Visa Lawyer Blog

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Two business men shaking hands

Last week we introduced the unveiling of an exciting new rule called the ‘International Entrepreneur Rule’ which will allow certain entrepreneurs the opportunity to seek ‘parole’ into the United States, based on his or her role in the startup company, provided the company can demonstrate substantial potential for rapid growth and job creation in the United States.

Eligible entrepreneurs will need to be prepared to demonstrate that their entry would create a significant public benefit in the United States, and provide ‘substantial’ and ‘demonstrated potential’ to create more jobs and business growth in the United States, and not merely provide income to the entrepreneur and his or her family members. In this post we will review the requirements, clarify definitions, and describe what evidence can be provided in support of an entrepreneur application.

If this new initiative becomes a final rule, it is estimated that up to 2,940 entrepreneurs would be eligible to apply for this new program on an annual basis. Recently, the Notice of Proposed Rule-making (NPRM) in the Federal Register has provided more guidance on exactly which entrepreneurs and start up enterprises may apply. In addition, more information has been provided regarding which investments will qualify.

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The U.S. Department of Homeland Security is expected to run a study to determine whether privately run detention facilities are unsafe for migrants. The Secretary of the Department of Homeland Security, Jeh Johnson, has stated that the administration will evaluate whether or not the agency will end the practice of privatizing immigration detention facilities, issuing a recommendation by November 30th of this year.

The announcement comes following reports that private immigration detention facilities have unlawfully withheld proper mental health and medical care from persons being detained in their immigration facilities. Presently, the two major private companies running ICE immigration detention facilities across the United States are the Corrections Corporation of America and the GEO Group. Together these private companies hold lucrative state and federal government contracts. It is estimated that the Corrections Corporation of America has earned $689 million alone from its contracts with ICE dating back to 2008, while the GEO Group has earned an estimated $1.18 billion from these contracts during that same period.

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Today August 26, 2016 we bring entrepreneurs around the world exciting news regarding a new measure USCIS plans to implement designed to benefit entrepreneurs of startup companies. USCIS has announced a new proposal that will make it easier for certain foreign entrepreneurs to receive temporary permission to enter the United States, also known as ‘parole,’ for the purpose of starting or scaling their start-up business enterprise in the United States.

The rule has been referred to as the ‘International Entrepreneur Rule’ which will give the Department of Homeland Security (DHS) the authority to expand discretionary statutory parole status to eligible entrepreneurs of startup companies, who can demonstrate that the startup enterprise they are interested in creating, has a substantial potential to yield rapid growth, and job creation in the United States.

Under this new rule, DHS would be able to grant parole on a case-by-case basis to eligible entrepreneurs of startup companies who can demonstrate the following:

  • At least a 15 percent ownership interest in the startup enterprise in question;
  • That they take on an active and central role in the startup enterprise’s operations;
  • That the startup enterprise has been formed in the United States within the past three years; and
  • That the startup enterprise has proven to yield a substantial and demonstrated potential for rapid business growth and job creation as evidenced by:
  1. Having received a significant investment of capital of at least $345,000 from certain qualified U.S. investors that have a proven track record of success i.e. showing established records of successful investments;
  2. Having received significant awards or grants of at least $100,000 from federal, state, or local government entities; or
  3. By partially satisfying one or both of the above criteria, in addition to presenting other reliable and compelling evidence to show the startup entity’s substantial potential for rapid growth and job creation in the United States;

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In this segment, we would like to keep our readers informed on 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.

Family-Based Categories:

An increase in returned unused visa numbers for the month of July and weak demand for the F-2A and F-4 categories will keep movements in family-based categories steady for the month of October.

F-4 Worldwide has advanced only slightly. All family Worldwide categories have experienced minor advances except F-2B Mexico.

The Department of State plants to comply with the Administration’s Visa Modernization Proposal, an initiative which aims to advance the dates of family-based categories as aggressively as possible during the first three quarters of the fiscal year, with the purpose of maximizing the usage of available numbers, and reducing available numbers for use in the final quarter. This initiative will likely cause similar retrogressions as in the F-4 China and India preference categories.

Employment Categories:

EB-4 and SR (Religious Worker) Preference Categories: For Special Immigrant Juvenile Status (SIJS) applicants subject to priority date backlogs, it is recommended that applicants and/or their counsel request USCIS to forward their file to the National Benefits Center (NBC), at the conclusion of their I-485 interview. This will allow the applicant’s case to remain in a “pending demand” file, to give the Department of State a sense of the demand for this category, and streamline the approval process of these applications once the priority date has become current. While USCIS adjudicators cannot request a visa number for the applicant if the priority date is not current, the National Benefits Center (NBC) has the ability to request a visa number for the applicant upon receipt of the file.

EB-4 India and Mexico; Final Action Dates El Salvador/Guatemala/Honduras: New visa number for FY 2017 are expected to bring the EB-4 India and Mexico categories current in the month of October. The final action date for EB-4 El Salvador, Guatemala, and Honduras will fall somewhere around the summer of 2015 or beyond. There is high applicant demand for El Salvador which may advance the final action date for Guatemala and Honduras.

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Men in a Huddle

On June 15, 2012 President Barack Obama first unveiled the Deferred Action for Childhood Arrivals (DACA) initiative to the world. In his 2012 announcement the President divulged that the DACA initiative would allow certain undocumented individuals who came to the United States as children the opportunity to be shielded from deportation and the right to a temporary work permit. To be eligible individuals were required to meet several guidelines to receive ‘deferred action’ for a period of two years, subject to renewal. USCIS began to accept applications for the DACA initiative on August 15, 2012.

At its core, ‘deferred action’ is the use of prosecutorial discretion to defer removal from the United States for a certain period of time. Although deferred action grants such deferment, it does not provide the individual lawful status and it is not a path to permanent residency.

On November 20, 2014 the President unveiled two initiatives that would expand the population eligible to obtain Deferred Action. Additionally, the President announced a new initiative called Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). To be eligible for the expanded DACA program applicants were required to a) have entered the United States before the age of 16; b) demonstrate continuous residence in the United States since January 1, 2010; and pass required background checks. The initiative would also extend the period of ‘deferred action’ and work authorization to three years rather than two years.

Similarly, parents of U.S. Citizens and LPRs would be also be eligible for deferred action and employment authorization for a three-year period if a) they could demonstrate continuous residence in the United States since January 1, 2010 and b) pass required backgrounds checks. On February 16, 2015 just two days before applications would begin to be accepted for the expanded DACA and DAPA programs, a temporary injunction halted these programs from going into effect. The controversy that followed regarding these programs led to a federal lawsuit known as United States v. Texas which made its way to the Supreme Court of the United States. There the Supreme Court deadlocked in a 4-4 vote preventing these programs from going into effect.

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Q: What qualifies as a bar of “Unlawful Presence?”

A: If you have accrued more than 180 days of unlawful presence in the United States, you are subject to a 3-year bar preventing you from being re-admitted to the United States under the Immigration and Nationality Action Section §212(a)(9)(B)(i)(I). The bar is triggered once you have departed the United States.

If you have accrued one year or more of unlawful presence in the United States, you are subject to a 10-year bar preventing you from being re-admitted to the United States under §212(a)(9)(B)(i)(II).

If upon your entry to the United States, you were not inspected, admitted, or paroled by a U.S. Customs Official, then you are ineligible to adjust your status to lawful permanent resident (LPR) within the United States, even if you have an approved visa petition. This means that in order to legalize your status, you are required to depart the United States and apply for an immigrant visa at a United States embassy or consulate abroad. Your departure from the United States will then trigger a 3- or 10-year bar to readmission, preventing you from returning to the United States, depending on the amount of “unlawful presence” you accrued prior to your departure.

There are ways to waive these 3- and 10-year bars to readmission only if you can demonstrate that your refusal of admission to the United States would cause an “extreme hardship” to your U.S. Citizen immediate relative or Legal Permanent Resident spouse or parent.

Q: Can I apply for the provisional waiver if I was previously deported, removed, or excluded from the United States?

If you received a final order of removal, deportation, or exclusion you may apply for a provisional waiver of unlawful presence, however you must first apply for the I-212 Application for Permission to Reapply for Admission into the United States After Deportation or Removal, and the application must be conditionally approved.

If ICE or CBP has reinstated a prior removal order under 8 CFR §241.8, before filing of the provisional waiver application or while the application is in process, you are no longer eligible to receive a provisional waiver of unlawful presence. A provisional waiver approval would be automatically revoked if the applicant is found inadmissible under INA §212(a)(9)(C) for unlawful return to the United States after prior removal or prior unlawful presence.

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The United States Citizenship and Immigration Services (USCIS) has published a new final rule that will expand the class of individuals who are eligible to apply for a ‘provisional’ waiver of certain grounds of inadmissibility (Form I-601A) based on their accrual of unlawful presence in the United States.

The provisional unlawful presence waiver allows certain individuals, unlawfully present in the United States, to request a provisional waiver before departing the United States for consular processing of their immigrant visas.

Previously, only immediate relatives of U.S. Citizens were eligible for this waiver. The provisional waiver is beneficial because it does not require the applicant to wait until the consular interview, to apply for a waiver, as in the case of the I-601 waiver. Provisional waivers also substantially reduce the time of separation between the applicant and his or her U.S. Citizen or legal permanent resident (LPR) relatives.

The rule was published in order to improve efficiency and reduce the amount of time that a U.S. Citizen/LPR spouse or parent is separated from his or her relatives while the relative completes the immigrant visa process. According to the 2013 rule, parents, spouses and children of U.S. Citizens were eligible to apply for provisional waivers of the 3- and 10-year unlawful presence bars before departing the United States for their immigrant visa interviews. The new rule expands upon the 2013 rule extending that benefit to family members of LPRs.

Who benefits?

The rule will expand the provisional waiver process to certain individuals who are family members of U.S. Citizens and lawful permanent residents (LPRs) who meet the statutory requirements to be eligible for an immigrant visa. The rule will expand eligibility to all individuals statutorily eligible for the waiver. In order to qualify, applicants must be able to establish that their U.S. Citizen or LPR spouse or parent would experience an “extreme hardship” if the applicant was not allowed to remain in the United States. The final rule will take effect on August 29, 2016.

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3704180135_8cf17fa711_zA new settlement reached against the state of Texas will make it easier for undocumented parents of U.S. Citizens to obtain birth certificates for their American born children. In 2013, Nancy Hernandez, a Mexican immigrant, gave birth to a baby girl in a Texas hospital, although she was unlawfully present in the United States. After the birth, she visited a Texas county office to obtain the child’s birth certificate. Much to her surprise her request was met with resistance when county officials notified her that without presentation of proper documents, she would not be able to obtain her child’s birth certificate proving the child’s U.S. Citizenship.

In response, Hernandez along with dozens of other immigrants, filed a lawsuit against the state of Texas alleging that the state was blocking them from obtaining their children’s birth certificates, a right that is protected by the Constitution. Texas officials had previously outlined specific documents that undocumented parents needed to present, in order to obtain their children’s birth certificates.

Last week, Texas settled the lawsuit promising that the state would expand the list of documents parents were required to present in order to obtain their children’s birth certificates. Under the settlement, Mexican immigrants will be able to present a Mexican voter identification card to obtain their children’s birth certificates. These voter identification cards can be obtained from Mexican consulates in the United States. Parents from El Salvador, Guatemala, and Honduras, will be able to present documents certified by their consulates in the United States.

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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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We would like to wish you and your families a very Happy Independence Day on behalf of our office! Have a safe and relaxing weekend!

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