Winning The H-1B Visa Lottery

Starting April 2, 2018, U.S. Citizenship and Immigration Services (USCIS) will begin accepting H-1B petitions for Fiscal Year 2019. As in years past, if USCIS receives more than the available 85,000 H-1B visas in the first few days of April, they will use a computer-generated random lottery to select the petitions they will process. Based on the number of petitions received in the first few days of April last year (over 199,000) and the previous year (over 236,000), combined with the current market demand for high-skilled labor and reports of possible changes to visa programs in the future, many our anticipating that USCIS will receive over 200,000 H-1B petitions in the first few days of this April. 

Accordingly, time is running out for employers to timely prepare their H-1B petitions for submission to play in this H-1B lottery on April 2nd. Generally, it takes at least 10-14 days to prepare and file an H-1B petition, due to the prerequisite filing requirements of the Labor Condition Application (LCA), which takes up to 7 business days to certify. Therefore, if you are responsible for your businesses' immigration planning and processing and you have already identified your H-1B candidates, please initiate the H-1B visa process in the next two weeks to ensure it is timely filed. 

In light of recent reports of proposed changes to the H-1B work visa program by the Trump administration, USCIS has confirmed that it intends for the H-1B filing process and procedures to remain the same as it has in previous years.  Nevertheless, as indicated by the massive increase of Requests for Evidence (RFE) and denials of H-1B petitions issued by USCIS over the past year, employers and foreign nationals should be prepared to evidence the following, in order to increase their chances of getting their visa petitions approved:

  1. Document the specific scope and educational requirements for the position to show that the position is one which requires a Bachelor’s degree as a minimum to enter the occupation.
  2. Review the prevailing wage rates for the occupation through the Department of Labor’s Wage Surveys to determine whether the wage level is appropriate for the professional position you are hiring for.
  3. Document the nexus between the foreign national’s degree and the occupation they will be hired for.

WATCH my conversation on how to overcome issues with H-1B RFEs

Needless to say, the H-1B visa petition can be a technical and cumbersome application to file.  Working with qualified counsel will help to ensure technical mistakes are avoided and that a comprehensive petition will have the best chance at winning in the H-1B visa lottery.  If you have any questions about the H-1B visa process, please don’t hesitate to contact me.

H-1B Visa Season Starts NOW

In light of recent reports of proposed changes to the H-1B work visa program by the Trump administration, U.S. Citizenship & Immigration Services (USCIS) has confirmed several important details about the upcoming H-1B visa filing season, which will commence on April 2, 2018. Most importantly, USCIS intends for the H-1B filing process and procedures to remain the same as it has in previous years. This is to say that there will be no "preregistration system" and if the petitions received by USCIS exceed the 85,000 numerical cap, a lottery will be used to select the petitions for processing. USCIS also hinted that they may impose a "short" suspension of "premium processing" for H-1B cap petitions (but not non-cap H-1B petitions), as they did last year.

Demand by U.S. employers for H-1B visas on behalf of “highly-skilled” foreign employees was, once again, at high levels last year and is expected to remain high this year. Because it is expected that the 85,000 available H-1B visas will be gone within the first week of April, U.S. businesses should file their H-1B visa petitions on April 2, 2018. Due to prerequisite filing steps which must be completed before the H-1B petition can be submitted to USCIS, however, employers should begin preparing their petitions now to ensure they are ready to submit on April 2nd.

Despite rumors of potential changes to the H-1B visa program, the H-1B filing process and procedures will remain the same as they did in previous years.  Therefore, employers should assess their upcoming workforce needs and identify whether any foreign national employees will require H-1B visa sponsorship. These individuals may include:

  • New graduating foreign students in the U.S.
  • Overseas individuals seeking to start work in the U.S.
  • Foreign individuals in the U.S. already working under a different nonimmigrant status for a different employer and are seeking to change jobs

Failure to file your H-1B petition on April 2nd may jeopardize your chance at securing an H-1B visa for your employee. After the 2018 H-1B visas are gone, employers will have to wait until April 1, 2019 to file H-1B petitions again, and foreign employees may lose their lawful status and authorization to work. The clock is ticking…don't delay!

If you have any questions about the H-1B visa process, contact me.

The End of the International Entrepreneur Rule

The Trump administration announced this week their intent to delay and ultimately rescind the International Entrepreneur Rule.  The rule, which was created by President Obama’s administration and which was set to go in to effect on July 17, 2017, would have allowed certain international entrepreneurs to be considered for parole (temporary permission to be in the United States) in order to start or grow their businesses in the U.S..  Applicants would have to show they met minimum requirements for capital investments and demonstrate that their startup would have been of benefit to the public via job creation in the U.S.

While the current administration is delaying the effective date of the International Entrepreneur Rule until March 14, 2018 and taking public comment on the rule, their intention is to rescind the rule.

For questions about this policy change, please feel free to contact us.  Foreign entrepreneurs and startups seeking alternative immigration options to the U.S. should read our article on entrepreneur visa options.  

The International Entrepreneur Rule

The Department of Homeland Security (DHS) has officially annouced the final version of the International Entrepreneur Rule, which will allow certain international entrepreneurs to be considered for parole (temporary permission to be in the United States) so that they may start or grow their businesses here in the United States.

The rule, which is set to take effect on July 16, 2017, will grant foreign entrepreneurs of startup entities created within five years of application, temporary stay in the U.S. for up to 2 1/2 years, with the option to extend the stay by an additional 2 1/2 years.  To qualify initially, founders must own at least 10% of their companies and have raised at least $250,000 from U.S. investors with a track record of U.S. investments, or at least $100,000 from federal, state, or local government agencies.  To be eligible for the extension, founders must continue running their U.S. business, retain at least 5% ownership, and either raise at least $500,000 from U.S. investors, generate $500,000 in annual revenue with 20% year-over-year growth, or prove they've created at least 5 full-time jobs for U.S. workers. 

The rule will also provide the foreign entrepreneur’s dependents (spouses and children under 21) with U.S. parole entry and allow them to apply for unrestricted U.S. work authorization.  The parolee, however, will only be eligible for employment with his or her USCIS-approved startup. 

The International Entrepreneur Rule has been broadened from the proposed rule made in August to accommodate more foreign entrepreneurs.  For more information on the new rule, please feel free to contact us.

H1B Visa Season Starts NOW

Even though we’ve just entered 2017, its time to start focusing on one of the most important dates of the entire year: April 3, 2017 - the date when U.S. Citizenship & Immigration Services (USCIS) will begin accepting new H-1B visa petitions. While that may still be several months away, the time to start getting the visa petition ready is NOW

Demand by U.S. employers for H-1B visas on behalf of “highly-skilled” foreign employees reached unprecedented levels last year and is expected to remain high this year. Because it is expected that the 85,000 available H-1B visas will be gone within the first week of April, U.S. businesses should file their H-1B visa petitions on April 3, 2017. Due to prerequisite filing steps which must be completed before the H-1B petition can be submitted to USCIS, employers should begin preparing their petitions now to ensure they are ready to submit on April 3rd.

Employers should assess their upcoming workforce needs and identify whether any foreign national employees will require H-1B visa sponsorship. These individuals may include:

  • New graduating foreign students in the U.S.
  • Overseas individuals seeking to start work in the U.S.
  • Foreign individuals in the U.S. already working under a different nonimmigrant status for a different employer and are seeking to change jobs

Failure to file your H-1B petition on April 3rd may jeopardize your chance at securing an H-1B visa for your employee. After the 2017 H-1B visas are gone, employers will have to wait until April 1, 2018 to file H-1B petitions again, and foreign employees may lose their lawful status and authorization to work. The clock is ticking…don't delay!

If you have any questions about the H-1B visa process, contact me.

 

New Requirements for EB-2 National Interest Waiver Green Card

Last month, U.S. Citizenship & Immigration Services (USCIS) announced new, less subjective, requirements for foreign individuals seeking U.S. lawful permanent residence (“green card”) under the EB-2 National Interest Waiver (NIW) category.  The NIW category allows foreign nationals in the second employment-based immigration category to bypass the lengthy and sometimes difficult “labor certification” process, if they can show that their immigration to the U.S. is in America’s “national interest.”  

In order for a foreign national to prove “national interest” under the new criteria, he or she must demonstrate that:

  1. the proposed endeavor has both substantial merit and national importance;
  2. he/she is well positioned to advance the proposed endeavor; and
  3. on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.

In order to prove these criteria, the foreign national will have to show their work has national or global implications.  One example of this can be proof that the foreign national’s work “has significant potential to employ U.S. workers or has other substantial positive economic effects, particularly in an economically depressed area…”.  The applicant will also have to show that he/she is able to succeed with their plan by demonstrating that they have the ”education, skills, knowledge and record of success in related or similar efforts; a model or plan for future activities; any progress towards achieving the proposed endeavor; and the interest of potential customers, users, investors, or other relevant entities or individuals."  Lastly, the foreign national will have to prove that “in light of the nature of [their] qualifications or proposed endeavor, it would be impractical either for the foreign national to secure a job offer or for the petitioner to obtain a labor certification."  

This decision is fantastic news for U.S. employers, international entrepreneurs, startups, and professionals, and provides greater flexibility for foreign nationals seeking to qualify for EB-2 National Interest Waivers.

For more information, feel free to contact us.

NEW Immigration Options Coming for Entrepreneurs & Startups

U.S. Citizenship & Immigration Services (USCIS) will be announcing today a proposed rule which will allow certain international entrepreneurs to be considered for parole (temporary permission to be in the United States) so that they may start or scale their businesses here in the United States.

The proposed rule would allow the Department of Homeland Security (DHS) to grant foreign entrepreneurs of startup entities temporary stay in the U.S. (up to 2 years, with a possible 3 year extension), so long as the foreign national can evidence that he/she will be providing a significant public benefit through the substantial and demonstrated potential for rapid business growth and job creation.  To be eligible, international entrepreneurs of startup enterprises will have to demonstrate:

  • A significant ownership interest in the startup (at least 15 percent) and have an active and central role to its operations;
  • Show their startup was formed in the United States within the past three years; and
  • Has substantial and demonstrated potential for rapid business growth and job creation, as evidenced by: (1) receipt of significant investment of capital (at least $345,000) from certain qualified U.S. investors with established records of successful investments; (2) receipt of significant awards or grants (at least $100,000) from certain federal, state or local government entities; or (3) partially satisfying one or both of the above criteria in addition to other reliable and compelling evidence of the startup entity’s substantial potential for rapid growth and job creation.

The rule will not take affect until after a 45 day public comment period and until it is published in the Federal Register.  Once published, however, this rule will help our economy grow by expanding immigration options for foreign entrepreneurs who meet certain criteria for creating jobs, attracting investment and generating revenue in the U.S.

Why 2016's Biggest Issue Will Be Immigration

As 2015 comes to a close, presidential contenders are already talking about what will likely be the biggest issue of 2016 - immigration.  Election seasons are typically the times when our country grapples with its toughest questions, and there will be none bigger next year than the issue of immigration. 

If America seeks to grow its economy and stimulate job growth, then the most pressing issue we must tackle is reforming our antiquated immigration system.  Closing our doors to the world's entrepreneurs or instituting large-scale deportations will not solve the problem.  It will make matters worse.  

The U.S. has long been the destination for the world’s hardest working, entrepreneurial, and talented immigrants.  Unfortunately, our nation's immigration laws have remained virtually unchanged since the 1960s and do not take into consideration our current economy and our need to retain the best and brightest immigrants from around the world.  Meanwhile, countries like China, Chile, Singapore, Canada, Australia, New Zealand, Ireland, and the United Kingdom have adapted their immigration policies to attract top global talent to their countries.  

While it is true that immigration law and enforcement are complex issues, it is up to us as U.S. citizens to find a new course of action and push our elected officials to institute a new system that allows us to act more quickly, uniformly, intelligently, and humanely on immigration matters.  Continuing to let our government do nothing on this issue will only set us back.

I have been privileged this year to have had the opportunity to vocally advocate for immigration reform.  I have volunteered my services with Fwd.us to speak to politicians on the economic impact of high-skilled immigration, openly challenged members of the House of Representatives on deportation issues, and worked with the LGBT community on immigration rights for same-sex spouses.  I look forward in the year ahead to working alongside Mark Zuckerberg and others to laying the groundwork in 2016 to overhaul our nations immigration laws.

While I expect the national debate on immigration to heat up over the next 12 months, mark my words, this is just the beginning, but hopefully a beginning for meaningful change toward the advancement of our country.

What Makes A Great Immigration Attorney?

I recently shared why I think immigration is important to the strength of the United States, which got me thinking about how I measure myself, as an immigration attorney, to make sure I’m doing right by the people I represent and who need my help. 

While most people might take to Consumer Reports when buying a car or CNET when buying new electronics, there unfortunately isn’t an easy and reliable resource for finding the “right attorney” for your needs, especially when it comes to finding the right immigration attorney who can help you navigate the complex U.S. immigration system.  Most U.S. companies and foreign nationals know that U.S. immigration laws are strict and that failure to have your petition or application approved the first time can lead to future complications in trying to work and live in the U.S.  I’m therefore often asked, what makes me the right attorney for helping foreign individuals obtain their desired immigration goals.

While there are many factors to consider when choosing any professional to work with, I believe that choosing the right immigration attorney comes down to three things: (1) does the attorney communicate with you in a way in which you fully understand what is going on; (2) does the attorney manage your expectations; and (3) does the attorney treat you with respect and try to understand you?

Communication

The number one complaint against attorneys is not that they did a bad job, its that they failed to communicate with their client.  You’re paying a lot of money to hire a lawyer, and its your right to expect to be kept informed about your situation in a way which you fully understand what is going on at all times.  Are you able to communicate easily with your attorney?  Are you comfortable asking your attorney questions?  Do you understand the immigration process in which you are engaging in?  I am aware of the effort, time, and money my clients are investing in me to achieve their desired outcome, and I believe I owe a duty to personally take every phone call and answer every email in order to educate, inform, and communicate with them about their case.

Manage Expectations

More important than just communication is honest communication.  It is the duty of an attorney to act as a facilitator to help clients reach their goals.  Ask yourself whether the attorney has presented and educated you on all of your immigration options or whether the attorney has made you feel like you are making the most informed decision.  The relationship I have with my clients involves trust and honesty, and most importantly candor.  I provide my clients with a frank evaluation of their possible immigration options, how long processes will take, and how much everything will cost.  In some cases that may mean there are no options or the desired outcome might take longer than thought.  Each and every immigration case is different.  Knowing exactly what to expect in your case will help you plan for your future and avoid surprises.

Respect & Understanding

People are not things, and everyone has the right to be treated with dignity.  A respectful person is an attentive listener, treats others with consideration, and provides honest guidance for people to make informed decisions about their lives.  Do you feel like the attorney (assuming you’re not speaking to a secretary or paralegal) is giving you the attention you deserve?  Does the attorney truly understand what you’re telling them?  Does the attorney even want to get to know you?  By taking the time to listen to my clients, talk with them about their long term immigration goals, and give them the personalized attention they deserve, they feel respected, that their priorities are understood, and that we will be able, together, to achieve their desired goals. 

Finding the right attorney is more of an art than a science.  Follow your instincts and feelings.  My clients have ranged from large businesses to small start-ups to individual entrepreneurs and families.  In each case, I realize that these are real people facing real immigration issues.  Choose an immigration attorney who truly understands the impact of your situation and will give you the respect, understanding, and attention your case deserves.  

Visa Options For Foreign Entrepreneurs & Investors

International entrepreneurs have a variety of immigration options available to them to establish startup companies in the U.S.  While there is not yet a specific U.S. entrepreneur visa available, there are a number of visa options which allow entrepreneurs to start and grow businesses in the U.S.   This article will focus on a few (but not all) of the main visa options available to individuals to begin working for a startup in the U.S.

L-1 Intracompany Transferee Visa

Generally, the L-1 visa is available to executives and managers, working for a company abroad, that will open a new branch, affiliate, or subsidiary U.S. company.  The foreign worker to be transferred to the U.S. must have spent at least one continuous year out of the preceding three years working for the affiliated foreign company; obtain a physical premises for the new U.S. office; and within one year the U.S. enterprise should be able to support an executive or managerial position.  L-1 status is granted for a one year period, after which the company must demonstrate that it is doing business in order for the petition and worker’s stay to be extended beyond one year.  Extensions are available up to a maximum time in the U.S. of 7 years in L-1 status.

E-2 Treaty Investor Visa

This visa option is for business owners that wish to start a company in the U.S. and who want to actively manage and direct the operations of the business in the U.S..  In order to qualify for an E-2 Visa, you must either start or buy a business that you plan to run, and you must invest a certain amount of money in the business.  The actual investment amount depends on the type of business you start.  Additionally, the investment must create jobs (no specific number of jobs) for more than just you and/or your family.  Finally, you must be a foreign national from one of the treaty countries (see list) (note that India and China are not on this list).

O-1 Extraordinary Ability Visa

This visa option is available to entrepreneurs with extraordinary talents in the sciences, arts, education, or business.  Generally, an entrepreneur able to demonstrate that (1) there are published articles about their business/skills in major media; (2) they will receive a high salary evidenced by contracts; and (3) they will be employed in a critical or essential capacity for organizations with distinguished reputations, may be able to obtain this visa to work for their own start-up company.  The full list of qualifications to be proved can be seen here.  This visa is available for 3 years initially with one year extensions thereafter.  

EB-5 Immigrant Investor Visa 

The EB-5 immigrant visa is the only option that provides a “green card” (i.e. U.S. permanent residency) directly.  The EB-5 visa is a great visa option if you have a large amount of capital (either $500,000 or $1,000,000) that you would like to invest in a new commercial enterprise.  Generally, to get an EB-5 visa you must: (1) invest or be actively in the process of investing either $1,000,000 USD in a commercial enterprise or $500,000 USD in a targeted employment area (an area that has experienced unemployment of at least 150% of national average rate or a rural area); (2) show that the funds come from a legitimate source; (3) prove the entire amount of the investment is active or at risk (this means that you cannot just be thinking about buying a business and you have to actually put capital up that could be lost); (4) make the investment in a “new” or “existing business enterprise” (this allows you to create your own business or buy one); and (5) demonstrate that the investment directly or indirectly results in the creation of 10 full time jobs.

As the U.S. realizes the need to enhance the immigration options for entrepreneurs and investors, there continues to be debate centered around options for investors and entrepreneurs.  To learn more, please contact our office and visit USCIS website on entrepreneur pathways.  

The Benefits of Obama’s Executive Order for Employment-Based Workers & Entrepreneurs

Amongst the details of President Obama’s executive order to improve the U.S. immigration system, we expect to see improvements affecting employment-based immigrants and entrepreneurs.  These improvements may include:

  1. The ability for employment-based immigrants to apply for adjustment of status (“green cards”) before an immigrant visa number is available for them under the annual immigrant visa quota;
  2. Increases in the employment authorization periods for STEM Optional Practical Training (OPT) graduates;
  3. Improvements to the PERM labor certification program for possibly “premium processing” and more modern recruitment methods and media;
  4. Employment authorization for H-4 spouses of H-1B holders;
  5. Guidance on L-1B specialized knowledge professionals;
  6. Guidance on the National Interest Waiver (NIW) program by entrepreneurs, inventors, and innovators;
  7. Parole opportunities and work authorization for entrepreneurs and inventors