. As with the travel ban, however, this most recent announcement comes after all of the applications have been prepared, checks have been cut and, frankly, most everything was already in the mail. As with the travel ban, that’s not fair to the companies or the people who are planning on those visas for their livelihood.

ESTA changes of status, or maybe you’re not going to Disneyland after all

ESTA Homepage screenshot

While most of the attention on the immigration front has been on the “travel ban” (or maybe not a ban, depending on who you’re listening to), there also appears to have been an increase in scrutiny throughout the immigration system. While reports of detention or increased inspection upon entry have increased, we are also hearing (mostly anecdotally) of increases in last-minute ESTA changes of status. Those changes – from approved to not approved – can wreak havoc on travelers to or through the US, and can result in significant costs due to rebooked or cancelled business travel or vacations.

For those who don’t know, ESTA, short for “Electronic System for Travel Authorization,” is a sort of pre-registration for travelers to the US who are not required to apply for a visa. These so-called “visa waiver” travelers apply for travel authorization online before traveling and generally receive a (relatively) prompt approval (as little as 4 seconds according to this blog). That authorization is good for two years. Unless, of course, it’s not.

Some unfortunate souls, either days before or even minutes before boarding their flight to the United States, find out that their ESTA status has changed, and that they will not be permitted to board a flight which stops in the US. That change can take place for almost any reason imaginable, or for essentially no reason at all, and likely reflects some sort of flag on the record which would indicate either that there may be a security issue or that the traveler is likely to remain in the US for longer than permitted. The options for appealing are very limited and often too slow to prevent costly interruptions in travel.

While there’s no way to prevent a last-minute change of status, travelers at an increased risk of additional scrutiny should consider applying for a B-visa for business or just to visit at their home consulate to help prevent any unwanted surprises. Generally, non-US citizens who meet any of the following criteria should seriously consider obtaining a visa before travel to or even through the US.

  • Individuals who have traveled to any of the countries which we’ve banned in the recent past, including Syria, Iran, Libya, Somalia, Sudan and Yemen (although I’d include Iraq for good measure)
  • Individuals with extensive travel throughout the Middle East in general, or who have resided for a period of time in the Middle East, particularly in countries which are less friendly to the United States
  • Individuals who have traveled very frequently to the United States, particularly for stays in excess of a few weeks.
  • Individuals who have been arrested, particularly for felonies or drug offenses

Other travelers should check their ESTA status before making reservation and again before leaving for the airport. Finally, while I’m not a huge proponent of travel insurance, travelers to the US, particularly those who meet the above criteria, might consider obtaining insurance which covers cancellations due to revocation of authorization to travel. Of course, as the new ban works its way through the courts things can and probably will change.

A Shot Across the Bow for H-1B Workers

In a move sure to upset many in the tech industry, the Trump administration has temporarily suspended the expedited processing of H-1B visas for a period of six months. H-1B visas are often used to bring in programmers and other technical personnel from overseas, and have been both heavily oversubscribed and heavily criticized in recent years.
It’s a little difficult to determine how much of an impact the delay in processing (from 15 days to three to six months) will have right now. On one hand, many of the applications received in April 2017 can’t begin work until the new government fiscal year begins on October 1, 2017 anyway. On the other, businesses who depend on H-1B workers skills will be reluctant to pin their business’s plans on a worker whose status won’t be known until well into the summer months. One thing is certain – US tech companies who are dependent on H-1B should start considering alternatives, since this is not likely to be the last attempt by Trump and the Republican Congress to limit the use (and abuse) of H-1B visas.

EU votes to impose restrictions on US travel

IMG 1376  1

While the big news in US travel has been President Donald Trump’s travel ban, there are indications that travel to the US has become more difficult for travelers from all around the world, including valuable trading partners like Western Europe and Asia. While much of that has been anecdotal, reports of overzealous border controls and immigration raids would appear to be impacting travel to the US. The Economist reported that searches for flights to the US dropped 17% since Trump became president, with business travel dropping 3.4% in the week following the order. Based on our office’s experience, travel to the US, even for business travelers from Europe, has become a more unpredictable experience than before.

Now it looks like the EU is preparing to make American travelers to Europe share in the pain. According to a report in the Independent, the EU has passed a non-binding resolution recommending that US citizens no longer be permitted to travel within the EU visa-free. If implemented, US travelers could be forced to apply for visas for travel within Europe within a little over one years’ time. The EU has also been considering a registration requirement for US travelers to Europe which would presumably be similar to the US ESTA program. While both changes have been under consideration for some time, the timing certainly suggests that US policies have bolstered support for actions which might otherwise hurt the European travel industry.

Whatever the long term results of this resolution, business travelers from both sides of the Atlantic can reckon with more bureaucracy and less flexibility when planning travel, at least until tensions between the US and EU lessen. Travelers to the US, even from visa waiver countries, should consider applying for a visa before traveling, particularly if they’ve traveled to the Middle East or other areas with connections to terrorism.