Visa Lawyer Blog

Articles Posted in Employment based visa

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The House Proposes to Extend the E-3 Program to Irish Nationals

On November 20, 2018, the House of Representatives introduced H.R. 7164, a bill proposing to add Ireland to the E-3 nonimmigrant visa program. Currently, the E-3 visa program is available to American employers seeking to hire Australian nationals to perform services in a specialty occupation for a temporary period of time.

The E-3 visa program functions much like the H-1B program. The program is governed by the same labor certification standards that apply to the H-1B visa program, and much of the same evidence is required. The E-3 visa classification is numerically limited, with a maximum of 10,500 visas available annually for Australian nationals.

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The E-2 treaty investor visa allows foreign nationals to make an investment in an existing or new business venture in the United States.

Advantages

There are no numerical limitations on the number of E-2 visas that can be issued, and there is no set minimum level of investment required, however the level of investment that should be made in the business venture should be sufficient to justify the presence of the foreign national in the United States. Although the E-2 visa is granted for an initial two-year period, the investor may qualify to extend their stay in two-year increments, with no outer limit on the total period of the foreign national’s stay.

Disadvantages

Not all foreign nationals are eligible to apply for the E-2 treaty investor visa. To qualify, you must be a foreign national from a treaty country that participates in a treaty of friendship, commerce, navigation or similar agreement with the United States. See below for qualifying countries:

Albania Czech Republic Kosovo Romania
Argentina Denmark Kyrgyzstan Serbia
Armenia Ecuador Latvia Senegal
Australia Egypt Liberia Singapore
Austria Estonia Lithuania Slovak Republic
Azerbaijan Ethiopia Luxembourg Slovenia
Bahrain Finland Macedonia Spain
Bangladesh France Mexico Sri Lanka
Belgium Georgia Moldova Suriname
Bolivia Germany Mongolia Sweden
Bosnia and Herzegovina Grenada Montenegro Switzerland
Bulgaria Honduras Morocco Thailand
Cameroon Iran The Netherlands Togo
Canada Ireland Norway Trinidad and Tobago
Chile Italy Oman Tunisia
China (Taiwan) Jamaica Pakistan Turkey
Colombia Japan Panama Ukraine
Congo (Brazzaville and Kinshasa) Jordan Paraguay United Kingdom
Costa Rica Kazakhstan Philippines Yugoslavia
Croatia South Korea Poland

Another disadvantage is that the E-2 visa is a temporary non-immigrant visa type. This means that the E-2 visa does not create a pathway to permanent residency. In addition, making an investment in a small business venture is risky. Most small businesses fail. Investors seeking to establish a new business in the United States must be prepared to face challenges, obstacles, and potential losses. If the investment will be made by a company, at least 50% of owners in the qualifying country must maintain the nationality of a treaty trader country if they are not lawful permanent residents.

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Today, November 30, 2018, the United States Department of Homeland Security announced a notice of proposed rulemaking (NPRM) that seeks to impose a registration requirement for H-1B petitioners seeking to file an H-1B petition on behalf of beneficiaries under the regular cap and advanced degree exemption.  An unpublished version of the proposed rule has been made available in the federal register.

Under the proposed rule H-1B Petitioners would be required to electronically register with USCIS during the designated registration period, in order to file a H-1B cap-subject petition on behalf of a foreign worker. In addition, DHS is proposing to change the order in which H-1B cap-subject registrations would be selected to meet the annual H-1B regular cap and advanced degree exemption. This change would increase the odds of selection for H-1B beneficiaries who have earned a U.S. master’s degree or higher from a U.S. institution.

Under the proposed rule, all petitioners seeking to file an H-1B cap-subject petition on behalf of a foreign worker would be required to submit to a mandatory registration process. Only those whose registrations are selected, would be eligible to file an H-1B cap-subject petition during the associated filing period.

The mandatory Internet-based registration process for petitioners seeking to file H-1B petitions for beneficiaries to be counted under the regular cap or advanced degree exemption, would begin before April 1st, in advance of the period during which H-1B petitions can be filed for a new fiscal year. An H-1B cap-subject petition would not be considered properly filed unless the petition is based on a valid registration selection for that fiscal year.

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Citizens of New Zealand now qualify for the E-2 Treaty Trader Investor Visa thanks to a United States–New Zealand partnership recently signed into law. The KIWI Act, or Knowledgeable Innovators and Worthy Investors Act, signed into law on August 1st, adds New Zealand to the list of eligible countries participating in the E-2 Visa program. This is great news for entrepreneurs from New Zealand seeking to do business in the United States.

Overview of the E-2 Treaty Trader Investor Visa

The E-2 Treaty Investor Visa is a non-immigrant visa type that is only available to foreign nationals of a foreign country with a qualifying treaty of friendship, commerce, navigation, or a similar agreement with the United States. A treaty trader visa is issued for an initial period of 2 years that can be renewed in 2-year increments, with no outer limit on the total period of stay. Dependents of the principal E-2 applicant can apply for derivative E visas to accompany the entrepreneur in the United States.

The E-2 visa allows entrepreneurs from treaty nations to enter the United States and carry out investment and trade activities. Investment activities include the creation of a new business in the United States, or an investment in an existing business in the United States. The investment must be significantly proportional to the total investment, that is, usually more than half the total value of the enterprise or, if a new business, an amount normally considered necessary to establish the business.

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If you are a citizen of Canada or Mexico and you are interested in working in the United States temporarily, the TN visa may be right for you.

Under 8 CFR 214.16, Citizens of Canada or Mexico may seek temporary entry under the North American Free Trade Agreement (NAFTA) to engage in business activities at a professional level.

This section of the law defines business activities at a professional level as “undertakings which require….at least a baccalaureate degree or appropriate credentials demonstrating status as a professional in a profession set forth in Appendix 1603.D.1 of NAFTA.”

What are business activities at a professional level?

A citizen of Canada or Mexico may perform prearranged business activities for a United States entity, meaning that the Canadian or Mexican citizen must have a pre-arranged employment agreement to perform professional services in the United States. TN applicants may not enter with the intent to establish permanent residence in the United States. TN visa applicants may only remain in the United States to fulfill their pre-arranged employment agreement and depart after that period has ended. The TN visa is issued for an initial period of 3 years, with one-year extensions granted thereafter if necessary.

The following table outlines professions authorized for TN Visa purposes:

Appendix 1603.D.1 (Annotated)

– Accountant – Baccalaureate or Licenciatura Degree; or C.P.A., C.A., C.G.A., or C.M.A.

– Architect – Baccalaureate or Licenciatura Degree; or state/provincial license. 2

2 The terms “state/provincial license” and “state/provincial/federal license” mean any document issued by a state, provincial, or federal government, as the case may be, or under its authority, but not by a local government, that permits a person to engage in a regulated activity or profession.

– Computer Systems Analyst – Baccalaureate or Licenciatura Degree; or Post-Secondary Diploma 3 or Post Secondary Certificate 4 and three years’ experience.

3 “Post Secondary Diploma” means a credential issued, on completion of two or more years of post secondary education, by an accredited academic institution in Canada or the United States.

4 “Post Secondary Certificate” means a certificate issued, on completion of two or more years of post secondary education at an academic institution, by the federal government of Mexico or a state government in Mexico, an academic institution recognized by the federal government or a state government, or an academic institution created by federal or state law.

– Disaster relief insurance claims adjuster (claims adjuster employed by an insurance company located in the territory of a Party, or an independent claims adjuster) – Baccalaureate or Licenciatura Degree and successful completion of training in the appropriate areas of insurance adjustment pertaining to disaster relief claims; or three years experience in claims adjustment and successful completion of training in the appropriate areas of insurance adjustment pertaining to disaster relief claims.

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During March of this year, the United States Citizenship and Immigration Services (USCIS) announced the temporary suspension of premium processing services for all fiscal year 2019 cap-subject petitions, including petitions requesting an exemption from the general cap. USCIS announced that the suspension would last until September 10, 2018, in order to reduce H-1B processing times for long-pending petitions.

Temporary Suspension to Continue through February 19th

Recently, USCIS announced that the agency will be extending the temporary suspension until February 19, 2019.

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In this post, we would like to keep our readers informed about Visa Bulletin projections for the month of October. Charles Oppenheim, Chief of the Visa Control and Reporting Division of the U.S. Department of State provides a monthly analysis of each month’s Visa Bulletin including discussion of current trends and future projections for immigrant preference categories.

Below are the highlights of those trends and projections for the month of October.

EB-1 Worldwide: It is expected that heavy demand in this category will prevent this category from becoming current in October. Previously, it was believed that EB-1 Worldwide would become current on October 1st, but this will no longer be the case according to current projections. EB-1 China and EB-1 India will have earlier final action dates than the EB-1 Worldwide category, which are expected to fall in the month of October. It is projected that the EB-1 categories will not move forward until about December or 2019.

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Congratulations to those of our readers who won the H-1B visa lottery for fiscal year 2019. If your checks were not cashed between April 1 and May 3, unfortunately you were not selected in the lottery for the upcoming fiscal year. Thankfully our office has prepared a helpful guide that will help you explore alternative options to the H-1B visa by clicking here.

Our office continues to receive receipt notices for petitions that were selected in the lottery. As of the month of May our office has enjoyed a 66.66% success rate for petitions filed under the Master’s cap, and a 41.37% success rate for petitions filed under the Regular Bachelor’s cap, well above the national average of 35%.

If you have received a receipt notice, please keep in mind that premium processing services, for all FY 2019 cap-subject petitions, including petitions seeking an exemption for individuals with a U.S. master’s degree or higher, are suspended until September 10, 2018.

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TPS Blunders: DHS Announces Termination of TPS Designation for Nepal, with a Delayed Effective Date of 12 months

The Department of Homeland Security has formally decided to terminate the Temporary Protected Status (TPS) designation for the country of Nepal. According to a statement released by the Department of Homeland Security, the TPS designation for Nepal will officially terminate on June 24, 2019, giving nationals of the country of Nepal a period of 12 months to make an orderly departure from the United States or seek alternative legal means to remain in the United States, for those who are eligible.

The TPS designation for the country of Nepal had been in place since 2015, following a deadly earthquake that forced many to leave the country while the government focused on reconstruction efforts. According to CNN, roughly 9,000 Nepalese immigrants had been living in the United States under TPS protection.

According to Secretary Nielsen the decision was made after it was determined that the conditions in Nepal no longer required the designation to continue. According to DHS, “the disruption of living conditions in Nepal” caused by the 2015 earthquake “have decreased to a degree that they should no longer be regarded as substantial, and Nepal can now adequately manage the return of its nationals.”

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Beginning April 30, 2018 until October 31, 2018, the California Service Center (CSC) and the U.S. Customs and Border Protection (CBP) at the Blaine, Washington, Port of Entry (POE) will implement a joint 6-month pilot program for the benefit of Canadian citizens seeking entry to the United States in L non-immigrant visa status pursuant to the North American Free Trade Agreement (NAFTA).

The L-1 Visa:

The L-1 visa designation allows a foreign company to transfer an executive or manager to an existing U.S. subsidiary or parent company of the foreign entity, or allows the foreign entity to send the executive or manager to the U.S. for the purpose of establishing an affiliated subsidiary or parent company of the foreign entity (L-1A). In addition, the foreign company can transfer an employee with specialized knowledge to the U.S. on an L-1B visa. To qualify, applicants must have worked abroad for the foreign employer for at least one year within the proceeding three years.

Under the NAFTA program, Canadians can apply to receive an L visa at the border and are not required to file an L visa application with USCIS or at a U.S. Consulate abroad. Up until this point, the application procedure involved same-day processing of an L application where the worker would file Form I-129 with supporting evidence at a Class A Port of Entry to the United States, or airport pre-clearance location, where the petition would be granted or denied at the port of entry.

Pilot Program

Under the new pilot program, petitioners may file an L petition on behalf of a Canadian citizen by first submitting Form, I-129, Petition for a Nonimmigrant Worker, and supporting evidence to the California Service Center, before the Canadian citizen seeks nonimmigrant L-1 admission to the United States through the Blaine Port of Entry. Petitioners should include a cover sheet annotated with “Canadian L” to ensure quick identification of the Form I-129 and for any correspondence thereafter, such as a response to a request for evidence (RFE).

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