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Greg Berk is a partner in the Labor and Employment Practice Practice Group and Leader of the Immigration Practice.

For employers who need to hire foreign national talent for STEM or other hard-to-fill positions, an important immigration deadline is around the corner.

The electronic H-1B lottery application window starts on March 1 and ends on March 18 at 12 noon EST / 9 am PST. If you desire to have one or more candidates entered into the H-1B lottery, please let immigration counsel know before March 1.Continue Reading Annual H-1B Visa Lottery Will Open on March 1, 2022

Prior COVID-19 Travel Bans Repealed as of November 8, 2021

On October 25, 2021, President Biden announced the suspension of the COVID-19 travel bans from Brazil, China, India, Iran, Ireland, the Schengen Area, South Africa, and the United Kingdom.  Previously, a National Interest Exception waiver was required.  With this new Proclamation, the White House announced a global vaccination requirement for all adult foreign national air travelers and authorized the Centers for Disease Control (CDC) to provide specific regulations.  The White House announcement can be found here.Continue Reading Sheppard Mullin Travel Checklist ‒ New Vaccination Travel Restrictions for Entry Into the United States: Air and Land Rules Effective November 8, 2021

On July 6, 2021 the U.S. State Department publicly announced that the travel ban waivers related to the world-wide pandemic will now be good for 1 year and multiple entry.  The effective date of this new decision is June 29, 2021.  Previously they were only good for 30 days and a single entry.  In addition, those that have received a waiver in the past may now use it for 12 months if it was granted after June 29, 2020.  See: https://travel.state.gov/content/travel/en/News/visas-news/extension-validity-for-nies-for-china-iran-brazil-south-africa-schengen-uk-ireland-india.html
Continue Reading NIE’s Now Good for 1 Year, More on Navigating the Travel Ban Jungle: National Interest Exception Checklist for the U.S. COVID Travel Bans

The travel bans imposed by the U.S. Government during the COVID-19 national pandemic created enormous logistical challenges for anyone seeking to fly to the U.S. from a country on the travel ban list.  Even today, there is still a great deal of confusion regarding who is subject to the travel ban, what are the exceptions, and how to go about applying for a National Interest Exception (NIE) waiver.  The checklist below is intended to help simplify an albeit complicated process.  Of course, most U.S. Consulates are still operating at limited capacities so significant delays for waivers and visa stamping is still the norm.
Continue Reading Navigating the Travel Ban Jungle: National Interest Exception Checklist for the U.S. COVID Travel Bans

The Biden Administration took office on January 20, 2021. Many executive orders have been executed since that date, some of which directly change the manner of handling immigration matters.  However, the U.S. and the world are still dealing with the global pandemic and this directly affects submissions, filings, and consular appointments.  This update provides a list of the latest updates to U.S. visas and immigration matters, as well as what we forecast for the months to come.
Continue Reading Visas and Immigration in 2021 Under the Biden Administration

Hiring employees does not usually call to mind international trade compliance obligations. However, together U.S. export controls and anti-discrimination laws create a web that is overlooked or misunderstood by many types of employers of all sizes across many industries. Anti-discrimination laws prohibit unlawful citizenship status restrictions when hiring, and U.S. export controls prohibit disclosing controlled information to foreign nationals without authorization. Together, these laws limit acceptable job descriptions and hiring practices.
Continue Reading Export Control HR Pitfalls To Avoid When Hiring

Court Decision

On June 18, 2020, the U.S. Supreme Court ruled that the U.S. Department of Homeland Security (DHS) decision in 2017 to rescind the Deferred Action for Childhood Arrivals (DACA) program violated the Administrative Procedures Act (APA) because it was implemented without the required Notice and Comment and without publication of a final rule that articulates the reasonable basis for the agency’s actions.  As such, the Court ruled that DHS’s action was arbitrary and capricious.
Continue Reading What Does the Supreme Court DACA Decision Mean for DACA Employers and Employees?

Presidential Proclamation

On June 22, 2020, the White House announced an extension and expansion of Proclamation 10014, which was originally announced on April 22, 2020 and restricted the issuance of and entry on immigrant visas.  The new visa ban expands the restrictions to certain non-immigrant categories.
Continue Reading How the New Presidential Proclamation Regarding Non-Immigrant Visas Affects Your Company

Lately, ICE has been more active in making arrests of undocumented individuals. Statistically however, the number of arrests are very small and the “bark” is much bigger than the “bite.” Nonetheless, it is helpful for employers and other stakeholders to know what the required protocols and duties are if ICE shows up, employee rights, and bystander rights. Below is a quick checklist to help you along with important guidance.

Major Points

  • Immigration is a civil matter, not criminal. The majority of ICE warrants are administrative civil warrants.
  • ICE priorities are arresting those with criminal convictions and those who have been previously ordered removed (absconders). ICE may pursue these activities in public areas.
  • Anybody arrested by ICE has the right to counsel.
  • ICE agents are federal employees that are working as directed. Nonetheless, it is the policy of most employers that ICE enforcement activities focusing on the personal immigration issues of an individual shall not take place on company property.
  • If an ICE agent does attempt to arrest someone on company property, do not interfere as that will complicate matters. However, please contact your manager and they will coordinate with HR and Legal.
    Continue Reading ICE May Visit Your Company or University Campus – a Quick Checklist and Guidance

It’s 9:30 pm on a Sunday and you just got a call on your cell from U.S. Customs & Border Protection (“CBP”) at LAX. A Vice President from one of your foreign offices has been spending a lot of time here lately developing business leads and strategy. CBP is holding him in secondary inspection and he’s been there for 12 hours. Even though he’s paid overseas, CBP has some questions to ask you to see if he has been “working” here. CBP advises you that they are seriously considering giving him an “expedited removal order” with a 5-year bar on entering the U.S., and putting him on a flight back to Europe tomorrow afternoon. His inability to return to the U.S. would be catastrophic to your business.

The regulations regarding business visitors entering on a B-1 visa or ESTA visa waiver are vague. There is no bright line test for when someone is “working here” versus “having meetings and consultations”. However, there are ways to improve your odds that you will not be flagged and challenged by CBP.
Continue Reading Will U.S. Customs & Border Protection Admit Your Foreign Visitor? How to Avoid that Sunday Evening Phone Call from CBP

A few weeks ago, we wrote about the latest district court decisions involving the President’s so-called travel ban, in which a Hawaii court fully enjoined the proclamation, while a Maryland court allowed it to stand as to travelers without bona fide ties to the U.S. The Hawaii court’s order meant that Travel Ban 3.0 was put on hold.
Continue Reading The Latest Turn in the Travel Ban Road