When to Disclose "Travel Requirements" - And what are they exactly?

BALCA took the relatively unusual step of issuing an en banc decision in August in a case involving the Arbin Corporation, which apparently is a battery manufacturer based in Texas.

There were two key questions presented - first, when and what sorts of travel requirements must be disclosed in various advertisements and, second, whether there are any jobs in which travel is so inherent that it need not be mentioned (and can just be basically assumed by the job title). The Board frustratingly answered only the first.

The issue of travel or what exactly constitutes travel for the purposes of job advertisements has come up more and more in recent years, as more of the workforce goes remote (and surely will be even moreso post-COVID). Basically, the Arbin case confirms our conservative approach to listing any non-office travel - even local - is the best practice here. So for jobs like home health aides or janitorial staff that go to many local job sites throughout the week, we need all ads to list something like “daily travel within the metro area” as a job requirement or else the DOL could argue we did not fully list out all the requirements.

While I wish the Board had taken a more common sense approach to the question of whether local travel might be assumed in the cases of specific positions (not just the ones we customarily work on mentioned above, but anything else like electricians or plumbers or all manner of similar jobs), they did not, so we have to remain careful about always making sure to list the “daily travel” concept whenever we place any of the ads or postings required in the PERM process.

E-2 Visa Length

An E-2 visa for a completely new business may be issued in several ways. Unfortunately, there is not a uniform process because the nature of the E-2 visa varies based on the nature of the U.S.’ bilateral trade treaty with the E-2 country. Some countries have arrangements with the U.S. that make the E-2 visa a very favorable one (Canada, Korea, or Turkey, for example) resulting in a five year, multiple entry visa; on the other hand, some countries have restrictive treaties and the E-2 does not offer a great deal of flexibility (Egypt would be an example of this). The visa itself will be available for use for a short time - 3-6 months and allow for a single entry. In those cases, however, the individual is usually admitted to the U.S. for a two year period, but this makes international travel inconvenient because it would necessitate either a new visa to return or returning as a visitor and taking a hiatus from the company until a change-of-status could be approved. E-2 status is renewable from inside (or outside) the U.S. upon expiry and there is not a limit to the number of times it can be renewed.

The chart below will detail the above for each treaty country:

October 2020 Visa Bulletin

The first visa bulletin of FY2021 came out today and you can find it here.

The good:

• EB-3 for all non-India and China countries is now current (cut-off was previously April 2019, so this is huge movement). Big news for Philippines in particular.

• India remains current and looks like it should for the foreseeable future in EB-5.

The less good:

• EB-5 for China and Vietnam progressed a bit, but I think we were mostly expecting more.

EB-5 Redeployment Rules

In late July, USCIS issued an update to the Policy Manual on the topic of ‘redeployment’ in the EB-5 context. The short idea is that, by law, investors must sustain their investment until at least the time at which they file Form I-829. The issue is that, due to visa backlogs for countries like China, that might be a really long time – longer than the lifecycle of a typical real estate investment. USCIS is now saying how this money must be re-invested (or redeployed) through the time of I-829 filing. The biggest shock or surprise here is less the policy itself, and more that USCIS issued it retroactively. There is likely to be litigation over whether this was proper.

The new clarifications or rules are:

1. Redeployment must be made through the original NCE.

2. The redeployment is not required to be in a Targeted Employment Area. This is probably good, though it is unclear what happens if the original investment failed to produce enough jobs – does the redeployment then need to be in a TEA? Not clear.

3. Any redeployment must be within the jurisdiction of the originally sponsoring regional center as of the time of redeployment. Given processing times for I-924’s, this is going to be tricky. There’s a high likelihood of litigation on this.

4. Redeployment should occur within a “commercially reasonable time,” which USCIS now states is understood to be a year.

5. The redeployment must involve “commercial activity” and must not involve purchase of financial instruments on the secondary market. This also probably will be tested in court. People in the industry have promoted solutions that are outside of this requirement (not maliciously, of course) in recent years, so this throws a wrench in those plans.

6. There is no restriction on the business in which the redeployment is made – meaning, an original real estate investment that was returned need not be redeployed in another real estate investment.