Articles Posted in Business Immigration Visas and Green Cards

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President Obama is scheduled to announce his plan for Executive Action on immigration tonight at 5pm PST. Most of the networks will NOT be carrying his speech. However, CNN, MSNBC, Telemundo and Univision among others will, although this could change later today. If you miss it, the White House will have a recording here. Most of the controversy between the Democrats and Republicans is over what to do with the millions of people living in the US without legal papers. However, Executive Action will hopefully also encompass some administrative fixes to the legal immigration system, both for family and business immigration. President Obama is also predicted to make some changes to enforcement and border security, which could mean more deportations and problems for certain classes of undocumented immigrants as well as for those trying to get to the US without proper papers.

Relief for more of the undocumented? Things to consider.

Whatever relief President Obama offers to a wider group of undocumented immigrants, people should be aware of these important points:

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I previously posted two articles about the American immigration Lawyers Association‘s (AILA) letter to President Obama recommending administrative or Executive Action to fix the nation’s immigration laws due to inaction by Congress. Here, I want to add some more ideas that could be accomplished by Executive Action that do not require an Act of Congress. By way of review, in my prior post, Executive Action – Business Immigration Fixes Needed, I discussed the recommendations made by AILA including:

  • Create Better Pathways for Immigrant Entrepreneurs
  • Amend the definition of “related or affiliated” for H-1B cap exempt purposes
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On August 6, 2014, the American Immigration Lawyers Association sent a letter to President Obama recommending administrative fixes or executive action to tweak the business immigration system in light of Congressional failure to pass an immigration reform bill. The list of recommended actions are within the realm of administrative law and existing statutes. Only Congress can change or amend statutes, including underlying visa categories, requirements and numbers. However, within the confines of those statutes, the administration, charged with carrying out the law, can make regulatory or policy fixes so long as they are consistent with statute. All federal agencies routinely issue implementing regulations and policy memos interpreting statutes and regulations. However, there is only so much the executive branch can do short of Congressional action required to change statutes. This post focuses on AILA’s recommended administrative fixes for business immigration.

Create Better Nonimmigrant Pathways for Entrepreneurs.

It has become harder for entrepreneurs to use the current immigration categories. In particular, the H-1B category requires an “employer-employee relationship” that USCIS has interpreted in a January 2010 memorandum. Historically, immigration law has treated a corporation as an entity separate and apart from its shareholders, permitting an owner-entrepreneur to found a corporation and the corporation to petition for the owner as an employee. The 2010 memorandum interprets the term “employer-employee relationship” for H-1B purposes to require the entrepreneur to give up significant control to a corporate board or to some other management entity. This is not the modern way of forming and growing start-ups. It is especially difficult if the person with the big idea and a big dream for a business is the foreign national who is forced to give up control of his or her dream. This can be a turn off to foreign entrepreneurs wanting to grow a company in the United States. AILA advocates that USCIS abandon this interpretation and adopt more flexible factors that can establish an “employer-employee relationship” that exist elsewhere in the law. This is important nationally to attract entrepreneurs. For example, in Seattle, Washington State, 19% of businesses are owned by foreign nationals (and 15% statewide).

AILA also advocates that USCIS enable more entrepreneurs to use the O-1 “extraordinary ability” nonimmigrant category and EB-1 extraordinary ability category by formally recognizing entrepreneurship as a valid basis for the O-1 and EB-1. This should include providing better information on the types of evidence that are unique to entrepreneurs that may establish eligibility for O-1/EB-1 status. Further, AILA advocates that entrepreneurship, job creation and potential economic development be recognized as favorable factors in adjudicating EB-2 “National Interest Waiver” (NIW) petitions.

Amend the Definition of “Affiliated or Related” to Provide Greater Relief from the Restrictions of the H-1B Cap.

USCIS received approximately 172,500 cap-subject H-1B petitions during the one-week April 2014 filing period for FY2015. The annual cap is only 65,000 visas (plus 20,000 for those with US Masters degrees.). These numbers are set by statute, i.e., Congress. Thus, USCIS had to hold a lottery. The H-1B program is a game of chance when the economy is growing and employers are hiring, with no predictability for employers to plan staffing. Further, there is only a one week period in April in which to file with this type of demand. Even then, if your candidate is selected in the lottery, the job cannot begin in H-1B status until the October immediately following the April filing period. What if you found your candidate in June or August or December? You’ll have to wait until the following April to file for a job that can’t begin until October! It’s outrageous! It’s hard to keep a straight face as an immigration lawyer when trying to explain the ridiculousness of this situation to a baffled employer who has found the perfect candidate to work on a project NOW.

Thus, AILA argues, until Congress fixes the numbers, USCIS could ease the high demand for H-1Bs loosening up its interpretation of cap-exempt qualifying nonprofit entities. Currently, they must be deemed to be “affiliated or related” to institutions of higher education, “through shared ownership or control by the same board or federation operated by an institution of higher education, or attached to an institution of higher education as a member, branch, cooperative, or subsidiary.” This definition is very narrow and impacts teaching hospitals and other nonprofit entities. A broader definition is needed because more universities are spinning off private start-ups including, from incubators, that help grow, mentor and nurture new businesses in our communities.
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US Citizenship and Immigration Services (USCIS) is soliciting public feedback about the EB-5 immigrant investor program until May 8, 2014. USCIS established an “Idea Community” several months ago to broaden its outreach to stakeholders on a variety of topics. In a recent EB-5 stakeholder’s meeting held April 23, 2014, USCIS said it would solicit more input about the program overall as it contemplates forthcoming regulatory changes designed to address these issues: a) combating fraud, b) improving current regulations, c) substantive eligibility requirements and d) procedural filing requirements. This is a chance to be an advocate to help shape the future of this program. To participate in the Idea Community, however, one needs to set up an account with the online system. Once logged in, look for Active Campaigns on the left, which lists the EB-5 program. Participants can start an idea thread, vote in favor or against other ideas, and otherwise provide further commentary.

A quick review of the postings shows that many of the comments have to do with delays, both for the initial I-526 petition and the I-829 petition to remove conditions, both of which are running at about 11 months. Similarly, there are complaints about the lengthy time to adjudicate regional center project applications. Other issues include requiring more oversight about transfer of funds and authentication of documents, especially from China, use of SEC FINRA and Reg D rules, documentation of job creation, need for rules about transitioning between E-2 nonimmigrant treaty investor to EB-5 permanent investor status, and the need for premium processing.

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The H-1B cap situation is even worse than last year, which means employers are continuing to hire. USCIS announced today that it received 172,500 H-1B petitions for 85,000 available visas, compared to 124,000 last year. These were received at USCIS during the first week of April for the FY2015 filing season for specialty occupations with selected employees scheduled to begin work on October 1, 2014 (unless employees already have some underlying work authorization). Because the number of petitions far exceeds the supply, there will be a lottery. Unselected cases and fees will be returned to the petitioners or their attorneys. Such a large number of applicants for so few visas reflects yet again, that the H-1B cap introduced in the 1990s simply doesn’t work or match the needs of the economy.

During the recession, the number of filings was far fewer than in growth years. But even then, the cap was reached in a few months instead of a few weeks or a few days. Congress has quite the disconnect with employers’ needs. On the other hand, this year’s group of selectees may be pretty lucky for reasons other than numbers. S. 744 passed by the Senate last year, while raising the cap, would have also made the program much harder for employers to deal with in lots of other ways, especially those employers who place workers at third party sites. What Congress should really do, in this author’s opinion, is make a separate set of rules and numbers for third party placements so that their unique situation does not bleed into the needs of the majority of employers who do not conduct third party placements. Whatever Congress ends up doing in the future, if anything, if ever, it should be a program that can be easily understood, that is useful to employers, protects immigrant and US worker rights alike, and makes it predictable for employers to be able to know when and how they can assign H-1B workers to timely projects. Most employers are dealing with a fast paced environment, with quickly changing products, technologies and services over short life cycles. They need a predictable work visa system that matches the needs of employers all year long to staff important projects.

What H-1B filings are still available for the rest of the year?

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Here at the Seattle immigration Law Office of Bonnie Stern Wasser, we enjoy working with entrepreneurs. Whether owned by Americans who seek to hire global foreign talent, or foreign nationals seeking to open or expand a business in the U.S., it is important for entrepreneurs to understand the range of business immigration options and startup visas for employees, executives and investor entrepreneurs as well as the impact they have on the local and national economy.

The Kauffman Foundation just released two new reports on immigrant entrepreneurs. The first one is The Economic Case for Welcoming Immigrant Entrepreneurs. The report confirms that immigrants make up a disproportionately higher rate of entrepreneurs than U.S. born owners of startups. A statistic from 2010 shows that 40% of Fortune 500 companies were started by immigrants or first generation Americans. In 2012, there were twice as many immigrant entrepreneurs than native-born Americans, with 27.1% of them being immigrants in 2012, up from 13.7% in 1996. Among engineering and technology companies started in the U.S. between 2006 and 2012, 25% had at least one key founder who was an immigrant.

In terms of job creation and economic impact, the Kauffman study found that:

  • “Immigrant founded engineering and technology firms employed approximately 560,000 workers and generated $63 billion in sales in 2012.
  • 24 of the top 50 venture-backed companies in America in 2011 had at least one foreign-born founder.
  • Immigrant founders from top venture-backed firms have created an average of approximately 150 jobs per company in the United States.”

In the second Kauffman report, Lessons for U.S. Metro Areas: Characteristics and Clustering of High-Tech Immigrant Entrepreneurs, the authors found that 20% of the high-tech work force is made up of immigrants, while 17.3% of high-tech entrepreneurs were immigrants between 2007 and 2011, up 13.7% percent and 13.5% percent, respectively, from 2000.

In the last decade, there was a 64% increase in the number of self-employed immigrants in high-tech industries compared to a 22.6% increase of U.S.-born self-employed founders in high-tech. Of the immigrant entrepreneurs in the study, most were working in the fields of semiconductor, other electronic component, magnetic and optical media, communications, audio/video equipment, and computer science-related sectors, with these concentrations of high-tech primarily in 25 cities (including Seattle and Portland here in the Northwest).

Foreign Entrepreneurs in Washington State
Here in Washington, another report, Washington: Immigrant Entrepreneurs, Innovation and Welcoming Initiatives in the Evergreen State by the American Immigration Council Policy Center shows:
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A March 2014 report by the National Foundation for American Policy shows that USCIS has issued more denials and Requests for Evidence (RFE) in recent years for L-1B multinational specialized knowledge employees. The statistics contradict the outreach efforts former Director Mayorkas made to the business and entrepreneur community through the Entrepreneurs in Residence program, and an entrepreneur-focused new web portal called Entrepreneur Pathways. Granted, it is up to the U.S. Congress to bring business immigration categories and requirements into the modern world, and they have failed to do so for decades. But, Director Mayorkas’ push to make the existing categories and regulations more user friendly hasn’t filtered down to the adjudicators on the ground that actually decide these cases.

A good portion of the denials involve Indian L-1B specialized knowledge cases, due largely to the government’s adversity to IT consulting firms placing technical workers at third party sites. However, the report shows a dramatic increase in denials overall from 7% in 2007 to 34% in 2013. Meanwhile, for 2013, there were 17,723 L-1B petitions received, of which 8,363 (47%) received RFEs. 6,242 of the petitions were denied while 11, 944 (67%) were approved. Therefore, while the denials and RFEs have gone up, still a majority of cases are granted, though not the majority there once was.

Unfortunately, this trend reflects adjudicator hypersensitivity about fraud, not just with small companies, but with big companies, too, given the number of RFEs. It adds considerably to the cost of pursuing an L-1B case because of the extra time and effort required to reply to RFEs, most of which are boiler plate, “everything but the kitchen sink” lists of questions. Experience with RFEs often reflects inconsistency among adjudicators. Sometimes it appears the adjudicator hasn’t read the application (e.g., the questions ask for things already submitted); or that parts of the application must have been lost in the mail room (e.g., the questions ask for things already submitted that appear the adjudicator never saw or read); or the adjudicator misunderstands the request (e.g., the questions ask for explanations about manager or executive status, not specialized knowledge); or the adjudicator misapplies the law (e.g., asks questions pertaining to another category not requested.) Occasionally, the questions seem to reflect that the adjudicator read the application and doesn’t feel comfortable granting a case yet unless some more “i”s are dotted and “t’s” are crossed (e.g., more of the same categories of evidence are submitted in addition to what was already submitted.)

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I had the pleasure and honor to speak on a panel about EB-1 and EB-2 permanent residence categories at the annual Northwest American Immigration Lawyers Association Conference held in Portland on February 20-21, 2014. My co-panelist, Matthew McClellan from Oregon, covered the three main subcategories in the employment based First Preference (EB-1): “extraordinary ability” foreign nationals, outstanding researchers and professors, and multinational managers and executives. I covered EB-2 PERM-based advanced degree and exceptional ability categories, as well as National Interest Waivers for advanced degree professionals and those of “exceptional ability”, plus Schedule A, Group I physical therapists and Schedule A Group II exceptional ability immigrants in the arts and sciences.

Of particular interest and enjoyment to me is working on National Interest Waiver (NIW) cases. NIW means the government will waive the usual requirement that there be a US employer, job offer, and labor market test for “willing, able and qualified US workers”. (Note that for NIW cases, although a US employer and job offer is not required, the applicant must show he/she has offers of work in the US in the field of endeavor at issue. One cannot simply meet the criteria but not plan to work in the field of endeavor.)

Congress never specified what the requirements are to meet the NIW standard, and USCIS/legacy INS never implemented regulations to define NIW requirements. But, in a precedent decision, NY Dept. of Transportation (NYSDOT), 22 I&N Dec. 215 (Comm. 1998), the Administrative Appeals Office laid out a three-part test that has been used ever since:

1. The field of endeavor or proposed work must be of “intrinsic merit.” Note, NIW cases are for work in the sciences, business and arts, all of which can be construed rather broadly.

2. Second, the work must be national in scope. This can be tricky where the work to be performed is strictly local or will have just local impact.

3. The third and hardest prong of the NYSDOT test is to show that it is in the national interest to waive the labor market test (labor certification or “PERM”). Stated otherwise, it is not in the national interest to require PERM because the applicant provides a “significant benefit to the field of endeavor”; has a “past history of demonstrable achievement with some degree of influence on the field as a whole;” and is likely to “serve the national interest to a greater extent than others with the same level of education, training and/or experience.”

In sum, the applicant’s past impact on the field of endeavor should be proven such that it is highly predictive the applicant will continue to make a future impact on the field. Further, it is not enough to show a shortage of workers in the field because that is what PERM is for – to test the US labor market. Nor is it enough to show the applicant has a unique set of skills. Indeed, it is important to show through experts or peers in the field that the person has made some significant contributions to the field such that he or she is likely to do so again in the future. Keep in mind that PERM is about finding applicants who meet the MINIMUM qualifications listed in the job opportunity. Here, we are focused on major or significant contributions already achieved. (By contrast, extraordinary ability workers and outstanding professors and researchers must show a higher level of achievement: original contributions to the field or international achievements.)

If the NIW standards can be met, it applies to individuals in the professions with at least advanced degrees (masters or higher depending upon the field) OR to those who are of “exceptional ability.” A person is of exceptional ability if the applicant can prove “a degree of expertise significantly above that ordinarily encountered in the sciences, arts or business.” Further, persons of exceptional ability must show they will “substantially benefit prospectively the national economy, cultural or educational interests or welfare of the USA.”

This standard would be in addition to the third prong for the NIW noted above. To prove exceptional ability, the applicant must show at least three of the following criteria:

– Academic records related to the field of exceptional ability – At least 10 years of full time experience in the occupation for which the foreign national is being sought – License to practice the profession if required – Salary/remuneration demonstrating exceptional ability – Membership in professional associations – Recognition for achievements and significant contributions to the industry or field – Other comparable evidence

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USCIS has released some new instructional videos to help employers and their employees properly complete Form I-9s at time of hire. Since the passage of the Immigration Reform and Control Act of 1986 (IRCA), it has been the law every employer must document on Form I-9 the work permission status of employees hired since November 6, 1986. The law applies to the hiring of US citizens as well. Employers are subject to audit (Notices of Intent to Inspect) that can result in fines for failure to complete I-9s, failure to properly complete I-9s and for “knowingly hiring unauthorized workers.” In egregious cases, employers can be prosecuted for “patterns or practices of knowingly hiring unauthorized workers.” In addition, employers are prevented from discriminating against employees on the basis of national origin or citizenship status except in limited circumstances.

A few good resources for employers include:

1) Form I-9 and instructions. For more comprehensive information, see I-9 Central 2) M274 Handbook for Employers

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It’s that time of year again when human resources professionals should be finalizing offers for “specialty occupation” positions they plan (or hope) to fill with foreign nationals who need H-1B visas. The filing season for fiscal year 2015 will open up again on April 1, 2014 for jobs that can begin starting October 1, 2014, the start of the government’s next fiscal year. Applications for H-1B workers who are subject to the annual cap will not be accepted before April 1; therefore, they need to be ready for the mail no later than March 31, 2014.

This ridiculous once-a-year timeline is courtesy of Congress that imposed annual cap limitations years ago except on institutions of higher learning, nonprofit or government organizations engaged in research, and private companies and non-profits with qualifying “affiliations” with the foregoing institutions. Cap-exempt organizations can file all year long. Therefore, it is mostly private sector positions at companies and nonprofits not engaged in research (or lacking affiliation agreements) that are subject to the cap.

The GOP members of the House recently announced that they refuse to move immigration reform legislation along this term. Last June, the Senate passed a massive overhaul bill that would have increased the H-1B numbers. Because no fix is on the horizon before the next filing period, employers are stuck again this year with the same old outdated mad dash to file H-1B applications on April 1 within a very short filing window. An upswing in hiring nationally usually translates to high demand for H-1B workers. This is why a market-based H-1B program is needed instead.

Last year, the filing “season” lasted one week. In addition, there was a lottery due to the flood of applications, making the whole program uncertain for employers who need global talent at the time they file. For FY2014, USCIS received 124,000 petitions for 65,000 cap subject cases plus the additional 20,000 petitions available to those with US masters degrees. Of those, 65,000, 6800 are reserved for Chilean and Singaporan H-1B applicants. Essentially, demand was more than double last year for the available visas.

Logistically, the way the cap cases work, is that employers send in their applications for filing starting April 1 (or until USCIS announces it will stop accepting any more). If there is a lottery, USCIS will conduct it within a few weeks. Employers will know their cases are selected when they receive a fee receipt with case number indicating their filing fee checks were cashed. USCIS will return the cases (and filing fees) if an application is not selected. USCIS will then spend the following months processing the selected cases. Employers can ask for expedited processing for an additional $1225 fee.
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