Articles Posted in Entrepreneur Immigration

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On April 5, 2019, USCIS announced that it received a sufficient number of petitions needed to reach the congressionally mandated 65,000 H-1B visa regular cap for fiscal year 2020.

As expected, the Regular cap (Bachelor’s cap) was reached within the first five business days of the FY 2020 application cycle.

USCIS still has not announced whether it has received a sufficient number of petitions to meet the 20,000 H-1B visa cap for the U.S. advanced degree exemption (Master’s cap).

USCIS has also not yet announced whether the H-1B lottery has been conducted. Last year, USCIS made the announcement on April 12th.

During the next few weeks Petitioners should keep a close eye on their bank accounts to see whether the H-1B filing fees have been charged to their accounts.

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Today, USCIS will begin accepting H-1B petitions subject to the FY 2020 cap. Any FY 2020 cap-subject H-1B petitions filed before April 1st will be rejected.

Beginning today, 65,000 H-1B visas will be available for the regular cap, and 20,000 H-1B visas for advanced degree holders.

Selection

Important changes will be implemented for the H-1B cap selection process.

In January, the Department of Homeland Security announced a final rule amending regulations governing cap-subject H-1B petitions, including those that may be eligible for the advanced degree exemption.

The final rule reverses the order by which USCIS selects H-1B petitions under the H-1B regular cap and the advanced degree exemption, which will be in effect for the FY 2020 cap season.

USCIS will first select H-1B petitions submitted on behalf of all beneficiaries, including those that may be eligible for the advanced degree exemption. USCIS will then select from the remaining eligible petitions, a number projected to reach the advanced degree exemption.

Premium Processing Available for COS Cap Subject H-1B Petitions Only

Starting April 1, FY 2020 cap-subject H-1B petitioners requesting a change of status on their Form I-129, Petition for a Nonimmigrant Worker, may request premium processing by concurrently filing Form I-907, Request for Premium Processing Service.

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The start of the FY 2020 H-1B cap season begins on April 1, 2019. This year, USCIS will offer premium processing services in a two-phased approach to avoid temporary suspension of the service.

Change of Status H-1B Cap Petitions

Starting April 1, FY 2020 cap-subject H-1B petitioners requesting a change of status on their Form I-129, Petition for a Nonimmigrant Worker, may request premium processing by concurrently filing Form I-907, Request for Premium Processing Service.

However, to prioritize data entry for cap-subject H-1B petitions, USCIS will not begin premium processing for these petitions immediately.

USCIS will begin premium processing for these petitions no later than May 20, 2019 and will notify the public before premium processing begins for these petitions.

If a petitioner does not file Form I-907 concurrently with an FY 2020 H-1B cap-subject petition requesting a change of status, the petitioner must wait until premium processing begins to submit Form I-907.

All Other FY 2020 Cap-Subject Petitions

Premium processing services for all other FY 2020 cap-subject H-1B petitions will not begin until at least June 19, 2019. Cap-subject petitioners who are not requesting a change of status may not submit their premium processing request concurrently with their H-1B petition. These petitioners will be eligible to upgrade to premium processing once premium processing begins for this group. USCIS will notify the public with a confirmed date for premium processing for cap-subject petitioners not requesting a change of status. Continue reading

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USCIS has announced that it will resume premium processing services for all H-1B petitions on Tuesday, March 12.

Applicants who have received a request for evidence (RFE) for a pending H-1B petition, should include Form I-907 request for premium processing along with the RFE response, if they wish to upgrade their petition.

What is Premium Processing Service?

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The Department of Homeland Security has published an advanced copy of the final rule that will amend the way the H-1B visa program will be run in the future. The official version of the final rule is set to be published in the Federal Register tomorrow January 31, 2019, and become effective April 1, 2019, the beginning of the H-1B cap visa season for fiscal year 2020.

Beginning with the upcoming FY 2020 H-1B cap season, which kicks off on April 1, 2019, USCIS will reverse the order by which it selects H-1B petitions under the H-1B regular cap and the advanced degree exemption.

USCIS will first select H-1B petitions (or registrations, once the registration requirement is implemented) submitted on behalf of all beneficiaries, including those that may be eligible for the advanced degree exemption. USCIS will then select from the remaining eligible petitions, a number projected to reach the advanced degree exemption.

According to USCIS, “Changing the order in which USCIS counts these allocations will likely increase the number of petitions for beneficiaries with a master’s or higher degree from a U.S. institution of higher education to be selected under the H-1B numerical allocations.”

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Have you ever wondered what visa options are available to social media influencers?

Social media influencers have quickly become of the biggest assets for brands seeking to reach millennial audiences by way of influencer marketing.

Influencer marketing refers to a business collaboration with an influential person on social media to promote a product, service, or a campaign. Social media influencers are those who have amassed a large following on social media and have established credibility among their followers within their specific industry.

An influencer can come to the United States and work with brands to promote their goods or services by applying for the O-1B visa for aliens of extraordinary ability in the arts.

To qualify for an O-1 visa, the social media influencer must demonstrate extraordinary ability by sustained national or international acclaim via social media, and seek to come to the United States to work with companies using their social media platform.

What is extraordinary ability?

Extraordinary ability in the field of arts means distinction.  Distinction means a high level of achievement in the field of the arts evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that a person described as prominent is renowned, leading, or well-known in their field.

For social media influencers this means a large following within their field of business such as fashion, gaming, travel, lifestyle, etc.

Evidentiary Criteria:

There are 6 evidentiary criteria that must be met to obtain the O-1B visa:

Evidence that the applicant has received, or been nominated for, significant national or international awards or prizes in the particular field, or evidence of at least (3) three of the following:

  • Performed and will perform services as a lead or starring participant in productions or events which have a distinguished reputation as evidenced by critical reviews, advertisements, publicity releases, publications, contracts or endorsements
  • Achieved national or international recognition for achievements, as shown by critical reviews or other published materials by or about the beneficiary in major newspapers, trade journals, magazines, or other publications
  • Performed and will perform in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation as evidenced by articles in newspapers, trade journals, publications, or testimonials.
  • A record of major commercial or critically acclaimed successes, as shown by such indicators as title, rating or standing in the field, box office receipts, motion picture or television ratings and other occupational achievements reported in trade journals, major newspapers or other publications
  • Received significant recognition for achievements from organizations, critics, government agencies or other recognized experts in the field in which the beneficiary is engaged, with the testimonials clearly indicating the author’s authority, expertise and knowledge of the beneficiary’s achievements
  • A high salary or other substantial remuneration for services in relation to others in the field, as shown by contracts or other reliable evidence

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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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In this post, we would like to keep our readers informed about Visa Bulletin projections for the coming months. 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.

EB-1: The following categories are expected to experience some forward movement in the month of December, however it is not yet known how much advancement will take place: EB-1 Worldwide, EB-1 China, and EB-1 India. It is not expected for these categories to return to current during this calendar year. A cutoff date is expected for EB-1 Worldwide until the first half of the fiscal year.

EB-2 China: is expected to continue to experience forward movement

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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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