Visa Lawyer Blog
Articles Posted in Work Visas
Final Rule Benefitting EB-1, EB-2, and EB-2 Immigrant Workers and Certain Highly Skilled Nonimmigrant Workers with an I-140
The Department of Homeland Security is expected to publish a final rule tomorrow November 18, 2016 benefitting EB-1, EB-2, and EB-3 employment-based immigrant workers and highly-skilled nonimmigrant foreign workers. The final rule is effective January 17, 2017. The final rule will streamline the process for employment based sponsorship of nonimmigrant workers for lawsuit permanent resident status (LPRs), increasing job portability, and promoting stability, flexibility, and transparency in the way DHS applies its policies and regulatory practices to these programs. These changes were proposed in order to better equip U.S. employers to employ and retain highly skilled foreign workers who are the beneficiaries of employment-based immigrant visa petitions known as Form I-140 petitions. The new rule will allow foreign workers to have more flexibility, and affords workers the opportunity to further their careers by accepting promotions, giving them the freedom of being able to change positions with current employers, change employers, or pursue other employment.
The final rule conforms with longstanding policies and practices in accordance with the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) and the American Competitiveness in the Twenty-first Century Act of 2000 (AC21). The final rule seeks to further enforce the principles embodied in these pieces of legislation by providing nonimmigrant workers who have been sponsored for permanent residency based on the filing of an I-140 petition, greater flexibility and job portability, while expanding the competitiveness of American employers, boosting the U.S. economy, and protecting American workers. The final rule also clarifies and improves DHS policies and practices outlined in policy memoranda and precedent decisions of the Administrative Appeals Office. The final rule seeks to clarify regulatory policies in order to provide greater transparency to stakeholders. The final rule also clarifies interpretative questions related to ACWIA and AC21.
Final Rule on USCIS Filing Fee Schedule: Increases in Filing Fees Beginning December 23rd
Today, October 24, 2016 the Department of Homeland Security published the final rule increasing fees for certain immigration and naturalization petitions processed by U.S. Citizenship and Immigration Services (USCIS). Overall the Department of Homeland Security increased filing fees for certain petitions by an average of 21 percent. The new fees will be enforced by USCIS beginning December 23, 2016. The fee schedule has been adjusted following the agency’s decision to conduct a comprehensive review of filing fees for fiscal year 2016/2017. USCIS determined that an adjustment in the filing fees would be necessary in order for USCIS to recover costs for services expended and maintain adequate service. The proposed fee schedule was first published on May 4, 2016. The final rule clarifies that all persons applying for immigration benefits may be required to appear for biometrics services or an interview, and thus must pay the biometrics services fee accordingly.
EB-5 Investor Visa Program
The EB-5 Immigrant Investor Visa Program will be most heavily impacted by the new fee schedule. The new filing fee for Form I-924, Application for Regional Center under the Immigrant Investor Pilot Program, will increase by a rate of 186% requiring Regional Centers seeking designation under the program, to pay a filing fee of $17,795 instead of the current rate of $6,230. Regional Centers will be required to pay a $3,035 annual fee to certify their continued eligibility for the designation.
The filing fee for the I-526 Immigrant Petition by Alien Entrepreneur, an application associated with the EB-5 visa program, will increase to $3,675, a 145% increase up from the current rate of $1,500. The filing fee for an investor’s petition to remove conditions on residence remains unchanged.
Naturalization
USCIS has established a three-tiered fee schedule for naturalization applicants filing Form N-400 Application for Naturalization. First, the fee schedule includes a standard filing fee for most applicants, from a rate of $595 to $640. Second, DHS has established a reduced fee of $320 for naturalization applicants whose household income is greater than 150% but less than 200% of the Federal Poverty Guidelines. Third, there will be no filing fee for naturalization applicants who are members of the military, applicants with approved fee waivers, and others who may qualify for a fee waiver according to sections 328 or 329 of the Immigration and nationality Act (INA).
Immigration Highlights of the Final Presidential Debate Clinton v. Trump
Yesterday, October 19th the third and final Presidential debate took place in Las Vegas, Nevada. This was the last opportunity Presidential candidates, Donald J. Trump, and Hillary R. Clinton, had to present their positions on various different issues, and make a final attempt to gain the support of undecided voters. The debate has left much to talk about, while many questions still remain unanswered. The moderator of the debate, Chris Wallace, of FOX news questioned the candidates on various different topics ranging from the Supreme Court nomination, economy, foreign policy, and more importantly the candidates’ positions on immigration reform.
On the subject of immigration, the moderator introduced his question on immigration by providing an overview of each candidate’s positions on immigration. Wallace discussed the fact that throughout his campaign, Donald Trump has staunchly advocated for mass deportations and the building of a more secure border, which he believes will successfully deter undocumented immigrants, criminals, and terrorists from entering the United States.
By contrast, Wallace highlighted the fact that Hillary Clinton has offered no specific plan on how she would secure our southern borders, where there is currently a massive influx of immigrants, specifically unaccompanied children from Central America, seeking refuge in the United States. Wallace reiterated Hillary Clinton’s commitment to offer a comprehensive immigration reform package within the first 100 days she is in office that includes a pathway to citizenship for undocumented immigrants, with proven ties to the United States.
Each candidate was asked to discuss why their immigration policy is the best, and why their opponent is wrong. Donald Trump was given the first opportunity to respond. Trump opened the conversation on immigration by taking the position that providing amnesty for undocumented immigrants would be a ‘disaster’ for various different reasons. First, he stated that it would be unfair for undocumented immigrants to be given a path to citizenship, while immigrants wishing to enter the United States legally, are forced to wait many years to obtain permanent residence. Second, he emphasized that securing our country’s borders is his number one priority. Trump bolstered his claim that strong borders are necessary, by referring to mothers he had met on the campaign trail, whose children were brutally killed by people he claims entered the country illegally. He also stated that for the first time ever he has been endorsed by 16,500 Border Patrol Agents, as well as ICE who share in his belief that our country needs strong borders. Third, Trump claims that strong borders are necessary to deter the thousands of people who are coming into the country illegally, and to prevent drugs from pouring into the United States. Lastly, he stated that the war on drugs is the biggest problem the United States is facing today, thus in his view this presents an even greater obligation to secure our borders. He blamed the Obama administration for its failure to deter illegal immigration, illicit drugs from coming into the United States, and for allowing criminals to enter the United States.
Q & A: Answering Your Frequently Asked Questions
In this segment, we answer 5 of your most frequently asked questions received on our social media platforms and our website. Please remember that every case is different and every immigration journey is unique. You should not compare your situation to anyone else’s. We hope that our answers will provide you with further guidance while you embark on your immigration journey. If you have any further questions, please call our office to schedule a free first time consultation. We serve international clients and domestic clients in all 50 states. We thank you for your continued trust in our law office. Do you want us to answer your question? Please submit your questions to us through our website, or our Facebook page. For more information on the services we offer please click here.
The Affidavit of Support: Using Assets to Supplement Income
Q: I will be petitioning my spouse for permanent residence soon and have a question about the affidavit of support. If I do not have the support of a joint sponsor and my income does not meet 125% of the federal poverty line, can I use my assets?
A: Yes, you may use your assets to supplement your income if your total income does not meet the income requirements of the 2016 HHS poverty guidelines according to your household size, as specified by the charts below. If your total income falls short, you may submit evidence to demonstrate the value of your assets, or the sponsored immigrant’s assets, and/or the assets of a household member with their consent. Not only can the assets of the petitioner, immigrant, or household member be used to supplement any deficient income, but the assets of these persons can be combined to meet the necessary financial requirement. In order to use assets, the total value of the assets must equal at least five times the difference between your total household income amount and the current Federal Poverty Guidelines for your household size. An exception exists for U.S. citizens sponsoring a spouse or minor child. In this case, the total value of the assets must only be equal to at least three times the difference. Not all assets may be used to supplement income. Assets that can be converted to cash within one year without hardship or financial harm may only be used to supplement income. The owner of the asset must provide a detailed description of the asset (if the asset is property, an appraisal can be included or online listing from a reputable website showing the estimated value of the asset), proof of ownership of the asset (title, deed, etc.), and the basis for the owner’s claim of its net cash value. If you are using your home as an asset, you must use the net value of your home (the appraised value minus the sum of all loans secured by a mortgage, trust deed, or other lien on the home). You may use the net value of an automobile only if you can show that you own more than one automobile, and at least one automobile is not included as an asset. Other examples of typical assets used to supplement income include property, 401k, IRA, mutual investment fund, etc.
October Visa Bulletin: What to Expect and Visa Projections with Charles Oppenheim
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.
9 Paths to the Green Card
One of the biggest critiques of the U.S. immigration system is that there are very few options available to foreign nationals that create a direct path to permanent residency. Indeed, this is a very cruel reality for our clients. A reality that we struggle to overcome on a day to day basis. More often than not we speak to clients who simply cannot immigrate to the United States because of our antiquated immigration laws.
The immigration system boils down to two harsh realities. Generally, you may apply for permanent residence only if: 1) you have a qualifying family relationship to a legal permanent resident (LPR) or U.S. Citizen (family sponsorship) 2) you have secured employment with a U.S. company willing to sponsor your permanent residence (employment sponsorship) or 3) you belong to a special category of green card applicants and may immigrate on the basis of that category (VAWA recipients, asylees, diversity visa lottery winners etc.)
In order for you to understand the green card options available to you under the current immigration laws of the United States, we outline 9 of the most common ways to obtain permanent residence below:
Green card based on a qualifying Family-sponsorship
You are generally eligible to apply for permanent residence if you have a qualifying family relationship with a U.S. Citizen or Legal Permanent Resident:
- If you are the immediate relative of a U.S. Citizen your relative can file Form I-130 Petition for Alien Relative on your behalf, which will allow you to file the I-485 application for Permanent Residence. Immediate relatives of U.S. Citizens include spouses, unmarried children under the age of 21 of a U.S. Citizen, and parents of U.S. Citizens 21 years of age or older.
Immediate relatives of U.S. Citizens DO NOT have to wait in line for a visa number to become available to them in order to immigrate to the United States.
- If you are the family member of a U.S. Citizen and you fall under a qualifying “preference category,” your U.S. Citizen relative may file the I-130 Petition on your behalf. Family members of U.S. Citizens that fall into a “preference category” include: unmarried sons or daughters over the age of 21, married children of any age, and brothers and sisters of U.S. Citizen petitioners 21 years of age or older.
Immigrant visa numbers for these individuals are limited and are therefore subject to a waiting period. You must wait for your priority date to become current on the Visa Bulletin, based on your preference category and country of charge ability, before you are eligible to either apply for adjustment of status in the United states, or apply for an immigrant visa at a U.S. Consular post abroad (if you reside overseas).
Entrepreneur Immigration: Is the E-2 visa or L-1 visa right for you?
If you are a foreign entrepreneur, you have probably discovered that the United States immigration system is very limited in that there are very few visa options available to entrepreneurs that do not tie down the entrepreneur to a foreign employer, as is the case for the L and H visas. To make matters worse, if your ultimate goal is to obtain a green card to live and work in the United States permanently, you must work for an American employer willing to sponsor your adjustment of status. Although there are few exceptions, the main avenue through which entrepreneurs can gain permanent residence is either through family-sponsorship or employment-based sponsorship.
To obtain permanent residence through an employer you must either a) be a professional employed by a U.S. employer willing to sponsor your green card b) demonstrate extraordinary ability in your industry (science, arts, education, business, or athletics, c) work in a management or executive position abroad requiring international transfer to the United States or d) qualify as an EB-5 investor. In either of these cases, the U.S. employer must submit the I-140 Immigrant Petition for Alien Worker for you, before you can apply for permanent residence. If your ultimate goal is not to obtain a green card, then you have more options available to you.
We decided to write about this topic because we have found that many entrepreneurs that visit our office are not well-informed on other visa types that put them on a more direct path to permanent residence. Often times the topic of conversation leads to the E-2 Treaty trader visa, by far the most discussed visa type among entrepreneurs. Few entrepreneurs however have heard about the L-1 visa classification, that may in some ways be more beneficial to foreign entrepreneurs wishing to live and work in the United States permanently. Below we discuss both visa types and the advantages and disadvantages of both visas.
The E-2 visa, the most talked about visa:
Without a doubt, the most popular visa option entrepreneurs ask about is the E-2 visa. Many entrepreneurs however do not know that the E-2 visa is not available to everyone, and it is not a path to permanent residence. The E-2 visa is a non-immigrant treaty investor visa that is only available to foreign nationals from specific treaty countries. The E-2 visa allows foreign nationals to carry out investment and trade activities, after making a substantial investment in a U.S. business that the foreign national will control and direct. E-2 visa investors can either purchase an existing U.S. business or start a new business.
Immigrant Entrepreneurship on the rise despite Immigration Reform
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
Factors to consider before filing the adjustment of status application for spouses of U.S. Citizens
Before filing your green card application, it is important for you to carefully consider several important factors that may limit your ability to obtain employment in the United States and restrict your international travel. If you will be filing your green card application in the near future, you need to be prepared to remain in the United States for a period of at least 90 days, from the date of filing of your green card application. Applicants must also be aware that they will not receive authorization to work in the United States until this 90-day period has passed. Limited exceptions exist which may allow an applicant to expedite the adjudication process of the employment and travel authorization applications which we will discuss below.
Why the 90-day restriction period?
As part of the green card application, the applicant may file the I-765 Application for Employment Authorization and the I-131 Application for Travel Document at no additional cost. The I-765 and I-131 applications result in the issuance of a one-year temporary employment and international travel authorization card (EAD), while the green card application is being adjudicated by USCIS. It takes on average 90 days for the EAD card to be issued, from the date of filing of the green card application. This ultimately means that once you apply for permanent residence, you will not be able to seek employment or travel outside of the country until the EAD card is issued to you within 90 days. Once the green card application has been filed with USCIS, the applicant is restricted from any international travel. If the applicant travels without authorization, USCIS will consider the applicant’s green card application ‘abandoned.’ An applicant may only travel internationally if they have received a re-entry permit issued by USCIS known as an ‘advance parole’ document. The ‘advance parole’ notice will appear on the front of the EAD card itself signifying that the applicant is authorized to travel internationally using the card. The ability to re-enter the United States after returning from temporary foreign travel is ‘discretionary.’ This means that even if you have been issued an EAD card that allows you to travel, it will ultimately be up to the customs official to admit you into the United States.
Consider the alternatives
Before applying for your green card you should carefully consider whether these travel and employment restrictions will have a significant impact on your lifestyle. If the travel restrictions are concerning to you, it may be a more beneficial option for you to apply for an immigrant visa from a U.S. Consulate abroad. There are no travel restrictions for applicants who apply for immigration benefits from abroad. Likewise, if you are concerned that you will not receive employment authorization immediately, it may be worth considering applying for a dual intent work visa first to cover any gaps in employment. There are limited work visa categories that allow for dual intent, or the intent to have a temporary visa status at the same time as having the intent to remain permanently in the United States. If this is the case, you should consult with an attorney to discuss your options.