The current EB-5 Regional Center program was extended to Dec. 11 as Congress attempts to draft a long-term resolution in the coming two months. In the mean-time, those looking to invest in American industry should take advantage of this extension before changes are made to the EB-5 program as the minimum investment will more than likely increase to $800,000 or more. (could embed link to previous blog post)
Clearly, Congress recognized the importance of foreign investments that create jobs for hard-working Americans. Foreign capital is a key part to the American economy, and Congress will look to spend the next two months finding a proper solution that all parties involved can be happy with the would-be revised legislation. The extension of the program was greatly in doubt as the Oct. 1 deadline initially approached. (could embed a link to the previous EB-5 blog post in that sentence as well. Either spot works.)
Transparency appears to be an important goal for Congress. In the American Job Creation and Investment Promotion Reform of 2015 Act, which was introduced in June by Senators Chuck Grassley and Patrick Leahy, the Regional Center Program would continue for five more years while adding transparency and security to the program.
Meanwhile, Senator Rand Paul is attempting to make the program permanent, as he introduced the 'Invest In Our Communities Act' on Oct. 1. Paul looks to raise cap of 10,000 total visas and make it so that regulators would no longer count dependents (spouses and children) as a part of the cap, making it all investors. This would effectively increase capital and jobs for skilled American workers around the country, if passed. Paul is clearly one of the programs greatest advocates.
The current EB-5 Regional Center program was extended to Dec. 11 as Congress attempts to draft a long-term resolution in the coming two months. In the mean-time, those looking to invest in American industry should take advantage of this extension before changes are made to the EB-5 program as the minimum investment will more than likely increase to $800,000 or more. (could embed link to previous blog post)
The American Dream is under fire after a government decision to backtrack on its promise to thousands of skilled immigrants, but justice may be coming in the form of a class-action lawsuit.
Following an initial publishing of the October Visa Bulletin (OVB) from the U.S. State Department (DOS) on September 9, 2015, it seemed that those who had previously been relegated to back-logged visa waitlists would have the opportunity to apply for permanent residency and green-card status. This policy optimization was rendered moot just days later after the DOS issued a revision that severely limited the number of immigrants eligible to apply for work visas under the new policies
As a result, and as anticipated by most involved, a class-action lawsuit has been lodged against the DOS, U.S. Citizenship and Immigration Services (USCIS), Secretary of State John F. Kerry, and several other government defendants by those afflicted by the policy change.
The Lead Class Representative on the complaint is Chintan Mehta, an IT professional in Bothell, WA, spent thousands of dollars on attorney fees and medical examinations in preparation for his application only to be spurned by the revision. He and his co-plaintiffs represent thousands, of primarily of Indian and Chinese engineers, scientists, and many other skilled professionals that have had their lives and futures of their families put on hold due to a callous and unexplained renege by the US government. To-date, the DOS, USCIS, and the others involved have yet to come forward take responsibility for their actions.
Without seemingly considering the ramifications for potential green-card applicants and immigration lawyers alike, the United States government reneged on their qualifying dates for applicants looking to start the process for acquiring permanent residence for the October Visa Bulletin. The changes to the bulletin happened but 12 business days after a previous agreement was reached.
In doing so, thousands of families, those on H-1B visas working in the United States, were affected negatively. Several thousand workers were pleased to hear of the new agreement on Sept. 9, which allowed those who had their priority dates in 2011 to apply for permanent residence, only to have the rug ripped out from under them just over two weeks favoring those whose priority dates were entered in 2009.
The 12 business-day waiting period was more than enough time for many families to start the application process, spending hard-earned money and taking time out of their daily lives, in order to prepare for filing their I-485 applications. Had the government reformed the October Visa Bulletin just a couple days, or even hours, following the initial and supported changes, it would have been better for families and businessmen alike. Immigration law firms are also greatly affected after this sudden change, as thousands of dollars in potential business for firms around the country are lost. As a result, American businesses are losing capital.
Along with simply losing the peace-of-mind and long term security, prospective applicants lost out on the ability to acquire travel documents. Also, if these noncitizens were able to apply for their adjustment of status applications, they would be able to gain eligibility to pursue other employment opportunities within the United States.
The revised filing dates for the EB-2 applicants will affect those from India and China, the countries with the largest back-logs and populations, the most. An overwhelming amount of those particular applicants would have been able to begin an application process with the priority date set at July 1, 2011. With it changed to July 1, 2009, those same applicants will now be forced to change their mind-set and future after a failed attempt at getting the process for permanent residence started. Some numbers say eligible applicants for an adjustment of status application fell by as much as 90%.
As the Sept. 30 deadline for Congress to renew the fifth employment-based preference (EB-5) investment program approaches, questions arise as to whether or not the act will expire or if a short-term extension will be established. Though nothing is set in stone to-date, it seems likely that if the immigrant visa program continues to exist beyond Sept. 30, changes will be made to the legislation.
One change that appears to be as likely as any is an increase in cost of investment for those who look to gain permanent residency through the program. Since 1990, an immigrant investor had to pay $500,000 to invest in a company in a Targeted Employment Area (TEA). Patrick Hogan, President at California Military Bases (CMB) Regional Centers, said the "most common amount" being discussed among congressmen is an increase to $800,000.
Along with a potential cost increase, Hogan believes the cap of 10,000 authorized investor visas will not be increased. Regulators not only count investors as a part of the cap, but also dependents of the investors, making the actual number of investors lower than the cap may suggest.
"There are a host of other proposed changes being bantered about," Hogan said. "It is clear Congress will not amend language such that only EB-5 investors are counted towards the 10,000 visa cap."
Although the EB-5 program only needs to the investor to create 10 jobs per investment, it has generated much more than that since the Immigration Act of 1990. In a 2013 article Washington Post Senior Correspondent Kevin Sullivan wrote that $6.8 billion were invested and over 50,000 jobs were created from 1992-2013 through the program. Sullivan also wrote that the EB-5 program is "booming in popularity," but also that the program has its opponent:
"...others argue that the EB-5 program amounts to buying citizenship, and that it unfairly allows wealthy foreigners to cut the visa line ahead of others who have waited for years."
Even with that opposing viewpoint, the loss of the EB-5 program will cost the United States thousands of potential jobs and billions of foreign investment dollars. Along with that, the jobs that are created through the EB-5 program come at no cost to American taxpayers, which is not the case for jobs created by projects through national and local government. Given the state of the U.S. economy, an influx of money from foreign investors could improve the job market and overall cash-flow in foreign and domestic areas.
The Historic visit of Pope Francis to the U.S. comes as a sign of hope for many immigrants. According to the United States Ambassador in the Vatican the Pope will urge the U.S. to embrace its immigrants.
Ambassador Kenneth Hackett states that the Pope's immigration message will counter the GOP Presidential candidate Donald Trump in his calls to build a wall between Mexico and the U.S. as well as deport millions of illegal immigrants.
The ambassador further adds that the Pope will stress the importance of engaging with the world in a time of turmoil when many people lost everything in their Homelands and in desperate need for a generous helping hand. The Pope will further shed the light on the U.S. history as a nation of immigrants and how crucial it is to maintain that.
Pope Francis is set to meet with some immigrant teens after meeting President Obama, addressing the Congress and the United Nations. They're migrant teenagers in a youth soccer program co-sponsored by New York's Catholic Charities. He will also meet with other immigrants during his visit to a New York Catholic school.
The Pope is going to discuss other issues during his visit as income inequality, family issues and the environment. President Barak Obama has referred to Pope Francis as a transformative leader. The Pope was able to engage the Church in to current social issues, addressing events and issues from all over the world from refugees' crisis to climate change.
After his visit to the US the Pope will visit Cuba. It is important to note that Pope Francis the 266th pope of the Roman Catholic Church and was elected in March 2013. He is the first Pope from the Americas. Pope Francis was born in Buenos Aires, Argentina, on December 17, 1936.The Pope's original name is Jorge Mario Bergoglio and he took his papal title after St. Francis of Assisi of Italy.
Hopes run high for this historic visit in a time of conflict, when many need to be reminded of the U.S. history of embracing immigrants and emerging as a world leader due to the diversity of its manpower.
In a recent development the Secretary of Homeland Security Jeh Johnson decided to classify Yemen for Temporary Protected Status (TPS) for 18 months due to the progressing warfare within the country. The Secretary may designate a country for TPS due to temporary conditions as civil war, an environmental disaster, or epidemic.
Yemen has been facing increasing violence resulting in an acute humanitarian situation. The Yemeni Civil War that began in 2015 is a continuous battle between two factions claiming to constitute the Yemeni government. Each Faction has its own supporters and allies. Violence has been escalating on daily basis in an extremely volatile part of the world, resulting in the death and injury of thousands of innocent victims. On the 2nd of September as the civil war rages in Yemen, Sanaa mosque blasts kill at least 20 civilians.
Therefore, asking Yemeni nationals in the United States to return to Yemen would endanger their personal safety. By virtue of Yemen's designation for TPS, eligible nationals of Yemen residing in the United States can apply for TPS with U.S. Citizenship and Immigration Services (USCIS).
Starting September 3rd 2015 through March 3rd 2017 the Temporary Protected Status (TPS) is in effect by which Yemeni nationals residing in the US will not be excised from the United States, may get an Employment Authorization Document (EAD) and may apply for travel authorization. The 180-day TPS registration period begins today and runs through March 1, 2016.
Eligibility requirements include the following:
• Applicants must be nationals to the country designated for TPS
• Applicants for TPS must demonstrate that they are both physically present and residing in the United States since September 3, 2015.
• Applicants also undergo thorough security checks. Individuals with certain criminal records or who pose a threat to national security are not eligible for TPS
• Applicants must apply during the registration period
H-1B Visa Audit Win: Ruling Eases Employer Payment Obligation when H-1B Workers Make Themselves Unavailable for Work
Introduced in a separate article, the new standard for avoiding wage liability to H-1B employees (without terminating them) created in Gupta vs. Compunnel raises a serious question. Now, to escape liability in this way, employers must first have "work assigned" to the employees in question. Because, the reasoning goes, the employees must be nonproductive due to "conditions unrelated to the employment," and if there is no work assigned it could be true that the lack of assigned work is the true cause of their nonproductive status. If it is, then the employer's case for escaping wage liability cannot be accepted (and the burden of proof for such a case is on the employer).
Thus, what may count as "work assigned" in this context becomes of consequence. Indeed, it was a central focus in a case recently argued by Attorney Gus Shihab on behalf of an affected employer: Administrator vs. Parsetek. Parsetek is a tech consulting agency in Virginia. Employee S.M. was hired by Parsetek with an effective and prevailing wage of $51,376 per year--but was never placed on work assignment due to her being unavailable for such, but was only given a bona fide termination many months afterwards. The case revolved around Parsetek's wage liability in light of the Gupta standard despite her never having completed any work on its behalf.
In the first two months of her being with Parsetek as an H-1B, S.M. was interviewed for a three-year assignment that would have resulted in significant profit for Parsetek. However, nothing came of it. Parsetek claims that it was because she continuously asked to delay the start date of the assignment. Not long after that, S.M. informed Parsetek that she would be leaving Virginia to join her boyfriend in Chicago. This alone did not cause serious alarm because companies like Parsetek can place workers virtually all over the nation. So, it continued to market her to several end-client employers. This went on for seven months, with S.M. seeming to cooperate. However, her responses grew less and less frequent.
Then, she stopped replying altogether, and her phone line was apparently disconnected. Parsetek felt that its obligation to pay her ceased at that point. Knowing that some wages were due (because of H-1B regulations) when S.M. was apparently ready to go to work (while she was at least partially responsive), Parsetek paid her $16,000. It didn't hear from S.M. at all for almost a year after this, and when it did it was only when she was requesting documentation to take home out of the country. Parsetek then completed a bona fide termination.
Eight days later, S.M. contacted the Wage and Hour Division (WHD) at the Department of Labor (DOL) complaining that Parsetek had not paid the required wage. After a brief investigation, the WHD Administrator very much agreed with S.M., and declared that Parsetek owed its former employee an additional $58,629.80. This figure was arrived at by doing none other than deciding that S.M. was owed the prevailing wage rate for her entire "employment" at Parsetek (minus the $16,000 that was already paid). Parsetek argued that this was not only inequitable but also a mischaracterization of regulations.
However, Administrator's counsel argued that it was simply applying Gupta. Its case was that Parsetek should pay because it couldn't prove that S.M. caused herself to be unavailable for work because, in turn, it had no assigned work for her to accomplish. The argument has a certain allure to it. How can one know that another doesn't want to work when there is no work to complete anyway? Nonetheless, the judge in this case agreed with Gus Shihab that no matter the soundness the Gupta argument, it simply doesn't apply in that way. As a consulting company, Parsetek generally doesn't assign actual work to most of its employees. Instead, it assigns them to end client companies that will in turn assign work of their own.
The Gupta argument must thus apply differently to consulting companies. The judge further agreed, saying that in this case, attempting communication with and trying to market an employee for an assignment or position with an end-client is sufficient for the Gupta standard. When an employee stops communicating with its consulting agency employer, such marketing becomes impossible. Thus, the judge found that Parsetek fulfilled its requirement to escape wage liability in showing that S.M.'s nonproductive status was "due to conditions unrelated to the employment." Specifically, he found that Parsetek's wage liability ceased when S.M. stopped responding.
Parsetek didn't escape without some liability, however. The judge found that during the seven months of H-1B status that S.M. was at least "marginally responsive," she was due her prevailing wage. This translates to $27,268.80 minus the $16,000 already paid to S.M., meaning that Parsetek still has to pay an additional $11,268.80. But the DOL's being incorrect in declaring that Parsetek owes $50,000 more is a win for companies like it and the American tech industry that they support. The clarification of the Gupta standard found in Administrator vs. Parsetek allows employers to hire H-1B workers with the peace of mind of knowing that uncooperative employees cannot threaten them with the harsh choice between facing steep wage liability and losing a scarce resource through termination (due to the H-1B cap).
In a February blog article, we covered the case of an H-1B employee who had "absconded." Specifically, she made herself patently unavailable for work by fleeing the area and being unresponsive to attempts to assign work to her. In normal circumstances, there are easy solutions to this kind of problem. But with the Department of Labor's (DOL) support, the former employee was able to construct a somewhat persuasive case that the employer owed her a great deal of money. Luckily, however, the judge disagreed. He instead agreed with the employer--represented by Attorney Gus Shihab. To explain the case, the situation that led to the government's coming to side with the employee must first be presented.
To hire an H-1B worker, an employer must demonstrate (through a Labor Condition Application) that the foreign worker's presence displaces no American workers. The goal is to limit the incentive one has in hiring H-1B workers to their skills and qualifications. Nonetheless, some groups are blaming H-1B workers for certain economic woes. Perhaps because of this, the government appears to be attempting to make the hiring of H-1B workers less and less attractive.
One consequence of Labor Condition Application requirements is that hiring H-1B workers comes with a high standard for avoiding wage payment liability. In order to be released from this liability, an employer must effectuate a "bona fide" termination (which is more complicated than a normal termination) or show that the employee was unavailable for work (or in "nonproductive status") due to "factors unrelated the employment." If neither of these are done for any period of time (and the employee has not resigned or forfeited H-1B status), an employer is obligated to pay the employee as if he or she had been regularly working (even if this is not the case). This pay must be at least the prevailing wage of people with the H-1B worker's same occupation in his or her area.
The preceding is increasingly relevant because being competitive in the tech world requires ever specialized skills--but doesn't always need them for long periods of time. This has led to the rise of technology consulting companies. Many of these skills are insufficient in the U.S. workforce and must be supplemented with foreign workers if demand for them is to be met. This has caused those consulting companies to look for these skills in other countries, with the H-1B program as their preferred avenue. However, these facts have created a difficulty (in addition to the short supply of H-1B visas).
This difficulty became manifest in a recent case: Gupta vs. Compunnel. It has always been the case that the burden of proof to show that an H-1B employee has entered nonproductive status due "to conditions unrelated to the employment" has fallen on the employer. This isn't a big problem for H-1B employers, in part because of how much worse the program would be for them if the only way to avoid wage liability was through bona fide termination. Given the short supply of H-1B visas, applications only remain open for one week each year, and so many are received that a random selection process is used. Aside from the comparatively small group that is able to file uncapped, much less than half of the H-1B petitions received by USCIS are chosen. Those not selected must reapply the following year or seek alternatives.
Somewhat exacerbating the situation, it was found in Gupta that an employer's showing that an employee's nonproductive status is due to outside conditions is alone insufficient for escaping wage liability (without termination). Escaping it in this way now also requires that the employer show that there was work available for the H-1B employee to complete upon returning to productive status. Otherwise, it is reasoned, how can an employer prove that the employee's nonproductive status was due to nothing more than a lack of work to accomplish? The application of this new standard to consulting companies with H-1B workers was at the heart of the aforementioned difficulty. Guidance, or at least some clarification was badly needed.
This is why the case mentioned in the first paragraph is so important. With DOL support, a former H-1B and consulting company employee tried to use Gupta to show that her former employer owed her nearly $50,000. This represented about a year's salary--for a year that she had skipped town and was patently unresponsive--but not yet terminated. She had never been put on a consulting assignment, so DOL believed that the precedent created in Gupta prevented the employer from proving that the employee had been nonproductive "due to conditions unrelated to the employment." Thankfully, this argument didn't fly with the judge. (The specific details in the case and its full conclusion are covered in a separate article.)
USCIS has issued guidance describing some situations where it is required to file an amended H-1B petition. This guidance follows a ruling out of its Administrative Appeals Office on a case that we covered several weeks ago: Matter of Simeio solutions. In a blog article, we went through USCIS' investigation and the resulting conclusion: that certain liberties taken by Simeio led, perhaps unknowingly, to violations of the H-1B program. Though the company later gave effort to correct their errors and begin compliance, USCIS revoked the concerned aliens' H-1B visas. It seems reasonable to conclude that the guidance is intended to prevent confusion that may have led to Simeio's violations.
In the referenced case, USCIS and State Department investigators discovered discrepancies between information provided on petitions, obtained in consular interviews, and received from direct communication with Simeio employees. These discrepancies eventually led the investigators to find that some Simeio H-1B employees were working in locations not specified in their most recent petitions--and that this fact caused them to be paid less than was required. H-1B employees must be paid no lower than their assigned "prevailing wage," and there may be a different prevailing wage for each class of occupation in each Metropolitan Statistical Area (MSA). The MSAs from which these H-1B employees were in fact working had higher prevailing wages for their occupations than the MSAs described on their most recent H-1B petitions. Because they were paid near or at their old MSA's prevailing wages, their switches in worksite were not allowed without certain minimum increases in pay. However, the switches happened without sufficient increases.
The new guidance has been issued in part to prevent situations like above. It can be considered a reminder of current policy along with a clarification of USCIS' interpretation of it. The logic of the guidance is as follows:
- Regulations already state that when an H-1B employee's employment situation significantly or "materially" changes, his or her employer is required to submit an amended H-1B petition (or an altogether new petition if preferred).
- Regulations also state that any change that may affect an H-1B holder's continued eligibility for H-1B status is considered a "material change."
- As is obvious, any change of worksites to a geographic region not covered by the original Labor Condition Application (LCA) and its resulting prevailing wage requires a new LCA with a new prevailing wage determination.
- USCIS now maintains that any change that requires a new LCA is considered a change that may affect continued eligibility for H-1B status.
- Thus, it is a "material change" when an H-1B employee changes worksites to a location not covered by his or her most recent approved LCA. So, an amended or new H-1B petition must be sent whenever this occurs. Simply filing a new LCA is insufficient. However, the change in location may occur as soon as the new or amended H-1B petition is received by USCIS; it is not necessary to wait for approval. But if a denial is sent, the employee must promptly return to the original worksite or forfeit the visa.
For further clarification, the guidance also lists situations where it is not necessary to submit an amended petition. The following are the most likely to be relevant:
- A prevailing wage is one that is meant to be representative of some class of occupation in a particular MSA. So, any move within an MSA would not require a new LCA. Thus, such a move does not itself require an additional petition.
- Temporary job placements (30 days or less) in a location outside the original MSA do not require new LCAs. In some cases, this can be extended to 60 days. See (c) of 20 CFR 655.735.
- Movement to "non-worksite locations" does not itself require new LCAs. Such locations may include: places where employees engage in developmental activities (like seminars and conferences) and the several places an employee that spends little time at any one location may visit.
There are two final points to consider. First, any H-1B employee that is now working in (or was on May 21st already in the process of moving to) an MSA not covered by the LCA submitted as part of his or her most recent H-1B petition must file a new or amended petition by August 19th 2015. And second, amended H-1B petitions may be submitted while other related petitions are still pending. USCIS receipt notices of the petitions in question should be included with the amended petition in such an event.
Executive Action still in Court Tangle
The Fifth Circuit Court of Appeals has unfortunately denied the government's request for an emergency stay on Judge Hanen's injunction against DAPA and expanded DACA. After the president announced these programs last November, a group of Republican state officials sued the administration over them. In February, a Federal District Judge put an indefinite delay on their implementation. The government appealed this decision to the Circuit Appeals Court, asking to essentially undo the delay. In a 2-1 ruling, the Appeals Court denied this request, putting DAPA and the DACA expansion into a very uncertain situation.
If allowed to carry on, these programs would provide temporary relief from deportation and give work authorization to up to five million undocumented immigrants. This group is still less than half of the undocumented population and is very deserving of protection. These are people that were either brought here before the age of 16 or are parents of lawful permanent residents or citizens. In both cases, recipients would have had to have been continuously present in the U.S. since 2010. We believe that these executive actions are legal and are good for the economy, so we are saddened by this situation and hope for a swift resolution. The ruling was only preliminary: in July the Court will hear arguments for and against the lower court's delay. At the same time, the lower court will review the legality of the program, though those in favor of reform believe that this judge is biased against the administration's efforts on immigration in general.
Lawsuit Underway to Improve EAD Processing
On May 26th, a class action lawsuit was filed to fix USCIS' recent problem with the issuance of Employment Authorization Documents (EAD). When EAD processing takes longer than expected, a temporary "interim" EAD is supposed to be granted. This policy exists because of the essential nature of the right to go to work and earn a paycheck. There is a problem because processing delays are becoming more prevalent. The problem is made serious by the fact that interim EADs are getting hard to find. Indeed, USCIS representatives recently indicated that the agency has stopped issuing them altogether.
This policy is leaving those affected without the legal right to work in this country. The consequences involved are almost too obvious to mention, but the situation becomes alarming when it is added that the problem also applies to EAD renewals. A lapse in work authorization potentially leaves one's employer with the heartbreaking choice between laying off a loyal employee or facing fines (or worse) by ICE. To some immigrants, because of state law, a lapse in work authorization can even lead to loss of driving privileges--according to the American Immigration Council. Needlessly allowing these difficulties to ensue is not only bad for those immigrants (and immigrant families) involved, but it is also bad for the economy. We fully support this lawsuit and will monitor it closely.
Many companies are pushing to increase the annual cap on H-1B visas, but this effort has found opposition. Some say the program is riddled with fraud, while others oppose the program altogether. Perhaps because of this, USCIS goes to great lengths to enforce its regulations. A recent case reveals insights into how it does so.
The case, Matter of Simeio Solutions, involves an H-1B beneficiary who was ostensibly (according to the I-129 petition) hired to complete "in-house projects" for clients at the company's home office in Long Beach, CA. The beneficiary would thus not be sent to other worksites and would only work under the petitioner. The Labor Condition Application (LCA) and included Prevailing Wage Determination (PWD) reflected this. However, if USCIS was convinced that these circumstances would not change, it wasn't for very long.
The beneficiary began working for Simeio as an F-1 student during OPT (which is a short-term work authorization that alien college students can take advantage of after graduation). During this time, an H-1B petition was filed on behalf of the immigrant by this same company, which was approved. The beneficiary then went home to undergo a consular interview to receive the visa. As usual, the consular officers wanted to verify some things on the petition. It is not public information what the officer said in the interview, but it is known that as a result, the petitioner was made to submit some additional evidence.
The evidence requested pertained to the specific role the beneficiary would fulfill in relation to the work done for the clients mentioned in the petition. Also requested was a letter from one of these clients, confirming some information. The consular officers seem to have correctly suspected something. When the petitioner came in contact with the State Department, it was not to provide this specific evidence. Instead, it was to indicate that the beneficiary's role was slightly different than what was described on the petition. The beneficiary was in fact working for several other clients in the area, none of which were described on the petition. Though they may have appeared satisfied with the petitioner's response, the consular officers forwarded the petition along with this new information back to USCIS.
USCIS' response was swift. Agents conducted a surprise site visit of the petitioner's home office--only to find that the space was no longer in use. They then contacted the signer of petition, who confirmed that the company instead was using an employee's place of residence as the primary business address. The agents went there and interviewed the employee. They then determined that many employees, including the beneficiary at the heart of the case, were each assigned to several (at that point undisclosed) end-clients--and were working from their homes. The discrepancy between the petition and reality was enough for the agency to send out a Notice of Intent to Revoke (NOIR) the petition.
Simeio had the ability to respond to the NOIR, which it did with the apparent desire to save its case. The information provided cohered well with the results of the investigation. The company revealed that the beneficiary was in fact operating in worksites different from the one originally disclosed, but these sites were in areas very far away from the territory covered by the original LCA. This means that a new LCA and PWD would have been required before the beneficiary could have gone to work at the other locations. These were included in the NOIR response, but USCIS was unmoved and revoked the petition. It was too little too late.
In order to avoid situations like Matter of Simeio Solutions, any time there is a change in an H-1B worker's situation that "may affect eligibility" (which is otherwise known as a "material change"), an amended (or new) petition reflecting it must be submitted. Changes in geographic area affect prevailing wage, so a new PWD was required. In fact, the prevailing wage for the beneficiary's position in the original area was much less than in the areas where the work was actually being done. Because the beneficiary was paid a wage very close to the original prevailing wage, the petitioner was in actual violation of the H-1B program (for paying the beneficiary less than the true prevailing wage). But USCIS holds that even if this were not the case, there would still have been a revocation, because the actions of the company had the possibility of affecting the beneficiary's eligibility.
The H-1B visa program is very successful. Since its launch in 1990, it rose in usage until hitting its statutory cap of 65,000 new temporary workers annually seven years later. At the time, it was raised temporarily to accommodate the tech boom, but this higher cap was allowed to expire. Since 2003, it has sat at the original 65,000 with an additional 20,000 set aside for those with master's degrees.
Congress may raise the cap as part of a comprehensive immigration reform bill, but this does not appear likely to occur for at least another few years. Despite the increased chance of failure due to being capped out, the amount of H-1B petitions received by the government continues to rise each year. It has thus become necessary to seek alternatives. Many employers will likely be unable to take advantage of these alternatives, but it is worth investigating.
Most of these visas are in some way superior to the H-1B (in that those eligible for both would likely be wiser to opt for the alternative). Unsurprisingly though, qualifying is a significant hurdle. But it is likely true that several employers who desire to use the H-1B program could just easily enough convert their foreign hiring for it to make sense to use one of these alternatives.
Cap Exempt H-1B
The most obvious way around the cap issue is to file in one of the "uncapped" fields. However, this workaround is more for aliens who want the visa than employers who are not now eligible to sponsor uncapped petitions. Nonetheless, employment relating either to universities, their affiliates, or certain nonprofit institutions is not subject to the H-1B cap. For more information, click here.
Some employers may be in serious need of labor due to their experiencing unusually large work volume. If so, they may be able to bring in several H-2B workers once these facts are established with the government. The hiring of H-2Bs follows the same Labor Department restrictions as H-1Bs: prevailing wage determinations and Labor Certification Applications (LCA). This visa is normally only available to people of certain countries, though those not on this list may apply to be exempt from this fact on grounds of national interest. More information can be found here.
International businesses that have subsidiaries or branch offices in the United States can transfer managers, executives, and employees with "specialized knowledge" from abroad to their U.S. locations without a cap, prevailing wage, or LCA considerations to worry about. Aliens can also be sent to the U.S. to create new offices (but with additional restrictions). Either way, the employee must have been employed by the company abroad for at least one out of the last three years. The requirements for this visa are considerable, so further reading may be necessary. L-1 visa holders may stay in the U.S. for up to five or seven years at a time--for specialized knowledge employees and managers/executives, respectively.
Also for employees of foreign companies, the B-1 can be a means of importing professionals to do work connected to their foreign employment. However, this must be on a very temporary basis: usually no longer than six months. The tasks to be performed must require special skills in the same vein as an H-1B position. Also, the alien must be compensated by their foreign employer rather than any U.S. affiliate or client. We have a page dedicated to discussing the B-1 in lieu of the H-1B.
If an employer's labor needs can be satisfied by Mexican or Canadian professionals, he or she may want to request TN classification, which allows their nearly unrestricted hiring. (Though, it is only available for certain occupations.) The visa also comes without the need to think about caps, prevailing wages, LCAs, or even duration of stay limits. We have more on this visa here.
J-1 Training Visa
U.S. employers that are able to offer rich experiences of cultural exchange may apply to become J-1 sponsors. If this move is successful, it becomes easy to sponsor aliens for the visa. J-1 visa holders can essentially become paid interns and perform "on the job" training. However, these visas are usually only granted for 18 months at a time and are not meant to be indefinite. More information can be found here.
The O visa is an option for those with "extraordinary ability" in their fields. After foreign nationals are considered to have it by the government, there is not much additional difficulty either for them or their prospective employers. Naturally, obtaining this consideration is usually very difficult. We have more on the subject here.
Contact us today if you believe you can take advantage of any of these programs.
Residents of Iraq and Syria have a somewhat rare opportunity in their wide ability to receive asylum in the United States. The process by which this may occur could be onerous for some, but it frequently is resulting in total U.S. immigration success. Those granted asylum may apply for permanent residence if the situation that led to their approval does not resolve itself within one year. For many who are asylum eligible, the only true difficulty is finding a way to reach the United States. Once there, the granting or denial of asylum will be based on how potentially dangerous it would be for the foreign national if he or she is sent back (among some other factors).
Since 2011, several locations across North and East Africa and the Middle East have become destabilized. This has paved the way for radical groups with oppressive ideologies to organize and in several cases seize whole territories. Perhaps chief among those is the Islamic State (IS). Not surprising considering its former name; the Islamic State of Iraq and Syria, the group is the dominant force in many sections of those countries. In these sections, national authorities have little to no control, and those with the great misfortune of living in them are trapped with little to no reasonable means of escape.
Foreign Nationals are eligible for U.S. asylum in most cases only if they prove that they have a "reasonable fear" of serious persecution primarily on the grounds of "race, religion, national origin, political opinion, or membership in a social group." The persecution must be shown to either be coming from one's government or from forces that it is unwilling or unable to stop. It is not in serious dispute that IS counts as one of these groups. Thus, anyone who enters the United States with a reasonable fear of falling into IS's hands if sent home is eligible. A "reasonable fear" for the purposes of asylum is an apparent likelihood of at least one to eight that the alien will be persecuted on one of the listed grounds.
Some Iraqis and Syrians are in situations dire enough for their likelihood of asylum success to be very high. Members of religious minority communities, including the Yezidis, the Druze, and even Christians should be able to demonstrate reasonable fear of persecution at the hands of radical Islamists. Some Iraqi Sunni communities have reasonable fear of sectarian persecution. Due to the Kurdish resistance and general demand for an independent Kurdish state, Kurds may be able to demonstrate reasonable fear of ethnic violence from several parties. Those who have identified with the Syrian Opposition may have a reasonable fear of retribution from the government in addition to the fear of being captured by IS or others. And even those who sympathize with the Syrian Regime or those who have stood up to government corruption in Iraq may be able to make similar (retribution based) reasonable fear arguments, albeit on somewhat weaker grounds.
The numbers suggest amply that at least some reasonable fear arguments are working. Over the past two years, less than 5% of asylum cases with people of those nationalities have ended in denial, and over 80% have ended in approval. (The others fall into several categories, but most are likely still in the U.S. pending further action.) It should be kept in mind that each asylum case is somewhat different. One truth that holds across all cases, however, is that the more contact one can have with an experienced immigration attorney before arriving, the better.
Another thing to consider is that Syria and ten other countries are under Temporary Protected Status (TPS). Any Syrian that has held U.S. residence since January 5th and has been continuously present since April 1st is eligible to apply for TPS. Those who receive it may stay at least until September 30th 2016 and receive work authorization. Those who receive TPS are often also those who can put together a strong case for asylum.
For anyone who stands a good chance of receiving asylum--but is not already in the country--the situation is likely dire. The first course of action would be to seek a tourist visa from a U.S. consulate, though this may not work. Simply arriving at a point of entry and asking to seek asylum should be considered a last resort. But for some it is the only way, and it has led to success in the past. However, anyone reading this article should be able to contact us so that we can help find a better strategy.
Before the Child Status Protection Act was enacted in 2002, children who turned 21 while their permanent residence applications were pending were no longer considered children for immigration purposes and could no longer get a green card as an immediate relative. This circumstance is known as "aging out." Foreign national children of U.S. citizen parents are eligible to obtain permanent residence (or green card) as an immediate relative. A child is defined by the Act as an unmarried person under age 21. Many people were aging out as a result of the huge backlogs and long processing times, and Congress enacted the CSPA in order to remedy this.
Thanks to the CSPA, once a U.S. citizen parent files a visa petition (Form I-130) on behalf of the child, the child's age freezes for immigration purposes. Therefore, if the child becomes 21 while the petition is pending, the person is still considered to be a child and is still eligible for permanent residence. If a permanent resident parent becomes a naturalized U.S. citizen, the child's age freezes on that date. For a child with a pending application for permanent residence based upon a preference classification, the CSPA allows the time the application was pending to be subtracted from the child's biological age.
Starting May 2015, EB-5 availability will be restricted for Chinese applicants. I-526 petitioners/applicants that receive approval from then on will have to indefinitely postpone their plans to enter the United States (unless, of course, they are able to get some other visa). In this sense, the introduction of a cutoff date is no different for EB-5 than it is for EB-2 or 3. However, further analysis indicates that the difference is significant. Priority date cutoffs result in a fundamental change in the EB-5 program.
On the I-526 petition (which begins the process) immigrant investors must submit a credible business plan along with evidence that the required investment is being made and will be at financial risk. In normal circumstances, once this petition is approved, the immigrant is given a two year period of conditional residence to (help or fully) manage the investment and fulfill economic requirements, which involve the saving or creation of at least ten jobs. After the two years have transpired, an I-829 petition must be used to prove that those requirements were met. The immigrant investor must essentially show that the plans set forth on the I-526 petition were carried out. Approval here translates to unconditional permanent residence. Crucially, it must also be shown that the immigrant never liquidated the investment.
Though EB-5 conditional residence visas are comparable to nonimmigrant investor visas, their distribution is subject to the same annual caps as unconditional green cards. This is where difficulty becomes apparent. In order for a Chinese national to receive I-526 approval for a direct filing (non-regional center), he or she must present a business plan with the strong potential to lead to the employment of at least ten U.S. workers over the next two years. Accompanied must be evidence that he or she will be able to maximize the plan's chance of success. It would thus be apparent that non-regional center EB-5 among Chinese nationals necessitates something that cannot obtain: that their U.S. residence would start immediately following the approval of their I-526 petitions. This issue, while perhaps affecting less than half of Chinese EB-5 filers, appears fatal to their ultimate success.
The two most promising ways out of the dilemma are either if the immigrant can predict when conditional residence will start on the I-526 petition, or if he or she can somehow be allowed to manage the investment from abroad. The first seems possible only if the priority date cutoff is almost redundantly close to the present day, as priority date movements can be very sporadic. Though usually accurate, relevant predictions from the Visa Office don't extend very far into the future. The second does not seem like a business plan that USCIS would approve, and the legalities of such a situation are not clear or well defined. Chinese direct EB-5 thus appears unavailable. If it somehow isn't, there's still the awkward question of how long to wait before submitting an I-829 petition. Should one wait two years plus the unknown amount of time it would take for the priority date cutoff to reach the present--or just two years? The difficulties inherent to potential answers leave this question open.
While direct EB-5 seems out of the question for new Chinese filers, their use of regional centers may still be feasible. There is no apparent reason why immigrant investors need to be in the country for this. However, there are other pitfalls to be considered. The amount of time an investor must keep his or her money at risk has become somewhat indefinite. I-526 approval requires showing that a capital investment has been made, and I-829 approval requires that the investment was sustained. The new waiting periods will occur between these two events, adding extra uncertainty and making the program much less attractive. Lending $500,000 to $1,000,000 to a regional center for an indeterminable amount of time plus two years isn't an ideal investment prospect. Further, because their investors are investing in order to immigrate (rather than the other way around), the centers have been able to focus on things other than maximizing return.
In addition to this, Chinese immigrant investors also must consider whether their children over 16 (if they have any) will reach age 21 before the waiting period ends. If so, the children may lose their chance at gaining permanent residence along with their parents. While these challenges are not insurmountable, they make the program much less attractive. We will be publishing tips on coping with them soon. Nonetheless, we predict that many potential Chinese immigrant investors will decide against the program due to its apparent high uncertainty and limited potential for profit. But because of this, in a few years the waiting period may be removed. We hope that a more permanent solution will be devised by then.