Visa Lawyer Blog

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By Ekaterina Powell, Esq.

We get a lot of inquiries from entrepreneurs who want to come to the U.S. to engage in their businesses whether they can qualify for H-1B visa. Below is a summary of the current USCIS trends and practical tips in making H-1B for entrepreneurs a success.

Proving Valid Employer-Employee Relationship between Entrepreneur and Business

Over two years ago, USCIS has started its initiative to promote start-up businesses and spur job creation. Since then, USCIS has issued a number of updates describing the opportunities for entrepreneurs and explaining how they can qualify for H-1B and other visas to work in their own businesses.

Specifically, USCIS has clarified that entrepreneurs with an ownership stake in their own companies, including sole employees, may be able to obtain an H-1B visa if they can demonstrate that the company has the independent right to control their employment.

In other words, in order to qualify for H-1B in your own company, you have to show that there is an employer-employee relationship between you and your business, as indicated by the fact that the company has the authority to supervise your work, fire, and otherwise treat you as a regular employee of the company.

When USCIS updated its Questions & Answers: USCIS Issues Guidance Memorandum on Establishing the “Employee-Employer Relationship” in H-1B Petitions posted on USCIS website, it gave an example of a sole owner who could qualify for H-1B in his/her own company. USCIS states that the necessary employer-employee relationship can be established if there a separate Board of Directors which has the ability to hire, fire, pay, supervise or otherwise control the beneficiary’s employment.

USCIS has also recently created a website “Entrepreneur Pathways” dedicated to explaining the U.S. visa options for H-1B entrepreneurs. The website provides further information on the documentary evidence that can be presented to show a valid employer-employee relationship if the H-1B beneficiary has an ownership stake in the petitioning business.

Aside from showing a Board of Directors that controls your work, you can present evidence of preferred shareholders, investors or other factors establishing that the petitioning company has the right to control the terms of your employment.

As evidence of the right to control your work, you may be able to present the following:
• Term Sheet
• Capitalization Table
• Stock purchase Agreement
• Investor rights Agreement
• Voting Agreement
• Organizational documents and operating agreements/bylaws
In addition to the documents listed as examples, you may submit a combination of any other documents that sufficiently establish that there is a valid employer-employee relationship.
In our experience, we have found that it is also useful to present the documents below to show the right to control the beneficiary’s work:

• Employment Agreement between the petitioner and beneficiary or Employment Offer Letter detailing the terms and conditions of employment and explaining how the employer will exercise its right to control the beneficiary, how often the beneficiary will have to report on the progress of work and to whom, how the beneficiary will be supervised throughout H-1B employment, the extent of the employer’s discretion over when and how long the beneficiary will work, the method of payment, the employer’s role in paying and hiring assistants to be utilized by the beneficiary, the provision of employee benefits, and other relevant considerations;
• A description of the performance review process along with progress and performance evaluations;
• Letters from the directors/investors/preferred shareholders explaining how the right to control the work of the beneficiary will be exercised on a day-to-day basis, who will supervise the beneficiary and evaluate the work product of the beneficiary, and explaining the management structure of the company;
• Copy of petitioner’s organizational chart, demonstrating beneficiary’s supervisory chain;
• Other relevant documents.

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So you hire a lawyer to file your immigration petition and your case gets a Request for Evidence on it. You provide all of the documentation in the request to your lawyer to file with immigration so that your case will be approved, relying on your lawyer’s advice for what documents you need to provide so it will be successful. Unfortunately, your case is denied, but the denial says that immigration never received your Request for Evidence and denied it for failure to respond to it. As a client, this can be both disheartening and confusing since you relied on your lawyer to help get your case approved. What can you do?

Our office had a client come to us with this very situation at hand, wondering what they could do to get their case approved. The consequences would be pretty severe because it was a family petition and the denial could potentially split up a family that recently had a new member born. Understanding the sensitivity of the circumstances, there were a few things we could do while the period of time to file an appeal was open.

The first thing we did was follow up with the Immigration Field Office who had the case on file and issued the denial to see if the case could be reopened on their own motion. For anyone that is unfamiliar with dealing with the Immigration Field Offices, one must generally have an appointment made with them to discuss the case. When faced with a denial of a case, that timeline is more sensitive since the time is limited to file an appeal with USCIS. We were fortunate enough to bring this case to the attention of a supervisor to address our matter, and she provided us the opportunity to bring her the documents on the case. Despite these efforts, we did not hear back from the Immigration Field Office soon enough so that we would not have to file a Motion to Reopen the case. When faced with this whether to file a Motion to Reopen or not, the safest thing to do is to proceed with filing the motion to ensure that right has been probably submitted for the case.

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With some of Speaker of the House John Boehner’s recent statements regarding immigration reform, we are reminded of what many have worked hard to try and accomplish within the immigration system. There are many goals and hopes that people have for 2014. Some of these goals and hopes include:

– A decrease in deportations of people who overstay or are not here legally and have spouses and children in the U.S. so they may not be torn apart from their families.

– Passing immigration reform so there is a process in place to help those who have no status in the U.S. get on the road to eventually achieving their dreams of becoming U.S. citizens.

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After years of waiting, the California Supreme Court finally made a decision that allows undocumented immigrants to be admitted to the State Bar. Sergio Garcia passed the California State Bar Exam on his first try in 2009, but when his application to be admitted to the bar was denied, it was the beginning of a long battle that has ultimately ended in his favor.

The California’s Supreme Court ruled Thursday that no state law or public policy should stop Garcia or others like him from obtaining a law license in the state. Immigration officials would be unlikely to pursue sanctions against an undocumented immigrant who had been living in the United States for years, had been educated in this country and whose sole unlawful conduct was his presence in this country, the court said in a unanimous ruling written by Chief Justice Tani Cantil-Sakauye.

“Under these circumstances, we conclude that the fact that an undocumented immigrant’s presence in this country violates federal statutes is not itself a sufficient or persuasive basis for denying undocumented immigrants, as a class, admission to the State Bar,” the court ruled.

Sergio Garcia’s case is unique because, while it is admitted that he is an undocumented alien in the U.S., he has an approved immigrant visa petition filed by his father back in 1995. Unfortunately, after 19 years of waiting so far, a green card is still unavailable to him. The California Supreme Court’s ruling said, “Because the current backlog of persons of Mexican origin who are seeking immigrant visas is so large, as of the date of this opinion — more than 19 years after Garcia’s visa petition was filed — a visa number still has not become available for Garcia,”
The matter ended up in the California state court system, and Garcia earned the support of California Attorney General Kamala Harris, who wrote in a 2012 brief: “Admitting Garcia to the bar would be consistent with state and federal policy that encourages immigrants, both documented and undocumented, to contribute to society.”

The state bar argued that Garcia had met all of California’s requirements for a law license.

“With today’s ruling, the California Supreme Court reaffirms the Committee of Bar Examiners’ finding as not a political decision but rather one grounded in the law,” California State Bar President Luis J. Rodriguez said in a written statement Thursday.

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As we celebrate the Holidays and gather with our families we must think of the good things in our life.

As we look around the world today – at the conflicts, the destruction of the environment, the human and animal suffering – it almost seems absurd to say that our wish is for a more peaceful, healthier and happier world. Yet this is the world we all yearn for. And I find that with the image of such a world in my mind and in my heart, it is easier to take action, every day, to move things in the right direction.

So let’s wish for a world where all people are treated with dignity, respect and equality – no matter who you are or who you love.

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Unlike regular Social Security, which is a contributory insurance plan based on how long people worked and how much they made before retirement, S.S.I. is a welfare program for all citizens or resident immigrants who meet certain requirements of age, income or disability.

The number of elderly immigrants enrolled in the program has increased fivefold over the last 12 years. Now, more than a quarter of immigrants over 65 — and in some immigrant populations, almost half — receive S.S.I., at an annual cost of $2 billion.

By comparison, less than 10 percent of elderly United States citizens are in the program.

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Back in November, USCIS issued a policy memorandum to amend the USCIS Adjudicator’s Field Manuel to ensure consistent adjudication of parole requests made on behalf of certain military family members. The policy is intended to ease the stress and anxiety palced upon military service members and veterans that is caused by the lack of immigration status of their close family members in the U.S.

To be eligible for parole in place, it is a discretionary action under the Immigration Nationality Act. The parole memo states that an individual who is a spouse, child, or parent of an active duty member of the U.S. Armed Forces, Selected Reserve of the Ready Reserve, or veteran who previously served in the armed forces or reserves “weighs heavily in favor of parole in place.” The memo further notes that “absent a criminal conviction or other serious adverse factors, parole in place would generally be an appropriate exercise of discretion for such an individual.” As of the date of this memo, it is unclear what type of criminal conviction or “other serious adverse factor” would prevent USCIS from favorably exercising discretion.

The eligibility for adjustment of status is available if the only barrier to adjustment was the lack of inspection and amission or parole. The memo is clear” “an alien who entered the United States without inspection, but subsequently receives parole, is not inadmissible under either of the two inadmissibility grounds…” Therefore, once USCIS grants parole in place, the provision in the INA that requires the applicant be “inspected, admitted or paroled” is satisfied. However, the individual must still satisfy all of the other requirements for adjustment of status, including maintenance of status under the code, if he or she is not an immediate relative or the provisions of the INA do not apply. It is also important to note that parole in place eliminates only those grounds of inadmissibility found in INA 212(a)(6)(A)(i) for purposes of adjustment of status and that all other grounds of inadmissibility must still be overcome.

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Since the June 2013 Visa Bulletin, the third preference employment-based immigrant visa category (EB-3) for individuals born in China has a more recent cut-off date than the second preference employment-based category (EB-2). This has held true even as recently as the December 2013 Visa Bulletin, which indicates that the EB-3 category has a priority date earlier than October 1, 2011 compared to the EB-2 category which has a priority date of November 8, 2008. Because of the more recent priority date for the EB-3 category, it is important to recognize what options to pursue when filing an I-140 petition under either category for a Chinese national.

Under 8 CFR section 204.5(a), an I-140 petition generally must be accompanied by an original labor certification to be considered properly filed. Section 204.5(e) allows the alien to retain the priority date of an approved I-140 petition and apply it to any I-140 petition that is subsequently filed on his or her behalf, whether the I-140 petitions were filed by the same or different employers. This is true even if the same labor certification, which would qualify for either EB-2 or EB-3, is the basis for multiple I-140s.

While there is a 180-day validity period for individual labor certifications, USCIS recognizes an exception to this period when “an amended petition is filed to request a different visa classification than the visa classification requested in the previously filed petition. Although it is more common to see petitions file an upgrade from an EB-3 preference category to an EB-2 preference category, the current circumstances for Chinese Nationals pose a situation where “downgrading” to the EB-3 category is more beneficial if the prior petition was based on the EB-2 category. Since it is possible to file an EB-2 and an EB-3 petition based on the same labor certification, there are some considerations to keep in mind for those who have gone ahead and pursued the EB-2 route, since it had normally been the faster route to permanent residence for Chinese nationals. Some of these considerations for filing a subsequent I-140 petition include the following:

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Nelson Mandela, South Africa’s first Black president and the symbol of the anti-apartheid movement has passed away. Through untiring and ever vigilant efforts, Mandela would work through the hardest circumstances, including 27 years in prison to see apartheid end in South Africa. Because of his work, Mandela was a Nobel Peace Prize recipient and elected as his country’s first Black President.

Nelson Mandela represents the virtues of those who work tireless to bring equality and justice to his country. He is quoted as saying “People tend to measure themselves by external accomplishments, but jail allows a person to focus on internal ones; such as honesty, sincerity, simplicity, humility, generosity and an absence of variety,” These values continued to show through his work fighting against apartheid in jail and the changes he tried implementing when he became president of his country.

What we can take from Nelson Mandela’s passing is that these virtues are important for accomplishing important changes in government and in society. The immigration reform movement stands for the kind of change that is necessary to benefit all Americans. The impact immigration has on our lives and in our communities is the kind of change that Mandela would strive for because of how many people and communities are affected by the changes that are truly needed. Let us follow Mandela’s example and continue to implore, to speak out, and to actively call on our government to pass immigration reform that Americans have been asking for.

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By Ekaterina Powell, Esq.

As H-1B season is about to begin and companies across the U.S. are preparing for the H-1B recruitment period, we would like to remind our readers about the employment terms specific to H-1B candidates.

H-1B nonimmigrants are a great way for many employers to supplement their workforce when there is a shortage of qualified American workers. H-1B program can be an alternative to outsourcing when the shortage of labor exists. The H-1B visa allows foreign nationals to enter the U.S. temporarily for an initial term of three years to engage in professional occupations. Hiring an H-1B nonimmigrant is not an easy task. Apart from the tedious visa process, employers spend considerable time and resources in screening candidates, lengthy international telephone interviews, arranging for relocation of the candidates, training, etc. Sometimes however, after all these efforts in trying to bring the workforce into the U.S., today’s competitive marketplace serves as a tough reality for these employers as some of the H-1B nonimmigrants choose to leave the employers shortly after entering the U.S. in search for better opportunities.

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