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Rob’s primary area of practice is immigration and nationality law. He has extensive experience in all aspects of business and family immigration procedures.

On Aug. 21, 2020, Chief Judge Algenon Marbley of the United States District Court for the Southern District of Ohio ordered the U.S. Citizenship and Immigration Service (USCIS) to permit thousands of foreign nationals to work in the U.S. before they receive printed Employment Authorization Documents (EADs). These workers had already been approved to work by USCIS, but they had not received the EADs they must provide to their employers. Although these cards are usually issued within a few days of approval of an application for employment authorization, USCIS had slowed down its production of them earlier this year.

Continue Reading Immigration settlement allows thousands of foreign workers to get back to work

The President issued the “Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak” on June 22, 2020, limiting the admission of certain foreign nationals to the United States. This Proclamation includes an introduction describing the high unemployment rate resulting from the COVID-19 pandemic and the economic dislocation as justification for this ban on the admission of certain temporary visas. The President also extended the 60 day limitation of immigrant visas announced in the April 22, 2020 Proclamation until Dec. 31, 2020. In addition to the bar for immigrant visas, the Proclamation also bars foreign national citizens outside the United States who seek to enter with an H-1B, H-2B, L-1 and certain categories of J-1 nonimmigrant visas. The Proclamation does not apply to any person currently in the United States, and therefore will not affect extensions of status for H-1B, H-2B or L-1 (Persons in J-1 status are admitted for the “duration of status” and therefore generally do not require an extension.) The Proclamation takes effect on Wednesday, June 24, 2020 and will continue until Dec. 31, 2020, although the text of the Proclamation suggests it could be continued beyond this date.
Continue Reading Presidential Proclamation limits nonimmigrant employment visas

President Donald Trump released a “Proclamation Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following COVID-19 Outbreak” on Wednesday, April 22, 2020. This proclamation provides the legal context and direction to implement a Monday night tweet asserting his intention to “suspend immigration.” While we analyze the legal implications of this proclamation below, it is also important to understand the context. As a practical matter, the limitation on the issuance of immigrant visas has been the result of the COVID-19 closure of consulates around the world. There have not been interviews in the past six weeks, and it is not certain when they will resume. Thus, there has already been a halt in the issuance of immigrant visas. Therefore, the practical effect of this order is limited.

Continue Reading Parsing President Trump’s latest tweet and proclamation on immigration

In February of this year, USCIS announced that the proposed rule to eliminate the ability of foreign nationals in H-4 status to apply for an Employment Authorization Document (EAD) was sent to the Office of Management and Budget (OMB) for final approval. Five months later, OMB has still not released the proposed rule for publication. The delay likely reflects substantive issues and is more than mere bureaucratic delay. In the meantime, the H-4 EAD is alive and well. The proposed rule must still clear several administrative hurdles before it becomes effective and can be implemented.
Continue Reading Myths, rumors and clarification on the status of the H-4 EAD

On Friday, May 3, a Federal District Judge in North Carolina enjoined the Trump Administration’s effort to change the immigration policy on “unlawful presence” as it is applied to foreign students, in Guilford College et al. v. McAleenan, et. a.l. The concept of unlawful presence was first introduced into the immigration laws in 1996 to impose a penalty on those who remain in the U.S. after their authorized period of stay expires. This penalty, a bar, known as the “3/10-year bar,” is imposed from the day the foreign national departs the U.S., preventing their return for either 3 or 10 years, depending on whether they remained more than 180 days or 365 days after their authorization expired.

The key to imposing this bar, however, depends on the calculation of the date the authorized stay expired. For foreign students, who are admitted for the duration of status (d/s), there is no certain date by which they are told they must depart the United States. Therefore, in 1997 Legacy INS announced a policy that students would be deemed unlawfully present only when an immigration officer or Immigration Judge made a determination that they had violated their status. In the event such a determination was made, the student was informed of the decision and then given 180 days to depart the U.S. before the 3- or 10-year bar would be imposed.
Continue Reading Court ruling puts administration’s immigration policy on hold

Beginning in the summer of 2017, employers began to see an increase in Requests for Evidence (RFE) from USCIS on H-1B petitions alleging that the occupation was not a specialty occupation because the employer assigned a level 1 wage. Two recent decisions from the Administrative Appeals Office (AAO) indicate that this may no longer be an concern.

Some background to this issue is helpful. The H-1B visa is available for foreign nationals who will be performing services in a specialty occupation. The specialty occupation is a field that requires a specific educational background as a minimum qualification to perform the duties of the position. The statute also imposes an obligation to pay the “prevailing wage” or the actual wage, whichever is higher, as a measure to protect U.S. workers against unfair competition from foreign workers willing (or coerced) to work for substandard wages. The employer may calculate the prevailing wage by using the data provided by the Bureau of Labor Statistics for occupations and locations nationwide. The Department of Labor has issued guidance on how to determine which of the four wage levels provided in the data should be selected, based upon the normal requirements for the occupation compared to the employer’s requirements for the specific position.


Continue Reading USCIS Administrative Appeals Office issues important non-precedent decisions on wage level determinations for H-1B petitions

U.S. Citizenship and Immigration Services (USCIS) recently posted notice advising employers of a scam operation requesting I-9 forms. USCIS, as well as any other investigating government agency, will never request I-9 forms by email. There are reports of recent scam operations that appear to come from a government email address requesting I-9 forms for recently

President Trump issued yet another executive order addressing immigration issues on Tuesday, April 18, 2017. This order, entitled “Buy American and Hire American,” addresses federal procurement policies and reiterates the established policy to purchase goods manufactured in the United States. The order also addresses the H-1B visa. While it does not change any law, regulation or policy, it comes only one day after USCIS once again announced that 199,000 H-1B petitions were received during the first five business days of April to overwhelm the 85,000 limit on visas for the next fiscal year.

Substantively, the executive order merely orders the federal agencies that administer the H-1B program to enforce all laws related to the H-1B visa, something the federal government is already required to do. In addition, the President has ordered these agencies to examine how the program can be improved to protect American jobs. However, the President clearly intends this executive order to focus attention on the H-1B visa. This was made clear in the “Gaggle[1] published on the White House website earlier the same day. This “Gaggle,” a transcript of a conversation between an anonymous “Senior Administration Official” and reporters aboard Air Force One, was published on the official White House website. It is not clear how a document published on this website is “not for attribution” or aligns with President Trump’s criticism of anonymous sources, but nevertheless, it is a discussion of the executive order and seeks to provide some insight into the thinking behind the order.


Continue Reading President Trump’s executive order on H-1B visas

On Friday, March 3, 2017, United States Citizenship and Immigration Services (USCIS) announced that it would suspend premium¹ processing for all H-1B petitions filed on or after April 3, 2017. Because April 3 is the first day that cap subject petitions² can be filed for Fiscal Year 2018, this puts a halt on premium processing for all cap subject cases that will be accepted in April, as well as all other H-1B petitions, both change of employer petitions and extensions. According to the notice, the suspension of premium processing may last as long as six months.

Processing times for H-1Bs have grown over the past 2 years, increasing from an average of two months to nearly a year in many instances. USCIS has struggled with an ever-increasing case load, and has tried several strategies to alleviate the long processing delays. Last summer, extension petitions were routed from the California Service Center to the Nebraska Service Center, increasing the offices that process H-1B petitions from two to three. All new cases continue to be processed at either the California or Vermont Service Center, with all cap exempt³ cases filed in California.
Continue Reading USCIS to suspend premium processing for H-1B petitions