Articles Posted in L-1 Visa

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The United States Citizenship and Immigration Services (USCIS) has released a new policy memorandum that will have wide ranging implications for immigrants. Beginning September 11, 2018, USCIS will use their discretion to deny an application, petition, or request filed with USCIS without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID), if insufficient evidence is sent with the initial filing of the application or if the evidence provided does not establish the applicant’s eligibility for the benefit requested.

The new policy memorandum “Issuance of Certain RFEs and NOIDs; Revisions to Adjudicator’s Field Manual (AFM) Chapter 10.5(a), Chapter 10.5(b)” supersedes the 2013 policy memorandum titled “Requests for Evidence and Notices of Intent to Deny” which previously governed an officer’s discretion to deny an application, petition, or request without first issuing a request for evidence. Previously, the 2013 memo required requests for evidence to be issued where the initial evidence was unsatisfactory or did not establish the applicant’s eligibility for the benefit requested.

As of September 11, 2018, USCIS now has the power to deny petitions lacking initial evidence without sending a Request for Evidence or Notice of Intent to Deny to cure the defect. This is bad news for applicants of immigrant and non-immigrant visa types, because applicants who have not provided sufficient evidence to USCIS to establish that they are eligible for the benefit requested can be denied without having the opportunity to cure the defect.

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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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What are some alternatives to the H-1B visa?

So, you’ve applied for the H-1B visa, and by now you are well aware that the cap has been reached. You may be wondering what you will do if you are not selected in the lottery. Have no fear, we have you covered on your Plan B.

In this post, we breakdown the alternatives to the H-1B visa that allow foreign nationals to live and work in the United States.

1. The O-1 “Extraordinary Ability” Visa:

This visa type is for aliens of extraordinary ability in the sciences, education, business, athletics, motion picture, television, or arts industries who have received national and/or international acclaim in their field. An alien on an O-1 visa may live and work in the United States for a period of up to three years.

In order to be eligible for this visa type you must demonstrate that you are an alien of extraordinary ability in your field. Applicants must hold an advanced degree (at least a master’s) to demonstrate a high level of expertise in their field, and have received international or national acclaim in their fields as evidenced by awards and other international or national recognitions received. Individuals who are leading experts in their fields, and have written extensively in their fields, receiving notoriety for their publications are also great candidates for the O-1 visa. Membership in prestigious professional associations which require outstanding achievements from members are extremely helpful when applying for the H-1B visa, as well as evidence of scientific, scholarly, or business-related contributions that are considered of major significance in the field.

2.TN Visa for Mexican and Canadian Nationals

Under the North American Free Trade Agreement, Canadian and Mexican nationals may apply for a TN visa to live and work in the United States. To be eligible the TN visa applicant must work in a profession approved under the NAFTA program for a U.S. employer. Dependent spouses and unmarried children under the age of 21 can live in the United States under a derivative TD visa.

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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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As previously reported, on October 8, 2017, the United States announced the suspension of all non-immigrant visa services across U.S. Embassies and Consulates in Turkey “until further notice,” following news that a U.S. embassy official was placed under arrest without explanation and without access to counsel. This included the suspension of the issuance of: B-2 visas for temporary tourism or medical reasons, B-1 visas for temporary business visitors, F-1 student visas, E-1 treaty trader visas, E-2 treaty trader visas, and other non-immigrant visa types.

Since October 8, 2017 until just recently, no new non-immigrant visa applications were being processed in Turkey until the U.S. government could receive assurances form the Turkish government that embassy staff officials would not be detained or placed under arrest without cause, or access to counsel.

On November 6, 2017, the Department of Homeland Security and the United States Embassy in Ankara, Turkey, announced that the United States has received sufficient assurances from the Government of Turkey that employees under the diplomatic mission are not under investigation, that local staff of U.S. embassies and consulates will not be detained or arrested in connection with their official duties, and finally that the U.S. government will be notified in advance if the Turkish government plans to arrest or detain any local staff at U.S. embassies in Turkey. The announcement however provides that the United States “continues to have serious concerns about the existing cases against arrested local employees” of the Mission in Turkey and of “. . . the cases against U.S. citizens who have been arrested under [a] state of emergency.”

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Unsurprisingly, this week we learned that the Trump administration is taking further steps to toughen the process of applying for an H-1B visa extension/renewal request, and that of other highly sought-after non-immigrant work visa types filed using Form I-129 Petition for Nonimmigrant Worker such as the H, O, P, L, and R work visas. The news comes as part of the President’s ongoing plan to prioritize the employment of American workers over foreign workers, outlined in the President’s Executive Order “Buy American, Hire American.”

On October 23, 2017, the United States Citizenship and Immigration Services (USCIS) announced that the agency will be updating its adjudication policy “to ensure petitioners meet the burden of proof for a non-immigrant worker extension petition.” The change in policy specifically provides that USCIS officers will “apply the same level of scrutiny to both initial petitions and extension requests” for the H-1B visa as well as other nonimmigrant visa types.

Per USCIS, this policy will now apply to “nearly all non-immigrant classifications filed using Form I-129 Petition for Nonimmigrant Worker.” This means that all nonimmigrant worker visa renewal requests, made using Form I-129, will be subject to the same level of scrutiny that was applied during the foreign worker’s initial non-immigrant work visa request.

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For years you have 8276375308_d5f2721898_zput your trust in our office for all of your immigration needs and for that we thank you. We consider ourselves very fortunate to be able to serve you and your families. Throughout the years, we have helped thousands of immigrants from all over the world attain their American dream. Learning about their lives and their struggles has

always been an important part of our practice. Although many challenges lie ahead for immigration, we are confident that important changes will come about in the new year. Do not despair and know that our office will be with you every step of the way. We wish you and your families the happiest of holiday seasons.

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If you are a foreign entrepreneur, you have probably discovered that the United States immigration system is very limited in that there are very few visa options available to entrepreneurs that do not tie down the entrepreneur to a foreign employer, as is the case for the L and H visas. To make matters worse, if your ultimate goal is to obtain a green card to live and work in the United States permanently, you must work for an American employer willing to sponsor your adjustment of status. Although there are few exceptions, the main avenue through which entrepreneurs can gain permanent residence is either through family-sponsorship or employment-based sponsorship.

To obtain permanent residence through an employer you must either a) be a professional employed by a U.S. employer willing to sponsor your green card b) demonstrate extraordinary ability in your industry (science, arts, education, business, or athletics, c) work in a management or executive position abroad requiring international transfer to the United States or d) qualify as an EB-5 investor. In either of these cases, the U.S. employer must submit the I-140 Immigrant Petition for Alien Worker for you, before you can apply for permanent residence. If your ultimate goal is not to obtain a green card, then you have more options available to you.

We decided to write about this topic because we have found that many entrepreneurs that visit our office are not well-informed on other visa types that put them on a more direct path to permanent residence. Often times the topic of conversation leads to the E-2 Treaty trader visa, by far the most discussed visa type among entrepreneurs. Few entrepreneurs however have heard about the L-1 visa classification, that may in some ways be more beneficial to foreign entrepreneurs wishing to live and work in the United States permanently. Below we discuss both visa types and the advantages and disadvantages of both visas.

The E-2 visa, the most talked about visa:

Without a doubt, the most popular visa option entrepreneurs ask about is the E-2 visa. Many entrepreneurs however do not know that the E-2 visa is not available to everyone, and it is not a path to permanent residence. The E-2 visa is a non-immigrant treaty investor visa that is only available to foreign nationals from specific treaty countries. The E-2 visa allows foreign nationals to carry out investment and trade activities, after making a substantial investment in a U.S. business that the foreign national will control and direct. E-2 visa investors can either purchase an existing U.S. business or start a new business.

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A recent working paper published by Harvard economist, William R. Kerr, and Wellesley economist, Sari Pekkala Kerr, is making waves on the subject of immigrant entrepreneurship. The study asks: just how important are foreign-born entrepreneurs to our economy? Are their contributions truly significant?

The study’s abstract reads as follows:

We examine immigrant entrepreneurship and the survival and growth of immigrant-founded businesses over time relative to native-founded companies. Our work quantifies immigrant contributions to new firm creation in a wide variety of fields and using multiple definitions. While significant research effort has gone into understanding the economic impact of immigration into the United States, comprehensive data for quantifying immigrant entrepreneurship are difficult to assemble. We combine several restricted-access U.S. Census Bureau data sets to create a unique longitudinal data platform that covers 1992-2008 and many states. We describe differences in the types of businesses initially formed by immigrants and their medium-term growth patterns. We also consider the relationship of these outcomes to the immigrants’ age at arrival to the United States.

The study is important because it forces members of Congress to conduct a cost-benefit analysis, in order to determine whether or not it is beneficial for the United States to create more opportunities for highly-skilled entrepreneurs and professionals. Regrettably, the immigration debate has largely centered around illegal immigration to the United States, ignoring calls to create more flexibility for highly-skilled immigrants and immigrant entrepreneurs. As it stands today, immigrant entrepreneurs can only obtain a green card via sponsorship from a United States employer. The majority of entrepreneurs are forced to remain in the United States on a temporary ‘dual intent’ nonimmigrant visa, until a U.S. employer agrees to sponsor their green card. Visa options are very limited for highly-skilled immigrants. Even for the most brilliant of entrepreneurs, this process requires time and patience. Our current immigration laws are doing us a disservice since they are keeping out some of the most talented entrepreneurs in the world. Immigrant entrepreneurs are increasingly important because the number of businesses and American jobs they create is on the rise.

Here are some of the study’s findings:

  • As of 2008, at least one in four entrepreneurs among start-up companies are foreign-born. Similarly, at least one in four employees among new firms are foreign-born
  • 37% of new firms had at least one immigrant entrepreneur working for the company
  • At least 1 in 3 start-up firms were founded by an immigrant entrepreneur, with an increasing rate from 1995-2008
  • The share of immigrants among all employees working for start-up companies is on the rise
  • Immigrant employees in low-tech positions comprise about 22.2% of start-up companies, while 21.2% of immigrants work in high-tech positions in start-up companies
  • Among new start-ups backed by venture capitalists, 60% had at least one immigrant entrepreneur
  • Immigrant employees working for a start-up company backed by venture capitalists have higher mean average quarterly earnings

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Before filing your green card application, it is important for you to carefully consider several important factors that may limit your ability to obtain employment in the United States and restrict your international travel. If you will be filing your green card application in the near future, you need to be prepared to remain in the United States for a period of at least 90 days, from the date of filing of your green card application. Applicants must also be aware that they will not receive authorization to work in the United States until this 90-day period has passed. Limited exceptions exist which may allow an applicant to expedite the adjudication process of the employment and travel authorization applications which we will discuss below.

Why the 90-day restriction period?

As part of the green card application, the applicant may file the I-765 Application for Employment Authorization and the I-131 Application for Travel Document at no additional cost. The I-765 and I-131 applications result in the issuance of a one-year temporary employment and international travel authorization card (EAD), while the green card application is being adjudicated by USCIS. It takes on average 90 days for the EAD card to be issued, from the date of filing of the green card application. This ultimately means that once you apply for permanent residence, you will not be able to seek employment or travel outside of the country until the EAD card is issued to you within 90 days. Once the green card application has been filed with USCIS, the applicant is restricted from any international travel. If the applicant travels without authorization, USCIS will consider the applicant’s green card application ‘abandoned.’ An applicant may only travel internationally if they have received a re-entry permit issued by USCIS known as an ‘advance parole’ document. The ‘advance parole’ notice will appear on the front of the EAD card itself signifying that the applicant is authorized to travel internationally using the card.  The ability to re-enter the United States after returning from temporary foreign travel is ‘discretionary.’ This means that even if you have been issued an EAD card that allows you to travel, it will ultimately be up to the customs official to admit you into the United States.

Consider the alternatives

Before applying for your green card you should carefully consider whether these travel and employment restrictions will have a significant impact on your lifestyle. If the travel restrictions are concerning to you, it may be a more beneficial option for you to apply for an immigrant visa from a U.S. Consulate abroad. There are no travel restrictions for applicants who apply for immigration benefits from abroad. Likewise, if you are concerned that you will not receive employment authorization immediately, it may be worth considering applying for a dual intent work visa first to cover any gaps in employment. There are limited work visa categories that allow for dual intent, or the intent to have a temporary visa status at the same time as having the intent to remain permanently in the United States. If this is the case, you should consult with an attorney to discuss your options.

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