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Today's Date: December 10, 2013
 

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U.S. Department of Homeland Security (DHS) is proposing to Amend its Regulations related to certain Employment-based Immigrant and Nonimmigrant Visa Programs to retain EB–1, EB–2, and EB–3 Immigrant Workers and to Improve these Visa Programs

DHS is seeking public comments on a proposed rule to amend its regulations related to certain employment-based immigrant and nonimmigrant visa programs. These proposed changes do not take effect with the publication of the notice of proposed rulemaking. Instead, they would take effect on the date indicated in the final rule when the final rule is published in the Federal Register.

The proposed amendments would provide various benefits to participants in those programs, including: improved processes for U.S. employers seeking to sponsor and retain immigrant and nonimmigrant workers, greater stability and job flexibility for such workers, and increased transparency and consistency in the application of agency policy related to affected classifications. Many of these changes are primarily aimed at improving the ability of U.S. employers to hire and retain high-skilled workers who are beneficiaries of approved employment-based immigrant visa petitions and who are waiting to become lawful permanent residents (LPRs), while increasing the ability of such workers to seek promotions, accept lateral positions with different employers, change employers, or pursue other employment options.

The following specific changes have been listed in the proposed rule.

  • Clarify and improve longstanding agency policies and procedures implementing I-140 portability
  • Increase the ability of beneficiaries of approved employment-based immigrant visa petitions (I-140 petitions) to further their careers by accepting promotions, making position changes with current employers, changing employers, and pursuing other employment opportunities.
  • Improve job portability for certain beneficiaries of approved I-140 petitions by limiting the grounds for automatic revocation of petition approval.
  • Clarify when individuals may keep their priority date to use when applying for adjustment of status to lawful permanent residence, including when USCIS has revoked the approval of their approved I-140 petitions because the employer withdrew the petition or because the employer’s business shut down.
  • Allow certain high-skilled individuals in the United States in E-3, H-1B, H-1B1, L-1, or O-1 nonimmigrant status to apply for one year of unrestricted employment authorization if they:
    • ​Are the beneficiaries of an approved I-140 petition,
    • Remain unable to adjust status due to visa unavailability, and
    • Can demonstrate that compelling circumstances exist which justify issuing an employment authorization document.
  • Clarify various policies and procedures related to the adjudication of H-1B petitions, including, among other things, extensions of status, determining cap exemptions and counting workers under the H-1B visa cap, H-1B portability, licensure requirements, and protections for whistleblowers.
  • Establish a one-time grace period, during an authorized validity period, of up to 60 days for individuals holding E-1, E-2, E-3, H-1B, H-1B1, L-1 or TN nonimmigrant status whenever their employment ends so that they may more readily pursue new employment and an extension of their nonimmigrant status.
  • Provide for the automatic extension of the validity of certain Employment Authorization Documents (EADs) for an interim period upon the timely filing of an application to renew such documents. At the same time, in light of national security and fraud concerns, DHS is proposing to remove regulations that provide a 90-day processing timeline for EAD applications and that require the issuance of interim EADs if processing extends beyond the 90-day mark.

These proposed rules are complex and require a consultation with an experienced immigration lawyer. If you have any questions, our attorneys are here to answer your questions!  We can be reached by phone at 703 230 6800 or by email at attorney@immigrationonline.com.  Contact us today for these and all other immigration-related issues!

USCIS recently began transferring certain casework from the Vermont Service Center (VSC) to the California Service Center (CSC) and Nebraska Service Center (NSC) to balance workloads. The CSC will now process Form I-539, Application to Extend/Change Nonimmigrant Status.

How You Will Be Affected If We Transfer Your Case

If USCIS transferred your case, USCIS will send you a transfer notice. Your original receipt number will not change, and the transfer will not delay the processing of your case except for the additional time needed to physically mail/transfer the file.

How to Track the Status of Your Case

You can check your case status at Case Status Online by entering your receipt number. You can also sign up to receive automatic case status updates by email.

If you do not receive a decision on your case within the published processing time, you may submit an inquiry using e-Request or by calling the National Customer Service Center (NCSC) at 800-375-5283 of USCIS.  If USCIS sent you any notice (such as a Request for Evidence), please read the notice carefully and follow the instructions provided.

If you move while your case is pending, you must inform USCIS of your address change. You may file a change of address on USCIS website or by calling the NCSC. It is important that you notify USCIS of any address change as soon as possible, so that you continue to receive notifications from USCIS.

On December 18, 2015, the President signed into the law the omnibus Appropriations Bill for 2016. This Public Law 114-113, the Consolidated Appropriations Act of 2016 (Act), became effective from December 18, 2015.

Some of the immigration-related issues include:

Business Immigration:

The bill extends the EB-5 Green Card Visa Programs (through investment of $1,000,000; or $500,000 in high unemployment or rural area, or Regional Center);  Conrad 30 J-1 waiver program; Special Immigrant Religious Workers, and E-Verify programs through the end of FY2016;

The Act increases the H-1B and L-1 fees for certain petitions by $4000 and $4500 respectively for companies with more than 50 employees where 50% or more of the employees hold H-1B or L-1 status. The Act provides:

  • the combined filing fee and fraud prevention and detection fee required to be submitted with an application for admission as H-1B, including an application for an extension, shall be increased by $4,000 for petitioners that employ 50 or more employees in the United States if more than 50 percent of the applicant’s employees are in H-1B or L1 status.
  • the combined filing fee and fraud prevention and detection fee required to be submitted with an application for admission as L-1, including an application for an extension, shall be increased by $4,500 for petitioners that employ 50 or more employees in the United States if more than 50 percent of the applicant’s employees are in H-1B or L1 status.

​(These increased fees must be paid on initial petitions, transfer petitions and extension petitions as well. These fees are authorized for ten years, running through September 30, 2025; and the funds generated by these fees will be split between the 9-11 programs and the Biometric Entry-Exit program.

The bill also makes certain changes to the H-2B program by providing:

  • Flexibility for H-2B workers in the seafood industry regarding when they can start working;
  • Use of private wage surveys;
  • Definition of “seasonal” as ten months;
  • Limitations on the Department of Labor’s ability to implement some aspects of the interim final rule; and
  • Exempting H-2B returning workers from the 66,000 annual cap for FY2016.

Visa Waiver Program: The bill includes the House-passed bill reforming the Visa Waiver Program (VWP), which contains categorical exclusions for nationals of Syria, Iraq, Iran, and Sudan, as well as people who travel to those countries.

These legal changes are complex and require a consultation with an experienced immigration lawyer. If you have any questions, our attorneys are here to answer your questions!  We can be reached by phone at 703 230 6800 or by email at attorney@immigrationonline.com.  Contact us today for this and all other immigration-related issues!

After several months of negotiations, on April 17, 2013 a bipartisan group of eight U.S. senators, informally known as the “Gang of Eight, introduced long-awaited legislation for a sweeping overhaul of the nation’s immigration system. Senator Charles Schumer (D-NY) introduced the bipartisan immigration reform legislation, Border Security, Economic Opportunity, and Immigration Modernization Act of 2013 (“S. 744”), along with Sen. McCain, Sen. Durbin, Sen. Graham, Sen. Menendez, Sen. Rubio, Sen. Bennet and Sen. Flake. The Senate Judiciary Committee held hearings on the bill on April 19, 2013 and April 22–23, 2013. The bill will be “marked up” (meaning it will be debated and possibly amended and edited) in May 2013. The proponents of the bill hope to pass the bill by June 2013.

Most of the public attention has been drawn to one aspect of the 844-page bill — a legalization program for many of the nation’s estimated 11 million unauthorized immigrants.  The bill provisions tilt the current legal immigration system away from its predominant emphasis on family reunification towards meeting U.S. labor market needs.  While doing so, the bill would establish far greater flexibility for employers to access foreign workers if they are in need, for foreign workers to move within the labor market, and for a system to determine the number of workers admitted into the country.

Increased focus on Employment-based immigration

According to the New York Times analysis of the bill, the share of family-based immigration in the annual admission of lawful permanent residents (LPRs) would decrease from 75 to 50 percent. To that end, one of the most significant provisions is the creation of a new merit-based points system, through which 120,000 to 250,000 immigrants per year would be admitted.  (This merit-based points system would replace the diversity visa program).

S. 744 proposes to create two “merit-based” immigration systems. These systems will exist in parallel with the current employment and family-based systems, as amended by the bill. “Merit-based points track one” will set aside 120,000 immigrant or permanent resident visas annually (with a possible increase up to 250,000) for individuals who can demonstrate that they have sufficient points to qualify. Points will be awarded for factors such as education, achievement, employment, family in the United States, and length of residence. Half of the points-based visas will be for high-skilled workers and half will be for lesser-skilled workers. “Merit-based track two” will be a system for allocation of immigrant visas to clear out the backlog of long-pending employment-based and family-based cases filed prior to enactment.

Other major provisions of the bill with respect to employment-based immigration:

  • The bill will eliminate the per-country limits on employment-based immigration visas (green cards). This change will benefit nationals of India and China who are predominately affected by the per-country limit.
  • Regarding employment-based permanent legal immigration, there would be no caps on visas granted to individuals with extraordinary ability, outstanding researchers, multinational executives, and noncitizens with Ph.D. degrees or advanced degrees in science, technology, engineering, and math (STEM) from a U.S. university.
  • The spouses and children of employment-based immigrants would no longer be counted toward numerical caps.
  • Foreign nationals with master’s degrees in science, technology, engineering, or mathematics (STEM) will be exempt from labor certification.
  • The EB-5 Investor visa program will be permanently reauthorized, and other special programs for doctors and religious workers will also be reauthorized.

Changes proposed with respect to family sponsored immigration

  • Visas for spouses and minor children of LPRs would no longer be capped.
  • U.S. citizens could no longer sponsor their siblings, or their married children over 21.
  • Spouses and children of LPRs will be considered to be immediate relativesand will be eligible to immigrate immediately to the United States.
  • Will increase the per-country limits for family-based immigrantsfrom 7 % to 15 %.
  • A new temporary visa, the V visa, will allow families with approved immigrant petitions to come to the United States temporarily while awaiting final permanent residence processing.

Changes proposed for temporary workers visa programs

  • Increase in the H-1B annual visas cap starting in the 2015 fiscal year from 65,000 to 110,000 (and this could be adjusted to 180,000 over time based on the high skilled jobs demand index).
  • The 20,000 cap for holders of advanced degrees from U.S. universities will be replaced with a 25,000 cap for holders of advanced degrees in STEM fields from U.S. universities.
  • The bill also will impose new recruiting and non-displacement of U.S. workers requirements on all H-1B employers:
    • The Immigration and Nationality Act (“INA) will be amended as: An employer, prior to filing the H-1B petition (i) has advertised the job on an Internet website maintained by the Secretary of Labor for the purpose of such advertising; (ii) has offered the job to any United States worker who applies and is equally or better qualified for the job for which the nonimmigrant or nonimmigrants is or are sought; and (iii) if the employer is an H–1B-dependent employer, has taken good faith steps to recruit, in the United States using procedures that meet industry-wide standards and offering compensation that is at least as great as that required to be offered to H–1B nonimmigrants to the United States workers for the job for which the nonimmigrant or nonimmigrants is or are sought.
  • ​Large businesses (with over 50 employees) would be prohibited from having a workforce made up of over 50 percent H-1B workers, H-1B workers may not exceed 75% in 2015, 65% in 2016, and 50% after 2016. (The H-1B employee who is also an “intending immigrant” will not be counted in these calculations.  The intending immigrant is defined as an alien who intends to work and reside permanently in the United States, as evidenced by– (i) a pending or approved application for a labor certification, filed for such alien by a covered employer; or (ii) a pending or approved immigrant status petition filed for such alien.)
  • An H-1B-dependent employer will not be able to place, outsource, lease, or otherwise contract for the services or placement of an H–1B nonimmigrant employee.
  • For an employer that is not H-1B-dependent, that employer would have to pay a fee of $500 per outsourced worker.
  • H-4 spouses of H-1B nonimmigrants will be granted employment authorization if such spouse is a national of a foreign country that permits reciprocal employment and provides appropriate work permits.
  • Deference to Prior Approvals of H-1B and L-1. This means that an extension petition filed by the same employer for an employee should not be denied unless there was a material error with regard to the previous petition approval, or a substantial change in circumstances has taken place, or new material information has been discovered that adversely impacts the eligibility of the employer or the nonimmigrant, or in the Secretary’s discretion, such extension should not be approved.
  • H-1B workers would be given a 60-day grace period after H-1B employment is terminated. During this 60-day period the nonimmigrant shall retain H-1B status. 
  • H-1B status will continue for H-1B holders when the petition is pending to extend, change, or adjust their status.
  • Visa Revalidation within United States. This rule will apply to those applicants who qualify for a waiver of visa interview and therefore are eligible for renewing their status within the United States for an H, L or O and other qualified visa. 
  • A new fee of $500, “STEM  Education and Training fee” must be paid by the employer for a labor certification application.
  • The requirements for an approval of an L-1 petition for employment at a “new office” will be scrutinized thoroughly, and the approval period may be only for 12 months and the extension of the approval may only be granted if the employer submits adequate evidence of business plan, truthfulness of representations made in prior petition, evidence that the employer has been doing business at the new office through regular, systematic, and continuous basis.
  • An additional filing fee of $5,000 for an L petition for employers that employ 50 or more employees in the United States if more than 30 percent but less than 50 percent employees are on H-1B or L visas, or a filing fee of $ 10,000 for applicants that employ more than 50 percent employees are on H-1B and L visas.
  • Portability, or the ability to accept employment with a new employer upon the filing of a nonimmigrant petition, will be made available to O-1 nonimmigrants.
  • Will provide for E-3 visa eligibility based on Free Trade Agreements to a national of Ireland who has at least a high school education or its equivalent, or has, within 5 years, at least 2 years of work experience in an occupation which requires at least 2 years of training or experience (this is in contrast to the E-3 visa available for a national of Australia, which is reserved for individuals with bachelor’s or higher degree).
  • New E-5 visa for nationals of Republic of Korea to perform services in a specialty occupation.
  • E-4 visa for a national of a country, other than Chile, Singapore, or Australia, with which the United States has entered into a Free Trade Agreement.
  • W visa program, a new visa category, will be available to lesser-skilled foreign workers performing services or labor for a registered employer in a registered position, except computer occupations, and will be valid for three years, with extensions available in three-year periods.

Creation of INVEST Visa Programs

  • An INVEST visa program will be available for qualified entrepreneurs who plan to start their own companies in the United States and who can show that at least $100,000 has been invested by a qualified venture capitalist, a qualified super-angel investor, a qualified  government entity, a qualified community development financial institution, or such other type of entity or set of investors, as determined by the Secretary, or such new business has generated no fewer than three jobs and $250,000 in revenue. The visa will be valid for three years and an extension will be granted if the entrepreneur meets certain job creation and revenue requirements.
  • A green card will be available for an INVEST visa entrepreneur if he/she meet certain job creation, at least 5 jobs, and revenue requirements, at least $ 750,000, and other criteria.

The Judiciary Committee of the Senate has already made a first amendment to the bill, and there will be a number of other amendments and changes as the bill moves through Congress. We will continue to inform our clients about the proposed changes as soon as such changes are announced.

Law Offices of Rakesh Mehrotra will keep you abreast of these changes when they are actually implemented and we are available to help you navigate your way through U.S. immigration.

 

(Newsletter Vol. XXIII, no. 06, April 24, 2013, Issue No. 2 )


April 11, 2013, the U.S. State Department released the upcoming visa bulletin for the month of May. According to the May Visa Bulletin, the priority date cut-offs for Employment-Based Third Preference (EB-3) sub-category for professionals and skilled workers will move by more than seven months for China-mainland born and more than four months for most other countries. However, for India it will move slightly by two weeks, to December 22, 2002. The priority date cut-off for EB-2 sub-category for professionals holding advanced degrees or with exceptional ability will move by two weeks for China, to May 15, 2008, and will remain unchanged for India, September 1, 2004. These allocations were made, to the extent possible, in chronological order of reported priority dates, for demand received by April 9th.

Visa Bulletin for May 2013 

Employment- Based

All Chargeability Areas Except Those Listed

CHINA- mainland born INDIA MEXICO PHILIPPINES
1st C C C C C
2nd C 15MAY08 01SEP04 C C
3rd 01DEC07 01DEC07 22DEC02 01DEC07 15SEP06
Other Workers 01DEC07 01SEP03 22DEC02 01DEC07 15SEP06
4th C C C C C
Certain Religious Workers C C C C C

5th
Targeted
EmploymentAreas/
Regional Centers and Pilot Programs

C C C C C

(Newsletter Vol. XXIII, no. 05, April 10, 2013, Issue No. 1)

Mr. Mehrotra speaking at the workshop at George Mason University 
Last month, Rakesh Mehrotra, Managing Attorney and Founder of the Law Offices of Rakesh Mehrotra, spoke at a workshop for international students and scholars at George Mason University, Fairfax, VA. His presentation covered immigration as well as employment based visa options for international students and scholars in the private sector, including H-1B and other temporary work visas and employment-based permanent residency in the U.S. 
At the workshop, participants were able to ask various types of questions about immigration law and policies. The audience also included senior officials from the Office of International Programs and Services of George Mason University, namely the Associate Director for Immigration Compliance Ms. Christina Lehnertz, and International Faculty and Scholar Advisor Ms. Noelle Deola. 
George Mason University is widely known as a top-tier university in the United States and has a high international reputation. The university attracts the best and brightest students and scholars from across the U.S. and countries around the world. We are well known to organizations, companies and individuals across the United States, and locally in the greater Washington area and Commonwealth of Virginia. Our attorneys have been speakers at various business and community forums.  
Our  Our firm provides legal services on all aspects of U.S. Immigration & Nationality Law in all fifty states. Our lawyers specialize in business and professional immigration matters including E/H/L/O visas, permanent residence through Labor Certifications, Multinational Executives/Managers, National Interest Waivers and other complex immigration cases. Our clients range from individuals and small businesses to large corporations. We keep pace with rapidly changing immigration laws by constantly monitoring and analyzing the latest developments at different government agencies and the U.S. Congress. We successfully manage an extensive number of cases for larger corporate clients. We provide employers and employees with the latest and the most appropriate immigration advice, customized to their individual needs. We pride ourselves in providing each client with successful results by considering all appropriate options and offering innovative strategies. We take personal pride in the quality of our work, our attention to detail and efficient handling of cases.

Overview 

The U.S. government has proposed
to attract the world’s best and brightest entrepreneurs to start the next great
companies in the United States. On November 28, 2012 U.S. Citizenship and
Immigration Services (USCIS), the Federal agency responsible for administering
visa programs, announced new resource for immigrant entrepreneurs, the
Entrepreneur Pathways, an online resource center which gives immigrant
entrepreneurs an intuitive way to navigate opportunities to start and grow a
business in the United States. Immigrant entrepreneurs have always made
extraordinary contributions to US economic growth and competitiveness, creating
jobs and new businesses all across the country. Immigrants started 25 percent
of the highest-growth companies in America, including iconic success stories
like Intel, Google, Yahoo, and eBay, which together employ an estimated 220,000
people within the United States. Entrepreneur Pathways explains, in plain
English, which existing visa categories might be available to that entrepreneur
under current law, and what evidence would be necessary to demonstrate
eligibility. Imagine that an entrepreneur from another country participates in
a start-up mentorship program in the United States, raises a first round of
funding from investors, and wants to stay here to grow the company and hire
more people.
 

Earlier the USCIS had started
a new initiative to harness industry expertise from the public and private
sectors that will increase the job creation potential of employment-based and
high-skilled visa categories. Called ‘Entrepreneurs in Residence (EIR)’, the
initiative builds upon a series of policy, operational, and outreach efforts
within the framework of existing immigration laws. This program supports the
White House and Department of Homeland Security’s (DHS’) efforts in growing the
U.S. economy and creating American jobs. The USCIS EIR initiative consists of a
tactical team comprised of outside experts working alongside USCIS staff.  The team developed and deployed a training
workshop for USCIS immigration officers focusing on the business realities of
early-stage companies, trained a team of specialized immigration officers to
handle entrepreneur and start-up cases, and ensured that the adjudication
process incorporates new types of evidence relevant to startup enterprises.

The US government is also
considering to create a “start-up visa” designed specifically for immigrant
entrepreneurs, as part of its vision for a 21st century immigration system.

A General Guide to Non-Immigrant and
Immigrant Visa Options for Entrepreneurs and foreign-born founders of Startup
Companies

Where
to begin?

If you are a foreign
entrepreneur and you want to start or run a business in the United States, you
must first obtain authorization from USCIS through the immigrant or
nonimmigrant visa process to live and work here. It is important to determine
upfront which visa classification works best for you. Not every classification
that USCIS administers will allow you to work in the United States. Most
nonimmigrant visa petitions are issued for a specific type of activity with a
specific employer.  When considering
which option may apply best to your situation and your desired activities in
the United States, it is important to plan ahead and keep in mind that there
may be a variety of options available to you.

There are number of visas for
foreign entrepreneurs to explore or start a new business in the United States.
If you are new to the immigration process, we recommend that you consult with
an immigration attorney.

Visa categories you might
qualify:

F-1
/ OPT Optional Practical Training

You may be eligible for
Optional Practical Training (OPT) if you are an F-1 student in the United
States and you seek to start a business that is directly related to your major
area of study.

Maximum
possible work authorization: An F-1 student may be authorized for up to 12
months of OPT, and become eligible for another 12 months of OPT when he or she
seeks another post-secondary degree.  An
F-1 student with a qualified Science, Technology, Engineering or Mathematics
(STEM) degree may apply for a 17-month extension of post-completion OPT. 

H-1B
Specialty Occupation

You may be eligible for an
H-1B visa if you are planning to work for the business you start in the United
States in an occupation that normally requires a bachelor’s degree or higher in
a related field of study (e.g., engineers, scientists, business professionals or
mathematicians), and you have at least a bachelor’s degree or equivalent in a
field related to the position.

Initial
period of stay in the United States: Up to 3 years. Extensions possible in up
to 3 year increments. Maximum period of stay generally 6 years (extensions
beyond 6 years may be possible).

B-1
Business Visitor

You may be eligible for a
B-1 visa if you are coming to the United States as a business visitor in order
to secure funding or office space, negotiate a contract, or attend certain
business meetings in connection with opening a new business in this country.
With this visa you can participate in business activities of a commercial or
professional nature in the United States, including, but not limited to:

      
Consulting with business associates

      
Traveling for a scientific, educational,
professional or business convention, or a conference on specific dates

      
Settling an estate

      
Negotiating a contract

      
Participating in short-term training

      
Transiting through the United States: certain
persons may transit the United States with a B-1 visa

Initial
period of stay in the United States: Generally up to 6 month. Extensions  possible.

O-1A
Extraordinary Ability and Achievement

You may be eligible for an
O-1A visa if you have extraordinary ability in the sciences, arts, education,
business or athletics, which can be demonstrated by sustained acclaim and
recognition, and you will be coming to the United States to start a business in
your field. Extraordinary ability means you have a level of expertise
indicating you are one of the small percentage of people who have risen to the
very top of your field.

Initial
period of stay in the United States: Up to 3 years. May extend or renew the
period of stay in 1 year increments as necessary to complete or further the
event or activity.

L-1
Intracompany Transferee

You may be eligible for an
L-1 visa for “intracompany transferees” if you are an executive, manager, or a
worker with specialized knowledge who has worked abroad for a qualifying
organization (including an affiliate, parent, subsidiary or branch of your
foreign employer) for at least one year within the 3 years preceding the filing
of your L-1 petition (or in some cases your admission to the United States) and
the organization seeks to transfer you to the United States to open a
qualifying new office in one of the capacities listed above.

Initial
period of stay in the United States: Up to 3 years (1 year for new office
petitions). Extensions possible in up to 2 year increments. Maximum period of
stay: 7 years for managers and executives; 5 years for specialized knowledge
workers.

EB-5
Immigrant Investor

Immigrant Investor Program,
EB-5, was created by Congress in 1990 to stimulate the U.S. economy through job
creation and capital investment by foreign investors. Under a pilot immigration
program first enacted in 1992 and regularly reauthorized since, certain EB-5
visas also are set aside for investors in Regional Centers designated by USCIS
based on proposals for promoting economic growth. All EB-5 investors must
invest in a new commercial enterprise. Commercial enterprise means any
for-profit activity formed for the ongoing conduct of lawful business
including, but not limited to:

  •      A sole proprietorship
  • Partnership (whether limited or general)
  • Holding company
  • Joint venture
  • Corporation
  • Business trust or other entity, which may be
    publicly or privately owned

This definition includes a
commercial enterprise consisting of a holding company and its wholly owned
subsidiaries, provided that each such subsidiary is engaged in a for-profit
activity formed for the ongoing conduct of a lawful business.

Note: This definition does
not include noncommercial activity such as owning and operating a personal
residence.

Job
Creation Requirements

Create or preserve at least
10 full-time jobs for qualifying U.S. workers within two years (or under
certain circumstances, within a reasonable time after the two-year period) of
the immigrant investor’s admission to the United States as a Conditional
Permanent Resident.

A qualified employee is a U.S. citizen, permanent resident or other
immigrant authorized to work in the United States. The individual may be a
conditional resident, an asylee, a refugee, or a person residing in the United
States under suspension of deportation. This definition does not include the
immigrant investor; his or her spouse, sons, or daughters; or any foreign
national in any nonimmigrant status (such as an H-1B visa holder) or who is not
authorized to work in the United States.

Capital
Investment Requirements

Capital means cash,
equipment, inventory, other tangible property, cash equivalents and
indebtedness secured by assets owned by the alien entrepreneur, provided that
the alien entrepreneur is personally and primarily liable and that the assets
of the new commercial enterprise upon which the petition is based are not used
to secure any of the indebtedness. All capital shall be valued at fair-market
value in United States dollars.

Required minimum investments
are:

  • General: The minimum qualifying investment in
    the United States is $1 million.
  • Targeted Employment Area (High Unemployment
    or Rural Area). The minimum qualifying investment either within a
    high-unemployment area or rural area in the United States is $500,000.

A targeted employment area
is an area that, at the time of investment, is a rural area or an area
experiencing unemployment of at least 150 percent of the national average rate.

A rural area is any area
outside a metropolitan statistical area (as designated by the Office of
Management and Budget) or outside the boundary of any city or town having a
population of 20,000 or more according to the decennial census.

TN
NAFTA Professionals

The North American Free
Trade Agreement (NAFTA) created special economic and trade relationships for
the United States, Canada and Mexico. The TN nonimmigrant classification
permits qualified Canadian and Mexican citizens to seek temporary entry into
the United States to engage in business activities at a professional level.

Among the types of
professionals who are eligible to seek admission as TN nonimmigrants are
accountants, engineers, lawyers, pharmacists, scientists, and teachers.

Initial
Period of Stay, up to 3 years, and extensions possible.

E-2
Treaty Investor

You may be eligible for an
E-2 visa if you invest a substantial amount of money in a new or existing U.S.
business, and are from a country that has a treaty of commerce and navigation
with the United States or a country designated by Congress as eligible for
participation in the E-2 nonimmigrant visa program. For a list of treaty
countries, visit the Department of State.

Initial
period of stay in the United States: Up to 2 years.  May extend or renew the period of stay in 2
year increments indefinitely.

Business
Visitor under Visa Waiver Program

The Visa Waiver Program
(VWP) enables nationals of 35 participating countries to travel to the United
States for tourism or business for stays of 90 days or less without obtaining a
visa. Nationals of VWP countries must meet eligibility requirements to travel
without a visa on the VWP

Give us a call if you would like to discuss
one of these visa options which may be available to you, your business partners
or employees. 

Vol. XXIII, no.06, April 24, 2013, Issue no 2

USCIS used computer-generated random selection process to select cap-subject H-1B petitions since it received more petitions than the H-1B numerical cap for the FY 2014 

April 8, 2013, WASHINGTON— For the first time since 2008, USCIS reached the statutory H-1B cap of 65,000 for fiscal year (FY) 2014 within the first week of the filing period. USCIS also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the advanced degree exemption. 

On April 7, 2013, USCIS used a computer-generated random selection process (commonly known as a “lottery”) to select a sufficient number of petitions needed to meet the caps of 65,000 for the general category and 20,000 under the advanced degree exemption limit. USCIS received approximately 124,000 H-1B petitions during the filing period, including petitions filed for the advanced degree exemption. For cap-subject petitions not randomly selected, USCIS will reject and return the petition with the filing fees, unless it is found to be a duplicate filing.  The agency conducted the selection process for advanced degree exemption petitions first. All advanced degree petitions not selected were part of the random selection process for the 65,000 limit. Additionally, USCIS has temporarily adjusted its premium processing practice. To facilitate the prioritized data entry of cap-subject petitions requesting premium processing, USCIS will begin premium processing for H-1B cap cases on April 15, 2013. Because of this change, the fifteen days premium processing timeline will kick in only on April 15, 2013.   

Since  the accepted cap-subject petitions were selected randomly, it is unpredictable to ascertain whether a petition was accepted for the quota. Because of the lottery process and the time required to enter the data about the H-1B petitions, it is expected to take a couple more days or even a few weeks to receive the actual receipt notice from USCIS. 


Rakesh Mehrotra spoke at a workshop for international students and scholars at George Mason University
Mr. Mehrotra speaking at the workshop at George Mason University 
Last month, Rakesh Mehrotra, Managing Attorney and Founder of the Law Offices of Rakesh Mehrotra, spoke at a workshop for international students and scholars at George Mason University, Fairfax, VA. His presentation covered immigration as well as employment based visa options for international students and scholars in the private sector, including H-1B and other temporary work visas and employment-based permanent residency in the U.S. 
At the workshop, participants were able to ask various types of questions about immigration law and policies. The audience included senior officials from the Office of International Programs and Services of George Mason University, namely the Associate Director for Immigration Compliance Ms. Christina Lehnertz, and International Faculty and Scholar Advisor Ms. Noelle Deola. 
George Mason University is widely known as a top-tier university in the United States and has a high international reputation. The university attracts the best and brightest students and scholars from across the U.S. and countries around the world. We are well known to organizations, companies and individuals across the United States, and locally in the greater Washington area and Commonwealth of Virginia. Our attorneys have been speakers at various business and community forums.  
Our  Our firm provides legal services on all aspects of U.S. Immigration & Nationality Law in all fifty states. Our lawyers specialize in business and professional immigration matters including E/H/L/O visas, permanent residence through Labor Certifications, Multinational Executives/Managers, National Interest Waivers and other complex immigration cases. Our clients range from individuals and small businesses to large corporations. We keep pace with rapidly changing immigration laws by constantly monitoring and analyzing the latest developments at different government agencies and the U.S. Congress. We successfully manage an extensive number of cases for larger corporate clients. We provide employers and employees with the latest and the most appropriate immigration advice, customized to their individual needs. We pride ourselves in providing each client with successful results by considering all appropriate options and offering innovative strategies. We take personal pride in the quality of our work, our attention to detail and efficient handling of cases. 


Newsletter Vol. XXIII, no. 04, March 14, 2013, Issue No. 1 


1. Sequestration May Affect USCIS and Department of Labor Processing  Times 


The “sequester” or “sequestration” refers to budget cuts to particular categories of federal spending that took effect March 1, 2013. The cuts were established by the Budget Control Act of 2011. The area of federal spending most affected by sequestration is called discretionary spending, which includes defense and non-defense elements. Discretionary spending represented approximately 36% of federal outlays in 2012. The Washington Post article explained the possible effects sequestration may have on immigration system.  
How USCIS Processing may be affected by Sequestration 
Last month, the Under Secretary of Management of The Department of Homeland Security (DHS) issued a memo regarding sequestrationBecause of sequestration, the DHS budget will be decreased and agencies within the DHS will be impacted. Agencies such as Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) will be hardest hit. Therefore there will be fewer agents, airport screeners and border agents on duty, and these staffing decreases will likely affect processing times for immigration applications. While USCIS will lose some funding, most of its budget is derived from the fees it receives from processing various types of applications and services, so USCIS might not be impacted as greatly as ICE or CBP. However, a large scale cuts for other related agencies will likely affect USCIS operations to some degree. 
How the Department of Labor may be affected by Sequestration  
Typically, employers submitting LCAs to the Department of Labor (DOL) can expect a response within seven working days, unless there are obvious inaccuracies. However, there could be a potential delay in LCA processing (a pre-requisite for H-1B petitions), Prevailing Wage Determinations, and PERM Processing timelines due to decreased staff at the Office of Foreign Labor Certification at DOL. Recently there was technical glitch on the iCERT online Portal System and the issue has been left unresolved for two days. This delay might be due to the seriousness of the technical glitch, but it may also be a result of the staff shortage.
Conclusion

We expect that the actual effects of sequestration may be less severe that it has been previously discussed publicly. However, it is important to keep in mind that there could be possible delays in all immigration processing due to sequestration.


2. USCIS Published a New Version of the Form I-9, Employment Eligibility Verification and also     Revised the Handbook for Employers for Completing the Form I-9  

On March 8, 2013, USCIS published a new Form I-9, Employment Eligibility Verification. The form is available for immediate use by employers. Employers who need to make necessary updates to their business processes to allow for use of the new Form I-9 may continue to use other previously accepted revisions (Rev.02/02/09)N and (Rev. 08/07/09)Y until May 7, 2013. After May 7, 2013, all employers must use the revised Form I-9 for each new employee hired in the United States. The revised Form I-9 has several new features, including new fields and a new format to reduce errors. The instructions to the form also more clearly describe the information employees and employers must provide in each section. English and Spanish versions of the new form are available online at www.uscis.gov and I-9 Central. 
On March 11, 2013, USCIS also revised the handbook for employers, “Handbook for Employers, Guidance for Completing the Form I-9 (M-274)”. This handbook has been updated to include information about the revised Form I-9. The name of the Handbook has also changed slightly.  The word “Guidance” has replaced “Instructions”, helpful new images have been added to illustrate how employees and employers can complete Section 1-3 of the new form, and it provides updated guidance on recording changes of name and other identity information. 



Vol. XXIII, no.03, February 15, 2013, Issue no 1


1. In his his first State of the Union address after re-election President Obama 

called on Congress to send him a comprehensive immigration reform bill “in the next few months”


Picture: U.S. House of Representiative 


February 13, 2013: At the invitation of House Speaker John Boehner, President Barack Obama delivered the 92nd State of the Union Address at the Capitol on Tuesday, February 12, 2013. In addition to members of the U.S. House of Representatives and the U.S. Senate, attendees included the President’s Cabinet, the Joint Chiefs of Staff, the Chief Justice and Justices of the U.S. Supreme Court, and the U.S. Diplomatic Corps.


In this first State of the Union address after his re-election, President Obama called on Congress to send him an immigration reform bill “in the next few months”. “We know what needs to be done”, President Obama said in his address. He applauded the efforts of bipartisan groups in both chambers of Congress to draft a comprehensive immigration bill. “Now let’s get this done. Send me a comprehensive immigration bill in the next few months and I will sign it right away”, President Obama said. The Obama administration has devoted increased attention to immigration reform in his second term in office. Last month in Las Vegas, President Obama spoke about creating a fair and effective immigration system. 

“Leaders from the business, labor, law enforcement, and faith communities, they all agree that the time has come to pass comprehensive immigration reform”, he said in his address. President Obama said, “Real reform means establishing a responsible pathway to earned citizenship, a path that includes passing a background check, paying taxes and a meaningful penalty, learning English, and going to the back of the line behind the folks trying to come here legally”. He further explained, “And real reform means fixing the legal immigration system to cut waiting periods and attract the highly skilled entrepreneurs and engineers that will help create jobs and grow our economy”.  


President Obama’s proposal for immigration reform has four parts. First, continue to strengthen our borders. Second, crack down on companies that hire undocumented workers. Third, hold undocumented immigrants accountable before they can earn their citizenship; this means requiring undocumented workers to pay their taxes and a penalty, move to the back of the line, learn English, and pass background checks. Fourth, streamline the legal immigration system for families, workers, and employers. Please see The fact sheet about President Obama’s proposals. For more information, see here



2. Plan early to meet Fiscal Year 2014 H-1B numerical cap  

Our Law Offices suggest H-1B petitioners keep in mind that USCIS will begin accepting H-1B petitions on April 1, 2013 for the Fiscal Year (FY) 2014 H-1B  quota cases. If the petition is approved the H-1B beneficiary can start working on October 1, 2013 or earlier if he/she is eligible for H-1B cap-gap. It is very important to start the H-1B sponsorship process as soon as possible to make sure all the petitions are timely filed. 

2.  FY 2014 H-1B Cap and Cap Amounts 

Last year, USCIS received a sufficient number of H-1B petitions to reach the statutory cap for FY 2013 on June 11, 2012. After the numerical cap is reached, USCIS will reject petitions subject to the H-1B. The current annual cap on the H-1B category is 65,000, and out this up to 6,800 visas are set aside each fiscal year for the H-1B1 program under the U.S.-Chile and U.S.-Singapore Free Trade Agreements. Unused numbers in this pool are made available for H-1B specialty occupation workers for the next fiscal year.

There is a high likelihood that the FY 2014 H-1B quota might be reached much earlier than last year. It should be noted that in the past the numerical quota was reached in a short period of time, sometimes within a week.


Therefore, it is better to plan everything in advance so that all H-1B petition will be filed in a timely manner. 


Most importantly, USCIS will continue to accept H-1B petitions that are not subject to annual numerical limitations, (e.g. H-1B amended petitions, H-1B extensions for individuals who have already been counted against the cap within the last six years, etc.), DOD petitions and Chile/Singapore H-1B1 petitions requesting an employment start date in FY 2014.


Please note the following tips to ensure that your petition is filed timely: 


– Get all supporting documents ready (letters of support, end-client letter, necessary fees, etc.).


– Before filing the H-B petition the employer has to receive a certified Labor Condition Application (LCA) from the Department of Labor (DOL). It typically takes about seven business days for the DOL to certify an LCA, so the LCA should also be filed as soon as possible.

 

– Evidence of Beneficiary’s Educational Qualifications:  

  • A copy of beneficiary’s final transcripts.
  • Petition has to include evidence of the beneficiary’s educational degree at the time of filing.  If all of the requirements for the degree have been met, but the degree has not yet been awarded, the following alternate evidence may be submitted:
    •  A copy of the beneficiary’s transcript and letter from the Registrar confirming that all of the degree requirements have been met (if the educational institution does not have a Registrar, such letter must be signed by the person in charge of the educational records where the degree will be awarded).
  • If you are indicating that the beneficiary is qualified based on a combination of education and experience, we would have to include substantiating evidence to show that.
  • If the beneficiary has a foreign academic degree and professional experience letters then we may need to obtain a credential evaluation, a process that can also take a few days.

Aug 28 2013

We have learned from immigration applicants and petitioners that there is a new telephone scam targeted to defaud them. USCIS also reported about these scams targeting USCIS applicants and petitioners. Scammers are using a technique called “Caller ID spoofing” to display a misleading or inaccurate phone number in a recipient’s Caller ID. The scammer poses as a USCIS official and requests personal information (such as Social Security number, passport number, or A-number), identifies supposed issues in the recipient’s immigration records, and asks for payment to correct these records.
If you or your family members receive a call like that, we advise you to say “No, thank you” and hang up immediately. 
As per its policy and immigration law USCIS never asks for any form of payment or personal information over the phone. Do not fall victim to telephone scammers posing as USCIS personnel or other government officials or some other scams which seek payment or your personal information. We encourage you to protect your personal information and not to provide details about your immigration application in any public area or online. 
If you have been a victim of this telephone scam, please report it to the Federal Trade Commission (follow the link here), or report it to an appropriate state authority (to find out an appropriate authority in your state, follow the link here). USCIS lists some of the most common scams, follow the link here.  
If you have a question about your immigration record, please call our Law Offices at 703-230-6800, or the National Customer Service Center at 1-800-375-5283 or make an InfoPass appointment by visiting our website at http://infopass.uscis.gov/ 

Aug 28 2013

Under the U.S.
immigration law there are number of opportunities to
immigrate or temporarily work, or temporarily visit and stay in the United States. LA Times reported a news that an online gamer is also
eligible to receive U.S. visa as pro athlete
. Online game League
of Legends star Danny ‘Shiphtur’ Le of Canada is the first to be granted such a
visa normally awarded to internationally recognized athlete. Like stars on
sports teams, Le needed the visa to live and practice with his Riverside squad.
With a generation of children having grown up playing video games, the decision
by the U.S. Citizenship and Immigration Services has been widely perceived as
elevating America’s newest professional sport to the same class as old-school
stalwarts. And in a worldwide competition in which the winning team can take
home $1 million in prizes, the ability to sign the best players — whether from
Canada or South Korea or Russia — was seen as a must-have for U.S squads.


If you are a pro athlete
and seeking to work and stay in the U.S. now there will be a  possiblity
to seek a visa as an internationally recognized athlete.
 

 
   
   
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