5486338003_22baa78f1b_zThe Law Offices of Jacob J. Sapochnick bring you the most recent developments in immigration policy at the judiciary level. We express our concern at the hesitation the federal judicial system and our federal legislative system has shown in their reluctance to address the issue of comprehensive immigration reform. Recently, two appeals have come before the Supreme Court from the towns of Hazelton in Pennsylvania and Farmers Branch in Texas. These appeals are important because they signal a conflict that has arisen time and time again between state and federal judiciaries regarding immigration policy. Such conflict can only be rectified by calling upon the national government to take a firm stance in clearly delineating immigration law, ultimately setting a precedent for state judiciaries to follow.

Fortunately, the federal government has begun to feel the pressure from the people in hearing such appeals. These appeals clearly bring the issue of comprehensive immigration reform to the forefront specifically in the cases of City of Hazelton v. Lozano (13-531) and City of Farmers Branch V. Villas at Parkside Partners (13-516).

City of Hazelton v. Lozano and City of Farmers Branch v. Villas at Parkside Partners

The Hazelton and Farmers Branch appeals were made by city legislatures seeking to dissuade illegal immigration. Appeals from both cities were subsequently rejected by the U.S. Supreme Court. The proposed ordinances made by these cities required tenants to provide their landlords with identification documentation, and also allowed such documentation to be verified with the immigration authorities, putting undocumented immigrants at risk of being deported. The city ordinances could also potentially punish landlords suspected of renting to undocumented immigrants. When these ordinances were first presented to the court of appeals, they were challenged and won by immigration advocates which included tenants, landlords, employers, and workers. It was due to such a victory that both towns sought to overturn the decision by appealing to the U.S. Supreme Court. The Supreme Court rejected the ordinances responding that immigration policy is strictly within the jurisdiction of the federal government, not state governments. As such, states cannot propose immigration policy and enact their own laws concerning immigration policy.

U.S. Supreme Court rules in favor of a Fremont City Ordinance

As reported by Reuters, supporters of immigration reform argue that out of 6 federal courts of appeal dealing with similar housing-related ordinances, 5 ruled that the city ordinances conflict with federal immigration law. The only case in which a proposed city ordinance did not conflict with federal immigration law, was decided by the 8th U.S. Circuit Court of Appeals in St. Louis, Missouri. In this instance, the court ruled in favor of a city ordinance voted on by citizens of Fremont, Nebraska. Unlike the Farmers Branch and Hazelton city ordinances, the Fremont city ordinance came before the Supreme Court after voters had approved a 2010 measure that prohibited hiring or renting to people in the United States who could not prove their legal status. The court ruled in favor of the city ordinance based on the fact that the plaintiffs in the Fremont case failed to show that the Fremont law intended to discriminate Latinos specifically and that the measure was indeed against federal law. Additionally, the plaintiffs did not have standing to sue in the case since they had failed to show that they were in fact harmed or could be harmed by the Fremont measure.

On April 17th, USCIS announced that premium processing for H-1B petitions, subject to the fiscal cap year of 2015, would begin on April 28, including petitions qualifying for the advanced degree exemption. Additionally, USCIS guarantees a processing time of 15 calendar days for such petitions.

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.