Articles Posted in Start-Up Immigration

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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.

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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.

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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.

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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.

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On December 27, 2016 in Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016) the USCIS Administrative Appeals Office (AAO) handed down a groundbreaking decision which has changed the analytical framework for determining eligibility of national interest waivers. This new decision will affect foreign nationals who are pursuing a green card based on employment in the EB-2 category, and who are eligible for a “national interest waiver.”

The national interest waiver is a discretionary waiver of the job offer and labor certification requirement made possible by subparagraph (A) of section 203(b)(2) of the Immigration and Nationality Act. This section of the INA states that the Secretary may, when it deems it to be in the national interest of the United States, “waive the requirements of subparagraph (A) that an alien’s services in the sciences, arts, professions, or business be sought by an employer in the United States.”  In addition to meeting a three-prong test of eligibility, to obtain a national interest waiver, the foreign national must be a member of a profession holding advanced degrees or their equivalent or prove that “because of their exceptional ability in the sciences, arts, or business they will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States.”

Without this discretionary waiver, EB-2 applications must be accompanied by a labor certification and their employer must go through the process of advertising the position to prove to immigration that there are no other applicants who are qualified, willing, and able to fill the position that the foreign national is expected to fill. Employers must also meet prevailing wage requirements as established by law. Establishing the national interest waiver in other words made it easier for qualifying foreign nationals in the EB-2 category to skip the job offer and labor certification requirement, streamlining their path to permanent residency.

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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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