Articles Posted in Work Visas

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The House Proposes to Extend the E-3 Program to Irish Nationals

On November 20, 2018, the House of Representatives introduced H.R. 7164, a bill proposing to add Ireland to the E-3 nonimmigrant visa program. Currently, the E-3 visa program is available to American employers seeking to hire Australian nationals to perform services in a specialty occupation for a temporary period of time.

The E-3 visa program functions much like the H-1B program. The program is governed by the same labor certification standards that apply to the H-1B visa program, and much of the same evidence is required. The E-3 visa classification is numerically limited, with a maximum of 10,500 visas available annually for Australian nationals.

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The E-2 treaty investor visa allows foreign nationals to make an investment in an existing or new business venture in the United States.

Advantages

There are no numerical limitations on the number of E-2 visas that can be issued, and there is no set minimum level of investment required, however the level of investment that should be made in the business venture should be sufficient to justify the presence of the foreign national in the United States. Although the E-2 visa is granted for an initial two-year period, the investor may qualify to extend their stay in two-year increments, with no outer limit on the total period of the foreign national’s stay.

Disadvantages

Not all foreign nationals are eligible to apply for the E-2 treaty investor visa. To qualify, you must be a foreign national from a treaty country that participates in a treaty of friendship, commerce, navigation or similar agreement with the United States. See below for qualifying countries:

Albania Czech Republic Kosovo Romania
Argentina Denmark Kyrgyzstan Serbia
Armenia Ecuador Latvia Senegal
Australia Egypt Liberia Singapore
Austria Estonia Lithuania Slovak Republic
Azerbaijan Ethiopia Luxembourg Slovenia
Bahrain Finland Macedonia Spain
Bangladesh France Mexico Sri Lanka
Belgium Georgia Moldova Suriname
Bolivia Germany Mongolia Sweden
Bosnia and Herzegovina Grenada Montenegro Switzerland
Bulgaria Honduras Morocco Thailand
Cameroon Iran The Netherlands Togo
Canada Ireland Norway Trinidad and Tobago
Chile Italy Oman Tunisia
China (Taiwan) Jamaica Pakistan Turkey
Colombia Japan Panama Ukraine
Congo (Brazzaville and Kinshasa) Jordan Paraguay United Kingdom
Costa Rica Kazakhstan Philippines Yugoslavia
Croatia South Korea Poland

Another disadvantage is that the E-2 visa is a temporary non-immigrant visa type. This means that the E-2 visa does not create a pathway to permanent residency. In addition, making an investment in a small business venture is risky. Most small businesses fail. Investors seeking to establish a new business in the United States must be prepared to face challenges, obstacles, and potential losses. If the investment will be made by a company, at least 50% of owners in the qualifying country must maintain the nationality of a treaty trader country if they are not lawful permanent residents.

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Today, November 30, 2018, the United States Department of Homeland Security announced a notice of proposed rulemaking (NPRM) that seeks to impose a registration requirement for H-1B petitioners seeking to file an H-1B petition on behalf of beneficiaries under the regular cap and advanced degree exemption.  An unpublished version of the proposed rule has been made available in the federal register.

Under the proposed rule H-1B Petitioners would be required to electronically register with USCIS during the designated registration period, in order to file a H-1B cap-subject petition on behalf of a foreign worker. In addition, DHS is proposing to change the order in which H-1B cap-subject registrations would be selected to meet the annual H-1B regular cap and advanced degree exemption. This change would increase the odds of selection for H-1B beneficiaries who have earned a U.S. master’s degree or higher from a U.S. institution.

Under the proposed rule, all petitioners seeking to file an H-1B cap-subject petition on behalf of a foreign worker would be required to submit to a mandatory registration process. Only those whose registrations are selected, would be eligible to file an H-1B cap-subject petition during the associated filing period.

The mandatory Internet-based registration process for petitioners seeking to file H-1B petitions for beneficiaries to be counted under the regular cap or advanced degree exemption, would begin before April 1st, in advance of the period during which H-1B petitions can be filed for a new fiscal year. An H-1B cap-subject petition would not be considered properly filed unless the petition is based on a valid registration selection for that fiscal year.

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Good News for Adjustment of Status Applicants! The United States Citizenship and Immigration Services (USCIS) is updating its policy, extending the validity of Form I-693 Report of Medical Examination and Vaccination Record, submitted along with an application for an immigration benefit (such as an I-485 Application for Adjustment of Status).

Effective November 1, 2018, Form I-693 will be valid for a maximum period of 2 years from the date of the civil surgeon’s signature on Form I-693, provided that the civil surgeon signs the medical examination 60 days before the date the applicant files an application for an underlying immigration benefit with USCIS.

Previously, Form I-693 was only valid for a period of one year from the date of the civil surgeon’s signature.

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As part of the United States Citizenship and Immigration Services’ (USCIS) new plan to modernize services offered by the agency, the agency has announced that it will gradually end self-scheduling of Infopass appointments, to encourage applicants to use online information resources and other online tools that allow applicants to check the status of their case, and other information.

According to USCIS, the Detroit Field Office and five offices in the Los Angeles area will begin the gradual phaseout of Infopass services. Newark, Great Lakes, and San Francisco will be next to gradually phaseout these services during the beginning of fiscal year 2019. USCIS expects to modernize its system completely by the end of fiscal year 2019.

According to USCIS Director Francis Cissna, “Expanding this program is a significant step in our efforts to move more USCIS services and information online. It also frees up agency staff to spend more time adjudicating benefit requests which should help reduce case processing times. USCIS remains committed to pursuing the most effective and efficient ways to administer our nation’s lawful immigration system.”

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The Washington Post recently reported that President Trump is expected to deliver a scathing speech on immigration this upcoming Tuesday October 30, 2018. The President’s speech will come just a week before the highly contested midterm elections, where more than 425 House seats are up for re-election.

Interestingly, the Post is reporting that President Trump is gearing up to invoke his executive power to prevent Central American migrants from applying for asylum at the Southwest border. Such a move would trigger constitutional challenges in federal court. However, as we know, the President and his administration have not shied away from controversy.

The President is eager to present his agenda to boost his approval ratings and encourage Republican voters to support GOP candidates in battleground states.

Earlier this month the President expressed his sentiments regarding an immigrant caravan consisting of more than 7,000 Central American migrants’ intent on reaching the U.S. border.

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The R-1 visa is arguably one of the most underrated work visas available in the U.S. immigration system. The R-1 visa program enables foreign nationals to travel to the United States for the purpose of engaging in temporary employment, as a minister, or in another religious vocation or occupation on at least a part time basis (20 hrs/week).

To qualify for the R-1 visa, the foreign national must be employed by (1) a non-profit religious organization in the United States or (2) a religious organization that is authorized by a group tax exemption holder to use its group tax exemption or (3) a non-profit religious organization affiliated with a religious denomination in the United States.

In addition, the foreign national must be a member of the religious denomination for at least two years immediately prior to filing for an R-1 visa.

What is considered a religious occupation under the program?

Religious occupations are those whose duties:

  • Primarily relate to a traditional religious function
  • Are recognized as a religious occupation within the denomination
  • Are primarily related to, and clearly involve, inculcate, or carry out the religious creed and beliefs of the denomination

Who may not be eligible for the R-1 visa?

Administrative or support personnel including janitors, maintenance workers, clerical employees, or fund-raisers, or similar occupations that involve soliciting donations. Limited administrative duties that are incidental to religious functions are permissible.

Benefits of the R-1 Visa Program

Dual Intent

The R-1 visa is a dual intent visa. A dual intent visa allows a foreign national to enter the United States as a non-immigrant for a temporary specified period of time, but allows the foreign national to retain the option of applying for a green card in the future.

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In this post, we would like to keep our readers informed about Visa Bulletin projections for the coming months. 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.

EB-1: The following categories are expected to experience some forward movement in the month of December, however it is not yet known how much advancement will take place: EB-1 Worldwide, EB-1 China, and EB-1 India. It is not expected for these categories to return to current during this calendar year. A cutoff date is expected for EB-1 Worldwide until the first half of the fiscal year.

EB-2 China: is expected to continue to experience forward movement

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Photo by Thomas Hawk, Flickr

Extension of TPS Designation for Yemen

The Department of Homeland Security has announced an extension of the TPS designation of Yemen for a period of 18 months, from September 4, 2018 to March 3, 2020.

Re-registration is limited to persons who have previously registered for TPS under the designation of Yemen and whose applications have been granted.

For individuals who have already been granted TPS under Yemen’s designation, the 60-day re-registration period runs from August 14, 2018 through October 15, 2018.

USCIS will issue new EADs with a March 3, 2020 expiration date to eligible Yemeni TPS beneficiaries who timely re-register and apply for EADs

Proposed Rule on Public Benefits

Yesterday, October 10, 2018, a notice of proposed rulemaking (NPRM) was officially published in the federal register for the proposed rule that may soon restrict admission of certain immigrants and non-immigrants reliant or likely to become reliant on public benefits.

The comment period on the proposed rule has begun and will remain open until December 10, 2018. After the period for public comments has closed, the government will review the comments and make any changes to the rule as deemed necessary. The government will then publish a final version of the rule in the federal register, and it will be enforced on or after 60 days from the date of publication of the final rule in the federal register.

Under the proposed rule, receipt of the following types of public benefits would make an applicant a public charge:

  • Federal, state, local or tribal cash assistance for income maintenance
  • Temporary Assistance for Needy Families (TANF)
  • Supplemental Security Income
  • Medicaid (with limited exceptions for Medicaid benefits paid for an “emergency medical condition,” and for certain disability services related to education)
  • Medicare Part D Low Income Subsidy
  • The Supplemental Nutrition Assistance Program (SNAP, or food stamps)
  • Institutionalization for long-term care at government expense
  • Section 8 Housing Choice Voucher Program
  • Section 8 Project-Based Rental Assistance
  • Public Housing
  • DHS is considering adding to the list of included benefits the Children’s Health Insurance Program (CHIP), formerly known as the State Children’s Health Insurance Program (SCHIP)

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Citizens of New Zealand now qualify for the E-2 Treaty Trader Investor Visa thanks to a United States–New Zealand partnership recently signed into law. The KIWI Act, or Knowledgeable Innovators and Worthy Investors Act, signed into law on August 1st, adds New Zealand to the list of eligible countries participating in the E-2 Visa program. This is great news for entrepreneurs from New Zealand seeking to do business in the United States.

Overview of the E-2 Treaty Trader Investor Visa

The E-2 Treaty Investor Visa is a non-immigrant visa type that is only available to foreign nationals of a foreign country with a qualifying treaty of friendship, commerce, navigation, or a similar agreement with the United States. A treaty trader visa is issued for an initial period of 2 years that can be renewed in 2-year increments, with no outer limit on the total period of stay. Dependents of the principal E-2 applicant can apply for derivative E visas to accompany the entrepreneur in the United States.

The E-2 visa allows entrepreneurs from treaty nations to enter the United States and carry out investment and trade activities. Investment activities include the creation of a new business in the United States, or an investment in an existing business in the United States. The investment must be significantly proportional to the total investment, that is, usually more than half the total value of the enterprise or, if a new business, an amount normally considered necessary to establish the business.

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