Visa Lawyer Blog

Articles Posted in Work Visas

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For this series, we bring you our top tips for filing a successful E-2 visa petition. The E-2 treaty investor visa is a non-immigrant visa that allows foreign entrepreneurs from treaty nations to enter the United States and carry out investment and trade activities. Investment activities may include either the creation of a new business venture or purchase of a pre-existing business. 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. The E-2 ‘investor visa’ is available to an applicant who invests a substantial amount of his own money into a U.S. business, which he can control and direct. Foreign nationals from treaty countries who have made a substantial investment in the United States may qualify for E-2 Treaty Investor status. There is no set minimum level of investment, which may qualify for E-2 status, however the lower the investment the less likely one is to qualify. Therefore, the level of investment must be such that it is sufficient to justify presence of the treaty national in the United States. For the E-2 visa petition, the United States business entity serves as the petitioner of the visa petition, while the Beneficiary serves as the investor.

Tip #1 Ensure that your business entity has been properly set-up

If you do not know how to properly set-up your business entity, you should consult with and retain a licensed attorney to properly set-up the business entity for you. Proper set-up of a business entity, entails much more than filing the company’s Articles of Incorporation, Bylaws, and applying for a Federal Employment Identification Number (EIN) with the IRS. It is for this reason that many applicants are more comfortable retaining a licensed attorney for the E visa process. Our office handles this aspect of the application as part of the E visa preparation package.

Why is this important?

Proper set-up of the business entity ensures that the entity is a bona fide business enterprise that is real, active, and producing goods or services for profit. Improper set up may cause the denial of a petition and increases the company’s liability.

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Beginning February 19, 2016 certain nonimmigrant Caribbean residents seeking admission to the United States as H-2A agricultural workers, will be required to obtain a valid passport and valid H-2B visa in order to be admitted. Spouses and children traveling with an H-2A agricultural worker will also be required to present a valid passport and H-2A visa. The H-2A nonimmigrant visa exception for Caribbean residents was first introduced during World War II in an effort to address labor shortages in the American workforce. The change, comes as part of the revised 2016 Omnibus Appropriations Bill, which eliminates the nonimmigrant visa exception for these individuals, along with other provisions that impact the H-2B nonagricultural visa program. The new rule will apply to nationals of the United Kingdom, France, the Netherlands and nationals of Barbados, Grenada, Jamaica, Trinidad and Tobago, who either maintain a residence in a territory governed by England, France, or the Netherlands located in the adjacent islands of the Caribbean, or maintain a residence in Barbados, Grenada, Jamaica, or Trinidad and Tobago. The change was validated in yesterday’s Federal Register by the Department of State and Homeland Security respectively. Removal of this visa exemption will allow the Department of State to properly screen individuals prior to their arrival in the United States, and further protect agricultural workers from employment violations and work related abuse. To learn more about the H-2A visa program click here.

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On January 23, 2016 a Federal District Court Judge for the District of Columbia granted the federal government an extension for the STEM Optional Practical Training (OPT) program to resume, giving the Department of Homeland Security (DHS) more time to issue a new replacement rule. The STEM OPT program had been in place since 2008, but was recently invalidated following a court order requesting the Department of Homeland Security (DHS) to issue a new replacement rule by February 12, 2016. DHS responded by requesting an additional 90 days to implement the final rule by May 10, 2016.

As part of their request, the federal government argued that exceptional circumstances existed to warrant the extension. This was owed to an unprecedented amount of comments received by DHS, that could not be reviewed and analyzed by the February deadline. According to the Administrative Procedures Act, DHS is required to publish a final rule 60 days before its effective date. During the comment period alone, DHS received over 50,000 comments that were nearly impossible to review and revise by the February deadline. Although plaintiffs for the original suit challenged the court stating that the court did not have jurisdiction to grant the extension, the court agreed with the federal government. The court stated that it did indeed have jurisdiction over the motion and that the undue hardship that STEM OPT participants and employers would experience, absent a new replacement rule, constituted an exceptional circumstance to warrant the extension. It is estimated that approximately 434,000 international students might benefit from the new replacement rule.

Presently, 23,000 students are STEM OPT participants, while approximately 2,300 more individuals are dependents of these participants. Had the extension been denied, thousands of students, their educational institutions, and their employers would be adversely affected. Litigation will continue over the validity and issuance of the replacement rule. If your initial OPT will expire between now and the May 10 deadline, and you are still within the 120-day filing window, you should apply for your 17-month extension as soon as possible, to benefit from the 17-month extension under the 2008 OPT rule. If your OPT will expire on or after May 11, and you are still within the 120-day filing window, you may be able to receive a 17-month extension. Once the new rule is in place and you are outside of the filing window, you will need to wait for the new rule and apply for benefits under the new rule. The new rule is expected to be published by March 11, 2016.

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Beginning December 18, 2015, H-1B and L-1 filing fees will increase for H-1B/L-1 dependent employers, employing 50 or more employees, with more than 50% of those employees in H-1B or L nonimmigrant status. This increase in fees comes with the passage of the Consolidated Appropriations Act, 2016 recently signed into law by President Obama, to be enforced until September 30, 2025. The new fee will apply to initial and change of employment H-1B and L petitions filed on or after December 18, 2015. The additional fee will be $4,000 for H-1B petitions and $4,500 for L petitions. USCIS will be revising Form I-129 and I-129S to reflect the new law and the additional fee. Petitioner’s are advised to accurately complete Item Numbers 1d. and 1d1. of Section 1 of the H-1B Data Collection Supplement and Item Numbers 4a. and 4b. of the L Supplement. Failure to complete this information accurately and include the appropriate fee where necessary may result in the rejection of your petition beginning February 11, 2016. CIS reserves the right to issue a request for evidence to determine if the additional fee will apply. In these cases, the original filing date will be maintained as the date of receipt of the petition.

Other fees that may be included in the H-1B petition are as follows:

  • I-129 processing fee $325;
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mayaFor this month’s staff spotlight, we invite you to learn more about Paralegal, Maya Elkain.

Ms. Elkain began her journey with the Law Offices of Jacob J. Sapochnick in 2014 as an intern. She quickly learned the ins and outs of employment based immigration law and was offered a position. Today, she assists attorneys with the preparation of H-1B applications, E-2 investor visas, L-1A visas, O visas, National Interest waivers, provisional waivers of unlawful presence, and much more. Ms. Elkain specializes in employment-based immigration and investor petitions. With her assistance, our law office has been able to receive affirmative decisions in numerous cases.

“The best part of my job is having the opportunity to make a difference and actually help our clients succeed in their immigration process. It is the most rewarding feeling.”

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What is the H-1B Visa? The H-1B visa is a work visa that is awarded on a lottery basis. The H-1B visa program allows American companies and/or qualifying organizations to employ foreign workers to fill specialty occupations temporarily. The foreign worker must posses a combination of education, specialized training, and/or experience that is equivalent to training acquired by the attainment of a U.S. bachelor’s or higher. The H-1B program was first enacted by Congress with the intention of helping American employers seek out distinguished foreign workers, possessing the skills and abilities necessary to perform the duties of the specialty occupation. The H-1B program has remained popular because it has allowed American employers to remain competitive and provides highly skilled foreign workers a path to permanent residence.

The provisions of the H-1B visa program allow qualified foreign workers to attain temporary employment having met specific requirements. H-1B visa recipients typically work in the STEM fields as scientists, engineers, computer programmers, software developers, business analysts, etc. although fashion models are also classified under the H-1B category.

USCIS will begin to accept H-1B cap-subject petitions for fiscal year 2017 beginning April 1, 2016. April 7, 2016 is the absolute deadline to file an H-1B cap-subject petition. Please note: employers cannot file an H-1B petition for an employee more than 6 months before the employee’s intended start date. If accepted, H-1B visa workers can begin employment by October 1st. The H-1B visa is issued for up to three years but may be extended for another three years.

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On Thursday, December 31, 2015 the Department of Homeland Security published a new proposed rule affecting highly skilled immigrant and non-immigrant workers alike. The proposed rule, introduced in last week’s federal register, aims to improve the ability of American employers to hire and retain highly skilled workers waiting to receive their employment-based lawful permanent residence in the visa bulletin backlogs. Additionally, the proposed rule aims to enhance opportunities for such workers allowing them to be more easily promoted, to accept lateral positions with their current employers, change employers, and pursue other employment. While the proposed rule is not groundbreaking, it does address important challenges employers and their highly skilled workers have faced as the law stands today and makes recommendations for such relief. The proposed rule will be open for comment until February 29, 2016.

You may remember that on November 20, 2014 the President highlighted, as part of his executive actions on immigration, that the employment-based immigration system needed to be amended to modernize, improve, and clarify immigrant and nonimmigrant visa programs in order to create more jobs, foster innovation at home, retain a highly skilled workforce that would allow the United States to compete with other countries, and to stimulate the American economy overall.  In order to modernize the employment based immigration system, USCIS would be required to work with the Department of State to modernize and simplify the immigrant visa allocation process. Part of this process would require the Department of State to make reasoned projections of employment-based immigrant visa availability on the visa bulletin, that could be relied upon by employers and their highly skilled workers.

Presently, immigrant workers from India and China are experiencing extraordinary delays in the employment-based queue for permanent residence, while other highly skilled workers are forced to wait over a five-year period to receive company sponsorship and lawful permanent residence. Furthermore, such workers are forced to remain on temporary employment-sponsored visas in the United States while waiting for an immigrant visa to become available to them. This puts the immigrant worker in a predicament giving the employer the upper hand, while restricting the employee from seeking advancement and discouraging new employment, since this would require the employer to file a new petition and incur the expensive fees required for filing. Highly skilled works facing extortionate delays in the visa backlogs have experienced hindered employer/employee career advancement and job mobility. The new rules will provide limited relief in this area.

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By Yingfei Zhou, Esq. 

Last week, attorneys Yingfei Zhou, Esq. and Marie Puertollano, Esq. from our office attended the 28th AILA California Chapter Conference on Immigration Law held in San Diego, California. Together, they brought our audiences the latest updates on various issues discussed at the government open forums.

  1. USCIS I-797C Receipt Notices or I-797B Approval Notices without I-94 attached are not accepted by DMV as Proof of Legal Residence
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Secretary of Homeland Security Jeh Johnson

On October 28, 2015 sixteen Democrats from the House of Representatives including —Zoe Lofgren, Michael M. Honda, Judy Chu, Katherine M. Clark, Elijah E. Cummings, Anna G. Eshoo, Tulsi Gabbard, Luis V. Gutierrez, James A. Himes, Ruben Hinojosa, Eddie B. Johnson, James P. McGovern, Frank Pallone Jr., Jared Polis, David E. Price, and Alma S. Adams — issued a letter addressed to the Secretary of Homeland Security, Jeh Johnson concerning drastic revisions made to the Visa Bulletin on September 25, 2015.

In the letter, House Democrats argue that the revisions to the Visa Bulletin have compromised the integrity of the immigrant visa process, and resulted in a lose of faith in our immigration system. More over they argue that these revisions have adversely impacted the lives of thousands of immigrants, the American businesses who employ highly skilled workers, and our economy which benefits from retaining highly skilled workers.

As previously reported, the Department of State had published a dual chart system on September 9, 2015 with the addition of a new ‘date of filing chart’ which first appeared on the October Visa Bulletin. This new ‘date of filing’ chart was implemented in an effort to modernize and streamline the immigration process, as part of President Obama’s executive actions on immigration reform.

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By Yingfei Zhou, Esq.

On July 21, 2015, USCIS issued the final guidance on when an employer must file an amended or new petition when the H-1B employee has changed or is changing his or her job location.

Except the situations listed below, the general requirement is that an employer must file an amended or new H-1B petition if the H-1B employee has changed or is changing his or her place of employment to a geographical area requiring a corresponding LCA to be certified to USCIS, even if a new LCA is already certified by the U.S. Department of Labor and posted at the new work location. Once an employer properly files the amended or new H-1B petition, the H-1B employee can immediately begin working at the new place of employment. The employer does not have to wait for a final decision on the amended or new petition for the H-1B employee to start work at the new location.

Exceptions when an employer does NOT need to file an amended petition are as follows:

  1. A move within an “area of intended employment”: If an employer’s H-1B employee is simply moving to a new job location within the same metropolitan statistical area, a new LCA is not generally required, and without material changes in the terms and conditions of employment the employer does not need to file an amended or new H-1B petition. However, the employer must still post the previously obtained LCA in the new work location.

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