Articles Posted in Start-Up Immigration

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On Friday December 1st, a federal judge for the U.S. District Court for the District of Columbia, issued a ruling in the lawsuit, National Venture Capital Association, et.al. v. Duke, et. al, in favor of the National Venture Capital Association, an association that brought the lawsuit to challenge the government’s delay of the international entrepreneur rule. Earlier this year, the Trump administration had postponed enforcement of the international entrepreneur rule and said that it was very likely that the Obama era rule would ultimately be rescinded. The Plaintiffs in the lawsuit argued that the Department of Homeland Security unlawfully delayed enforcement of the international entrepreneur rule by circumventing the notice-and-comment rule making procedure mandated by the Administrative Procedure Act.

As you may remember the international entrepreneur rule was first published in the Federal Register on January 17, 2017. Following its publication, a notice-and-comment period was expected to begin 30 days later. The government however failed to announce such a comment period, and instead, on July 13, 2017, just days before the rule was set to go into effect, the Department of Homeland Security issued a press release indicating that implementation of the rule would be delayed until March 14, 2018, at which time the government would seek comments from the public on its plan to rescind the rule.

Federal Judge James Boasberg dealt a blow to the Trump administration in his Friday ruling, in which he agreed with the National Venture Capital Association, and ordered the Department of Homeland Security to rescind its delay of the international entrepreneur rule. The court agreed that the government bypassed the procedures of the Administrative Procedure Act to block the rule from going into effect as expected on July 17, 2017.

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The Trump administration has taken its first step toward dismantling the International Entrepreneur Rule, an Obama era program that would have given thousands of foreign entrepreneurs the opportunity to travel to the United States for a 30-month period, for the purpose of starting or scaling their start-up business enterprise in the United States.

On November 17, 2017, the Trump administration sent a notice to the Office of Management and Budget (OMB) to officially end the International Entrepreneur Rule. This notice appeared on the website of the Office of Information and Regulatory Affairs as early as Friday. At this time, the Trump administration is finalizing a draft to officially rescind the rule. Once the administration has finished reviewing the draft, it will be published in the Federal Register. It is expected that the draft to rescind the rule will be published within the next week.

After publication, a public notice and comment period will follow, as required by the Administrative Procedure Act, a process by which the government invites the public to comment on a proposed version of a government rule published in the Federal Register. Once the comment period has ended, the government responds to comments, considers feedback, and decides whether such feedback will have any influence on their decision to rescind the rule.

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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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On September 19, 2017, the American Immigration Council in cooperation with Mayer Brown LLP, filed a lawsuit in federal district court on behalf of the National Venture Capital Association (National Venture Capital Association, et.al. v. Duke, et. al.) challenging the President’s postponement of the International Entrepreneur Rule. The Plaintiffs in the lawsuit collectively argue that the United States Department of Homeland Security (DHS), unlawfully delayed enforcement of the International Entrepreneur Rule by circumventing key provisions of the Administrative Procedure Act.

In order for a federal rule to become effective, the Act requires federal agencies to abide by a notice-and-comment rule making procedure, a process by which the government invites the public to comment on a proposed version of a government rule published in the Federal Register. After the comment period has ended, the government responds to comments, considers feedback, and decides whether such feedback will have any influence on the content of the rules. The Supreme Court has ruled that the notice-and-comment procedure is required for “legislative” or “substantive” rules that intend to “bind” the public, and that similar to a statute, these types of rules have the “force and effect” of law. The notice-and-comment rule making requirement, however does not apply to interpretive rules, which are rules that do not bind the public or have the “force” of law in the same way that legislative or substantive rules do. The National Venture Capital Association argues that the government unlawfully invoked the “good cause” exception of the APA to postpone the Rule, and that the Rule was unlawfully halted under the pretext that doing so would prevent harm to the public interest, when no emergency situation existed which would allow such a delay.

The International Entrepreneur Rule was first published in the Federal Register on January 17, 2017, and the notice-and-comment period was set to begin 30 days from the date of the rule’s publication in the federal register. However, the government never announced a comment period for the Rule. On July 13, 2017, the Department of Homeland Security announced that the implementation of the rule would be delayed to March 14, 2018, at which time the government would seek comments from the public, with a plan to rescind the rule.

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On April 18, 2017, the President signed the controversial executive order, Hire American, Buy American, “in order to promote the proper functioning of the H-1B visa program.”

The President’s executive order directs the heads of various departments to suggest reforms to the H-1B visa worker program, a lottery based work visa program reserved only for professionals working in specialty occupations. The EO specifically aims to “ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.”

Since the President signed the executive order, no reforms or regulations have been passed by Congress to enforce the provisions of the order on the H-1B visa worker program, however enforcement of the provisions of the executive order are beginning to be seen through the adjudicatory measures of USCIS immigration officials.

As of late, the United States Citizenship and Immigration Services (USCIS) has become a lot tougher in adjudicating H-1B visa applications. This means that securing an H-1B work visa will become a lot more difficult going forward. For the last few months, USCIS has been aggressively issuing more numerous and more stringent “requests for evidence” in comparison to previous years. This phenomenon has manifested itself generally in response to work visa applications for highly skilled workers, and is not just reserved to H-1B work visa applications.

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On August 02, 2017, Republican Senators Tom Cotton (R-AR) and David Perdue (R-GA) introduced a new Act called “Reforming American Immigration for a Strong Economy” before the U.S. Senate, otherwise known as the RAISE Act, which is a new piece of legislation that has recently been backed by President Trump.

The RAISE Act aims to overhaul the employment-based immigration system and replace it with a skills-based system that awards points to immigrants based on the immigrant’s level of education, age, ability to speak the English language, future job salary, level of investment, and professional achievements. In addition, the RAISE Act would terminate the Diversity Visa Program, which awards 50,000 visas to foreign nationals from qualifying countries, and would ultimately reduce the number of family-sponsored immigrants allowed admission to the United States. The Act intends to focus on the family-based immigration of spouses and minor children and would reduce the number of refugees allowed into the United States.

Among other things the RAISE Act would:

  • Terminate the Diversity Visa Program which awards 50,000 green cards to immigrants from qualifying countries;
  • Slash the annual distribution of green cards to just over 500,000 (a change from the current issuance of over 1 million green cards annually);
  • Employment-based green cards would be awarded according to a skill-based points system that ranks applicants according to their level of education, age, ability to speak the English language, salary, level of investment, and achievements (see below);
  • The issuance of employment-based green cards would be capped at 140,000 annually;
  • Limit the maximum number of refugees admitted to the United States to 50,000;
  • Limit admission of asylees. The number of asylees admitted to the United States on any given year would be set by the President on an annual basis;
  • Amend the definition of “Immediate Relative” to an individual who is younger than 18 years of age instead of an individual who is younger than 21 years of age;
  • Adult children and extended family members of individuals living in the United States would no longer be prioritized to receive permanent residence. Instead the focus would remain on the immediate relatives of U.S. Citizens and legal permanent residents such as spouses and children under the age of 18;
  • The Act would allow sick parents of U.S. Citizens to be allowed to enter the United States on a renewable five-year visa, provided the U.S. Citizen would be financially responsible for the sick parent.

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Great news for cap-exempt H-1B applicants! Effective immediately, the United States Citizenship and Immigration Services (USCIS) will resume premium processing services for certain cap-exempt H-1B petitions.

As you may recall in early April, USCIS temporarily suspended expedited processing of all H-1B petitions to reduce H-1B processing times and prioritize processing of H-1B extensions nearing the 240-day mark.

Today, July 24, 2017, USCIS announced that certain cap-exempt H-1B petitioners can now take advantage of premium processing services.

Please note that H-1B petitions filed on behalf of physicians under the Conrad 30 waiver program are not affected by the suspension.

What is premium processing?

Premium processing service refers to an optional premium processing service offered by USCIS to employers filing Form I-129 (Petition for a Non-immigrant Worker) or Form I-140 (Immigrant Petition for Alien Worker). Premium processing guarantees 15 calendar day processing to petitioners or applicants who make use of the service. Applications that are not processed within 15 calendar days otherwise receive a refund of the $1,225 premium processing fee. To make use of the service, petitioners or applicants must file Form I-907 with their application and include the appropriate fees. The I-907 request for premium processing service can be filed together with an H-1B petition or separately pending a decision.

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It’s official. The Department of Homeland Security has rolled out a plan to delay the effective date of the International Entrepreneur Rule, which was set to be enforced on July 17, 2017, to March 14, 2018, at which time the Department will seek comments from the public to rescind the rule, in accordance with Executive Order 13767, “Border Security and Immigration Enforcement Improvements” signed by President Trump on January 25, 2017.

Written comments from the public are due on or before 30 days from the date of publication in the federal register. It is strongly advised that all affected foreign entrepreneurs, business owners, attorneys, immigration advocates etc. leave a public comment identified by DHS Docket No. USCIS-2015-0006, online or by mail detailing the adverse effect that rescinding the rule would have on the U.S. economy and the expansion of jobs in the United States.

Public Comments

Online: Federal eRulemaking Portal: http://www.regulations.gov. Follow the website instructions for submitting comments.

This document is scheduled to be published in the Federal Register on 07/11/2017 and available online at https://federalregister.gov/d/2017-14619, and on FDsys.gov

By Mail: You may submit comments directly to U.S. Citizenship and Immigration Services (USCIS) by sending correspondence to Samantha Deshommes, Chief, Regulatory Coordination Division, Office of Policy and Strategy, UCSIS, DHS, 20 Massachusetts Avenue, NW, Washington, DC 20529. Remember to reference DHS Docket No. USCIS-2015-0006 in all mail correspondence.

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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.

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In this post, we bring you the top three mistakes to avoid when applying for a B-1/B-2 non-immigrant visa at a United States consulate or embassy abroad. All too often clients contact our office feeling distraught after receiving a B-1/B-2 visa denial from a consular official. The good news is that a B visa denial can be easily avoided by understanding the common mistakes that people make when pursuing the B nonimmigrant visa.

First, it is important to understand who is eligible to apply for a B non-immigrant visa.

B-1 versus B-2

The B-1 temporary business visitor visa is reserved for individuals who seek to travel to the United States for a temporary period to participate in a business activity of a commercial or professional nature. Examples of individuals who qualify for this type of visa include: individuals consulting with business associates, individuals negotiating contracts, settling an estate, participating in short term training, entrepreneurs who wish to travel to the United States to research the market for a potential business venture, individuals traveling for a scientific, educational, professional, or business convention, or conference, etc.

Individuals who typically apply for this type of visa are entrepreneurs and investors who wish to apply for an E-2 visa in the future and who need to visit the United States to research the market or other business activities relating to researching the viability of the business venture.

B-1 temporary business visitors may be eligible to remain in the United States anywhere from 1-6 months—with 6 months being the maximum. Ultimately, it will be up to the consular/embassy official to determine the length of your period of stay. Typically, applicants are granted an initial period of stay of 6 months. B-1 visa holders may extend their stay for an additional 6 months if it is necessary for them to remain in the United States for an extended period to complete their temporary business activity.

Similarly, the B-2 temporary visitor visa is reserved for individuals who wish to enter the United States temporarily for tourism, pleasure, or visitation. Examples of individuals who qualify for this type of visa include tourists, individuals who wish to visit friends, or relatives, individuals seeking medical treatment, amateur artists, musicians, or athletes who wish to participate in events or contests that do not provide compensation, and individuals who wish to enroll in a short recreational course of study that does not count for credit toward a degree. The length of stay granted to a B-2 temporary visitor is the same as that of a B-1 temporary business visitor.

Who may not apply for a B visa?

Individuals who wish to immigrate to the United States and remain in the United States permanently, or individuals who wish to study, seek employment, etc. may not apply for a B non-immigrant visa.

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