Visa Lawyer Blog

A few updates for our Italian Investor clients, Effective December 1, 2011, all E visas applications will be processed in Rome. Therefore, all new E1 Visa and E2 visa applications submitted after December 1, 2011 should be sent to the E Visa Section in Rome following the directions on the web. (http://italy.usembassy.gov./visa/vis/vis-6-en.html) All cases will be processed in the order received. All pending cases sent to Milan prior to December 1, 2011, will be processed to conclusion in Milan, in the order they were received.

In a Small Business Administration (“SBA”) study, the report found that, “Immigrants are nearly 30 percent more likely to start a business than are nonimmigrants, and they represent 16.7 percent of all new business owners in the United States.” This SBA report also found that nearly 30 percent of all new business owners per month in New York, Florida, and Texas, are immigrants. In addition, business owners from Europe constituted a growing share of immigrant business owners.

The E Visa for those unfamiliar with the opportunity, provides nonimmigrant visa status for a national of any of the countries with which the United States maintains an appropriate treaty of commerce and navigation, who is coming to the United States to carry on substantial trade, including trade in services or technology, principally between the United States and the treaty country, or to develop and direct the operations of an enterprise in which the national has invested, or is actively in the process of investing substantial amount of capital.

An E-2 treaty investor must seek entry solely to develop and direct the treaty business. In certain franchises, the franchise contract may be too restrictive to establish this element of direction by the foreign investor, but a franchise business may qualify for E-2 status is the franchisee can exemplify sufficient control over the franchise operations.

Employees of treaty investors must have the same nationality as the E-2 employer. The position must be executive, supervisory, or require essential skills. As to executive or supervisory positions, the consular officer will review if the position principally requires management skills or key supervisory responsibility; or if the position chiefly involves routine work and only secondarily requires supervision of low-level employees. The E classification is intended for specialists and not for ordinary skilled workers. There are exceptions to this general rule. Some skills may be essential for as long as the business is operating.

Final tip for Italian investors, The most common reason causing delays in processing Treaty Trader and Treaty Investor visa applications is the failure to submit a Banca Nazionale del Lavoro receipt for the Machine Readable Visa fee payment. Cases submitted without this receipt are not examined or processed until the Machine Readable Visa fee payment receipts are received.

For more information on the E2 Visa, feel free to email us at any time.

A few updates for our Italian Investor clients, Effective December 1, 2011, all E visas applications will be processed in Rome. Therefore, all new E1 Visa and E2 visa applications submitted after December 1, 2011 should be sent to the E Visa Section in Rome following the directions on the web. (http://italy.usembassy.gov./visa/vis/vis-6-en.html) All cases will be processed in the order received. All pending cases sent to Milan prior to December 1, 2011, will be processed to conclusion in Milan, in the order they were received.

In a Small Business Administration (“SBA”) study, the report found that, “Immigrants are nearly 30 percent more likely to start a business than are nonimmigrants, and they represent 16.7 percent of all new business owners in the United States.” This SBA report also found that nearly 30 percent of all new business owners per month in New York, Florida, and Texas, are immigrants. In addition, business owners from Europe constituted a growing share of immigrant business owners.

The E Visa for those unfamiliar with the opportunity, provides nonimmigrant visa status for a national of any of the countries with which the United States maintains an appropriate treaty of commerce and navigation, who is coming to the United States to carry on substantial trade, including trade in services or technology, principally between the United States and the treaty country, or to develop and direct the operations of an enterprise in which the national has invested, or is actively in the process of investing substantial amount of capital.

An E-2 treaty investor must seek entry solely to develop and direct the treaty business. In certain franchises, the franchise contract may be too restrictive to establish this element of direction by the foreign investor, but a franchise business may qualify for E-2 status is the franchisee can exemplify sufficient control over the franchise operations.

Employees of treaty investors must have the same nationality as the E-2 employer. The position must be executive, supervisory, or require essential skills. As to executive or supervisory positions, the consular officer will review if the position principally requires management skills or key supervisory responsibility; or if the position chiefly involves routine work and only secondarily requires supervision of low-level employees. The E classification is intended for specialists and not for ordinary skilled workers. There are exceptions to this general rule. Some skills may be essential for as long as the business is operating.

Final tip for Italian investors, The most common reason causing delays in processing Treaty Trader and Treaty Investor visa applications is the failure to submit a Banca Nazionale del Lavoro receipt for the Machine Readable Visa fee payment. Cases submitted without this receipt are not examined or processed until the Machine Readable Visa fee payment receipts are received.

For more information on the E2 Visa, feel free to email us at any time.

Today, the U.S. House of Representatives passed the Fairness for High-Skilled Immigrants Act (HR 3012), legislation introduced several months ago by Representative Jason Chaffetz (R-UT). The bill eliminates per-country caps on employment-based green card numbers and increases the per-country limit on family-based green cards from 7 percent to 15 percent. If enacted, the bill will reduce the green card wait times for employment-based immigrants from high-volume user countries, such as India and China.

Though the bill has been passed by the House of Representatives, it is not yet law and must still pass the U.S. Senate and be signed into law by the President. We hope this will become a reality soon. We will keep our readers posted.

Sad Sad Story, but this is our reality. A talent illegal-immigrant student in Texas killed himself the day after Thanksgiving and left letters saying he felt trapped by his lack of opportunities.

High school senior Joaquin Luna, 18, of Mission, shot himself in the bathroom of his house on Friday. His brother Diyer Mendoza said Joaquin left letters telling of his despair at the chances of the federal Dream Act, which would legalize illegal-immigrant students and young adults, becoming a reality.

The purpose of the Development, Relief and Education of Alien Minors Act, also called the DREAM Act, is to help those individuals who meet certain requirements, have an opportunity to enlist in the military or go to college and have a path to citizenship which they otherwise would not have without this legislation. Supporters of the DREAM Act believe it is vital not only to the people who would benefit from it, but also the United States as a whole. It would give an opportunity to undocumented immigrant students who have been living in the U.S. since they were young, a chance to contribute back to the country that has given so much to them and a chance to utilize their hard earned education and talents.

Congress blocked the legislation last year when it fell five votes shy of the 60 needed for it to become a law. In July 2011, a state-level law in California was enacted, giving illegal immigrant students access to private college scholarships for state schools. In August, the state of Illinois authorized a privately-funded scholarship plan for children of immigrants both legal and illegal.

The sad death highlights the plight of hundreds of thousands of illegal-immigrant students who are caught between a decision their parents made when they were young and the realities of U.S. immigration law. We hope that the Government will create a path for legalization for such kids who by now became part of our society.

A recent article on Ars Technica has shed some light on an important issue going on in the U.S., the ability to get work visas. Some of the Silicon Valley's most important companies, including Intel, Google, and Yahoo, were cofounded by immigrants. Yet America's ponderous immigration system makes it difficult for talented young people born outside of the U.S. to come to the Bay Area. There have been various proposals to make it easier for immigrant entrepreneurs to come to the United States, but that has not made much progress in Congress.

A new company called Blueseed is seeking to bypass the political process and solve the problem directly. Blueseed plans to buy a ship and turn it into a floating incubator anchored in international waters off the coast of California.

An interview by Ars Technica talked to Blueseed founder Max Marty. He acknowledged that it would be better for America to reform immigration laws and thereby make his company unnecessary. But in the meantime, Marty and his team are hard at work tackling the practical obstacles to making their vision of a floating, year-round hack-a-thon a reality. Within the next year, they're hoping to raise a venture capital round large enough to lease or buy a ship with space for around a thousand passengers. If Blueseed's audacious hack of the immigration system is successful, it will not only open up Silicon Valley to a broader range of entrepreneurs, it will also shine a spotlight on the barriers American law places in the way of immigrants seeking to start businesses in the United States.

Blueseed is trying to overcome the limitations of American immigration law, but its business model also depends in critical part on the goodwill of American immigration officials. That is because a key part of the Blueseed sales pitch is that residents will be able to make regular trips to the mainland.

Immigration law makes it difficult for many would-be immigrants to get permission to work in the United States. For example, there's an annual cap on the number of H1-B visas available for American employers to hire skilled immigrant workers, a cap that was recently met. However, permission to travel to the United States for business or tourism is much easier to get.

Marty pointed to the B-1 business visa as a key part of his company's strategy. With a B-1 visa, visitors can freely travel to the United States for meetings, conferences, and even training seminars. B-1 visas are relatively easier to get, and can be valid for as long as 10 years.

Blueseed plans to provide regular ferry service between the ship to the United States. While Blueseed residents would need to do their actual work—such as writing code—on the ship, Marty envisions them making regular trips to Silicon Valley to meet with clients, investors, and business partners.

With the ship only 12 miles offshore, it should be practical to make a day trip to the mainland and return in the evening. A B-1 visa also permits overnight stays, making it useful for extended business related visits.

Continue reading "Start Up Company Seeks to Bypass U.S. Immigration System" »

The EB-5 Category is an excellent opportunity for many foreign nationals to become permanent residents of the United States. In the U.S. so far this year almost 3,000 Chinese citizens have applied for investor visas, up from 270 in 2007. That’s 78 percent of the total applicant pool for this type of visa, according to U.S. Citizenship and Immigration Services (USCIS). The U.S. investor visa, also known as the EB-5, requires a minimum investment of $500,000 by the applicant in a commercial project in the U.S. that employs at least 10 Americans within two years. If the Chinese applicants can’t generate those jobs, they and their family may have to leave the U.S.

A person investing $500,000 in certain circumstances or $1 million in a business that creates 10 jobs may be granted EB-5 permanent resident status. To encourage immigration through the EB-5 category, Congress created a Regional Center program in 1990. 3,000 visas have been set aside each year for people to invest at least $500,000 in designated Regional Centers.

The Regional Centers program does not require the immigrant investor enterprise itself to employ 10 U.S. workers. Instead, it is sufficient if 10 or more jobs are created indirectly as a result of the investment. Regional Centers are designated as "any economic unit, public or private, which is involved with the promotion of economic growth, including increased export sales, improved regional productively, job creation, or increased domestic capital investment." The investment requirement is only $500,000 if a Regional Center is in a targeted employment area, which is either in a rural or high unemployment area, as defined hereinafter in the section on EB-5 Regulations.

According to BusinessWeek, For the most part, China’s richest aren’t permanently fleeing their country, as some Russian oligarchs have. About 80 percent of the wealthy Chinese emigrating don’t plan on giving up their passports, according to an October survey by the Bank of China and Shanghai-based Hurun Report.

So why are they looking at residency abroad? The top motive cited is to pursue better educational opportunities for their children, according to the Bank of China-Hurun and China Merchants-Bain surveys, as well as comments from émigrés. The feeling among rich Chinese is that U.S. universities beat out their Chinese equivalents, and their children need to understand the world.

EB-5 investors include people from all walks of life: professionals, business people, persons wanting to facilitate a child's education, and retirees. Because the EB-5 visa permits employment in the US, many EB-5 investors become involved in charity or part time work. Simply put, the EB-5 visa gives you the flexibility to do what you want in the USA. Email us if you need more information about this program.

OK so game is over for 2011, next filing is April 2012. U.S. Citizenship and Immigration Services (USCIS) announced that as of Tuesday, November 22, the 65,000 H-1B cap for fiscal year 2012 has been exhausted. USCIS previously confirmed that it had exhausted the 20,000 cap for employees with advanced degrees from U.S. colleges and universities. As such, the next available H-1Bs will be available for filing on April 1, 2012 with a start date of October 1, 2012.

The American Immigration Lawyers Association (AILA) commented on Wednesday’s announcement from the United States Citizenship and Immigration Services (USCIS) that it has received a sufficient number of H-1B petitions to reach the statutory cap of 65,000 visas for fiscal year 2012 since the filing window opened on April 1st this year.

“During a time when job creation is the nation’s number one priority, why are we still fiddling around with an outmoded quota system that ignores the importance of immigrants to the economic engine?” said AILA President Eleanor Pelta.

“The marketplace dictates the pace and type of demand by business for specialized workers. To be more competitive globally, we really should be smarter about our high skilled visa distribution so that it is related to market needs instead of pinned to a static limit that was determined by Congress in the last decade,” continued Pelta. “Congress needs to be working on ways to make the visa system work for fueling the economy. The status quo is no longer acceptable.”

H-1B petitions are filed by U.S. employers seeking to hire a specific foreign national in a specialty occupation involving the theoretical and practical application of a body of specialized knowledge (such as the sciences, medicine and health care, education, biotechnology). The numerical limitation on H-1B petitions for fiscal year 2012 is 65,000. Additionally, the first 20,000 H-1B petitions filed on behalf of aliens who have earned a U.S. master’s degree or higher are exempt from the fiscal year cap.

Please email us to discuss options to work in the US. Happy Thanksgiving to All.

OK so the cap will be met by next week, we are certain now. U.S. Citizenship and Immigration Services (USCIS) announced that, as of November 18, 2011, it has received approximately 61,800 H-1B petitions counting towards the congressionally-mandated 65,000 limit. USCIS previously confirmed that it has received 20,000 H-1B petitions for employees with advanced degrees from U.S. colleges and universities, thus reaching the annual limit on H-1B petitions in the advanced degree category. Accordingly, additional H-1B petitions in this category will be adjudicated under the 65,000 general cap.

USCIS has historically accepted a greater number of H-1B petitions than the number available for approval under the cap based on the assumption that some petitions will be denied, rejected or withdrawn. USCIS will once again use actual data on approval and denials for this fiscal year to determine how many petitions should be accepted for filing and when to end the filing period for cap-subject petitions.

Hurry and file your cases now.

Great News for our Russian clients and Blog Readers. Secretary of State Clinton and Russian Foreign Minister Lavrov exchanged diplomatic notes during their November 19, 2011, meeting in Bali on the new agreement on visas announced on July 13, 2011. This exchange of notes advances the visa agreement one step closer to entry into force. Under Russian law, the Duma must next ratify the agreement and, following ratification, the parties will exchange a second set of notes confirming that their internal procedures for entry into force have been completed. The agreement will come into force 30 days after that exchange.

This visa agreement is historic, and it will allow tourists and business travelers from both the United States and Russia to receive visas with longer validity periods of 36 months, valid for multiple entries. This agreement will facilitate travel between our two countries and establish stronger ties between our people. The agreement benefits the largest segments of our traveling Americans and Russians – business travelers and tourists, traveling both as individuals and in groups.

The agreement also streamlines the visa issuance process by reducing the documentation required. These new visa validity periods will allow for expanded contacts and promote greater mutual understanding between our societies.

Currently, clients report sever delays for visa issuance in Moscow, as well as lengthy background checks on Business visas like L1A and H1B Visas. We hope the new measure will facilitate a new era in movement of people between the two countries.

A few day ago, the U.S. Department of State (DOS) released the December visa bulletin, which shows significant forward movement in the availability of immigrant visa numbers for individuals born in India and China in the Second Employment-Based preference category (EB-2) for individuals with advanced degrees. Foreign nationals born in India or China with an approved I-140 petition in the EB-2 category with a priority date of March 15, 2008 or earlier will be eligible to apply for the last step of the permanent residence beginning in December 2011. This represents forward progress in visa availability of four months from the November 2011 Visa Bulletin.

The Visa Bulletin, which the DOS releases each month, summarizes the availability of immigrant numbers based on employment- (or family-) based category, country of birth, and priority date. A foreign national cannot apply for permanent residence (a green card) until a visa is available based on their priority date, preference category, and country of birth.

The DOS has predicted that it is possible that immigrant visa availability could move forward again in the January and February 2012 Visa Bulletins, but then retrogress later in the year. Last year, according to the DOS, there were 3,000 EB-2 petitions filed on behalf of individuals born in India who already have priority dates established through EB-3 petitions. Because those individuals can use their previous EB-3 priority date for the EB-2 category, the movement in EB-2 numbers for India is likely to slow down.

For individuals born in India in the EB-3 category, there is not likely to be fast forward movement in visa availability. According to the DOS, there are approximately 54,000 cases pending from the summer of 2007 alone when visa numbers became current, allowing hundreds of thousands of people to apply for permanent residence, and then retrogressed soon thereafter. There are potentially 225,000-300,000 individuals, including dependents, in line in the EB-3 India category. Additionally, more than 50% of H-1B petitions filed each year are on behalf of Indian nationals, the majority of whom will establish priority dates and get in line for permanent residence. We suggest to file I-485 Adjustment applications as soon as possible for those with current dates.

A new Obama administration policy to avoid deportations of illegal immigrants who are not criminals has been applied very unevenly across the country and has led to vast confusion both in immigrant communities and among agents charged with carrying it out.

Since June, when the policy was unveiled, frustrated lawyers and advocates have seen a steady march of deportations of immigrants with no criminal record and with extensive roots in the United States, who seemed to fit the administration’s profile of those who should be allowed to remain.

But at the same time, in other cases, immigrants on the brink of expulsion saw their deportations halted at the last minute, in some cases after public protests. In other instances, immigration prosecutors acted, with no prodding from advocates, to abandon deportations of immigrants with strong ties to this country whose only violation was their illegal status, a sign that they were following the June memo from ICE.

For President Obama, the political stakes in the new policy are high. White House officials have concluded that there is no chance before next year’s presidential election to pass the immigration overhaul that Mr. Obama supports, which would include paths to legal status for illegal immigrants. Even still, immigration authorities have sustained a fast pace of deportations, removing nearly 400,000 foreigners in each of the last three years.

With Latino communities taking the brunt of those deportations, Latino voters are increasingly disappointed with Mr. Obama. White House officials hope the new policy will ease some of the pressure on Latinos, by steering enforcement toward gang members and convicts and away from students, soldiers and families of American citizens.

In a June 17 memorandum, John Morton, the director of Immigration and Customs Enforcement, laid out more than two dozen factors that its agents and lawyers should weigh when deciding whether to exercise prosecutorial discretion to dismiss a deportation. The memo called for “particular care and consideration” for veterans and active-duty troops, elderly immigrants and minors, and those brought here illegally as children.

In August, the homeland security secretary, Janet Napolitano, announced additional measures to put Mr. Morton’s guidelines into effect, including a review of all deportation cases — about 300,000 — currently in the immigration courts, with the aim of closing cases that do not meet the administration’s priorities.

In a report released Wednesday, the American Immigration Lawyers Association and the American Immigration Council collected 252 cases from lawyers across the country who had asked Mr. Morton’s agency, known as ICE, to exercise prosecutorial discretion to spare immigrants from deportation. “The overwhelming conclusion is that most ICE offices have not changed their practices since the issuance of these new directives,” the report found.

“This is a classic example of leadership saying one thing and the rank and file doing another,” said Gregory Chen, director of advocacy for the lawyers association. The report found that training for immigration officers on the new guidelines had been lacking.

Officials at the Homeland Security Department acknowledge the policy’s slow start. Mr. Morton’s June guidelines were followed by a three-month lull, when resistance grew among agents in the field. In late September, Ms. Napolitano and Mr. Morton went on the offensive to press the policy, and since then Mr. Morton has been on the road inaugurating training programs.

“Like any major change in enforcement policy, this is a work in progress,” Mr. Morton said by telephone from Miami, where he was joining in a training session. “I have been handling much of the initial explanation myself, because I feel so strongly about it.”

Officials say they need time to transform federal agencies accustomed to cut-and-dried immigration enforcement, with any illegal immigrant a target for deportation. Ms. Napolitano says immigration agents must become more like other police officers, using “sound prosecutorial practice” to follow priorities. Those priorities are to deport convicted criminals, serial violators of immigration law and recent border crossers, officials said.

Continue reading "Deportations Under New U.S. Policy Are Inconsistent" »

So why are we so stressed out in the past week or so, H1B time is on us. U.S. Citizenship and Immigration Services (USCIS) announced that, as of November 14, 2011, it has received approximately 56,800 H-1B petitions counting towards the congressionally-mandated 65,000 limit. USCIS also confirmed that it has received approximately 20,000 H-1B petitions for employees with advanced degrees from U.S. colleges and universities. The annual limit on H-1B petitions in the advanced degree category is 20,000. However, USCIS is still accepting H-1B petitions under the general cap for employees with advanced degrees from U.S. colleges and universities.

So looks like the economy is doing better, just look at H1B numbers from last year. In mid-November 2010, USCIS had received approximately 46,800 H-1B petitions counting towards the mandated 65,000 limit and approximately 17,200 H-1B petitions for employees with advanced degrees from U.S. colleges and universities. We expect even less visas to last next year.

So bottom line, call your Lawyers and let the filing begin!!

There is a movement going on right now on YouTube. The Define American movement has launched a social media campaign on YouTube to open up the dialogue on immigration here in the U.S. and how we can reform the immigration system. Jose Antonio Vargas, the journalist famous for outing himself as an illegal U.S. immigrant in The New York Times, and his campaign encourages Americans all across the world to share their personal stories about “what it means to be an American” and the effects of the immigration system on their lives. Users can share their story via text, audio or in the form of a YouTube video.

The campaign follows the same formula that turned the It Gets Better campaign into a worldwide phenomenon. The goal, says Vargas and Define American co-founder Jake Brewer, is to open an honest dialogue across the country about immigration and immigration laws’ effects on families and communities.

“Only the Internet and only social media is vast enough to make room for an actual dialogue and an actual conversation,” Vargas tells Mashable.

The campaign kicks off with the support of some big names and a few powerful stories. Stephen Colbert, Sen. Robert Menendez (D-NJ), Palm Pilot inventor Jeff Hawkins, Twilight: New Moon director Chris Weitz and Craigslist founder Craig Newmark are just some of the people who have recorded videos for the Define American campaign.

There are also some touching stories that don’t come from household names, though. For example, one English class at Northwest Yeshiva High School in Seattle recorded a video discussing what they think it means to be American. One such story from a student said he defines American as "One who wishes to do as they please and seizes the opportunity to go forth," while another student defined American as "Someone who lives in America that believes in the freedom and rights laid out in the U.S. Constitution." The English teacher defines American as "Everyone" because the American experiment encompasses everything come here and live here for.

“We’ve called it a new conversation about immigration,” explains Brewer. “The ultimate success to us is people talking to talk openly, despite political or divided lines.”

As a career journalist, Vargas has a slightly different view on the campaign. “We are in the golden age of storytelling,” he claims. “We don’t have to rely on journalists to write the stories. Every day people are writing their own stories.”

Vargas made headlines in June when he wrote a lengthy piece describing his life as an undocumented immigrant. The article, which focuses on his struggle to fit in and stay in the United States, sparked a wave of interest in his story. That wave helped Define American acquire more than 100,000 signatures on a petition

However, Vargas says that his personal story isn’t enough to fix the problems he sees with the immigration system. Instead, he’s hoping that a flood of videos (the goal is 500 in the next week) and the social media conversation that will ensue will inspire people to tell their immigration stories.

“Never underestimate the power of a story,” Vargas says. “I’m just one story. We need to hear more stories.” As an immigration practice, we hear such stories every day in our office, whether it is pursuing education, getting married, or finding a job here. Each client has their own story that speaks to what it means to be American. So fellow blog followers, how do you define American? What does it mean to you? If you wish to share your own definition of what American is, you can follow the campaign and post your own story at Define American's website.

A new report out today says more than 700,000 foreign students came to the U.S. to study last year. That's a record high for U.S. colleges and universities. Why the influx? It has a lot to do with state budgets.

The F1 visa is a nonimmigrant visa for international students who are qualified to attend a full course of study at colleges, universities, conservatories, academic high schools (subject to strict regulations) and institutions with language-training programs in the U.S.

Guess who sent the most students to the US in 2011 - China.

The annual Open Doors report from the Institute of International Education says the number of Chinese students on U.S. campuses was up 22 percent last school year.

Allan Goodman is president of the Institute. He says international students pump more than $21 billion into the U.S. economy. They often pay full tuition, and universities hit by state budget cuts say that's one reason they're recruiting more foreign students. Read more from NPR.

We expect more students to come in 2012 and we hope US Consulate and Embassies worldwide will also make it a smooth process to actually get visas. The benefits are both for the US economy and for the students in the US gaining an amazing opportunity to be part of the global market place.

Heading into Veterans Day, the Senate unanimously passed a bill to help unemployed veterans seeking jobs as well as federal contractors facing a new tax burden in 2013.

As we observe Veterans day, We wanted to send warm wards of support to our Veterans and the active duty men and women fighting for our country day and night.

The P1 Visa is for Internationally recognized athletes or athletic teams entering the U.S. to participate in an event of international standing. The B1 Visa is for Professional athletes to compete for tournament money and not for a salary among other things. Department of Homeland Security reserves B-1 visas for non-contracted players who are coming to training camp to try out. In reality, many players entering the U.S. with a standard contracts on a B1, even though it violates the letter of the law. The B-1 can cost up to $1,550 less than the P-1.

Chad Starling hopes something will change, and that he's the last ECHL player who gets turned around at the U.S.-Canadian border because he doesn't have the proper work visa.

ECHL commissioner Brian McKenna said if something does change, it will be up to the member teams. He's comfortable with the league's immigration policy as it currently stands.

"We're very clear with our teams: If a player signs a contract, that contract is registered with the league, he needs to come in on a P-1 visa," McKenna said. "If (the Reign) wanted to bring (Starling) in on a tryout basis, but the team isn't comfortable signing him to a contract, they certainly have the ability to bring a player in on a tryout basis. It's very clear. There's no ambiguity from the league's point of view."

Starling, a Canadian citizen, wasn't coming to the U.S. to try out. He already had signed his contract when he was turned around at a border station in Sweetgrass, Kemp knows that and accepts responsibility for what transpired.

"I don't know that there's ever been a policy, per se, but it's typically what teams will do as a cost-savings measure," he said. "Why we do things are because of cost-saving measures. Every team needs to look out for those interests."

As one possible way around the issue, Kemp suggested the Reign simply wouldn't announce the signing of any Canadian citizens until their P-1 visas are processed - usually later on in training camp and at a lower cost to the team.

Bottom line it is against the law to bring players who require P-1 visas across the border on B-1 visas. While the cost of the B1 visa is cheaper it may not be used as a replacement for a proper work visa. This abuse is also seen in cases when the H1B visa is not possible and workers come in under the B1 Visa. The B1 can be a great gap filler for a temporary period of time, but not a replacement for any visa.

To qualify for an H-1B visa foreign nationals must have the a U.S. Bachelor’s Degree or its equivalent in their specialty and, in fields that require licensing, such as teaching or pharmacy, a full unrestricted license to practice in the U.S. You must also have a U.S. employer to sponsor you; you cannot be self-employed or self-petitioned.

Thus, if you wish to come to the U.S. on an H-1B specialty occupation visa, and all your degrees are foreign degrees, you will need your educational credentials evaluated and submit that evaluation with the H-1B petition.

At a recent meeting between AILA and USCIS officials, the following issue came up: We request that Service Center Operations Director advise on how the Service treats foreign degrees, for equivalency purposes, if the programs were structured differently at the time
the degree was obtained than what is reflected today in the ACCRO-EDGE database.

For example a degree that may have taken 4 years in the past now takes 3 years and the individual who holds the degree completed it under the 4 year standard. How can we be sure the beneficiary is given credit for having a 4 year degree? A member at the Annual Conference reported a denied I-140 under these conditions even when the member provided a course by course evaluation, a letter from the foreign university explaining the change and documents from the government showing when the change occurred.

USCIS Response: USCIS reviews each educational evaluation independently. If USCIS determines that the beneficiary’s educational background is equivalent to a U.S. bachelor’s degree then USCIS will adjudicate accordingly. Petitioners should provide whatever information they feel will best establish that the beneficiary’s educational background is equivalent to a U.S. bachelor’s degree.

As a reminder, USCIS’s policy regarding evaluations on the equivalency of degrees is that the
evaluations are advisory in nature and the final determination continues to rest with USCIS (See
Matter of Caron International, 19 I&N Dec. 791 (Comm. 1988), Matter of Sea, Inc. 19 I&N
Dec. 817 (Comm 1988), and Matter of Ho, 19 I&N Dec. 582 (BIA 1988).)

8 CFR 214.2(h)(4)(iii)(D) provides that for purposes of paragraph (h)(4)(iii)(C)(4) equivalence to completion of a United States baccalaureate or higher degree shall mean achievement of a level of knowledge, competence, and practice in the specialty occupation that has been determined to be equal to that of an individual who has a baccalaureate or higher degree in the specialty and shall be determined by one or more of the following:

An evaluation from an official who has authority to grant college-level credit for training and or/experience in the specialty at an accredited college or university which has a program for granting such credit based on an individual’s training and or work experience.

We strongly advice our clients to provide as much documentation and information about foreign education as possible. We also suggest to only use expert professors in line with the above referenced guidelines. Email us for more info.

Recently, many employers have been receiving Requests for Evidence (RFEs) on their petitions for L-1B Specialized Knowledge nonimmigrant worker visa. The L-1B visa is filed by a company who wants to transfer someone with specialized knowledge of the company or product of the company to their U.S. branch to help with its operations. Because of so many RFEs sent to employers on their L-1B petitions, the United States Citizen and Immigration Services held a stakeholder meeting to address the issues related to L-1B filings. In particular, many attorneys for employers raised the issue concerning the factors in determining Specialized Knowledge. At our law firm, we received an RFE for our own L-1B case that raised many of the same issues other attorneys have faced in their filings. This article will address those issues and how we overcame them in our case.

The main issue being the L-1B visa is the specialized knowledge requirement. Specialized knowledge means special knowledge possessed by an individual of the petitioning organization’s product, service, research, equipment, techniques, management or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization’s processes and procedures (8 C.F.R. 214.2(l)(1)(ii)(D and (E)). From this definition of specialized knowledge, the application of it has varied greatly in many cases. First, what constitutes special knowledge seems to be confused with the standard of the O-1 visa requirements. The O-1 visa requires the individual to hold extraordinary ability in the sciences, arts, education, business, or athletics where “extraordinary ability” means sustaining national or international acclaim. This standard confuses the meaning of someone simply having an advanced level of knowledge or expertise within their organization’s processes and procedures.

In answering how our client's employee held the specialized knowledge for the position he was being transferred to, we had to go back through the description of the position held in the foreign company and the position going to be held in the U.S. After going through those descriptions, we responded to each duty in both positions to show how the specialized knowledge of the employee was required for both positions. We further confirmed that knowledge through use of many letters of reference from higher up executives and other individuals who recognized the employee's importance within the organization.

There has been some indication that specialized knowledge is different from proprietary knowledge and should not be confused. Some attorneys reminded USCIS that the L-1B nonimmigrant classification did not require the individual to be extraordinary, and that specialized knowledge need not be proprietary. It has pointed out that specialized knowledge is a special knowledge of the product or processes of a company. It was also stated that specialized knowledge need not to be narrowly held by a select few individuals within a company. These concerns were raised in our own case wherein it was requested to show how the employee held proprietary knowledge of the company's product. Although there is nothing in the definition of the L-1B visa that says proprietary knowledge is required to show specialized knowledge, nevertheless, by providing other documentation to show how the employee was directly involved in the development of the company's product, it was indisputable that he held specialized knowledge within the company.

Another issue raised was that skilled individuals required to keep the company competitive in the field were becoming difficult to bring over with RFEs in these cases. In cases where the knowledge relates to the industry rather than a particular company or it is not unique to the company, but rather enhances a company’s competitiveness, the importance of the individual’s skilled work cannot be understated. It was noted that in certain industries such as the software industry, the information is not unique to the company in that there are other individuals who have knowledge of the software as well. All of these considerations make it clear that a specialized knowledge individual is the one whose knowledge makes the company more competitive in its field. This RFE was also asked for in our case and easily responded to through statements from the senior executives of the company attesting to how the employee's use in the U.S. will make the company more competitive.

Continue reading "L1B Visa Attorney - Difficulties with the L-1B Specialized Knowledge Visa" »

We have been reporting on the increase in unjust H1B denials for weeks. In many cases applicants and their lawyers are left with the option to appeal or refile. But when the media gets involved, USCIS are forced to change course.

Earlier this week "World News" shared the story of Amit Aharoni, an Israeli national and a graduate of Stanford Business School, who secured $1.65 million in venture capital funding with two cofounders to launch CruiseWise.com, an online cruise booking company. The company hired nine Americans in just one year.

But Aharoni hit rough waters after he received a letter on Oct. 4 from U.S. Citizenship and Immigration Services denying his request for a visa and notifying him that he needed to leave the country immediately. Aharoni moved to Canada, where he was forced to run his company via Skype from a friend's living room. While "World News' viewers voiced their disappointment, this morning, Aharoni received an email from USCIS. He was told that his petition had been reconsidered and approved. He is once again able to work in the U.S.

Experts say America's immigration policy is putting it at a competitive disadvantage. There are other countries that are eager to have entrepreneurs, enticing them with special visas and funding. According to Partnership for a New American Economy, an organization that advocates "the economic benefits of sensible immigration reform," countries including the United Kingdom, Singapore and Chile have visas for entrepreneurs. Chile even has a program that offers $40,000 in seed funding.

It is a problem politicians in America acknowledge, but have not solved.

According to statistics from Partnership for a New American Economy, 40 percent of Fortune 500 companies were founded by immigrants or their children.

If we fail to give such gifted immigrants the foundation to innovate, we will be the the first ones to loose.

So the race for H1b Visas is on. As of October 28, 2011, USCIS received approximately 49,200 H-1B petitions counting towards the congressionally mandated 65,000 limit. USCIS also confirmed that it has received approximately 20,000 H-1B petitions for employees with advanced degrees from U.S. colleges and universities.

The annual limit on H-1B petitions in the advanced degree category is 20,000. Accordingly, USCIS is still accepting H-1B petitions under the general cap. Employees with advanced degrees from U.S. colleges and universities may still apply under the general cap.

The H-1B numbers are being used at a faster rate this year than they were last year. In October 2010, USCIS had received approximately 45,600 H-1B petitions counting towards the congressionally mandated 65,000 limit and approximately 16,700 H-1B petitions for employees with advanced degrees from U.S. colleges and universities.

If you want to get your H1B visa this year, now is the time to file. Contact us if you need to get it done fast.