Visa Lawyer Blog

Articles Posted in Immigrant Visas

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Aditya Agarwal, VP of Engineering at Dropbox and Joe Green of FWD

Aditya Agarwal, VP of Engineering at Dropbox and President and Founder of FWD. us Joe Green

For decades, immigrants from all parts of the world have come to the United States, bringing with them their unsurpassed talents and ground breaking innovations.  This entrepreneurial spirit was first fostered by our founding fathers and later matched by such brilliant minds as, telecommunications magnate Alexander Graham, Google founder and college dropout Sergey Brin, and Nordstrom founders John W. Nordstrom and Carl F. Wallin, all of whom immigrated to the United States in pursuit of the American dream. Such immigrants have continued to shatter conventions by making significant contributions to our country’s history, its technology, and economy.

In early 2013, the Kauffman Foundation released an updated report as a supplement to the Kauffman Index of Entrepreneurial Activity, which tracks new business creation in the United States. The report studied rates of entrepreneurial activity among different demographic groups during an 18 year period, beginning in 1996 through 2013. Of interest, is the report’s finding that the number of immigrants who were new entrepreneurs in 2013, at 26 percent, was nearly twice that of the native-born population of non-immigrants, a rate that was up 6 points from 19 percent in 2003.

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On Tuesday May 6, 2014 the Department of Homeland Security announced the publication of two newly proposed rules designed with the purpose of attracting and retaining highly skilled foreign workers. Both initiatives seek to advance the United States economy and improve competitiveness by recruiting the best and brightest professionals the world has to offer.

Proposal to Extend Employment Authorization to Spouses of Certain H-1B Workers:

The first proposal allows spouses of certain H-1B workers to extend their employment authorization in the United States

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The Chief of the Visa Control and Reporting Division at the U.S. Department of State, Charles Oppenheim, recently shared the expected projections for monthly and annual visa demand and Visa Bulletin projections regarding family and employment based green cards. It is important to note that these projections may be subject to change based on the reported or observed visa demand witnessed by USCIS and the U.S. Department of State.

Important developments to look forward to this year include significant advancement of EB-2 category for India and unmarried sons and daughters of LPR over 21 years old. On the other hand, several immigrant visa categories are expected to retrogress due to high demand, such as the category of spouses and children of LPR, EB-5 for Chinese nationals and EB-3 for Chinese nationals. The expected projections are as follows:

Family Based Second Preference 2A Worldwide (FB-2A) –Spouses and Children (under 21) of Permanent Residents:

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Since the year 1990, USCIS has administered the Immigrant Investor Program, better known as ‘EB-5’. The program was first launched by Congress with the goal of expanding the U.S. economy by encouraging job creation and capital investment through foreign investment. It has now become known for its Regional Center pilot immigration program, with the purpose of allocating certain EB-5 visas to investors in Regional Centers designated by USCIS. These Regional Centers support the goal of economic growth. Recently, the program director of the pilot immigration program, Nicholas Colucci, held a conference with EB-5 stakeholders assuring them that he is committed to revitalizing the program. This action by Colucci signals an interest in making the EB-5 process more efficient, transparent, and resourceful. First a brief overview of the EB-5 visa process:

General Guidelines:

  • Under section 203 (b)(5) of the Immigration and Nationality Act also known as INA, 10,000 EB-5 immigrant visas are allocated per year
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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.

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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.

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Reactions to the release of the House GOP leadership’s principles for immigration reform  tended more toward cautious praise for releasing something as a starting point, but with serious doubts about the shortcomings of the actual policy proposals. Because these principles are guidelines—without specific  detail—“cautious optimism” is probably the healthiest approach to take in understanding what the document means for reform. Summarizing what the document says doesn’t take long; understanding its nuances, particularly its omissions and departures from the past, requires a bit more digging. In reality, this new document should not be read as an unwavering set of principles, but rather  as a list of expectations and strategic choices. The first half, dealing with enforcement contains no real surprises, but the second half is full of them.

There is much rhetoric about the necessity of securing our borders and creating a zero-tolerance policy for people who violate our laws in the future. These standards endorse the use of an electronic work site verification program and the full implementation of an entry/exit registration program for tracking arrivals and departures to and from the U.S. They emphasize the necessity of enforcement of laws first, before turning to any more positive reforms. Ultimately, the enforcement section of the document merely repeats the idea that we must be able to measure enforcement successes and thwart efforts to get around the law.

The second half of the GOP stance is far more interesting, as it emphasizes rewarding hard work and merit, and puts a premium on outcomes. The authors declare that the legal immigration system needs to be reformed to avoid an over reliance on family ties or luck; instead, they prioritize rewarding foreign students who can contribute to the economy and meeting the needs of employers. Similarly, temporary work programs, particularly in agriculture, have to provide realistic and predictable means of entry to the U.S., without harming the interests of native-born workers. It is striking how the emphasis on finding a way to use the immigration system to improve the economy is an acknowledgment of the importance of immigration that has been lacking in the past.

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Since the June 2013 Visa Bulletin, the third preference employment-based immigrant visa category (EB-3) for individuals born in China has a more recent cut-off date than the second preference employment-based category (EB-2). This has held true even as recently as the December 2013 Visa Bulletin, which indicates that the EB-3 category has a priority date earlier than October 1, 2011 compared to the EB-2 category which has a priority date of November 8, 2008. Because of the more recent priority date for the EB-3 category, it is important to recognize what options to pursue when filing an I-140 petition under either category for a Chinese national.

Under 8 CFR section 204.5(a), an I-140 petition generally must be accompanied by an original labor certification to be considered properly filed. Section 204.5(e) allows the alien to retain the priority date of an approved I-140 petition and apply it to any I-140 petition that is subsequently filed on his or her behalf, whether the I-140 petitions were filed by the same or different employers. This is true even if the same labor certification, which would qualify for either EB-2 or EB-3, is the basis for multiple I-140s.

While there is a 180-day validity period for individual labor certifications, USCIS recognizes an exception to this period when “an amended petition is filed to request a different visa classification than the visa classification requested in the previously filed petition. Although it is more common to see petitions file an upgrade from an EB-3 preference category to an EB-2 preference category, the current circumstances for Chinese Nationals pose a situation where “downgrading” to the EB-3 category is more beneficial if the prior petition was based on the EB-2 category. Since it is possible to file an EB-2 and an EB-3 petition based on the same labor certification, there are some considerations to keep in mind for those who have gone ahead and pursued the EB-2 route, since it had normally been the faster route to permanent residence for Chinese nationals. Some of these considerations for filing a subsequent I-140 petition include the following:

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Today, the United States Supreme Court struck down the Defense of Marriage Act (DOMA), describing the federal law as an assault on fundamental human rights. In his opinion, Justice Kennedy said the law served “no legitimate purpose” to justify the effect of the law, and was a way to “disparage and to injure those whom the state, by its marriage laws, sought to protect in personhood and dignity.”

In concluding the decision, the Supreme Court concluded that “DOMA’s principal effect is to identify and make unequal a subset of state-sanctioned marriages. It contrives to deprive some couples married under the laws of their State, but not others, of both rights and responsibilities, creating two contradictory marriage regimeswithin the same State. It also forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect.”

In response to this decision, President Obama stated in a statement released by the White House the federal law “treated loving, committed gay and lesbian couples as a separate and lesser class of people,” He said the Supreme Court has “righted that wrong, and our country is better off for it.”

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