Visa Lawyer Blog

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Another victory for our office appealing a tough H1B denial, consistency pays eventually. This article was prepared by attorney Ekaterina Powell from our office.

H-1B is a “specialty occupation” work visa. Traditionally, occupations in law, medicine, sciences and engineering are considered specialty occupations. However, the statute and the regulations contain provisions that allow other professions to be considered specialty occupations if certain conditions are met. For example, if a baccalaureate in a specific specialty (or its equivalent) is normally the minimum requirement for entry into the particular position, then the position should be viewed as a specialty occupation.

USCIS uses the Occupational Outlook Handbook (OOH), a publication of the Department of Labor in its analysis on whether a particular position can be classified as a specialty occupation. Unfortunately, USCIS continues to use its overly restrictive interpretations of the H-1B regulations when it comes to the occupations in marketing, public relations, or management and business related professions.

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Immigration services scams are getting so sophisticated that fraudsters now advertise online with websites that perfectly mimic those of official government agencies, federal officials said Thursday as they rolled out a nationwide awareness campaign meant to combat such practices. Officials from several federal, state and local agencies, as well as immigration lawyers and advocates, met in Newark on Thursday to expand nationwide a campaign that started in seven pilot cities. It focuses on enforcement, education and inter-agency collaboration.

“They are not just high-tech scams, they are people in the neighborhoods: people who know people, people who are out there shaking hands,” said Kelvin Chen, an attorney with the Federal Trade Commission, as he spoke about the need to increase awareness among immigrants who are often preyed upon by members of their own communities.

The campaign is aimed at educating legal and illegal immigrants to avoid everything from unlicensed service providers to websites that mimic those of government agencies. Most scams involve people who pretend to be able to provide legal aid or other services for immigrants, take victims’ money and fail to deliver.

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A few updates for our Italian Investor clients, Effective December 1, 2011, all E visas applications will be processed in Rome. Therefore, all new E1 Visa and E2 visa applications submitted after December 1, 2011 should be sent to the E Visa Section in Rome following the directions on the web. (http://italy.usembassy.gov./visa/vis/vis-6-en.html) All cases will be processed in the order received. All pending cases sent to Milan prior to December 1, 2011, will be processed to conclusion in Milan, in the order they were received.

In a Small Business Administration (“SBA”) study, the report found that, “Immigrants are nearly 30 percent more likely to start a business than are nonimmigrants, and they represent 16.7 percent of all new business owners in the United States.” This SBA report also found that nearly 30 percent of all new business owners per month in New York, Florida, and Texas, are immigrants. In addition, business owners from Europe constituted a growing share of immigrant business owners.

The E Visa for those unfamiliar with the opportunity, provides nonimmigrant visa status for a national of any of the countries with which the United States maintains an appropriate treaty of commerce and navigation, who is coming to the United States to carry on substantial trade, including trade in services or technology, principally between the United States and the treaty country, or to develop and direct the operations of an enterprise in which the national has invested, or is actively in the process of investing substantial amount of capital.

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Today, the U.S. House of Representatives passed the Fairness for High-Skilled Immigrants Act (HR 3012), legislation introduced several months ago by Representative Jason Chaffetz (R-UT). The bill eliminates per-country caps on employment-based green card numbers and increases the per-country limit on family-based green cards from 7 percent to 15 percent. If enacted, the bill will reduce the green card wait times for employment-based immigrants from high-volume user countries, such as India and China.

Though the bill has been passed by the House of Representatives, it is not yet law and must still pass the U.S. Senate and be signed into law by the President. We hope this will become a reality soon. We will keep our readers posted.

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Sad Sad Story, but this is our reality. A talent illegal-immigrant student in Texas killed himself the day after Thanksgiving and left letters saying he felt trapped by his lack of opportunities.

High school senior Joaquin Luna, 18, of Mission, shot himself in the bathroom of his house on Friday. His brother Diyer Mendoza said Joaquin left letters telling of his despair at the chances of the federal Dream Act, which would legalize illegal-immigrant students and young adults, becoming a reality.

The purpose of the Development, Relief and Education of Alien Minors Act, also called the DREAM Act, is to help those individuals who meet certain requirements, have an opportunity to enlist in the military or go to college and have a path to citizenship which they otherwise would not have without this legislation. Supporters of the DREAM Act believe it is vital not only to the people who would benefit from it, but also the United States as a whole. It would give an opportunity to undocumented immigrant students who have been living in the U.S. since they were young, a chance to contribute back to the country that has given so much to them and a chance to utilize their hard earned education and talents.

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A recent article on Ars Technica has shed some light on an important issue going on in the U.S., the ability to get work visas. Some of the Silicon Valley’s most important companies, including Intel, Google, and Yahoo, were cofounded by immigrants. Yet America’s ponderous immigration system makes it difficult for talented young people born outside of the U.S. to come to the Bay Area. There have been various proposals to make it easier for immigrant entrepreneurs to come to the United States, but that has not made much progress in Congress.

A new company called Blueseed is seeking to bypass the political process and solve the problem directly. Blueseed plans to buy a ship and turn it into a floating incubator anchored in international waters off the coast of California.

An interview by Ars Technica talked to Blueseed founder Max Marty. He acknowledged that it would be better for America to reform immigration laws and thereby make his company unnecessary. But in the meantime, Marty and his team are hard at work tackling the practical obstacles to making their vision of a floating, year-round hack-a-thon a reality. Within the next year, they’re hoping to raise a venture capital round large enough to lease or buy a ship with space for around a thousand passengers. If Blueseed’s audacious hack of the immigration system is successful, it will not only open up Silicon Valley to a broader range of entrepreneurs, it will also shine a spotlight on the barriers American law places in the way of immigrants seeking to start businesses in the United States.

Blueseed is trying to overcome the limitations of American immigration law, but its business model also depends in critical part on the goodwill of American immigration officials. That is because a key part of the Blueseed sales pitch is that residents will be able to make regular trips to the mainland.

Immigration law makes it difficult for many would-be immigrants to get permission to work in the United States. For example, there’s an annual cap on the number of H1-B visas available for American employers to hire skilled immigrant workers, a cap that was recently met. However, permission to travel to the United States for business or tourism is much easier to get.

Marty pointed to the B-1 business visa as a key part of his company’s strategy. With a B-1 visa, visitors can freely travel to the United States for meetings, conferences, and even training seminars. B-1 visas are relatively easier to get, and can be valid for as long as 10 years.

Blueseed plans to provide regular ferry service between the ship to the United States. While Blueseed residents would need to do their actual work—such as writing code—on the ship, Marty envisions them making regular trips to Silicon Valley to meet with clients, investors, and business partners.

With the ship only 12 miles offshore, it should be practical to make a day trip to the mainland and return in the evening. A B-1 visa also permits overnight stays, making it useful for extended business related visits.

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The EB-5 Category is an excellent opportunity for many foreign nationals to become permanent residents of the United States. In the U.S. so far this year almost 3,000 Chinese citizens have applied for investor visas, up from 270 in 2007. That’s 78 percent of the total applicant pool for this type of visa, according to U.S. Citizenship and Immigration Services (USCIS). The U.S. investor visa, also known as the EB-5, requires a minimum investment of $500,000 by the applicant in a commercial project in the U.S. that employs at least 10 Americans within two years. If the Chinese applicants can’t generate those jobs, they and their family may have to leave the U.S.

A person investing $500,000 in certain circumstances or $1 million in a business that creates 10 jobs may be granted EB-5 permanent resident status. To encourage immigration through the EB-5 category, Congress created a Regional Center program in 1990. 3,000 visas have been set aside each year for people to invest at least $500,000 in designated Regional Centers.

The Regional Centers program does not require the immigrant investor enterprise itself to employ 10 U.S. workers. Instead, it is sufficient if 10 or more jobs are created indirectly as a result of the investment. Regional Centers are designated as “any economic unit, public or private, which is involved with the promotion of economic growth, including increased export sales, improved regional productively, job creation, or increased domestic capital investment.” The investment requirement is only $500,000 if a Regional Center is in a targeted employment area, which is either in a rural or high unemployment area, as defined hereinafter in the section on EB-5 Regulations.

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OK so game is over for 2011, next filing is April 2012. U.S. Citizenship and Immigration Services (USCIS) announced that as of Tuesday, November 22, the 65,000 H-1B cap for fiscal year 2012 has been exhausted. USCIS previously confirmed that it had exhausted the 20,000 cap for employees with advanced degrees from U.S. colleges and universities. As such, the next available H-1Bs will be available for filing on April 1, 2012 with a start date of October 1, 2012.

The American Immigration Lawyers Association (AILA) commented on Wednesday’s announcement from the United States Citizenship and Immigration Services (USCIS) that it has received a sufficient number of H-1B petitions to reach the statutory cap of 65,000 visas for fiscal year 2012 since the filing window opened on April 1st this year.

“During a time when job creation is the nation’s number one priority, why are we still fiddling around with an outmoded quota system that ignores the importance of immigrants to the economic engine?” said AILA President Eleanor Pelta.

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OK so the cap will be met by next week, we are certain now. U.S. Citizenship and Immigration Services (USCIS) announced that, as of November 18, 2011, it has received approximately 61,800 H-1B petitions counting towards the congressionally-mandated 65,000 limit. USCIS previously confirmed that it has received 20,000 H-1B petitions for employees with advanced degrees from U.S. colleges and universities, thus reaching the annual limit on H-1B petitions in the advanced degree category. Accordingly, additional H-1B petitions in this category will be adjudicated under the 65,000 general cap.

USCIS has historically accepted a greater number of H-1B petitions than the number available for approval under the cap based on the assumption that some petitions will be denied, rejected or withdrawn. USCIS will once again use actual data on approval and denials for this fiscal year to determine how many petitions should be accepted for filing and when to end the filing period for cap-subject petitions.

Hurry and file your cases now.

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Great News for our Russian clients and Blog Readers. Secretary of State Clinton and Russian Foreign Minister Lavrov exchanged diplomatic notes during their November 19, 2011, meeting in Bali on the new agreement on visas announced on July 13, 2011. This exchange of notes advances the visa agreement one step closer to entry into force. Under Russian law, the Duma must next ratify the agreement and, following ratification, the parties will exchange a second set of notes confirming that their internal procedures for entry into force have been completed. The agreement will come into force 30 days after that exchange.

This visa agreement is historic, and it will allow tourists and business travelers from both the United States and Russia to receive visas with longer validity periods of 36 months, valid for multiple entries. This agreement will facilitate travel between our two countries and establish stronger ties between our people. The agreement benefits the largest segments of our traveling Americans and Russians – business travelers and tourists, traveling both as individuals and in groups.

The agreement also streamlines the visa issuance process by reducing the documentation required. These new visa validity periods will allow for expanded contacts and promote greater mutual understanding between our societies.

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