Immigration Visa Lawyer Blog

This article discusses the obligations and liabilities for the H-1B employer and employee in terminating H-1B employees prior to the end of the worker's authorized period of stay.

H-1B specialty occupation workers are faced with the same volatile U.S. employment market as American workers. Due to recent reductions in the workforce, H-1B workers may be terminated prior to their authorized period of stay. Terminating the employer-employee relationship has consequences for both the employer and H-1B worker. The INA, H-1B regulations and USCIS policy guidance provides a framework for the obligations and liabilities on both the employer and H-1B worker in dealing with termination.

H-1B Employer Obligations Upon Termination

The H-1B employer must provide the "reasonable costs" of return transportation
When the employer terminates an H-1B worker prior to the end of the authorized period of stay, the H-1B employer must pay "reasonable costs" of return transportation for the employee to their country of residence. The H-1B employer's obligations include:

• Paying the cost of returning only the H-1B employee, not the entire family or personal property.


• There is no obligation to pay the return costs if the H-1B employee opts to stay in the U.S. (Note, the employee would be out-of-status and be remaining illegally. This issue is discussed below)


• The Employer may provide the H-1B employee an amount approximating the employee's "reasonable costs" of travel and obtain a release of liability. The employer could comply with this regulation simply by purchasing an airline ticket through the employer's travel agent to ensure the employee does not take the funds and remain in the U.S.


• Employers should always retain records of good faith efforts to comply with this requirement.

The H-1B Employer must notify the USCIS of the termination
Upon terminating the H-1B employee there is an automatic "material change in the terms and conditions of employment." The regulations require that material changes in H-1B employment be brought to the attention of USCIS. The employer's obligation to notify USCIS is easily satisfied by the employer sending a letter to the service center that approved the H-1B petition advising of the H-1B worker's termination. Upon receipt of this letter, USCIS will revoke the H-1B petition.

• H-1B employers should advise the employee of the revocation letter to allow the worker to leave the U.S. or seek an alternative visa category.


• There are no employer sanctions for failing to advise USCIS of the termination, but employers should be aware of "benching" issues and payment of nonproductive time (discussed below).


• H-1B employers should retain records of compliance with this obligation.

H-1B Employer Obligations for payment of nonproductive time and liability for "benching"
"Benching" is prohibited under Department of Labor ("DOL") regulations. The DOL prohibits H-1B employers from not paying an employee who is temporarily placed on nonproductive time due to the conditions of employment, such as lack of work, lack of permit or studying for a licensing exam. The employer's obligations in regards to "benching" and nonproductive time are as follows:

• No payment is required for nonproductive time due to reasons not related to employment such as the H-1B worker's voluntary absence from work.


• Nonproductive time must be paid at the required wage rate for the occupation listed on the H-1B worker's LCA.


• Payment for nonproductive time is not required after a bona fide termination of employment. The best evidence of such termination is the employer's notification to the USCIS that (1) the employment is terminated, (2) the petition should be revoked, and (3) the employee has been provided "reasonable cost" of return transportation.

Continue reading "Terminating H-1B Employees Prior to Authorized Period of Stay" »

As immigration lawyers in Columbus, Ohio we receive numerous queries from clients as to how the PERM prevailing wage process is determined. The first crucial step for acquiring a Green Card through the PERM process is to receive a prevailing wage determination. A prevailing wage determination is essentially the median wage that is paid to workers in a specific job and in a specific geographical area. Federal law regarding the PERM process mandates that an employer applying to sponsor the immigrant petition of a foreign national must promise to pay that person an amount that is greater than or equal to the prevailing wage. In order to file the Labor Certification Application, the employer must have first filed for and received a prevailing wage determination from the government.

Which Agency Determines the Prevailing Wage for Labor Certification Applications?
Prevailing wage determinations are now handled by the Department of Labor through the i-Cert internet submission portal. When first introduced, submission through the i-Cert portal was intended to result in a prevailing wage determination being made within thirty (30) days. This has turned out to be a woefully inaccurate estimate of turnaround time. Prevailing wage determinations though the i-Cert system are now taking forty-five (45) days or longer to receive.

This new turnaround time is in stark contrast to what has historically taken place. Until January of 2010, prevailing wage determinations were given by the states through their respective State Workforce Agencies. When this system was in place, prevailing wage determinations were made within two or three days. As a result of the delay imposed by the new i-Cert system, the beginning of the PERM process can be delayed right from the start.

What is the importance of the prevailing wage in the PERM process?

The prevailing wage must be determined and the validity period must be current in order to successfully file for a Labor Certification. For years the Department of Labor has only required that the prevailing wage be current at the time of filing. However, recent reports have presented cases of the DOL denying a Labor Certification application because a prevailing wage was not made at least thirty (30) days prior to the filing of the application. This is disturbing news and would signal an arbitrary change in the way that the DOL has been deciding these cases.

The prevailing wage is necessary in order to draft the posting notice that is to be placed at the alien's intended location of employment. This posting notice must have the offered wage or a wage range listed on the notice. The wage or range listed must be within the prevailing wage listed by the government. The posting notice requirement requires forty-five (45) calendar days to carry out. All of this takes a toll on the time periods allowed for filing.

Additionally, some states require the wage or wage range to be listed on the thirty (30) day job order. The state job order process can take from sixty (60 to ninety (90) days to complete. Needleless to say, all of these requirements impact the date of filing to a great extent.

What can be Done to Alleviate the Time Pressures caused by the DOL's interference in the Prevailing Wage Process?

Simply put, apply for the prevailing wage early. Applying for the prevailing wage must now be done immediately after determining the requirements for the position. The position requirements must be full and accurate. Once the wage is determined and is utilized by the employer in the recruitment process, it will be very costly and time consuming to re-file. An adverse prevailing wage determination can be appealed, but it is anyone's guess how long that process will take under the auspices of the Department of Labor.

Continue reading "Employment Based Green Card through the PERM Process: Prevailing Wage Determination " »

In 2002, President Bush signed into law the 21st Century Department of Justice Appropriations Authorization Act. The lack of regulations implementing this legislation has had the effect of freezing certain EB-5 immigrant investor applications indefinitely.

The EB-5 Immigrant Investor Visa

In 1990, Congress created the fifth employment-based (EB-5) preference category for foreign investors seeking to enter the United States to engage in a commercial enterprise that will benefit the U.S. economy and directly create at least ten full-time jobs. The immigrant must invest at least $1 million or $500,000 for commercial enterprises located within a rural targeted employment area. The annual quota for EB-5 investment visas is 10,000; however, this amount has never been reached since its inception.

The problem with the EB-5 category is chiefly due to the draconian nature of USCIS adjudication of EB-5 cases. Since inception the EB-5 category has been one of the most underutilized and overly restrictive visa categories. Many immigrant investors believe it is not worth their while to pursue a green card under this category (perhaps immigration reform will address this issue but will be left to another article). To make matters worse, many immigrant investors subject to the 2002 act have had their cases put on the shelf. There is a genuine lack of guidance under the 2002 act so these cases will remain pending until the regulations implementing the 2002 act are drafted.

AAO Precedent Decisions in 1998 Severaly Altered EB-5 Adjudication

The Administrative Appeals Office (AAO) of the USCIS issued four precedent decisions in 1998 that substantially restricted the already restrictive EB-5 category. These decisions altered guidelines and established more restrictive interpretations of the law. As a result approval rate dropped below 44% and concern among current and potential EB-5 investors spread. After these decisions, many Immigrant investors decided not to move forward with their EB-5 cases. More importantly, USCIS began removing some existing investors based on the retroactive application of the legal precedent set in the AAO decisions. This was the final straw for a large number of immigrant investors. Many decided that doing business in the U.S. was simply not worth the trouble, and rightfully so.

The AAO decisions created a retroactive application of the law. What this means is that immigrant investors whose cases were submitted before 1998 had to meet the guidelines created by the AAO decisions. How can one meet a guideline if they didn't know it existed? While I am not arguing the efficacy of retroactive legal precedent, I do believe that it is inequitable in many instances and is just another black eye for the EB-5 category. Fortunately, the retroactive application of the law was successfully challenged in one Federal Court. This decision led the way for the 2002 legislation.

The Regulations Implementing the EB-5 Legislation Have Not Been Finalized

In 2002, President Bush signed into law legislation that sought to fix the damage caused by the 1998 AAO decisions. The 21st Century Department of Justice Appropriations Authorization Act offered guidance to EB-5 investors to cure deficiencies in their previously submitted EB-5 petitions. These EB-5 investors include those foreign investors whose Immigrant Petition by Alien Entrepreneur (Form I-526) were filed and/or approved between January 1, 1995 and before August 31, 1998. However, if you fit into this category, USCIS cannot adjudicate your case because the final regulations implementing the 2002 act have not been drafted.

Until the final rules are issued, the Immigrant investors subject subject to the 2002 cannot have their cases adjudicated. This places the immigrant investor in a sort of limbo. It also creates significant burdens on the alien such as having to leave the country to renew their green card every few years. As it stands today, there are many immigrant investors who are left with EB-5 applications that are pending. Given the lack of guidance on when the regulations will implemented, these investors have no idea on when their cases will be finally adjudicated. In the most sophisticated and advanced society in the world, I would expect more - but then again, I'm a hopeless optimist.

Mandamus Suit as a Possible Solution?

A solution to the problem may be filing a lawsuit against the federal government in Federal Court in an action called a "mandamus suit." A mandamus suit essentially forces a government agency to perform a duty required by law. For example, the government is required to adjudicate family-based green card applications within 6-8 months. If your case is pending for 2 years, and USCIS will not adjudicate it, you can file a mandamus action to force USCIS to make a decision on the case. It may be approved or denied, but the mandamus action has the effect of forcing the government to do its job.

Continue reading "EB-5 Anomaly Suspends Immigrant Investor Green Card Applications, Indefinitely" »

The E-2 Treaty Investor visa allows a foreign national to come to the U.S. to operate his or her business and remain in the U.S. as long as the business is operating.

There is a great opportunity for treaty Investors from Canada to come to the United States to operate their Canadian businesses. However, E-2 treaty investors from Canada must be aware of the difficulties in applying for the E-2 visa at the American Consulate in Canada. Specifically, the U.S. Consulate in Toronto, Canada continues to set the bar high for certifying E-2 visas. The procedural hurdles involved in applying for the E-2 visa at the Toronto Consulate can be onerous for an applicant without a qualified immigration attorney. The Law Firm of Shihab & Associates has helped numerous Canadian Treaty Investors obtain the E-2 visa by carefully following these onerous procedures to ensure the case is adjudicated on its merits and not denied due to a defect in form.

The U.S. Consulate Toronto has jurisdiciton to adjudicate E-2 visas for applicants in the following Canadian territories: Ontario, Manitoba, New Brunswick, Newfoundland, NW Territories, Nova Scotia, Nunavut, PEI, Quebec and Saskatchewan. The consulate in Vancouver adjudicates E-2 visas for applicants in British Columbia, Alberta and Yukon.

Nationals of countries that have treaties designed to promote trade and investment between the United States and the foreign country can obtain visas to work temporarily in the U.S. Canada is one such country. The E-2 visa is a good option if the alien desires to start a business in the US. In order to qualify for the E-2 visa, the investor is required to come to the United States to develop and manage the operations of an enterprise in which the applicant has invested or is actively in the process of investing a "substantial" amount of capital. There is no set minimum level of investment. But, the higher the total cost of the enterprise, the lower the total investment is required as a percentage of the total cost. The investor must also be coming to the U.S. to develop and direct the operations of the enterprise. Accordingly, the applicant is required to have more than fifty (50%) percent ownership of the investment (unless the applicant is entering the U.S. as an employee of the enterprise).

Here is a brief rundown of the enerous procedures required at the U.S. Consulate in Toronto to approve an applicant for the E-2 visa. The Consulate begins by stating that all sections in the petition must be delineated by clear dividers with numbered tabs that stick out from the edges of the page. They will NOT accept submissions without dividers. If there are more than two documents under a numbered tab, that section must be subdivided into a lettered subsection with tabs for each document. Then the Consulate states that the petition should be organized so that the reviewer can make an adjudication within 5-10 minutes! If you read the list of required documentation (which I have reproduced below) you begin to see that the Consulate is more concerned with form rather than substance. So, if you believe you are eligible for the E-2 visa at the Consulate in Toronto, be sure to follow these guidelines to a tee!

Continue reading "Treaty Investor E-2 Visa For Canadians " »

In our globalized economy, companies that wish to compete on the world stage require a workforce that can be relocated to meet market demand on short notice. Our age is also an era of specialization where specialized skills are valued over general abilities. When an international company needs the services of a specialist and cannot train a U.S. worker to perform that function without an unreasonable amount of expense, they must turn to workers from outside of the U.S. that are able to perform short term, specialized functions. The L-1B visa for foreign workers with specialized knowledge is designed to allow for the flexibility of workforce that the new global market demands.

The Fundamentals of the L-1B visa

In summary, the L-1B visa allows a company with a foreign parent, branch or affiliate to send workers who have worked for that company for at least one continuous year within the last three years, and who possess specialized knowledge of company processes and procedures, to work in the United States on a temporary basis. The employee is expected to continue to work using the specialized knowledge and be stationed with the U.S. parent, affiliate or branch. This visa may be initially approved for a three year period, then renewed for another two years for a total of five years of eligibility.

Advantages of the L-1B Visa for Employers

The L-1B visa provides numerous advantages to employers. First, unlike the H-1B process, L-1B visas do not require a labor certification and accompanying attestations to the Department of Labor. Additionally, the employee need have only worked for the petitioning company abroad full time for one of the past three years. The employee may even be a majority share holder of sole proprietor of the company. In relation to payment, the petition only needs to show that the employee will not become a public charge. The fundamental point to prove is that the foreign company will have control over the employee, salaried or not.

Regarding the petitioning company, a majority in the ownership of stock in both the foreign and U.S. company will prove the existence of a common parent company. Qualifying joint ventures may be shown by a majority of shares held in common, but in certain situations, a joint venture with less than a majority of common shareholders may qualify if the element of control over the worker is satisfied. Proprietorships and affiliates will also qualify under certain circumstances.
Advantages for Foreign Nationals

There are several advantages to the L-1B visa for foreign national over other forms of temporary work visa. Foremost is that this visa allows for dual intent. This means that the worker may have a petition for permanent residency filed on their behalf while present in the United States on the L-1B visa. Additionally, the foreign national's spouse may legally work in the United States while the L-1B visa beneficiary is present. Finally, the L-1B visa may be adjudicated at the port of entry, meaning the waiting process of the H-1B visa may be avoided.

Proving Specialized Knowledge

A worker with specialized knowledge must be more than a worker who simply possesses trained skills. The knowledge must be of company goods, product delivery, company studies, proprietary tools, methods or company administration procedures. Proving specialized knowledge can be achieved by showing the four characteristics of specialized knowledge as outlined by the USCIS. Specifically, the employee must (1) possess knowledge that is important to the employer's viability in the market place, (2) is distinctively qualified to add to the U.S. employer's knowledge of foreign operating conditions, (3) has been key to the company's business overseas, and (4) has expertise that can only be gained through extensive previous experience with the company.

Avoiding the problem of Job Shops

A central tenant of the L-1B program is that the multinational entity has control over the work functions of the foreign national. For this purpose the relevant regulations demand that the worker be placed principally at the petitioner's location. The government wishes to avoid the situation where workers are brought over by the bus load and sent to work as contractors for unrelated third party companies. The law in this regard has been fairly consistent in recent years. However, with the renewed focus on control in the H-1B context placed upon that visa by the recent Neufield memo, it is yet to be seen whether the L-1B standards will be adjusted.
Blanket L-1 Petitions

For very large corporations who are established, have three or more offices in the U.S., have large volumes of sales or have received ten or more L-1 approvals in the last 12 months may file for a blanket L-1 Petition. Under this procedure the company establishes that it qualifies as a qualifying organization in one general blanket petition. Then all that is needed for the individual workers is to prove the worker's credentials on a case by case basis.

Continue reading "Temporary Intracompany Transferees who Possess Specialized Knowledge: Obtaining your L-1B visa" »

USCIS and Administrative Appeals Office ("AAO") both deny EB-1 Petition Filed by 1988 Olympic Gold Medalist and World Champion Natalia Laschenova Stating that She is Not An Alien with Extraordianry Abilities

I was contacted by Columbus, Ohio Chanel 10 reporter a couple of ago about a story he was investigating on an Olympian Gold Medalist called Natalia Laschenova from Russia whose immigration status was denied by the USCIS. I called Natalia and I could not but believe that this is the same 14 year old who shocked the world winning a Gold Medal in Seoul Korea in 1988 at the age of 14 (watch Video). After talking to Natalia, I was also shocked to learn about her plight with the USCIS which had been ongoing for 10 years now. I agreed to meet the reporter and he ran the following news piece (watch here).

Shortly after that, I met with Natalia and accepted her case. I requested her file from her prior counsel and reviewed about 400 pages of newspaper article after article all attest to Natalia's impressive performance worldwide and technique. I also read many letters from other Olympian Gold Medalists who were coached by Natalia and they all attest to her extraordinary abilities. But the USCIS did not believe that and the AAO actually further affirmed the USCIS's denial of her case.

After winning the Gold Medal in Seoul and other impressive international competitions, Natalia became the National Belarusian gymnastics coach. Natalia had entered the US on H-1B visa in 1999 as a gymnastics coach. She submitted an application for labor certification in the 2000 but due to ridiculous processing times, Natalia decided not to wait for the approval to come and changed her employer to afford her family a better opportunity. Then in 2002, Natalia submitted a petition arguing that she is an alien of extraordinary abilities. That petition was denied. Then again in 2007, Natalia submitted another petition with additional evidence desiring to be designated as an alien of extraordinary abilities, and again she was denied by the USCIS. Natalia then appealed her case to the Administrative appeals Office who affirmed the denial on January 12, 2010.

After the Channel 10 story and my interview, I was contacted by a Group called Reform Immigration for America who adopted Natalia and called on a press conference on March 15, 2010 to bring to light Natalia's plight and to urge Congress to repair America's broken immigration system. Below, please find my statement to the press on that day:

My name is Gus Shihab and I am immigration counsel for Natalia Laschenova.

NATALIA HAS PLAYED BY THE RULES FOR OVER A DECADE BUT OUR BROKEN SYSTEM PREVENTS HER FROM BECOMING AN AMERICAN CITIZEN. After 10 years since her arrival in the United States; after ten years of abiding by all applicable immigration laws and regulations; after 10 years of maintaining legal status in the US; after 10 years of submitting various applications and petitions of immigration of various kinds to the US Citizenship and Immigration Service, Natalia Laschenova, an extraordinary athlete, Gold Medalist, and world champion, today is out of status along with her husband and their children and could face deportation.

Continue reading "Attorney Gus Shihab's Statement Re Olympic Gold Medalist Natalia Laschenova Immigrant Visa Denial at Press Conference" »

Competent and Innovative Immigration Counsel can Find Common Denominator Between Seemingly Rigid Franchise Agreements and Complex Treaty Investor E-2 Visa Regulations.

Treaty Investor regulations allow certain foreign nationals to receive E-2 visas that would allow them to operate their own enterprises and live in the US. The beauty of E-2 visas is that they are the closest to permanent residence a non-immigrant visa can be because E-2 visas are renewed perpetually so long as the investment enterprise is operational. The vast majority of investments come from citizens of Canada, Mexico, Holland, Britain, Japan, and China. Many Canadian Citizens enter the US to operate small businesses as Franchisees of chain restaurants and other businesses.

Obtaining an investor visa through a business franchise carries certain legal obstacles worthy of special attention. That is because most franchisors have rigid investment programs which do not necessarily coincide with treaty investor E-2 visa requirements. For instance, franchisors may require foreign franchisees not only to invest their own monies to fund the purchase of the business franchised, but to also leverage the remaining cost of the franchise itself by taking out loans that are secured by the assets of the franchised business itself. In most instances, the loan taken out is secured by the fixtures, furniture, and equipment making up the investment enterprise. Unfortunately such financial arrangements runs afoul of Treaty Investor E-2 visa program regulations as any loan that is secured by the assets of the enterprise is considered as "non-qualifying" business investment; non qualifying investment funds may not be considered in the foreign investor's qualifications for the treaty investor E-2 visa applied for.

This article is intended to explain how our law firm implemented innovative legal strategies to satisfy the essence of complex investor immigration laws and fulfill the requirements of sometime rigid franchise requirements to bring about business opportunities and valid visas for foreign investors.

The Franchisor's Disaster Story

Several years ago, I was contacted by a major franchisor in Columbus, Ohio who had been recruiting investors for its newly introduced lines of fast food stores in Ohio, Michigan, New York and the New England States. This particular franchisor had built its business model to bring Canadian investors to operate this new line of fast food stores. Prior to my involvement as immigration attorney, this franchisor had submitted, through its own legal department treaty investor visas before the US Consulate in Toronto only to get denied. The US Consulate in Toronto had told the franchisor that the manner in which their program was set up in loaning the foreign franchisee funds to secure the investment which was secured by the assets of the investment itself did not satisfy US immigration laws in that it failed the "substantiality test." They called me in a panic wondering what to do. As you can see, their entire business model upon which they built their program was toppling down. After carefully examining their business model, I could not but agree with the US Consulate, that the requisite "substantiality test" for treaty investor visas was in fact not met.

What is the Substantiality Test?

In order to resolve the issue of treaty investor visas in the context of franchisee business opportunities, it is important to first understand the "substantiality test" required by E-2 visa rules. In addition, it is important to know how structure franchise investments and any resulting indebtedness in a manner that meet E-2 visa requirements.

Continue reading "Treaty Investor E-2 Visa Solutions for Foreign Franchisees" »

The Ohio Senate has introduced two proposed statutes that would require local enforcement agencies to enforce civil and criminal immigration laws when requested to do so by the United States Immigration & Customs Enforcement ("ICE"). These laws are being proposed pursuant to section 287(g) of the Immigration & Nationality Act which allows the federal government to enter into a memorandum of understanding with local enforcement agencies to enforce immigration laws. A prerequisite to entering into such agreement is that local enforcement agencies must be properly trained in order to serve in this function.

It is worthy to note that in March of 2009, Richard M. Stana, Director of Homeland Security testified before Congress wherein he complained that ICE lacks internal controls to implement INA section 287(g) and lacks the ability to supervise local enforcement agencies when enforcing such immigration laws. Below is a summary of Ohio proposed Senate Bills 35 and 150:

Senate Bill 35: Seeks to enact section 109.45 of the Revised Code to direct the Attorney General to pursue a memorandum of agreement that permits the enforcement of federal immigration laws in this state by law enforcement officers. (Emphasis added).

Senate Bill 150: Seeks to amend sections 9.63, 311.07, and 341.21 of the Revised Code to provide that a board of county commissioners may direct a sheriff to take custody of persons who are being detained for deportation or who are charged with civil violations of immigration law and to expressly authorize state and local employees and county sheriffs to render assistance to federal immigration officials in the investigation and enforcement of federal immigration law. (Emphasis added).

Mr. Chairman, Honorable Members of the Ohio Senate and Distinguished Public.

These bills will place our law enforcement officers in a position to act in a complex and unique area of law. There is a civil aspect and a criminal aspect to immigration laws. For instance, an alien's violating his or her immigration status is not a matter that would cause the alien, in most instances, to be detained. On the other hand, an alien who may have been convicted of a crime and whose incarceration was suspended by a judge may be subject to mandatory detention under immigration laws. To put our law enforcement officers who deal with a variety of law enforcement issues on a daily basis, in this highly complex area to determine who is a criminal alien, who violated status, or who is subject to mandatory detention is unwise.

Continue reading "Attorney Gus Shihab Testifies Before the Ohio Senate Against the Passage of Two Anti-immigration Laws" »

Most foreign investors believe that obtaining a treaty investor E-2 visa is accomplished by placing funds in a US bank account that has been earmarked for investment into a US enterprise. In fact, "Treaty Investor" E-2 visa regulations require that such funds be placed at risk in the commercial sense irrevocably into an active investment. Note the emphasis on the aforementioned words which will be explained in greater details below.

What is an Active Investment for Treaty Investor E-2 Visa Purposes?

In order to satisfy the E-2 visa regulatory criteria, the investor must present evidence to the US Consulate or the US Citizenship & Immigration Service, that she had placed its own funds into an investment which requires the investor's involvement. A passive investment such as an income generating real estate ventures which do not require any active participation of the investor (example: rental property) will not meet the E-2 visa rules.

Real estate investments are normally attractive for foreign investors due to their appreciation in value with the passage of time (though not recently). Many foreign investors prefer to place their funds into a property which will not only appreciate in value, but will also create a guaranteed stream of income over a term of years. There are numerous investment opportunities that fulfill these objectives such as triple net long term leases offered by franchise chains and other real estate management companies. But without the foreign investor's active participation in the operation of the business enterprise, the investment may not be deemed "active" under treaty investor "E-2 visa" regulations.

An example of certain real estate investments that would satisfy the treaty investor E-2 visa "active investment" regulations include development companies that purchase, develop, improve, construct and/or manage real properties. One can see the difference between "active" versus passive real estate investments. Like real estate, any other investment meets the treaty investor E-2 visa regulations if the foreign national actively managed the enterprise.

How Are Funds Placed At Risk in the Commercial Sense?

In addition to having an active business endeavor Treaty Investor E-2 visa regulations also require that the funds be placed at risk irrevocably. To meet this criterion the foreign investor must show that she expended funds into a business commitment with hopes that her investment will reap revenues. If business fortunes dwindle, the foreign investor stands to lose her initial capital. Hence, the irrevocable commitment connotes placing or committing actual funds in the market place. This can be accomplished by the purchase of inventory, fixtures, furniture, or equipment or the lease of real estate, etc. In other words, this E-2 visa criterion will be met upon the showing that funds have actually been committed towards the investment enterprise. The irrevocable commitment of funds must occur and be documented at the time of the application for treaty investor.

Continue reading "Treaty Investor E-2 Visa Advice Bits - The Irrevocable, Active Business & Risk Factors " »

USCIS Allows Foreign Investors to Trade Job Creation for a U.S. Green Card Under the EB-5 Immigrant-Investor Program

The EB-5 Immigrant Investor Visa allows foreign investors to quickly obtain a green card in exchange for a $500,000 investment. Foreigners may come to the U.S. with their immediate family by making an investment of $500,000 in a distressed rural area. If the enterprise creates at least 10 jobs for American workers then the foreign investor and his family may obtain permanent green cards. The U.S. government welcomes such foreign investment to stimulate the economy in distressed areas.

The foreign investor program basically allows wealthy foreigners to purchase a green card. The immigrant investor path to permanent residency, known as the EB-5, was established in the 1990s to attract foreign investors to live permanently with their families in the United States. In exchange for the green card, the government requires the foreigner to invest $500,000 in a target employment area and establish a new commercial enterprise that is run by the foreigner and it must create 10 jobs for American workers. Because the program strictly requires creating 10 U.S. jobs, it is a politically popular visa option.

The investment capital must be made in a targeted employment area. This is defined as a rural area of less than 20,000 population or an area that has experienced high unemployment of at least 150% of the national average. According to the U.S. Bureau of Labor Statistics, the U.S. unemployment rate was 10.4% in February 2010. An investment of $500,000 in an area experiencing 13% unemployment rate would be sufficient.

Developers in distressed areas working with the local government officials apply to the Immigration agency to designate the area as a targeted employment "regional center." Once approved, the area can market its program overseas to investors. Click here to read about Ohio's northeast regional center. The Law Firm of Shihab & Associates has experienced lawyers who can help you navigate the EB-5 program and apply for a green card with the regional center in Ohio and accross the U.S.

The main benefits of the EB-5 employment creation visa

• Lower initial investment from $1 million USD to $500,000.


• A direct path to a U.S. green card.


• United States green card for you, your spouse and any minor children under the age of 21.


• Eligible for U.S. citizenship after 5 years of being a green card holder.


• Children are allowed to apply to universities at U.S. resident costs.

Continue reading "Green Card Through Investment - The $500,000 Threshold " »

There is no doubt that the H-1B visa program has experienced a recent evolution. The USCIS has announced a significant modification in the manner it will review and approve H-1B visa petitions for highly skilled workers. Only the experienced practitioners will now be able to represent their clients and get their H-1B visas approved. If you are an employer or employee and desire to get your H-1B visa filed during the upcoming H-1B visa cap or currently have an H-1B visa and wish to have it extended, you must pay close attention to these advice bits.

Get the Most Out of Your Immigration Lawyer

It is highly advisable to engage your H-1B visa attorney as early as possible. The first step in the process begins with an open dialogue regarding the circumstances surrounding the services of the foreign national in the company, his duties and assignments, the work environment and the location of the work itself. If the foreign national performs work at a third party site, meaning at a location other than the headquarters of the company, then you must alert your immigration attorney of this fact. If the work is being performed at the offices of the petitioning company, then a different kind of petition will have to be presented. In addition, if there have been significant changes in the duties of the foreign national, then these facts will have to be discussed. The most prevalent complaint clients normally levy against their lawyer is that their counsel does not act as a true partner. Having practiced in immigration law for nearly 17 years, I can also tell you that the most complaint attorneys advance against their clients is that they do not share critical information with them and do not allow them the opportunity to present viable and creative solutions to their cases. Hence, it appears that there is disconnect between counsel and client in many cases; a problem which can easily be alleviated by open and early communication about the employer's practices and issues. I would strongly advice employers to engage their counsel as early as possible, preferably six months prior to the filing of the H-1B visa petition in order to gain the most out of their attorney's representation.

You Get What You Pay For

Employers often complain that attorney fees are too burdensome in the days of bad economy. However, it must be stressed that hiring an attorney "on the cheap" carries grave consequences. The days of filling the forms and pushing the alien's credentials to the USCIS are over. In order to obtain approval for an H-1B visa requires careful study of the circumstances surrounding the employees' retention, location, pay and performance of their job. These issues require careful analysis of the relevant facts and law and to evaluate alternative strategies that would lead to approval.
Many lawyers charge a meager fee for filing an H-1B visa petition. The employer simply purchases the attorney's "signature" on the immigration forms. This practice is wrought with failure as employer, in today's environment, truly needs counsel and advice, not filing papers. Hence, the competent lawyer gets a reasonable fee for her work which the employer must be prepared to compensate accordingly. Some H-1B visa petitions may require more work, others do not.

H-1B Visa Petitions For Employees Working Onsite

If the H-1B visa worker will be performing services at the offices of the petitioning company, the USCIS is now requesting proof that the employer has such work in the continuity and scale requiring the services of the foreign worker. In other words, if the foreign national will be working on an in-house project, there must be documentation proving that the hours requested in the petition are proportional to the immediate and foreseeable future work demand. This can be proved by presentation of project details, deliverables, contracts or the existence of clear document (such as a business plan) which identifies the work to be performed. If several workers are being requested to work on such in-house project, then the documents proving the demand for such workers must coincide. Counsel should be in a position to advise the employer to document the requirement in a scientific and realistic manner. The USCIS will not approve petitions based on speculative work, therefore, the documents must bear semblance to realistic or probable expectations. In addition, the employer must be to show that it is well capitalized to cover the wages of the workers as well as other expenses/costs of project in a practical manner. These are scientific issues that require careful preparation and documentation.

H-1B Visa Petitions For Employees Working Offsite

The USCIS has introduced the January 8, 2010 Donald Neufeld Memo in which it created a mechanism based in common law to determining whether the petitioning company posses "control" over the actions of the foreign worker to form an employer employee relationship. The H-1B visa petitioning employer must now prove that it active in the supervision and evaluation of the worker's activities at the third party worksite. If the company does not currently have such programs in place, it is time to begin documenting one with the help and assistance of its immigration lawyer. This fact underscores the importance of engaging competent legal counsel early in the process. I wrote a blog entry on instituting a program for compliance with the January 8, 2010 Neufeld Memo which is worth reading in this regard. It is important to stress that the aforementioned process is not intended to create a fictitious program to comply with recent USCIS adjudicatory postures. However, it is good practice to engage in closer management of the petitioning company's employees anyway and to do so in a systematic and organized manner. Hence, it should not be viewed as a scheme to create phantom programs. It is critical that the petitioning employer only presents true fact to the USCIS as misrepresentation has grave civil and possibly criminal liability. It is for that reason that the petitioning employer must engage the services of experienced legal counsel to navigate through this new area.

Conclusion

The process of filing an H-1B visa petition has become more complex requiring open and early communication with competent and experienced immigration counsel. We have assisted many employers to analyze their practices carefully and to make adjustments and modifications which will lead to H-1B visa approval. Early planning pays off.

Immigration Reform Must Be Fair To All Immigrants
In advance yet another rally for immigration reform set to descend upon Washington D.C., we are all again reminded of the need to amend the fractured structure of agencies and laws that makes up modern immigration system in America. Many of the most vocal and courageous advocates for change in the immigration system are the representatives of foreign nationals from Central and South America. It is indeed true that undocumented aliens from the countries south of the United States boarder do make up the largest contingent of aliens who will be effected by comprehensive immigration reform. However, we need to remember that in order for immigration reform to be truly comprehensive, its effects must be fair and just too all foreign nationals of all visa statuses from all continents.
Fairness for those who have followed the law
Permanent and temporary work visas are distributed according to a myriad of complicated laws and regulations. Many employers and employees who seek to utilize these avenues of immigration have spent years of their lives and thousands of dollars obtaining and maintaining their valid immigration status. While it is in the best interest of the United States to find a path to citizenship for the hundreds of thousands of undocumented workers who do the toughest jobs in this country, it is my hope that their gain does not come from a loss for those aliens who have attempted to immigrate by adhering to the rigorous immigration laws on the books today. A truly comprehensive immigration reform must strive to keep smart workers, hard workers and families together.
What Should Immigration Reform Look Like?
As much as the term Comprehensive Immigration Reform (CIR) is used in the media and around dining room tables, the nuts and bolts of such reform are still a mystery. The central tenants of such reform seem to be registration with the government, a path to citizenship for undocumented workers with caveats for the payment of taxes, tight boarder enforcement. But undocumented workers are only a part of the immigration landscape. Adjustments need to be made to the traditional three avenues of permanent immigration: 1) asylum/refugee status, 2) employment based; and 3) family based immigration.
In general, reform should establish clear guidelines for permanent immigration though these avenues. Asylum/ refugee law as well as family based immigration have a deep and rich history of case law that must be drawn upon in order to fashion legislation that ends in a fair result for foreign nationals as well as maintaining order and security within the United States. A balance must be struck between efficient adjudication of asylum claims with the need to hear the merits of each case. Furthermore, a system that eases the path to citizenship for undocumented workers would decrease the instances of foreign nationals seeking less than traditional marriage partners in order to obtain a green card.
As for employment based temporary and permanent immigration, clear guidelines are long overdue. There has been troubling recent pattern of erosion of the openings for employment based permanent and temporary employment. For example, the Department of Labor has recently taken over the determination of the prevailing wage for permanent immigration petitions from the states. This process has had the practical effect of adding 15 days to one additional month of time before a green card may be petitioned for. Similarly, the USCIS and department of labor have recently tag teemed to increase the wait time and burden of proof for a valid H-1B petition. What is needed is needed from a reformed employment based system is clarity of the parameters and decisive enforcement rather than inconsistent obligat5ions and enforcement of the immigration laws.
Stand up and be heard
In order for Comprehensive immigration reform to truly be comprehensive, representatives from all immigrant communities, representatives from immigration reliant businesses as well as immigration professionals need to make their voices heard. I urge all persons with as stake in the battle to stand up and be heard in Washington D.C. as well as the local level. Only if every party has a seat at the table of reform can fair legislation for all foreign nationals and for United States citizens be won.

Here is the problem: an F-1 student working for an employer on OPT will run out of OPT upon graduation in May. The employer may wish to continue to employ the student after graduation on H-1B. The employer should file an H-1B cap petition on April 1st to ensure the beneficiary gets in under the cap. However, the worker cannot begin working until October 1st which is the beginning of the fiscal year. Does the H-1B beneficiary have to return home between graduation and October 1st? According to a recent rule issued by USCIS, the answer is an unequivocal, no.

The H-1B cap is "reset" each fiscal year (which is Oct. 1) and the regulations allow a company to file within six months of the start of the fiscal year. Hence, April 1, 2010 is the first date to file a fresh H-1B petition. The beneficiary will be subject to the cap and depending on many factors, including the economy, she may or may not make the cut. However, if the petition is approved, the beneficiary will not be authorized to accept "gainful employment" until FY 2011, or October 1, 2010. Hence, any period of "gainful employment" undertaken by the student/employee after the OPT expires and before Oct. 1st, 2010 would normally be considered unauthorized employment.

However, under a rule issued in April 2008, the lawful status of an F-1 student who is the beneficiary of an H-1B petition and a request for change of status will be automatically extended, along with any grant of optional practical training (OPT) work authorization, until October 1 of the fiscal year for which H-1B status is being requested. This extension will allow F-1s whose OPT will expire before the start date of a petition filed under the H-1B cap to remain in the United States and work through the beginning of their H-1B employment on October 1. The rule requires the H-1B petition to be "timely filed"; it does not require the H-1B petition to be approved before the automatic extensions can take effect. An application is generally considered "filed" once it is accepted for processing by USCIS.

In the context of the H-1B lottery, the petition may have been submitted on April 1st, but it will not be accepted for processing until after the H-1B lottery has been conducted. If the H-1B petition is rejected, denied or revoked, the automatic extension of status and work authorization will immediately terminate. Initially, it was unclear how the rule applies to an F-1 student who is the beneficiary of an H-1B petition that requested consular processing rather than a change of status. USCIS addressed this technical issue in subsequent written guidance issued on April 18, 2008. The agency will allow an H-1B petition filed on behalf of an F-1 student to be upgraded to request a change of status to H-1B so that the student can take advantage of the agency's new "cap gap" rule.

April 1, 2010 marks the opening day for filing H-1B visa cap petitions for the 2011 federal fiscal year. The previous year's cap was met on December 21, 2009 at a time when the economy was recovering at a relatively steeper rate. Feedback from the USCIS during November of 2009 indicated a sudden surge in the filing of cap-subject H-1B visa petitions.

What is the Job Prospect of Highly Skilled Workers?

While industry pundits predict a slow economic recovery, the information technology field and certain manufacturing jobs are expected to make the corner in 2010 and 2011. Especially the hiring of IT professionals possessing the "right skills" is set to experience growth this year. A recently released report by Foote Partners states two important and logical observations: 1) during the downturn in the economy many companies lost good higher paid talents. These firms will try to re-acquire these talents again as the economy swings back; and 2) as the economy slowly recovers, firms will be more aggressive to "reshuffle" its IT workforce and with that comes the hiring of brighter and more technically savvy employees. These reasons will cause employers to retain more skilled labor and to seek foreign workers when they are unable to meet their requirements from the available pool of US workers.

The "Foreign Student" Element

Another force which will affect the way the 2011 H-1B visa season will be shaped is the graduation of an unusually higher population of foreign students during 2007 and 2008 academic years. The US experienced a peak in the enrollment of foreign students from India and Asia in those years. Several recent studies show that the foreign student population in the US had declined and then leveled off without growth in 2007. But a steady increase began in 2008, mostly in students seeking advanced degrees. These students will be looking for permanent employment in late 2010 and 2011 and thus will make an impact on 2011 cap season.

Will The Cap Be Met on April 1, 2010?

The H-1B visa cap is not likely to be completely met by April 1, 2010. Despite the surge in economic activity late 2009, the first quarter of 2010 experienced a regression in employment prospect. For instance the Bureau of Employment Statistics reported an increase of unemployment in January 2010. This volatility in the market place causes low confidence in corporate outlook and postponement of spending. In other words, corporations are not yet ready to embark on big projects because of the uncertainty in the short term future. While confidence in the long range remains strong, yet corporate CEOs are keeping their change in their purses on the short range.

The market will show stability in the second quarter and at the time corporations will hurry up to securing highly skilled workers. Hence, I see the cap to reach before Halloween this year.