Visa Lawyer Blog

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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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A few day ago, the U.S. Department of State (DOS) released the December visa bulletin, which shows significant forward movement in the availability of immigrant visa numbers for individuals born in India and China in the Second Employment-Based preference category (EB-2) for individuals with advanced degrees. Foreign nationals born in India or China with an approved I-140 petition in the EB-2 category with a priority date of March 15, 2008 or earlier will be eligible to apply for the last step of the permanent residence beginning in December 2011. This represents forward progress in visa availability of four months from the November 2011 Visa Bulletin.

The Visa Bulletin, which the DOS releases each month, summarizes the availability of immigrant numbers based on employment- (or family-) based category, country of birth, and priority date. A foreign national cannot apply for permanent residence (a green card) until a visa is available based on their priority date, preference category, and country of birth.

The DOS has predicted that it is possible that immigrant visa availability could move forward again in the January and February 2012 Visa Bulletins, but then retrogress later in the year. Last year, according to the DOS, there were 3,000 EB-2 petitions filed on behalf of individuals born in India who already have priority dates established through EB-3 petitions. Because those individuals can use their previous EB-3 priority date for the EB-2 category, the movement in EB-2 numbers for India is likely to slow down.

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A new Obama administration policy to avoid deportations of illegal immigrants who are not criminals has been applied very unevenly across the country and has led to vast confusion both in immigrant communities and among agents charged with carrying it out.

Since June, when the policy was unveiled, frustrated lawyers and advocates have seen a steady march of deportations of immigrants with no criminal record and with extensive roots in the United States, who seemed to fit the administration’s profile of those who should be allowed to remain.

But at the same time, in other cases, immigrants on the brink of expulsion saw their deportations halted at the last minute, in some cases after public protests. In other instances, immigration prosecutors acted, with no prodding from advocates, to abandon deportations of immigrants with strong ties to this country whose only violation was their illegal status, a sign that they were following the June memo from ICE.

For President Obama, the political stakes in the new policy are high. White House officials have concluded that there is no chance before next year’s presidential election to pass the immigration overhaul that Mr. Obama supports, which would include paths to legal status for illegal immigrants. Even still, immigration authorities have sustained a fast pace of deportations, removing nearly 400,000 foreigners in each of the last three years.

With Latino communities taking the brunt of those deportations, Latino voters are increasingly disappointed with Mr. Obama. White House officials hope the new policy will ease some of the pressure on Latinos, by steering enforcement toward gang members and convicts and away from students, soldiers and families of American citizens.

In a June 17 memorandum, John Morton, the director of Immigration and Customs Enforcement, laid out more than two dozen factors that its agents and lawyers should weigh when deciding whether to exercise prosecutorial discretion to dismiss a deportation. The memo called for “particular care and consideration” for veterans and active-duty troops, elderly immigrants and minors, and those brought here illegally as children.

In August, the homeland security secretary, Janet Napolitano, announced additional measures to put Mr. Morton’s guidelines into effect, including a review of all deportation cases — about 300,000 — currently in the immigration courts, with the aim of closing cases that do not meet the administration’s priorities.

In a report released Wednesday, the American Immigration Lawyers Association and the American Immigration Council collected 252 cases from lawyers across the country who had asked Mr. Morton’s agency, known as ICE, to exercise prosecutorial discretion to spare immigrants from deportation. “The overwhelming conclusion is that most ICE offices have not changed their practices since the issuance of these new directives,” the report found.

“This is a classic example of leadership saying one thing and the rank and file doing another,” said Gregory Chen, director of advocacy for the lawyers association. The report found that training for immigration officers on the new guidelines had been lacking.

Officials at the Homeland Security Department acknowledge the policy’s slow start. Mr. Morton’s June guidelines were followed by a three-month lull, when resistance grew among agents in the field. In late September, Ms. Napolitano and Mr. Morton went on the offensive to press the policy, and since then Mr. Morton has been on the road inaugurating training programs.

“Like any major change in enforcement policy, this is a work in progress,” Mr. Morton said by telephone from Miami, where he was joining in a training session. “I have been handling much of the initial explanation myself, because I feel so strongly about it.”
Officials say they need time to transform federal agencies accustomed to cut-and-dried immigration enforcement, with any illegal immigrant a target for deportation. Ms. Napolitano says immigration agents must become more like other police officers, using “sound prosecutorial practice” to follow priorities. Those priorities are to deport convicted criminals, serial violators of immigration law and recent border crossers, officials said.

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So why are we so stressed out in the past week or so, H1B time is on us. U.S. Citizenship and Immigration Services (USCIS) announced that, as of November 14, 2011, it has received approximately 56,800 H-1B petitions counting towards the congressionally-mandated 65,000 limit. USCIS also confirmed that it has received approximately 20,000 H-1B petitions for employees with advanced degrees from U.S. colleges and universities. The annual limit on H-1B petitions in the advanced degree category is 20,000. However, USCIS is still accepting H-1B petitions under the general cap for employees with advanced degrees from U.S. colleges and universities.

So looks like the economy is doing better, just look at H1B numbers from last year. In mid-November 2010, USCIS had received approximately 46,800 H-1B petitions counting towards the mandated 65,000 limit and approximately 17,200 H-1B petitions for employees with advanced degrees from U.S. colleges and universities. We expect even less visas to last next year.

So bottom line, call your Lawyers and let the filing begin!!

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There is a movement going on right now on YouTube. The Define American movement has launched a social media campaign on YouTube to open up the dialogue on immigration here in the U.S. and how we can reform the immigration system. Jose Antonio Vargas, the journalist famous for outing himself as an illegal U.S. immigrant in The New York Times, and his campaign encourages Americans all across the world to share their personal stories about “what it means to be an American” and the effects of the immigration system on their lives. Users can share their story via text, audio or in the form of a YouTube video.

The campaign follows the same formula that turned the It Gets Better campaign into a worldwide phenomenon. The goal, says Vargas and Define American co-founder Jake Brewer, is to open an honest dialogue across the country about immigration and immigration laws’ effects on families and communities.

“Only the Internet and only social media is vast enough to make room for an actual dialogue and an actual conversation,” Vargas tells Mashable.

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A new report out today says more than 700,000 foreign students came to the U.S. to study last year. That’s a record high for U.S. colleges and universities. Why the influx? It has a lot to do with state budgets.

The F1 visa is a nonimmigrant visa for international students who are qualified to attend a full course of study at colleges, universities, conservatories, academic high schools (subject to strict regulations) and institutions with language-training programs in the U.S.

Guess who sent the most students to the US in 2011 – China.

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