Legal and Immigration Updates – October 2017

Premium Processing resumes for all H-1B Petitions
By: Navdeep Meamber

Effective October 3, 2017, USCIS has resumed premium processing for all H-1B visa petitions. Premium processing is now available for all types of H1B petitions which includes H1B cap, H1B amendment, H1B extension and H1B transfer. Premium Processing Service provides expedited processing for certain employment-based petitions and applications. Under the premium process, USCIS has 15-calendar days to process the H1B petition. The 15-calendar day period begins when USCIS receives the Request for Premium Processing Service. If accepted for premium processing, USCIS will issue an approval notice/a denial/ intent to deny/ a request for evidence (RFE) within the 15-calendar day period. In case of an RFE, a new 15 calendar day period begins upon receipt of the RFE response by USCIS. Premium processing can be requested by filing a form I-907 along with USCIS fee of $1225.

General Guide to Negotiating Commercial Leases
By: Jalpa Shah, Esq.

The collapse of the commercial real estate industry has caused landlords to ask for additional personal guarantees when negotiating the commercial lease with a tenant. Business owners often come to us confused about this requirement because we normally caution them to keep their business and personal finances separate to avoid any possibility of piercing the corporate veil. The requirement for personal guarantee puts the client’s personal properties at risk and gives rise to a potential indication of co-mingling of personal and business assets, which eventually may also lead to hiring a bankruptcy attorney. To avoid these long-term loses, below is a general guide to negotiate around the personal guarantee.

  1. Just because the landlord asks for a personal guarantee, it does not mean you cannot negotiate.
    In any business, negotiations are a form of art. When a contract is put in front of you, you are not going to sign without reading it or understanding it. In most business relationship, both sides have an opportunity to negotiate the terms. Use the opportunity to negotiate before signing the lease. The worst thing that can happen is that the landlord will refuse to negotiate any terms. The best outcome that can result is the landlord will agree to work with you on the terms that are not agreeable for you.
  2. Understand the law in your state.
    Before signing a lease, understand what is absolutely required in a lease and how certain clauses will affect you in case of a lawsuit. Do not rely on bankruptcy to resolve all solutions. For example, a Chapter 13 bankruptcy, in case of a personal guarantee, will not dissolve all debts. Rather, the court will likely create a payment plans so you can pay the creditors.
  3. Do your due diligence before signing a lease.
    This goes hand in hand with the second suggestion. Do your due diligence. If you are not able to, hire someone who can. By due diligence, I am not referring to just understanding the law. Having a tour of the property and understanding the construction improvements required on the property for your business will help you negotiate.
  4. Build a relationship with the landlord.
    When negotiating, remember the landlord’s perspective. He/she does not want to lose money when the tenant is not able to pay rent. Learn to build a relationship in which you understand what is most important for the landlord and where you have room to negotiate.
  5. Increase the security deposit.
    In building a relationship with the landlord, keep in mind that certain concerns of the landlord can be resolved through increasing the security deposit on the property. This may resolve many of the concerns the landlord may have in signing the lease.
  6. Shorten the lease term.
    Many business leases can avoid the personal guarantee when the term is shorter with an automatic extension. Start with a one year lease to build trust with the landlord, to show that your business is a reliable business. Many times, the landlord may not require a personal guarantee at the time of the extension of the lease if the landlord feels like he can trust your company to make all payments.
  7. Reduce cost of construction, if construction is required on the property.
    Many business leases can avoid the personal guarantee when the term is shorter with an automatic extension. Start with a one year lease to build trust with the landlord, to show that your business is a reliable business. Many times, the landlord may not require a personal guarantee at the time of the extension of the lease if the landlord feels like he can trust your company to make all payments.

If the above does not completely free you of the personal guarantee, negotiate with the landlord to limit the personal guarantee. One way to limit the personal guarantee is to write a guarantee for only 6 months after an early breach of the lease. This way, if you have 3 years left on your lease at the time of the breach, you will not be responsible for the entire 3 years. This can guarantee some payment to the landlord and will avoid some payments from your end.

There may be other case-specific strategies to use in your commercial lease. Be sure to hire an attorney who not only understands the real estate regulations in your state, but can also build a relationship with the landlord and negotiate on your behalf.

USCIS Update: Obtain a Work Authorization Document and Social Security Number Simultaneously
By: Elizabeth Goings

Need to file a work permit and an SSN?

Certain foreign nationals seeking permission to legally work need both an employment authorization document (EAD) and a Social Security number (SSN). Previously, the foreign national worker needed to file an EAD separately and then head over to their local Social Security office in person to obtain the SSN.

USCIS has now streamlined this process.

The most recent version of the work permit application allows foreign nationals to apply for an employment authorization document (EAD) and a Social Security number (SSN) using the same form. USCIS will then transmit the additional data collected on the form to the SSA for processing.

Applicants who receive their approved EADs from USCIS based on this updated form should receive their Social Security card from SSA within the following two weeks.

Employers should note that the most recent version of the EAD application is dated 07/07/17. This version asks the applicant whether they would like the SSA to issue a social security card. It also proceeds to ask for additional details regarding the applicant.

For more information on the revised I-765 form and the documents required to submit it USCIS, please feel free to contact us.

Excerpts taken from the following resource: USCIS News Release at https://www.uscis.gov/news/news-releases/new-uscis-form-streamlines-process-obtain-work-authorization-document-and-social-security-number-simultaneously

New 90-Day Rule and Nonimmigrant Intent
By: Navdeep Meamber

Recently the Department of State has amended the Foreign Affairs Manual to include a new 90–Day Rule. Under this rule, some acts may be presumed as violation of nonimmigrant status if undertaken within 90 days of entry to the U.S on certain nonimmigrant intent visa status such as B or F status. These acts include but not limited to:

  • Marrying a U.S. citizen/permanent resident within 90 days of entering the US on a non- immigrant visa;
  • Filing for change of status or adjustment of status in the US within 90 days of entry on nonimmigrant visa such F or B status;
  • Unauthorized employment- Any service or labor performed for an employer within the United States by a foreign national who is not authorized by the USCIS to accept employment;
  • Enrolling in a school while in B status.

ICE Inspections at Workplaces: Should we Expect it?
By: Angelita Chavez-Halaka and Elizabeth Goings

Earlier this week, the Acting Director of the U.S. Immigration and Customs Enforcement (ICE), Thomas Homan, stated the agency’s intentions to increase immigration enforcement in the workplace.

Now, more than ever, employers and employees should know their workplace rights and how to prepare.

Employers can take a few steps to prepare:

  • Conduct a Form I-9 audit. A Form I-9 is required for everyone hired and must typically be kept for three years after hiring. The best time to perform a Form I-9 audit, if you have not done one yet, is if you have changed Human Resources personnel, or experienced other corporate changes.
  • Have a written response plan with your employees. ICE may visit worksites without prior warning. Employers and employees have the right to remain silent and ask to speak with a lawyer. It is therefore important to stay calm and develop a plan with counsel and all stakeholders on how to respond to an ICE agent if they enter your workplace. For instance, you can train staff to say, “Please talk to my employer.”
  • Know If a Warrant is Required. For now, ICE can enter the public areas of your business without permission including parking lots, hotel lobby, waiting areas, and dining halls in restaurants. Private areas are protected and can only be entered with a judicial search warrant. You may want to mark these areas as private. Employer should read the warrant carefully—Administrative Warrants are not the same as Judicial warrants.

Some states may have other laws regarding ICE inspection. For instance, Effective January 1, 2018, a new law in California–the Immigrant Worker Protection Act (AB 450) –imposes an obligation on California employers to ask for a warrant before officials may enter a workplace to interview employees. It also adds a confidentiality provision for certain information requests. It also requires employee notification upon ICE’s determination that there is a lack of work authorization. Employers may be faced with penalties for failure to notify their employee.

Stay up-to-date on other immigration alerts. Please sign up for our Chugh LLP newsletter pertaining to employment based immigration matters at www.chugh.com

Proposed Merit-Based Immigration Reforms
By: Navdeep Meamber

The White House has released important information on the proposed merit-based reforms. Some of these reforms include ending of chain based migration, which would impact the family based visa category. Under the proposed reform, the family-based green cards would be limited to the spouses and the minor children of U.S. citizens and permanent residents only. Another reform would impact the employment based green cards by establishing a point-based system for awarding green cards that protects U.S. workers and taxpayers. Other reforms include eliminating the Diversity Visa Lottery and limiting the number of Refugees each year. More details are awaited.

New Website for Trusted Traveler Program
By: Navdeep Meamber

Effective October 1, 2017, CBP has launched a new cloud-based website called the Trusted Traveler Programs (TTP) System. Migration to the new TTP website will not impact current members who have been pre-approved for Global Entry programs.

The Department of Homeland Security provides Trusted Traveler programs for travelers, which allows registered and pre-approved members to use expedited lanes when crossing international borders, and at the airport. All applicants are vetted to ensure they meet the qualifications for the program to which they apply. Currently following programs are available for travelers:

  • Global Entry- Travelers arriving in the US from international destinations.
  • TSA Pre✓® – Domestic Travelers.
  • SENTRI – Frequent Travelers into the U.S. from Mexico.
  • NEXUS – Travel between the U.S. and Canada.
  • FAST (North or South) – Commercial truck drivers who are transporting low-risk shipments into the U.S. from Canada and Mexico.

Visa Bulletin – November 2017

Application Final Action Dates for Family-Sponsored Preference Cases

Family-Sponsored All Chargeability Areas Except Those Listed CHINA – mainland born INDIA MEXICO PHILIPPINES
F1 22JAN11 22JAN11 22JAN11 01APR96 01JAN07
F2A 15NOV15 15NOV15 15NOV15 15NOV15 15NOV15
F2B 15NOV10 15NOV10 15NOV10 22JUL96 01JAN07
F3 15AUG05 15AUG05 15AUG05 08MAY95 01MAR95
F4 22MAY04 22MAY04 22OCT03 08OCT97 08JUN94

Application Final ACtion Dates for Employment-Based Preference Cases

Employment based All Chargeability Areas Except Those Listed CHINA – mainland born EL SALVADOR GUATEMALA HONDURAS INDIA MEXICO PHILIPPINES
1st C C C C C C
2nd C 15JUN13 C 08OCT08 C C
3rd C 01FEB14 C 15OCT06 C 15JAN16
Other Workers C 01APR06 C 15OCT06 C 15JAN16
4th C C 01NOV15 C 01APR16 C
Certain Religious Workers C C 01NOV15 C 01APR16 C
5th Non-Regional Center (C5 and T5) C 01JUL14 C C C C
5th Regional Center (C5 and T5) C 01JUL14 C C C C

PERM Updates

PERM Processing Times (as of 09/30/2017)

Processing Queue Priority Dates
Month Year
Analyst Review June 2017
Audit Review February 2017
Reconsideration Requests to the CO September 2017

 

 

Source:

  • https://icert.doleta.gov/
  • https://travel.state.gov
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