By Yingfei Zhou, Esq.

Q: How can I apply for EB-5 visa?

A: There are two requirements on foreign investors seeking a green card. First, you must invest sufficient funds in an approved project of your choice. Second, ten new full-time jobs must be created as a direct result of that investment. The investment must be either in a new business or an existing business and the investment will spur either a 40% increase in net worth or employees of the existing business.

As to the application process, first, investor files an I-526 form. This form explains how the investment will create the required jobs. Upon approval of the I-526 (usually within eight months of submission), the investor, as well as the investor’s spouse and children under the age of 21 at the time of investment, will receive a conditional visa permitting two years’ residency in the United States. Second, 90 days preceding the second anniversary of I-526 approval, investor needs to file I-829 to remove the conditions on his or her green card to allow permanent residency.

Q: What is the cost of EB-5 visa?

A:  The investor is required to invest at least $1,000,000 or at least $500,000 if the investment is being made in a “targeted employment area”. Such areas must have an unemployment rate of 150% of the national average or are rural areas with a population of less than 20,000.

In addition, investor also needs to pay visa application fees in the amount of $5250, of which $1500 is for the I-526 filing and $3750 for the I-829 filing. Separate $85 biometric service fee will be charged for each conditional resident dependent. Investor will also be responsible for regional center administrative fees if the investor goes through a regional center, as well as attorney fees if an attorney is hired to handle the application.

Q: How long it takes to get EB-5 visa?

A: Usually, the whole process takes about 12 to 18 months for an EB-5 investor to get a conditional green card. Specifically, Step 1 is the I-526 which takes about 6 to 8 months to adjudicate. Step 2 is the consular processing or change of status filing, depending on whether the EB-5 investor lives in the United States or not, which can take 3 to 8 months.

Q: Can I use my own company to sponsor myself for H-1B visa?

A: Yes, with sufficient preparation. USCIS has clarified that, as a business owner, you can qualify for H-1B in your own company. The key to get such cases approved is to show that there is an employer-employee relationship between you and your business, as indicated by the fact that the company has the right to control your employment by having the authority to supervise your work, fire, and otherwise treat you as a regular employee of the company.

To show a valid employer-employee relationship, you may consider providing:

  • Term Sheet
  • Capitalization Table
  • Stock purchase Agreement
  • Investor rights Agreement
  • Voting Agreement
  • Organizational documents and operating agreements/bylaws
  • Employment Agreement
  • A description of the performance review process along with progress and performance evaluations
  • Letters from the directors/preferred shareholders explaining who has the right to control your work performance on a day-to-day basis, who will supervise you and evaluate your work product, and explaining the management structure of the company
  • Company organizational chart, demonstrating your supervisory chain

Q: Can start-up companies be H-1B visa sponsors?

A: Yes, with sufficient preparation. The key here is to prove that the new business is sound and viable and there is a bona fide job offer. Based on our experience, as long as you have sufficient funds to start the business operations, lease an office space, perform services in the beginning and pay yourself and other employees’ salaries, it should be considered as sufficient funding by USCIS. In addition, you need to prove that you are not hired to do administrative, sales or clerical work which does not qualify for H-1B.

For start-up H-1Bs, in addition to documents required in regular H-1Bs, you may also consider providing:

  • Articles of Incorporation/Organization
  • Bylaws/Operating Agreement
  • EIN proof
  • Organization/Incorporation Minutes
  • Business Licenses
  • Lease for business premises
  • Bank statements showing startup funding, wire transfers or tax returns
  • Photographs of the facilities to show sufficient production space to accommodate the work of H-1B employee
  • Proposed Organizational Chart of the business with the list of positions the company is planning to recruit for and the educational requirements
  • Business Plans
  • Contracts or other proof of projects the business is planning to engage in
  • Marketing Plans, brochures and other documentation of the services to be performed/products to be distributed

Q: Who can apply for Fiancé visa?

A: Anyone that has a fiancé (e) who is already a U.S. citizen or lawful permanent resident. You must also show that:

  • You intend to marry within 90 days of your fiancé(e) entering the United States;
  • You and your fiancé(e) are both free to marry and any previous marriages must have been legally terminated by divorce, death, or annulment; and
  • You met each other, in person, at least once within 2 years of filing your petition, unless the requirement to meet would violate foreign culture or would result in extreme hardship.

Q: How to apply for Fiancé visa?

A: There are two steps. First, you file your Fiancé visa application I-129F with USCIS. After your fiancé visa application is approved by the USCIS in the United States, it is then forwarded to the U.S. embassy in your home country for final processing. The Consular processing procedures are different from country to country. If your marriage takes place within 90 days of your arrival in the U.S., you must file an Application for Adjustment of Status (Form I-485) that will provide you with conditional permanent residence status. This status is valid for two years. After two years, you can file a I-751 application to remove this conditional status and give you permanent residency status.

Q: What are the consular processing procedures of the U.S. embassy in China regarding your Fiancé visa application?

A: For Chinese Nationals, the US embassy in Guangzhou is in charge of all fiancé visa cases for China. Starting October 2013, all fiancé visa applicants are required to complete the DS-160 form. At the interview, you need to bring the confirmation page of your DS-160 form, passport, 2 passport photographs, original/certified birth certificate, marital status certificate, police certificate, sealed medical examination report, court and prison record, military record if applies, affidavit of support (I-134) and evidence of income, evidence of relationship, detailed resume, visa extension notice, records of previous immigration proceedings, and visa application fee. All documents not in English must be accompanied by certified English translations.

We strongly advise you not to give up your job, dispose property, or buy plane tickets until you actually receive your visa, because even if the Consulate determines that you are eligible for a visa, issuance can be delayed for a variety of reasons.

Beginning September of 2012, USCIS began granting what is known as deferred action to children who arrived to the United States before reaching the age of 16, having met other various requirements. Eligible deferred action applicants received an employment authorization good for a period of up to two years from USCIS. Applicants who applied for deferred action early on are now facing the expiration of their initial two year employment authorization granted to them by USCIS. Due to this, a DACA renewal process is currently underway, giving qualified applicants the opportunity to request and extend their deferred action, in order to avoid unlawful presence in the United States and be able to continue their employment. Details regarding the renewal process will be released in late May 2014, at which time USCIS anticipates that Form I-821D will be used for the dual purpose of initiating DACA petitions and renewal requests. All DACA applicants who wish to file a renewal request must wait until USCIS releases the new form designated for that purpose. Applicants that wish to file an initial deferred action request and not a renewal, can continue to file using the form currently available.

On April 07, 2014, in a much awaited public announcement, U.S. Citizenship and Immigration Services announced that it had already reached the statutory cap of H-1B petitions allotted for the 2015 fiscal year. According to the announcement, on the first five days USCIS began to count H-1B petitions, it was already flooded with more than 65,000 of regular cap H-1B petitions and more than 20,000 H-1B petitions qualifying for the advanced degree exemption.

USCIS began accepting H-1B petitions subject to the 2015 fiscal year cap on April 01, 2014. The H1-B visa program is utilized by U.S. businesses seeking to employ foreign workers in what are known as ‘specialty occupations’. Specialty occupations are those that necessitate highly specialized knowledge, whether theoretical or practical, as stated on the USCIS website. Specialty occupations include but are not limited to scientists, doctors, mathematicians, or engineers.

According to the announcement, USCIS completed initial intakes for all filings received by the filing deadline (April 07, 2014), and will conduct a random computer generated selection process also known as a lottery system of selection. Under this process, USCIS will select the number of petitions necessary to fulfill the 65,000 visa cap limit for the general category, and the 20,000 visa cap limit under the advanced degree exemption. Those whose cap-based petitions are not selected will have their cases rejected and filing fees returned to them. As stated by USCIS, the computer generated selection process will consider the advanced degree exemption first. Advanced degree petitions that are not accepted through the initial lottery system will be subjected to the lottery system for the general category.

On April 10, 2014, USCIS made a second announcement detailing that they had received approximately 172,500 H-1B petitions in total, including petitions for the general category and advanced degree exemption. On the same day, USCIS conducted the computer generated system of random selection to meet the necessary caps under the general category and advanced degree exemption, with applicants having about a 50% chance of being selected in the lottery.

Petitions filed for the purposes of a.) extending the amount of time a current H-1B worker may remain the United States, b.) changing the terms of employment for H-1B workers, c.) allowing current H-1B workers to change employers, and d.) allowing current H-1B workers to work concurrently in a second H-1B position, will continue to be accepted and processed as they are cap-exempt.

Now that the H-1B cases have been filed, we are anxiously waiting to get the news from USCIS on the cap count.

Last year, USCIS announced on April 5 that it received approximately 124,000 H-1B petitions during the five day filing period, including petitions filed for the advanced degree exemption. Then, on April 7, 2013, USCIS used a computer-generated random selection process (commonly known as a “lottery”) to select for processing a sufficient number of petitions needed to meet the caps of 65,000 for the general category and 20,000 under the advanced degree exemption limit.

What to Expect This Year

This year, we observed a very high demand for H-1B visas, almost at the same level as last year but slightly higher. Other attorneys seem to experience the same. Given the demand, it is expected that USCIS will receive sufficient number of H-1B petitions within the first 5 business days (through April 7) and that the lottery will be held this year as well.

Please note that if sufficient number of petitions is filed within the first 5 business days of April, USCIS will reject any other petitions filed after April 7, 2014.

What Happens to Petitions during Lottery

If lottery is used this year to select 85,000 (65,000 general cap plus 20,000 U.S. master’s cap) petitions for adjudication, then USCIS will conduct the selection process for advanced degree exemption petitions first. All advanced degree petitions not selected will be part of the random selection process for the 65,000 limit. In other words, the H-1B petitions filed under U.S. master’s degree cap will in that case have two chances in the lottery system.

Cases not selected during the lottery will be rejected and returned.

Updates from USCIS – Courier Delivery Problems

American Immigration Lawyers Association has reported certain problems with FedEx deliveries of H-1B petitions. Specifically, FedEx stated that about 200 petitions were delivered but not properly scanned. If you cannot verify delivery of H-1B package, you need to follow the instructions below provided by USCIS.

USCIS has stated that it will accept a second H-1B petition in certain limited circumstances. Specifically, for cap-subject petitions that were timely filed, if, upon inquiry, the carrier indicates that there may be a delivery delay or the package has been damaged, the petitioner may file a second H-1B petition with:

  • A new fee;
  • An explanation as to why the second petition is being filed, with supporting evidence (such as the notice from the carrier); and
  • A request to withdraw the first H-1B cap petition.

USCIS will return the withdrawn petitions with the fee, even if they have already been receipted.

Petitions that do not include the above-referenced items will be treated as duplicate petitions and will be denied or revoked, and USCIS will not refund the filing fees. Please also note that if the FY2015 cap is met within the first five business days of April, USCIS will reject all petitions received after April 7, 2014, including duplicate H-1B petitions filed in accordance with these instructions.

We will provide further updates as they come out. Stay tuned.

Our office receives many inquiries from start-up companies that want to hire employees under H-1B visa. As the H-1B season has begun, we would like to provide our readers with the updates and important considerations for this category of H-1B visas.

The following article was prepared by attorney Ekaterina Powell from our office and was featured as the cover article in VOICE, the American Immigration Lawyers Association publication.

Start-up Companies Still Fight for H-1Bs

Recently, the Israeli government approved a proposal from Interior Minister Gideon Sa’ar for American investors who wish to visit Israel on a more frequent basis.  It is a new arrangement that is part of a recent program to allow Israelis seeking to invest in the U.S. and who wish to stay to develop and manage their business, will be given similar special conditions.

The approval of the plan by the American embassy in Israel is conditioned on the granting of benefits to American investors in Israel. According to this plan, Israeli investors who obtain approval from American authorities will be offered a fast track entry into the US and will receive E2 visas that allow stays of up to two years in the United States.

This new plan will be implemented within the next few months, after several legislative amendments required to complete it are made. Following the approval of the plan, Sa’ar said that the “US is a major economic partner for Israel. It is the main source of foreign investment in Israel and is at the same time one of the major destinations for investments by Israelis. Investor visas constitute another stage in the United States-Israel Free Trade Agreement and will promote the economic cooperation of the two countries”, Sa’ar added.

Although this is a great development for investor relations between the U.S. and Israel, the Knesset will still need to pass legislative changes in order for it to become effective law in Israel. While it is not a must that such treaty would be signed, it is possible there would be an exchange of letters or no official document but just an announcement of the Embassy that Israeli citizens can now apply for the E2 visa. Regardless of how these changes come into effect, it is clear that the U.S. and Israel are working towards making it easier for investors to work in both countries on their investment developments, which is definitely a step in the right direction for improving the U.S. economy.

For more information and updates on Israeli investor visas you can go here for the latest information on what you can do to invest and grow a business in Israel.

It is that time of year where companies and individuals are preparing to send their cases to US Immigration to apply for an H-1B visa. Last year the entire cap was filled in the first week of filing, meaning many people were left out and could not get an H-1b visa. When thinking about how many people could not get jobs through this process, an organization that has studied the affects of H-1b visas on the market came out with a job loss calculator, which estimates the numbers of American jobs lost due to the lack of H-1b visas. Compete America’s calculator estimates that 500,000 new U.S. jobs could have been created this year absent outdated restrictions on H-1B visas. From another perspective, according to Compete America, the 2.37 million new payroll jobs created in 2013 might have been increased by 21 percent under a different H-1B scheme.

So what does this calculator really highlight? Well, the calculator clearly shows the fact that higher-skilled immigrant workers impact the U.S. economy, helping push cutting-edge innovation, which then creates more jobs for everyone. According to a new report by Standard & Poor’s, “Adding Skilled Labor to America’s Melting Pot Would Heat Up U.S. Economic Growth,” which means highly skilled immigrants help create jobs for American workers,  not take them away like many who stand opposed to increasing the cap would claim. Higher skilled workers actually complement U.S. workers’ skills instead of competing with them, and are more likely to start a new business than U.S.-born workers, which further increases innovation and productivity, according to S&P. Research from the National Foundation for American Policy suggests the hiring of each H-1B worker actually creates employment for 7.5 workers in small to mid-sized technology companies.

The insufficient number of H-1B visas goes to a deeper problem of having an outdated system that cannot respond to the demands of an ever-changing economy. Absent a few years of temporary increases, the cap on H-1B visas for skilled workers with bachelor’s degrees has been set at 65,000 per year for more than 20 years. Since demand far exceeds supply, the cap runs out every year, which last year’s cap was filled the first week it was open.

Based on last year’s demand, Matthew Slaughter, an economist at Dartmouth who designed the jobs loss calculator, estimates that 100,000 more H-1B jobs could have been filled last year but for the cap. Slaughter’s estimates believe that 400,000 additional jobs were lost indirectly based on lost job creation both by the immigrant-hiring companies and by the suppliers of these companies not hiring additional U.S. workers. It is notable that the legislation that passed the Senate in 2013 and various House proposals include an increase in the H-1B visa cap. Reform of the H-1B visa program and other skilled-worker programs is essential to our economy’s growth, balance the U.S. budget, and fostering greater job growth, innovation and productivity while maintaining our competitive edge in the international technology industry. It is clear that the H-1B cap must be increased to reflect these changes, or the U.S. will continue to lag behind in an increasingly competitive world.

By Andrew Desposito (an Irish-American immigration attorney)

While many will be celebrating the holiday wearing green clothing, eating or drinking green food and celebrating with some Irish music, today is also a day for many Irish-Americans to remember why this day is celebrated. Most Irish-Americans in the United States are descendants of immigrants who came to the U.S. seeking better lives. It is about our ancestors leaving that country, often in bitter circumstances, and risking everything on a hazardous journey and being met with fierce hostility and scorn. It is about immigrants struggling, and mostly succeeding, in their new life, or making success possible for their children and grandchildren.

It is a story that should describe all newcomers to America. Before the mass exodus from Ireland provoked by the great potato famine of the 1840s, new arrivals to North America were either settlers or slaves. The Catholic Gaelic Irish were the first cohort consistently labeled as “immigrants” in the modern, quasi-pejorative sense, and their experience established a stereotype, a template, applied ever since to whichever national or ethnic group happened to be the latest impoverished arrivals: French-Canadians, Chinese, Italians, Eastern Europeans, or Latinos. But thinking about the contributions of Irish-Americans to the U.S., their story is the same as many others who immigrate to the U.S. with hopes and dreams of a better life. In time, many Irish-Americans rose through the ranks of business and politics to reach the heights of our society (think President John F Kennedy, Henry Ford, Walt Disney, etc). The U.S. is a place where any who come has a chance of doing great things.

So let’s have one day — March 17 — where the word “immigration” is not immediately followed by the word “problem” in our national conversation. Because that has never, ever been our real immigrant story. St. Patrick’s Day reminds us to celebrate, not despise or fear, immigrants. And the hyphenated-Irish, descendants of the first “immigrants,” ought to lead the parade.

House Republicans took aim at President Barack Obama’s immigration policy’s that allows young undocumented immigrants to stay in the United States.

The ENFORCE Act, which passed 233 to 181, is not about immigration exclusively. The bill goes after Obama for alleged overreach on a variety of issues, including the Affordable Healthcare Act, education and drug laws. The bill would allow Congress to sue the executive branch for allegedly failing to enforce the law, which could lead to key policies protecting some undocumented immigrants to being dismantled.

This move stands in stark contrast to the immigration principles put forward by House Republican leadership in January and moves further away from the Democrat-controlled Senate actions to try to pass immigration reform. While those guidelines called for young undocumented immigrants who came to the United States as children — often referred to as Dreamers — to receive eventual citizenship, this bill could end the Deferred Action for Childhood Arrivals policy that keeps the same people from being deported.

The Obama administration has used prosecutorial discretion, the decision to use limited resources to enforce some cases over others, to grant some undocumented immigrants a reprieve, while continuing a high level of deportations more broadly.

House Republicans said passing the bill was necessary because the president had shown an unwillingness to enforce the law and a desire to go around Congress, including through the Deferred Action for Childhood Arrivals policy.

“We have seen a pattern: President Obama circumvents Congress when he doesn’t get his way,” Judiciary Committee Chairman Bob Goodlatte (R-Va.) said on the House floor as he voiced support of the bill. “But the Constitution does not confer upon the president the executive authority to disregard the separation of powers and rewrite acts of Congress based on his policy preferences.”

Democrats were irate that the year’s first vote on immigration targeted a policy that helps immigrants, and did not implement some type of reform. They argued that it showed House Republicans may hold the same positions they held last year, when they attempted to de-fund the Deferred Action for Childhood Arrivals program but did little else on immigration. ”We cannot fix our broken immigration system, either with more deportations or with specious constitutional arguments, which is exactly what Republicans are attempting to do today with the ENFORCE Act,” Rep. Bill Foster (D-Ill.) said on the House floor in opposition to the bill.

In addition to this bill, another bill was voted on and passed the House that would require the attorney general to report to Congress if the administration changed its enforcement of laws.

The Obama administration threatened Wednesday to veto both bills should they come to the president’s desk, and White House spokesman Jay Carney criticized them during a press briefing, noting the contrast between the legislation and some Republicans’ stated desires to work on immigration reform. ”It is, in my view, in our view, pretty amazing that today House Republicans went in the opposite direction by passing legislation targeting the deferred action for childhood arrivals policy that removed the threat of deportation for young people brought to this country as children, known as Dreamers,” he said, adding later, “It doesn’t require much to look at what House Republicans are doing today and question whether or not they’re serious about moving forward on comprehensive immigration reform.”

Senate Majority Leader Harry Reid (D-Nev.), meanwhile, said in a statement that the bills would be “dead on arrival” in the upper chamber. ”Instead of voting to fix our broken immigration system as the Senate did in June, House Republicans today voted to prevent the President from fixing the problems that are within his constitutional authority to solve,” Reid said. “These irresponsible Republican bills are dead on arrival in the Senate. I strongly support the President’s decision to protect DREAMers from deportation. Republicans should try solving problems for a change instead of blocking progress for our nation and making life more difficult for the immigrant community.”

But House Speaker John Boehner (R-Ohio) urged the Senate to take up the bill passed Wednesday. ”The fact that the president would threaten to veto a measure requiring him to uphold his constitutional obligations underscores why this bill is needed, and why Senate Democrats should pass it immediately,” he said

It is pretty clear that immigration reform is not a focus for House Republicans if they are supporting bills that would undo efforts that are trying to help a system that needs comprehensive change. It will be interesting to see how these bills effect the midterm elections for House Republicans and Democrats.

For those who will go through the marriage petition process, the very end of the process comes at the interview for your green card. During the interview the immigration officer asks the beneficiary if they have ever lied to them for an immigration benefit. This question tends to come early on in the interview because anything said during the interview will then be taken into consideration regarding that question, by which they swore under oath that they have not done. The seriousness and consequence that this question poses can be applied even years after the interview happened.

Recently a client of ours was issued a Request for Documents from the USCIS field office that held the client’s marriage interview more than years ago. The request stated that our client was made inadmissible because it stated she misrepresented herself at the marriage interview when she said she worked for a company that was a “non-existent, fictitious shell company”. While this allegation was not true of our client, since they were never given the opportunity to rebut this claim it was required of us to file a hardship waiver to handle the inadmissible status of the client.

There are two issues to this situation that needed to be addressed, the first issue was the allegations against the client. The determination by USCIS that our client was inadmissible was not founded on any facts that had been challenged or questioned by immigration throughout the entire process. What occurred was that USCIS found out through its background checks of our clients work history that one of its employers ended up being a bad company and ended up folding. It concluded that because our client worked for the company, that it must have known the company was not a legitimate company and therefore lied about working for a legitimate company. All of these assumptions were never questioned during the marriage interview nor was a second interview issued to address what came up while the case was pending (for more than two years). Although the hardship waiver was needed in filing the response, the record needed to reflect that this was an egregious error on USCIS’ part since it neither gave our client nor her husband the chance to address the implied allegations laid against them. Despite the fact that our client had an approved petition from USCIS that was for the “non-existent, fictitious shell company”, they still implied by making her inadmissible that she must have had knowledge of their fraudulent practices. Our response to USCIS made it clear that no such proof exists and that without concrete evidence confirming her knowledge of their activities that she cannot be held accountable for their actions.

The second issue to address was the hardship waiver itself. Our client is the mother of two very young children, the stepmother to another child that her husband has full custody and shares time with his ex-wife, and another stepchild that her husband still provides financial support. Breaking up the family would make it impossible for our client’s husband to fulfill his duties to his child the ex-wife has custody of, would cause his ex-wife to gain full custody of the child he has custody of, and would split the family apart. The very young children they both have would have to go back to the home country because one was recently born when this “request” was sent by immigration. The family circumstances alone warrant consideration for approving the hardship waiver. If the client has to return home, one of her children will have to go with her while the other one may have to stay with her husband. These and other considerations were mentioned in the hardship waiver that had to be submitted in order to preserve the record in contesting this misapplication of law.

While it is unfortunate that the client has to deal these issues, there are still options to pursue no matter how the case turns out. The matter is far from over while this request has been responded to, since USCIS needs to address the issues that were raised and would likely need to do so if it denied the case. Since the entire situation stems from the statements made during a marriage interview, it is important to be honest and make sure the facts are clear and the right questions are asked and answered so these issues do not delay the processing of your case.