Visa Lawyer Blog

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A couple of years ago BusinessWeek published an article about Visas and the Challenges of graduates facing the job market. This post is a quick summary for our readers.

For foreign MBAs, PHD’s and other students in the US, most commonly heard immigration term on school campuses these days is H-1B, as in H1-B visa, for graduates who want to continue to work in the U.S. after finishing school. It refers to the visa that applies to a non-U.S. citizen who will be temporarily employed in a specialty occupation, according to the U.S. Citizenship & Immigration Services (USCIS). There used to be shortage of these visas, which is why international MBA students often start asking about these visas midway through their programs. Now, as a result of the recession, the problem is finding work and not always the shortage of the visas.

But the H-1B is only the beginning of the alphabet soup of forms and work visas that a business-school student can encounter. Indeed, a non-U.S. student needs to acquire a whole new vocabulary that most Americans do not speak. Here is a starter glossary:

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This great summary is provided by AILA with the guidance of Tammy Fox-Isicoff. The EB5 program is of great interest to many applicants, especially those with the means to participate. he EB-5, Green Card through investment, was created to promote investments in businesses and to create and preserve jobs in the U.S. You can become a lawful permanent resident by establishing a new commercial enterprise and provide full-time employment to at least ten U.S. citizens, legal permanent residents, or other immigrants with employment authorization.

Under section 203(b)(5) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1153(b)(5), 10,000 immigrant visas per year are available to qualified individuals seeking permanent resident status on the basis of their engagement in a new commercial enterprise.

Of these 10,000 visas, 5,000 are set aside for those who apply under a pilot program involving a CIS-designated “Regional Center.”
What is a Regional Center (RC)?

A RC is a proposed business venture often located in a targeted unemployment area supported by an econometric model based on a business plan forecasting indirect and/or direct job creation. Normally, RCs are located in areas of high unemployment or rural areas and require a $500,000 investment. However, some RCs are not located in targeted employment areas and therefore require investments of $1,000,000. An investor in an RC is not required to be actively involved in the management of the investment as long as the investor is a limited partner under the Uniform Limited Partnership Act. An RC normally structures one or more new commercial enterprises (NCE) that receive capital from investors to engage in direct or indirect job creation project or projects.

What does RC designation by USCIS mean?

It means that USCIS has reviewed the proposed business plan, any accompanying econometric model, location, and proposed job creation and has determined that the proposed business plan meets the requirements of The Immigrant Investor Pilot Program, created by Section 610 of Public Law 102-395 on October 6, 1992.

Are all RCs that have received designation from USCIS operational?

No, actually only a small percent of designated RCs are operational and have been the basis for approved I-526 Immigrant Petitions by Alien Entrepreneur. Even a smaller percentage have approved I-829 Petitions to Remove Conditions on Residence.

Is USCIS required to conduct background checks on RC managers or directors?

No.

Does USCIS monitor the performance of RCs?

No. USCIS has sent out questionnaires to RCs, but it is not clear at this time what USCIS is doing with the information obtained from the questionnaires.

Does USCIS publish a list of operational RCs and those with approved I-526 and I- 829 petitions?

While USCIS does publish a list of designated RCs, it does not publish which RCs are operational or which RCs have approved or denied I-526 and/or I-829 petitions.

If an RC is designated by USCIS, are all NCEs formed in the RC automatically
approved?

No, each NCE within the RC must meet the requirements of the requisite investment amount and job creation. If the NCE will be investing in another business, that business must meet the requisite employment creation.

Is there a process whereby USCIS provides pre-approval of an NCE within an RC?

Yes. USCIS has recently created a pre-approval process. However, this process is not taken advantage of by many RCs as the time to obtain pre-approval of an NCE can be extensive, inordinately delaying the NCE from receiving funds from investors. The preapproval process is so new that it has not been adequately time tested.

If USCIS has approved a number of I-526 petitions for an NCE or pre-approved an NCE is it a guarantee that future petitions for the same NCE will also be approved?

No. USCIS will always examine the source and path of funds of the individual investor and failure to carefully document this can result in the denial of the I-526 petition. More baffling is that on frequent occasions, USCIS has raised questions pertaining to NCEs that have a long track record of approvals, and USCIS can also raise questions pertaining to NCEs that have been pre-approved. USCIS has also raised questions concerning an NCE’s qualifications after approving an I-526, at the I-829 stage. Thus, prior approvals for the same NCE, pre-approval of an exemplar petition for an NCE and even the approval of an investor’s I-526 for a particular NCE, does not mean that the NCE will not be further scrutinized by USCIS.

What happens to an investor who invests in an NCE that never gets off the ground?

The initial I-526 petition may be approved based on the business plan and supporting documents, but the I-829 petition to remove conditions on residence will be denied.

If either the I- 526 or I- 829 is denied, will the invested funds be returned to the
investor?

This depends to some extent on the agreement between the investor and the RC. Some RCs hold funds in escrow pending approval of the I-526. Others do not. At the I-829 stage, it is doubtful that funds will be returned if the I-829 is denied as the funds must have been placed at risk in order for the I-526 to be approved in the first place. See Matter of Izumii, 22 I&N Dec. 169 (Assoc. Comm. 1998). The RC cannot provide any guarantee of the return of the invested funds if the I-829 is denied.

What happens to an investor if the I-829 is denied by USCIS?

The investor can renew the I-829 in removal proceedings before an immigration judge. If the I-829 is denied by the judge, the investor can appeal to the Board of Immigration Appeals and to federal court. If the investor does not prevail, the investor can be deported.

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A coalition of labor and immigrant advocacy groups announced Tuesday they’re launching a radio and print advertising campaign to pressure Republican senators to support the measure. Targets include Florida Sen. George LeMieux, Maine Sens. Susan Collins and Olympia Snowe, Massachusetts Sen. Scott Brown, Nevada Sen. John Ensign and Texas Sen. Kay Bailey Hutchison.

On November 30, 2010, Senate Majority Leader Harry Reid (D-NV) filed a new version of the DREAM Act (S.3992) with the aim of attracting broader support for DREAM to get the requisite 60 votes to pass the Senate during the current “lame duck” session of Congress.

The earliest Reid could file a cloture motion on the new bill would be this coming Thursday, December 2nd. After waiting out the requisite 30 hours post-cloture, it could “ripen” over the weekend, and effectively come up for a vote on Monday, December 6th at the earliest.

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Here is the latest on H1B visa numbers, they now passed the 50K mark. U.S. Citizenship and Immigration Services (USCIS) announced that it has now received approximately 48,977 H-1B petitions counting toward the congressionally-mandated 65,000 limit. USCIS also confirmed that it has received approximately 17,836 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.

Accordingly, USCIS is still accepting H-1B petitions under both the general cap and the advanced degree cap. We also continue to process H1B cases, but time is running out so in order to secure visas for this season employers must act now.

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Here is a quick update from the California Service Center regarding this new fee. The additional filing fees of $2,000 for certain H-1B petitions and $2,250 for certain L- 1A and L-1B petitions is applicable to petitioning employers who employ 50 or more employees in the United States and 50% of the petitioner’s employees are in H-1B, L-1A or L-1B status. The PL 111-230 fees do not apply to petitions requesting an extension of H-1B, L-1A or L-1B status with the same employer (only for initial filings for a new beneficiary).

When the fee is not required, it is critical that the petitioner explicitly acknowledge this and explain why it is not required in the I-129 filing. If this is not done, USCIS will likely issue a Request for Evidence asking for a statement from the petitioner, causing unnecessary delays in processing.

The Service Center previously stated:

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Readers often inquire about the general requirements for Citizenship and when can one apply. A number of criteria must be reviewed to determine if a person is eligible to apply for U.S. citizenship. As a starting point, the applicant must be a legal permanent resident (LPR) and at least eighteen years old. There are limited exceptions to this rule, including honorable service in the U.S. military during a time of war or declared hostility. The basic rule, however, is LPR and eighteen years of age.

Continuous Residence

In order to be eligible for naturalization, after Green Card has been obtained, one must be able to establish “continuous residence” in the United States for a period of five years before filing the application. This period is reduced to three years for individuals who are married to U.S. citizens, or who obtained Green Cards based on marriage but were battered or abused by their spouses. With the exception of cases involving abuse, in order to be eligible for the three-year period based on marriage to a U.S. citizen, the applicant must be married and living in marital union with the U.S. spouse for the past three years and the spouse must have been a U.S. citizen for the past three years.

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The H-2B program is critically important for many businesses that have difficulty finding U.S. workers to fill temporary jobs. This is particularly true in seasonal industries. Comments from H-2B employers attest to the need for foreign workers in physically demanding seasonal jobs, often in remote locations, that many U.S. workers will not take.

The H-2B nonimmigrant visa program permits employers to hire foreign workers to come to the U.S. and perform temporary nonagricultural work, which may be one-time, seasonal, peak load or intermittent and there are no qualified and willing U.S. workers available for the job. Note that this visa is not available for “temporary” agencies or other work placement agencies.

In order to learn more about employers’ perceptions of the H-2B program, ImmigrationWorks USA and the U.S. Chamber of Commerce conducted a survey: five short questions distributed among H-2B employers in July and August 2010. The survey asked how many H-2B workers the company had hired in the last three years and what types of jobs those workers held. It included two open-ended questions about the benefits of using the program and asked what if any problems employers had experienced.

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People applying for tourist visas for the United States in Qatar have greater chance of accessing them than in any other GCC country. Figures released by the US Administration suggest that only 3.2 percent requests for US tourist visas made to the US embassy in Doha were turned down in the FY 2010.

A US government website citing tourist visa (B-Visas) refusal details country-wise said the data were preliminary through September 30, 2010. As for Qatar, the data show this was the lowest percentage of tourist visa refusal in the entire GCC region. The next Gulf state with a lower percentage of rejection was Kuwait (3.6 percent). Bahrain ranked third with a 4.1 percent rejection rate while the percentage for the largest GCC state Saudi Arabia was six.

As for Oman and the UAE, the percentages were higher-8.7 and 9.7, respectively. The GCC states ranked much above their peers in the Arab world like Egypt, Yemen, Sudan and even Iraq. The rate of B-visa rejection in these countries was more than 30 percent.

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Department of State Visa Office provided explanation of its monthly determination of employment preference cut-of dates and data used in determining employment based cut-off dates for December 2010.

Each month, the State Department subdivides the annual preference and foreign state limitations specified by the Immigration and Nationality Act into monthly allotments based on totals of documentarily qualified Immigrant Visa applicants reported at consular posts and Immigration Offices, grouped by foreign state chargeability, preference category, and priority date.

If there are sufficient numbers in a category to satisfy all reported documentarily qualified demand, the category is considered “Current.” For example: If the monthly allocation target is 3,000 and there is only demand for 1,000, the category will be “Current”. Whenever the total of documentarily qualified applicants in a category exceeds the supply of numbers available for the particular month, the category is “oversubscribed” and a visa availability cut-off date is established. The cut-off date is the priority date of the first documentarily qualified applicant who could not be accommodated for a visa number.

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The number of American students studying in Zimbabwe increased by 200 percent in 2009-10 to a total of 27. During the same period, the number of Zimbabwean students enrolled in U.S. institutions of higher education decreased by 8.7 percent from 1,269 to 1,159, most likely due to economic challenges in Zimbabwe making it difficult for families to pay for fees and tuitions. Open Doors 2010, the annual report on international academic mobility published by the Institute of International Education (IIE) with support from the U.S. Department of State, released these statistics on Monday to mark the beginning of International Education Week.

The number of Zimbabwean students in the U.S. peaked in 2002-03 at 2,186. Today, Zimbabwe is among the top 10 sending countries in Africa, ranking seventh after Nigeria, Kenya, Ghana, Cameroon, South Africa, and Ethiopia. In 2009, the US Embassy in Harare issued 400 new F-1 student visas.

U.S. Embassy Educational Advisor Rebecca Zeigler Mano attributes the decline to the economic crisis and political instability in Zimbabwe, as well as teacher strikes, inconsistent examination results, election related violence and hyperinflation during the 2007-08 academic years. Parents who previously could fund part or all of their children’s US education through Reserve Bank educational forex allowances and local salaries, could no longer do so during those years. Despite the decline last year, the number of Zimbabweans studying in the U.S. remains high in large part due to the U.S. Embassy educational advising services in Harare and in Bulawayo, as well as a big increase over the last 5 years in the number of Zimbabweans receiving scholarships to study in the US.

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