We would like to alert our clients that USCIS is taking a new approach to the definition of what constitutes ‘unauthorized employment’ in the United States. Unauthorized employment is any service or labor performed for an employer within or outside the United States by an alien who is not authorized by the INA or USCIS to accept employment or who exceeds the scope or period of the alien’s employment authorization.
The term applies to different scenarios including the following:

  • A nonimmigrant who is a shareholder of an entity registered in the US, but does not yet have valid work authorization.  For example, many individuals have set up their own companies while waiting for their EB-3/EB-2 status to ripe.  Now, it is becoming a more questionable concept.
  • The established practice has been that passive investment was not considered to be “employment” for the purposes of immigration. For example, a nonimmigrant who purchases a running business would be an example of such permissible investment, as long as the owner does not perform any work for the business and only collects investment income. This is well explained in a well-known Bhakta case, where the court found that a foreign national had not engaged in “unauthorized employment” when he owned a motel chain, because he was not competing with US workers in the job market. However, recently there has been a trend of considering investing in business as being “self-employed”, and thus engaged in  “unauthorized employment”. This is especially concerning, as many student visa holders, limited in opportunities for work, may want to supplement their income by investing in a business.
  • A nonimmigrant in the US working remotely for a foreign company located outside the US. This may also qualify as an ‘unauthorized employment’ in the US.
  1. Nonimmigrants working in the US, as ‘independent contractors’ may also be involved in ‘unauthorized employment’ under the immigration law.

It is more important than ever to carefully consider all the details of the investment, and their possible implications. Each case is unique, and you should always consult your attorney for advice on the best strategy to follow in your particular situation.

Unauthorized employment definition – recent developments

We would like to alert our clients that USCIS is taking a new approach to the definition of what constitutes ‘unauthorized employment’ in the United States. Unauthorized employment is any service or labor performed for an employer within or outside the United States by an alien who is not authorized by the INA or USCIS to accept employment or who exceeds the scope or period of the alien’s employment authorization. The term applies to different scenarios including the following: A nonimmigrant…

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New Guidance of State Department on Review and Contest of Nonimmigrant Visa Refusals

The State Department has defined the scope of the jurisdiction of LegalNet (LegalNet@State.gov). LegalNet is an email service provided by the Department of State to attorneys for submitting a request for review for visa denials at US Consulates and Embassies by the Department. Apparently, only visas that are denied based on a misapplication of the law by the officer, and the facts in the case are not in dispute, can be submitted through the email address (LegalNet@State.gov), for a review.…

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Trump Administration to Take Aim at ‘Birth Tourism’ is Expected Change to Visa Guidelines

The Trump Administration is proposing a change in the guidelines for issuing visas at US Consulates and Embassies to women potentially pregnant to end them entering to give birth in the US.  The details of the new law will become public shortly but its practical implementation is yet unknown.  The new law is likely to severely undercut the foreign income received by hospitals assisting in birth.  Attorney Krukova has recently been quoted in news agency RIA Novosti interview which can…

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Trump Weighs Travel Ban Expansion for citizens of Belarus, Kyrgyzstan

President Trump is considering the expansion of his travel ban to citizens of Syria, Yemen, Iran, Libya, Somalia, North Korea, and Venezuela. Countries the President intends to extend the restrictions to are, Belarus, Myanmar (also known as Burma), Eritrea, Kyrgyzstan, Nigeria, Sudan, and Tanzania. The travel ban prevents them from securing US visas abroad. https://www.aila.org/advo-media/news/clips/daily-immigration-news-clips-january-22-2020?utm_source=AILA+Mailing&utm_campaign=f21eeee796-AILA8_01_22_2020&utm_medium=email&utm_term=0_3c0e619096-f21eeee796-291895141

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USCIS to Permanently Close Field Offices in Peru and Germany

USCIS has announced that it will permanently close its field offices in Lima Peru, and Frankfurt, Germany, on January 31, 2020. For more information on all USCIS Field Office closures abroad, please visit the link below: https://www.aila.org/infonet/uscis-to-close-all-international-offices-by-2020?utm_source=AILA+Mailing&utm_campaign=f21eeee796-AILA8_01_22_2020&utm_medium=email&utm_term=0_3c0e619096-f21eeee796-291895141

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USCIS Ends E 1 and E 2 Visa Eligibility for Iranian Nationals

USCIS announced that the 1955 Treaty of Amity, Economic Relations, and Consular Rights with Iran was terminated. Consequently, Iranian nationals do not qualify any more to apply for E-1 and E-2 treaty investor’s visa or extend their current visas. The USCIS intends to send Notices of Intent to Deny (NOID) to all Iranian applicants who filed applications for E-1 or E-2 visas. https://www.aila.org/infonet/uscis-announces-end-of-e-1-and-e-2-visa-iranian?utm_source=AILA+Mailing&utm_campaign=f21eeee796-AILA8_01_22_2020&utm_medium=email&utm_term=0_3c0e619096-f21eeee796-291895141

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USCIS began the Enforcement of Public Charge Rule on February 24, 2020

On Monday February 24, 2020, the USCIS began implementing the PUBLIC CHARGE Rule, which affects all immigrants applying for green cards or adjustment of status, change of status, and those seeking to extend their visas within the US. There are a few categories of immigrants exempted from the new rule, namely; refugees, asylees, some T and U visa applicants, and some Violence Against Women’s Act non-immigrant visa applicants. The rule applies to benefits received on or after February 24, 2020. To be a…

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Greyhound to Stop Allowing Immigration Checks on Buses

Greyhound, the nation's largest intercity bus company has decided not to allow US Border Patrol Agents to conduct searches of its patrons on its buses, unless an agent(s) has a court issued warrant for the search.  The practice has been for the Border Patrol agents to arbitrarily board greyhound buses wherever to conduct checks on passengers to verify their citizenship or immigration status in the US. We will like to remind all our readers that, the Border Patrol agents can still…

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New Visa Restrictions Set Off ‘Panic Wave’ in Immigrant Communities

President Trump’s new travel ban that went into effect on January 31, 2020, has hit immigrant communities and the nations affected with panic, uncertainty, outrage, fear and hopelessness. Families are not sure of how long they will have to wait to be reunited with their families in the US. The direct effect of the law is it disqualifies citizens of Eritrea, Kyrgyzstan, Myanmar (Burma) and Nigeria from legally immigrating permanently to the US. That means relatives including spouses, children and…

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DOS Provides Information for Exchange Visitors Whose Travel Is Impacted by Novel Coronavirus Outbreak

The State Department has provided new guidelines for exchange visitors (J-1), currently in the US legally because of the outbreak of the Coronavirus.  Under the guidelines, the USCIS may under extreme circumstances, extend or change the status of student in this category, and sometimes approve student work authorization for the student who cannot leave the US at the end of their visas because of the fear of the disease in their native country. Also, those exchange students subject to the two-year…

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