Articles Posted in Professionals

7541767406_8bf4575705_zNew developments have recently emerged regarding the Trump administration’s decision to dramatically scale back or rescind the International Entrepreneur Rule, passed under former President Barack Obama, a rule that would have made it easier for eligible start-up entrepreneurs to obtain temporary permission to enter the United States for a period of 30 months, through a process known as “parole,” for the purpose of starting or scaling their start-up business enterprise in the United States. International entrepreneurs would have been able to apply for this benefit beginning July 17, 2017.

However, this may all change in the coming days. The San Francisco Chronicle has reported that the Trump administration plans to undo the International Entrepreneur rule, to prevent foreign entrepreneurs from coming into the United States and starting their companies. This comes as part of President Trump’s commitment to “buy American, and hire American,” and his promise to create more jobs in the United States, by encouraging American companies to expand within the United States. All of this unfortunately comes as no surprise. It is no secret that the President has consistently expressed his anti-immigrant sentiment through his immigration policies and executive orders.

An administration official has come forward on condition of anonymity disclosing that the Trump administration plans to push back the rule’s effective date from July 17, 2017 to March 2018, to give the administration enough time to dramatically scale back the rule or get rid of the rule altogether.

Continue reading

32515301090_38fdae4f01_z

On June 13, 2017, the American Immigration Lawyers Association (AILA) spoke with Charles Oppenheim, the Chief of the Visa Control and Reporting Division for the U.S. Department of State, to discuss current trends trends and future projections for various employment and family preference categories.

Family preference and employment immigrant categories are subject to numerical limitations and are divided by preference systems and priority dates on the Visa Bulletin. Family-sponsored preference categories are limited to a minimum of 226,000 visas per year, while employment-based preference categories are limited to a minimum of 140,000 visas per year. The Visa Bulletin is a useful tool for aliens to determine when a visa will become available to them so that they may apply for permanent residence. Applicants who fall under family preference or employment categories must wait in line until a visa becomes available to them in order to proceed with their immigrant visa applications. Once the immigrant’s priority date becomes current, per the Visa Bulletin, the applicant can proceed with their immigrant visa application.

Current Trends & Future Projections:

Employment-based preference categories:

EB-1 China and India:  

The final action date imposed on EB-1 China and EB-1 India (January 1, 2012) during the month of June of 2017, will remain and is expected to remain through the end of this fiscal year.

Per Charles Oppenheim, “Due to the availability (through May) of “otherwise unused numbers” in these categories, EB-1 China has used more than 6,300 numbers and EB-1 India has used more than 12,900 so far this fiscal year.”

EB-2 Worldwide:

Good news! EB-2 Worldwide remains current due to a slight decrease in demand in the second half of May and a steady level of demand in the month of June.

Projection: Oppenheim expects a final action cutoff date to be imposed on this category in August which is expected to be significant, however this category is expected to become current again on October 1, 2017.

Continue reading

16F211BF-4FDC-4D41-8FF7-55867BAB7DB9I first met Suman Kanuganti two years ago, back then he was working for another company but contemplating opening his own high-tech startup company and becoming an entrepreneur.

In advising him on his ambitious pursuits, I recommended that he follow his plans and dreams confidently and full-heartedly. Shortly afterwards, Suman quit his previous job and started to focus on his new company, Aira, based here in San Diego. Through the assistance of my immigration law firm, he received his H-1B visa so that he could continue focusing on his amazing work at Aira in developing assistive technology and services for the blind and visually impaired.

His work at Aira continues at a rapid and productive pace, poising the company well for future growth and success. In just two years, Suman, as Co-Founder & CEO, has transformed his startup into the leading developer of remote technology that is bringing immediate access to information and assistance to those with vision loss. This is greatly enhancing the mobility, independence and productivity of blind people in a wide range daily activities – from navigating busy streets and airports, to reading printed material, recognizing faces, catching the bus or Uber, functioning efficiently in the office or classroom, experiencing cultural and sporting events, and literally traveling the globe.

Continue reading

30994123601_945ea5da00_z

On December 6, 2016 Congress passed a continuing resolution to fund government programs through April 28, 2017. Among the programs that qualified to receive additional government funding was the EB-5 Regional Center Investor Program, a program made possible by a Congressional statute. The Continuing Resolution effectively extended the EB-5 Regional Center program through April 28, 2017 with no changes to the program’s policy. With time running out, Congress must either extend the statutory deadline once again to September 30, 2017, or pass reforms to the program. The government is currently holding Congressional hearings to make changes to the EB-5 Regional Center Program. It appears that legislators are contemplating overhauling the EB-5 program altogether, instead of extending the validity period of the program. At this stage, however, it is not likely that a major overhaul of the EB-5 program will take place by April 28th.

Proposed Rule EB-5 Immigrant Investor Regional Center Program

For their part, the U.S. Department of Homeland Security has already introduced a series of proposals in the Federal Register to modernize the EB-5 Immigrant Investor Program. The comment period for the proposed rule closed on April 11, 2017.

Among its major provisions the Department’s proposed rule would authorize:

  • Priority date retention for EB–5 petitioners;
  • Increases the minimum investment amount for targeted employment areas (TEAs) and nonTEAs to $1.8 million;
  • For investors seeking to invest in a new commercial enterprise that will be principally doing business in a targeted employment area (TEA), DHS proposes to increase the minimum investment amount from $500,000 to $1.35 million;
  • DHS is proposing to make regular CPI–U-based adjustments in the standard minimum investment amount, and conforming adjustments to the TEA minimum investment amount, every 5 years, beginning 5 years from the effective date of these regulations;
  • Revisions to the TEA designation process, including the elimination of state designation of high unemployment areas as a method of TEA designation;
  • DHS proposes to allow any city or town with high unemployment 4 and a population of 20,000 or more to qualify as a TEA;
  • DHS proposes to eliminate the ability of a state to designate certain geographic and political subdivisions as highunemployment areas; instead, DHS would make such designations directly;
  • Revisions to the filing and interview process for removal of conditions on lawful permanent residence.

Continue reading

5805388567_358d2d69d8_z

As the days lead up to April 3, 2017, (the first day that USCIS will begin to accept H-1B petitions for fiscal year 2018) our office will be very busy putting the final touches on all cap-subject H-1B petitions. In this post, we will discuss what you should be doing now to tie up any loose ends and increase your chances of selection this H-1B season. In addition, this post will outline what you can expect to receive from USCIS after filing.

First, create a preliminary checklist to ensure that you have met all the requirements to properly file your H-1B cap-subject petition:

Note: Premium processing is suspended for all petitions filed for H-1B fiscal year 2018 for both the H-1B regular cap and master’s cap. Do not file a Form I-907 request for premium processing because the form will be rejected. If you include the I-907 fee in combination with any other filing fees associated with the H-1B visa, USCIS will reject the entire H-1B petition.

Checklist:

  1. Did you include the correct version of all forms with revision date on/after Oct. 23, 2014? See uscis.gov/forms to download current form versions.
  2. Did you properly sign and complete Form I-129 including the correct H Classification Supplement?
  3. Did you properly sign and complete the I-129 and H Supplement?
  4. Did you properly sign and complete the I-129 Data Collection Supplement and Filing Fee Exemption Supplement?
  5. Did you include a properly signed and certified Form ETA-9035 Labor Condition Attestation (LCA) from the Department of Labor for the position for which the beneficiary is applying for?
  6. Did you ensure all forms have an original signature in black or blue ink?
  7. Did you include separate signed checks or money orders for each filing fee with the correct fee amounts?

REMEMBER that USCIS recently changed its fee schedule for certain petitions effective December 23, 2016. See https://www.uscis.gov/fees for a complete list of current fees.

  1. Did you include all required documentation and evidence in support of your petition? See below for a running list.
  2. Did you ensure that you have included only one H-1B position for the beneficiary of each H-1B petition you have prepared?
  3. Do you know the service center where you must file the petition? If not, ensure that you submit your petition to the correct USCIS service center. The service center where your petition must be filed depends on the work location of the H-1B beneficiary as you have specified in the petition. To determine the correct service center see https://www.uscis.gov/i-129-addresses. Failure to submit your petition to the correct service center will result in a rejection of your H-1B petition.

Continue reading

32649529442_22f0c3b000_z

Beginning April 3, 2017, the United States Citizenship and Immigration Services (USCIS) will temporarily suspend expedited processing of H-1B visas, a service previously available to H-1B petitioners known as premium processing. The reason: to reduce overall H-1B processing times and prioritize processing of H-1B extensions nearing the 240-day mark. Premium processing previously guaranteed a 15-day processing time, or refund of the $1,225 premium processing fee. Although premium processing did not increase a petition’s chances of being selected for an H-1B visa, it gave petitioners the benefit of waiting a shorter period and allowed selected petitioners the option of upgrading their application to premium processing after filing.

Petitioners will not have the option of paying for the premium processing service for a period of at least 6 months beginning April 3, 2017. The suspension will affect all H-1B petitions filed on or after April 3, 2017 including all petitions filed for the FY18 H-1B regular cap and master’s advanced degree cap exemption. Additionally, the suspension may affect petitions that are cap-exempt, but will not apply to other eligible nonimmigrant classifications filed with Form I-129.  While the premium processing service is suspended, petitioners may not file a request for premium processing (I-907) for an I-129 Petition for H-1B worker until USCIS has announced that it has resumed premium processing for H-1B petitions. Beginning April 3, 2017 if a petitioner submits a single check combining fees for premium processing and the Form I-129 USCIS will reject both applications (not just the request for premium processing). To avoid this DO NOT submit any premium processing requests on or after April 3, 2017.

Continue reading

15270359572_f4a99b06c8_z

As you gear up for a chance to win one of the 65,000 coveted H-1B visas that will be up for grabs beginning April 1, 2017 through April 7, 2017, we bring you our top frequently asked questions—H-1B edition—to help you make the most of your H-1B filing. As always, to determine whether you qualify for an H-1B visa, please contact our office to schedule a free first time consultation.

When will USCIS begin to accept H-1B petitions for fiscal year 2018?

USCIS will begin to accept petitions for fiscal year 2018 beginning on April 1, 2017 and from then on will continue to accept H-1B petitions during the first five business days through April 7, 2017 until USCIS has received more than enough petitions necessary to fill the regular cap. An H-1B petition may be filed no more than six months before the employment start date requested for the beneficiary.

How long is the H-1B visa valid for?

The H-1B visa is issued for a three-year period that can be extended for an additional three years. Spouses of H-1B workers may live and work in the United States on an H-4 visa, for as long as the H-1B worker remains in lawful H-1B status.

What happens after USCIS receives the necessary petitions to meet the regular cap?

Once USCIS has received more than enough petitions necessary to meet the regular cap, USCIS will conduct a computer-generated lottery to select the petitions needed to meet the cap.  When the cap has been reached, USCIS will make an announcement (usually made on April 7th) indicating that the cap has been reached and that they will proceed with the selection process to fill the 65,000 cap by a randomized lottery system.

Last H-1B season, USCIS announced that the cap was reached within the first 5 business days of the H-1B filing period.

Continue reading

7027163807_79a09f4231_z

It is our pleasure to announce that USCIS has now published the Final International Entrepreneur Rule in the federal register. The final rule is estimated to benefit approximately 2,940 foreign entrepreneurs on an annual basis beginning July 17, 2017. The rule will make it easier for eligible start-up entrepreneurs to obtain temporary permission to enter the United States for a period of 30 months, or 2.5 years, through a process known as “parole,” for the purpose of starting or scaling their start-up business enterprise in the United States. The foreign entrepreneur’s stay may be extended for an additional 30 months to allow the entrepreneur to continue to oversee and grow their start-up company in the United States. The decision about whether to “parole” a foreign entrepreneur under this rule will be a discretionary determination made by the Secretary of Homeland Security on a case-by-case basis (INA Section 212(d)(5), 8 U.S.C. 1182(d)(5)).

The goal of this final rule is to encourage foreign entrepreneurs to create and develop start-up companies with high potential for success in the United States, and enhance economic growth through increased capital spending and job creation.  Under this rule “parole” will be granted to eligible entrepreneurs who can demonstrate that their company’s business operations are of significant public benefit to the United States by providing evidence of substantial and demonstrated potential for rapid business growth and job creation. Such demonstrated potential for rapid growth and job creation may be evidenced by: (1) significant capital investment from U.S. investors with established records of successful investments or (2) attainment of significant awards or grants from certain Federal, State, or local government entities.

The final rule will allow up to three entrepreneurs to seek “parole” per-start up entity, as well as their spouses and children. Entrepreneurs who qualify for “parole” may only work for their start-up business entity in the United States. Their spouses in turn will be eligible to apply for employment authorization once in the United States.

Continue reading

4597450178_deae92dd6d_b-2

The H-1B visa is one of the most coveted visas in the United States for several reasons. One of the biggest perks of the H-1B visa is that it is granted for a period of three years, and can be extended for an additional three years. Recipients of the H-1B visa can also bring their dependents to live with them in the United States on an H-4 visa. The H-1B visa is also a popular option because it gives workers the flexibility of accepting and entering new employment, made possible by the portability provision of the H-1B program (8 U.S.C. § 1184(n)). The portability provision allows an H-1B worker to change jobs without having to risk falling “out of status.” Recently, USCIS also improved its portability provision with the passage of a new law that will give H-1B workers who have been laid off a 60-day grace period to transfer to a new employer. But perhaps the greatest upside to the H-1B visa however, is that it is one of the few visas that allows a nonimmigrant to apply for permanent residency as a beneficiary of an immigrant visa petition, without the immigrant petition having any negative affect on their H-1B status. This privilege is recognized in the law and is known as “dual intent.” Foreign nationals holding a “dual intent” visa such as an H-1B visa are allowed to file a green card petition, while continuing employment under the terms of their visa, and may also travel on their visa without seeking permission from USCIS.

In this sense, the H-1B visa is one of the few visas that opens a direct path to permanent residency. Other popular employment visas such as the E-2 treaty investor visa do not create a direct path to permanent residency and are not considered “dual intent” visas.

Continue reading

h1b_842_ba6c3410836f9e24e760abe3b25e78dda5a49a8a

As many of you know the H-1B visa lottery for fiscal year 2018 is fast approaching. As usual, the competition will be fierce, as hundreds of thousands of highly skilled professionals prepare to file their H-1B visa petitions beginning April 1st through the April 7th deadline. While filing by April 1st (the first day that applications are accepted) certainly gives applicants greater peace of mind, filing before the April 7th deadline does not necessarily increase an individual’s chances of being selected in the lottery. Throughout the years, our office has seen the selection of many petitions that were filed on or close to the April 7th deadline.  With that being said, we expect the competition this year to be even more intense, that is why we want to give you our top tips about what you should be doing NOW to prepare for H-1B season and increase your chances for success.

First some statistics on fiscal year 2017:

  • For fiscal year 2017, USCIS received over 236,000 H-1B petitions, which included petitions counting toward the general cap and advanced degree exemption; approximately 3,000 more petitions when compared to H-1B petitions received for fiscal year 2016. This trend is likely to continue, giving you all the more reason to prepare for the H-1B season early on.
  • For fiscal year 2017, the H-1B cap was reached within the first 5 business days of the H-1B filing period (April 1 to April 7). We expect this trend to continue as in previous years. During fiscal year 2017, USCIS received more than 20,000 petitions for the advanced degree exemption. This number will undoubtedly increase for fiscal year 2018.
  • For fiscal year 2017, USCIS conducted the randomized computer-generated lottery on April 9, 2016 beginning the selection process for the 20,000 available visas counting toward the advanced degree exemption first. Then, unselected advanced degree petitions were given a second chance of being selected by being placed in the lottery toward the general 65,000 cap.  Individuals holding an advanced degree from the United States thus have two shots at being selected for the lottery.

Chances of selection

The chances of being selected in the lottery for fiscal year 2017 ran at roughly 65% for foreign workers holding a U.S. advanced degree, and roughly 35% for foreign workers holding a bachelor’s degree or equivalent. Compare this to the chances of being selected in the lottery during fiscal year 2016 which ran at 60% for U.S. advanced degree holders, and 30% for bachelor’s degree holders or the equivalent. We expect the percentage of selection to continue to increase for U.S. advanced degree holders and foreign workers holding bachelor’s degree or equivalent, by roughly 5% according to recent statistics. This of course will depend on the demand for the H-1B visa for fiscal year 2018.

Office Stats

For fiscal year 2017, 35%  of H-1B cap-subject petitions that were filed by our office were selected in the H-1B randomized lottery that took place early April 2016. 13% of those petitions were filed with premium processing, while 22% were filed with regular processing. In total our office filed 55 H-1B Petitions: 15 advanced degree petitions and 40 bachelor’s cap or equivalent petitions. Of these, 46 were filed with regular processing and 15 with premium processing. The majority of these petitions were filed with the California Service Center. Of selected petitions for fiscal year 2017, the top specialty occupations included: Applications Developer, Market Research Analyst, and Software Engineer.

H-1B Overview

As in previous years H-1B petitions for fiscal year 2018 will begin to be accepted by USCIS on April 1, 2017 up until April 7, 2017. Foreign workers in specialty occupations and their employers will compete for one of the coveted 65,000 H-1B visas available each fiscal year. The H-1B visa program is limited to a 65,000 congressionally mandated visa cap. Foreign workers holding a U.S. Master’s degree or higher are exempt from the 65,000 cap, however only the first 20,000 advanced degree petitions received by USCIS will qualify for the cap exemption. In addition, certain foreign workers such as foreign workers who have been offered employment under U.S. Chile or U.S. Singapore free trade agreements, and foreign workers in the Commonwealth of the Northern Mariana Islands (CNMI) and Guam are exempt from the cap, according to the Consolidated Natural Resource Act of 2008 (CNRA). Advanced degree petitions received after the 20,000 spots have been allocated will count toward the regular cap along with foreign workers holding bachelor’s degrees (or equivalent including work experience in lieu of formal education). USCIS will receive more than the 65,000 petitions for the H-1B visa program during the first five business days that the application period is open, from April 1st to April 7th. When the cap has been reached, USCIS will make an announcement, in recent years this announcement has been made on April 7th and begin the selection process to fill the 65,000 cap through a randomized lottery system. Petitions that are not selected will be rejected along with their filing fees. Duplicate H-1B petitioners during the same fiscal year, are not allowed, and may be subject to sanctions. Employers may not file an H-1B petition on behalf of an employee more than 6 months before the employee’s intended start date. Once an H-1B visa worker has been selected and approved, the foreign worker may begin employment on October 1st of that fiscal  year. The H-1B visa is issued for a three-year period that can be extended for an additional three years.

Continue reading