Immigration Visa Lawyer Blog

The United States Department of Homeland Security announced it will make changes in the F-1 and H-1B visa categories, which will likely benefit professionals from countries such as India. Changes would include providing work authorization for spouses of H-1B visa holders, 17-month extension of optional practical training (OPT) for certain F-1 international students, allow for additional part-time study for spouses of F-1 students, and allow outstanding professors and researchers to present a broader scope of evidence of academic achievement.

Under current immigration law, H-4 visa spouses of H-1B work visas holders are not permitted to work themselves. One of the proposed DHS regulations would change this. The new regulation would allow some spouses of H-1B visa holders to work legally while the H-1B visa holder spouses wait for their adjustment of status applications to be adjudicated. H-4 dependent spouses would be granted employment authorization when the principal H-1B visa holders begin the process of seeking lawful permanent resident status through employment after meeting a minimum period of H-1B status in the United States.

Currently, F-1 students may only work in optional practical training (OPT) for 12 months. DHS plans to provide 17 month extensions of OPT for those students with degrees in Science, Technology, Engineering and Mathematics (STEM).

Changes would also allow for additional part-time study for spouses of F-1 students, and would increase the number of Designated School Officials (DSOs) at DHS certified schools to enroll international students. Under current immigration regulation, spouses may only take part-time vocational or recreational classes. The proposed changes would permit spouses of F-1 students to enroll in additional academic classes on a part-time basis while the F-1 student is enrolled in full-time studies.

The DHS's stated purpose here is to reform administrative practices and ease the visa process for highly-skilled immigrants who want to come to the United States for work. This effort could help retain talented professionals who are valued by U.S. employers and who seek to contribute to our economy.

President Obama proposed to eliminate country-specific caps for certain immigrant visa categories to stimulate small-business growth. Country-specific immigrant caps are limits on the number of immigrant visa the United States will grant each year. According to a White House statement, the purpose is to attract more high skilled foreign workers, including entrepreneurs to the United States. Employers, especially those in the technology business, complain that these caps prevent them from hiring skilled workers and growing their companies in the United States.

Obama called for a comprehensive immigration reform bill, and if this is not politically possible, he will seek reforms in smaller steps. "If election-year politics keeps Congress from acting on a comprehensive plan, let's at least agree to stop expelling responsible young people who want to staff our labs, start new businesses and defend this country," Obama said.

The Department of Homeland Security said it will implement several measures to simplify the process for immigrant entrepreneurs to do business in the United States, and also to keep more foreign nationals with science and technology degrees from U.S. universities.

Obama said the proposal was a "symbol of how important it is for us to spur entrepreneurship, to help start-ups, to move aggressively so that we can ensure more companies that create most jobs in our economy are getting a leg up from various programs that we have in our government."

Opponents of Obama's plan point to the high unemployment rate in the United States and question why the government would be extending nonimmigrant visas for highly skilled workers while many US citizens and permanent residents are unemployed and are seeking those jobs.

Obama told reporters on Tuesday that he expects Congress to pass a bill this year. However, some members of Congress are likely to oppose the proposal.

Alabama's controversial immigration law, passed earlier this year, invited yet more scrutiny several weeks ago when police arrested a German businessman. Police pulled the man over just outside Tuscaloosa on November 16. He was driving a rental car that did not have tags, and he only had a German ID. Since Alabama's law requires police to investigate the immigration status of people involved in traffic stops, they arrested him. The man turned out to be a Mercedes-Benz executive visiting the company's 3,400-employee plant in Tuscaloosa.

The Mercedes-Benz plant is one of Alabama's great success stories of the past few decades. The company's 1993 decision to open the Tuscaloosa facility paved the way for similar plants by Honda, Hyundai, and Toyota, according to Bloomberg News. Mercedes-Benz itself described the arrest as "unfortunate" and declined additional comment. The incident has fed a growing sense among Alabama business leaders, some would say finally, that the law does more harm than good for the state's economy.

In other parts of the state, leaders are already sensing that the law is driving away not only workers, but investors and foreign employers. In March of this year, Golden Dragon Precise Copper Tube Group, a Chinese manufacturer, announced its intention to build a $100 million factory, employing at least 300 people, in Thomasville, Alabama. The company has now hinted that it will consider other offers elsewhere, which has Thomasville's mayor scrambling to do damage control. Other states are even trying to woo Mercedes-Benz and other large companies away from Alabama.

State leaders claim they intended the law to deter undocumented workers and increase the number of available jobs for unemployed Alabamans. Alabama is already very low on the national scale of economic strength and employment rates, and the new law has shown no signs of improving that. Fields of crops lay rotting because the people with experience working those fields either stayed away for fear of arrest or fled the state entirely. Small businesses in small towns and big cities alike across the state told a New York Times reporter that business was significantly down as their regular customers vanished.

Continue reading "Alabama Immigration Law Shows More Unintended Consequences After Arrest of German Businessman" »

An investment group based in Columbus, Ohio has started a fund offering immigration assistance to international investors who intend to create jobs in Ohio. The fund offers help in obtaining legal permanent resident status, commonly known as a "green card," to individuals who meet the criteria under U.S. immigration law for investment immigration. This process can be complex and cumbersome, and requires the assistance of an experienced immigration attorney with knowledge of the investor system.

Central Ohio's government and business leaders have sought to bring international companies to the area as a way of stimulating the local economy, bringing in capital, and creating new jobs. A delegation of officials from local governments and the business community traveled to India last year on a trade mission to promote the region to foreign businesses.

Federal law allows a certain number of entrepreneurs and investors to immigrate to the United States, provided they meet certain criteria for eligibility. U.S. Citizenship and Immigration Services, the federal agency that handles immigration petitions and applications, may issue up to 10,000 visas, known as EB-5 visas, for investment-based immigrants per fiscal year. To qualify, a prospective investor must make an investment of $1 million, or at least $500,000 if the investment goes to a "targeted employment area," areas designated by the government in rural communities or in communities with high unemployment. Columbus, Ohio is currently designated as a "targeted employment area."

The investment must go to a "new commercial enterprise," currently defined as one created after November 29, 1990 or significantly restructured or reorganized by the investment. The investor must also be able to demonstrate both the intent and the ability to create at least ten permanent, full-time jobs for employees authorized to work in the United States. The investor must show admissibility as an immigrant, meaning that the investor is not subject to exclusion for any reason under the immigration statutes, which might include criminal history or health issues.

Continue reading "Ohio Business Investors Offer Help to Immigrants who Create Jobs" »

A unanimous City Commission voted on October 5, 2011 to make Dayton, Ohio an "immigrant-friendly city." The "Welcome Dayton" plan aims to make the city open and welcoming to all people, regardless of citizenship. Mayor Gary Leitzell states that the plan "focuses on making our community one that treats all people kindly, fairly and humanely." The plan will involve immigrants in an effort to reverse the city's economic downturn by supporting business development by immigrants, involving immigrants in government and the community, and working to reduce language barriers.

Supporters of the proposal cited a study by University of Dayton sociology professor Jamie Longazel on the effect of a crackdown on immigration in Hazelton, Pennsylvania. Both cities suffer from a decaying urban center and a shortage of jobs, but Hazelton's effort drove away many people who were helping grow the local economy. Professor Longazel said that Dayton has a chance to do something different which should help the city's economy grow.

The measure's supporters also make clear that the word "immigrant" is not synonymous with "illegal immigrant." Critics expressed concern that the plan could open the door, so to speak, to settlement of undocumented immigrants in the city in greater numbers. Responding to concerns about possibly harboring immigrants without legal status, the mayor said: "If you are an illegal immigrant, you will be subjected to the same federal laws as anyone else." Police Chief Richard Biehl noted studies showing that crime and recidivism rates among illegal immigrants are no higher than the general population.

Dayton's approach of leaving enforcement of immigration laws to federal officials is in marked contrast to policies adopted elsewhere in the country, particularly in states like Arizona and Alabama. Laws passed in those states often require state and local law enforcement to make determinations as to a person's immigration status. The U.S. Constitution gives authority over immigration to the federal government, which enforces its laws through agencies like Immigration and Customs Enforcement (ICE) and, formerly, the Immigration and Naturalization Service (INS). Local law enforcement often lacks training in the complex system of statuses and rights in the immigration system. Even a person who does not have documentation on their person may still have a legal right to be present in the U.S., and local law enforcement does not have the authority to make any sort of final determination.

Continue reading "Dayton, Ohio Proclaims Itself Immigrant-Friendly" »

The US Citizenship & Immigration Services (USCIS) recently announced that it will be altering decades' worth of a well established procedure which has Columbus Ohio immigration lawyers and their clients confused and angry.

For as far back as I can remember in the 18 plus years I have been practicing immigration law, the USCIS's established procedure called for mailing approval notices relative to employment based non-immigrant visas (such as H-1B visas) directly to the attorney who had filed a signed Notice of Entry as an Attorney of Record along with the petition. That procedure allowed the attorney to carefully monitor the progress of the case during the USCIS adjudication process as well as post the approval of the case itself. Simply put, the prior procedure worked well.

Now, the USCIS wants to fix a procedure which was never broke. The new procedure now calls for mailing the approval notice for such non-immigrant visa petitions (also known as the I-797 Notice of Action) directly to the sponsoring employers, instead to the attorney of record. US immigration lawyers believe that this is yet another way the USCIS seeks to drive a wedge between them and their clients, the petitioning employers.

The American Immigration Lawyers Association has sharply criticized the new policy thereby requesting the USCIS to restore the prior procedure. The USCIS held a teleconference on October 12, 2011 to review this new procedure. Interestingly, in its announcement for the teleconference, the USCIS offered an unusual way to have immigration attorneys continue to receive the I-797 approval notices by including on the petition for non-immigrant worker (Form I-129) the attorney's address in the filed where the company's address must be entered. This, as the USCIS explained, will cause the USCIS to mail the approval notice to the attorney instead of to the company. The USCIS warned, however, that it utilizes the Validation Instrument for Business Enterprises (VIBE) process, which relies on the business address of the employer to validate whether the petition is filed fraudulently. Using the attorney's address on Form I-129 may disrupt the VIBE process, the USCIS explains and advised attorneys to enclose a separate sheet along with the petition indicating the true address of the employer in order to avoid such discrepancy (without any guarantees).

What a disaster!!! In other words, the USCIS is encouraging attorneys to intentionally misrepresent the address of the employer on Form I-129 and to risk having the employer's identity validated in order to do her job of correctly monitor the progress of the case and advise the client efficiently.

I join my immigration attorney colleagues in stating that this is an ill-advised policy for many reasons. but, before delving into the problems that I see with this new procedure, I would like to share with you the steps that we normally undertake once we receive an employment based non-immigrant visa approval notice on behalf of our client's employees. For the last 10 years in my practice, I have utilized an intricate on-line document storage, data gathering and reminder system integrated into a proprietary web-based processing portal. Upon receipt of an approval notice, we scan and upload it to our immigration processing portal. An instant reminder is created in our system which will alert us to contact the client six (6) months prior to the expiration of the employee's status. Then an email is generated to the client and the employee informing them that their case has been approved. Finally, the approval notice is mailed to the employee providing them with tips about maintaining their status and advising them what to do in the event they need to travel. (Our law firm was named finalist in innovation by TechColumbus in 2008. We now utilize a vendor-based system which we call ShihabEDGE.)

With the approval notices now going to employers, these valuable practices will be compromised. Unless the employer has in-house counsel versed in immigration-related matters (which is very rare), the employer does not possess the skills or resources to monitor the expiration status of their employees' status and/or to advise them regarding the procedures in obtaining visa stamping.

We must remember that the non-immigrant visa approval notice in most scenarios has THE ONLY PROOF of the foreign nationals legal status in the United States. It must be surrendered to the foreign national promptly. with some large employers, the approval notice may arrive on the wrong desk and the recipient may not know what to do with the approval notice or who in the large organization should dispose of it. The attorney on the other hand has direct access to the foreign national and can ascertain that she receives it timely.

The recent policy by USCIS is ill advised; it wastes time and increases the employer's costs. I urge all employers to contact their congressmen to put pressure on the USCIS to reveres this unnecessary procedure. Tell the USCIS that the prior system worked just fine and there is no reason to drive a wedge between the attorney and the employers they represent. If it ain't broke, don't fix it!

In response to a FOIA request submitted by a fellow AILA member, USCIS released 486 pages of materials used to train USCIS officers in the adjudication of EB-5 immigrant investor cases. These materials include voluminous information on how adjudicators work a typical EB-5 case. This information is extremely important in understanding the EB-5 adjudicator's approach in dealing with an EB-5 case. The attorneys at The Law Firm of Shihab & Associates have obtained a copy of these materials and utilize it when advising a potential EB-5 investor.

As the Democrats and Republicans of congress continue to negotiate a compromise to the federal budget that is set to expire Friday, April 6th, 2011 at midnight, immigration attorneys in Columbus, Ohio have turned their attention to how a government shutdown will affect the normal adjudication of visas. Visa applications, including employment based I-140 and H-1B petitions as well as family based petitions including I-130 and I-485 applications, filed in the United States are usually adjudicated at one of the USCIS service centers throughout the country. These service centers are staffed by immigration officers who adjudicate visa applications. These immigration officers are employees of the federal government and could be furloughed if the federal government shuts down for lack of congressional funding.

Historically, government shutdowns have resulted in delays for visa adjudication. The reason for the potential delay is based upon the wording of the federal Antideficiency Act. This law states that in the event of a governmental shutdown the only governmental employees that will be permitted to continue to carry out their work will be employees who prevent or respond to "emergencies involving the safety of human life or the protection of property." The law goes on to state that "ongoing, regular functions of government the suspension of which would not imminently threaten the safety of human life or the protection of property" are not to continue their operations during a shutdown. Officers who adjudicate visas at the service centers will most likely not be deemed essential to the protection of safety or property and will be furloughed. With no-one to adjudicate visas, visa applications will be backlogged to some extent. However, other aspects of United States immigration policy will continue to be enforced. Customs and border patrol officials, for example, should remain active.

While the chance of a government shutdown is small, it remains a definite possibility. Also, delays in US postal service operations could occur. Therefore, foreign nationals and attorneys should be cognizant of the potential for delays in the adjudication and delivery of visa petitions and applications to the USCIS service centers.

Continue reading "Government Shutdown Could Effect Visa Adjudications" »

In today's US Immigration environment, many foreign nationals are increasingly apprehensive about their visa position in the US when applying to change, transfer or extend their status. The introduction of arbitrary rules and memoranda by the US such as the H-1B Visa Third Party Placement (also known as the Neufeld Memo) has made non-immigrant visa approval more complex. Even though the criteria set form in the Neufeld memo were intended to apply in the H-1B visa program, we now see application of the Neufeld memo to have bled to the adjudication of other non-immigrant visa programs including O, L and others. This environment has amplified foreign national's concerns relative to the success of their non-immigrant visa stamping at the consulates even after having procured petition approval by the USCIS.

This article will dissect the issues relevant in the consular visa stamping process and will offer insights as to how the "sausage is made" behind the scenes" from the time of the petition approval until the consular stamping process. This information is being brought to you by Columbus immigration attorneys after careful review of material available in our files and elsewhere. Our practice encompasses the entire nation and we accept clients globally.

Step One: The Non-immigrant Visa Petition Process

The first step in a successful visa stamping process, believe it or not, begins at the initial filing of the non-immigrant visa petition. It is imperative for the immigration attorney to send in an additional copy of the visa petition and any subsequent RFEs along to the Service center processing the petition with a cover sheet requesting the Service Center to forward to the "Kentucky Consular Center" ("KCC") for what is known as the PIMS system. PIMS is an acronym for "Petition Information Management Service" is a secure web enabled system established in 2007 which allows the US Consulates to review all the documents filed by the petitioning company from a secured source. The KCC receives more than 1000 non-immigrant petitions per day from the various service centers and uploads them into the PIMS system. In addition, the KCC conducts a limited verification process of the petitioners and creates a database record of from the I-129 petition itself.

You can immediately surmise that the consulates would much rather review documents from a source they trust than from the beneficiary him or herself. You must remember that the USCIS Service Center WILL NOT send an extra copy of the visa petition package to the KCC and many immigration lawyers do not take the time to comply with the rules and neglect to send a copy thereby causing the beneficiary to experience delays during the consular process. Hence, the first step to a successful visa stamping process begins at the time the petition is filed.

Step Two: Planning For the Interview

If your petition made it to the KCC for inclusion in the PIMS system, you are in decent shape. If not, you must contact your attorney to make certain that a copy is mailed to the Service for uploading in the PIMS system.

In order to prepare for your consular interview you must visit the US Consular website to learn about the specific steps required to schedule the appointment. Remember to complete the on-line form and the payment of the filing fee. If your petition was approved prior to the establishment of the PIMS system in 2007 and you wish to receive stamping you should have your attorney make certain that the Service Center sends a copy of the petition and other related response to an RFE to the KCC with instructions to upload it in the PIMS.

You must also understand that the consulate will have access to information and documentation about you and the petitioner as stated in the most recent approved petition which was later uploaded by the KCC in the PIMS system. If circumstances of your employment changed, for example you have been assigned to a different end client or your work-site address changed significantly, it is high advisable to file an amended H-1B visa petition prior to the scheduled visa stamping.

Take with you a copy of the entire petition package in case including any RFEs that had been issued and responded to by your immigration lawyer. In addition, take with you the original approval notice for presentation to the consular officer if necessary.

KCC advised the American Immigration Lawyers Association that five days prior to the interview, the consular officer is required to review the candidate's file and to determine whether the PIMS system is updated. If not, the consular officer is directed to request that the file be updated to the KCC which in turn will contact the USCIS Service Center regarding any missing or inconsistent information. For instance, if the PIMS system did not show an approval in the file, the KCC will attempt to obtain the same from the USCIS. The USCIS normally responds within 48 hours. Once the KCC receives the missing information from the USCIS, it updates the PIMS system.

Step Three: The Date of the Consular Interview

You must be aware that US Consulates may investigate your case notwithstanding the stature of your employer. From experience, we generally see more consular inquiries relative to petitions filed by smaller petitioners although it is not necessarily a rule of thumb. Hence, it should not be a point of concern or frustration as most cases filed in good faith will be resolved in favor of the beneficiary.

Continue reading "Visa Stamping at the Consulate and the PIMS System: Taking the Fear Factor Out of the Process Can Only Occur Through Early Planning" »

This article is the second installment following up and providing a conclusion to the first segment which provides the final techniques utilized by the Columbus Immigration Lawyers at The Law Firm of Shihab & Associates regarding the preparation of a Motion to Reopen/Reconsider or Request for Evidence (RFE) responses. Again this article focuses on the RFE response, but its techniques are applicable to any written brief or statement made in response to USCIS.

Critique the Request for Evidence Itself
A major component of drafting the response to an RFE is the need to critique the request itself. The immigration officer may not have developed the facts in a complete and accurate manner. It is your job to comprehensively develop those facts (often by use of affidavits). By showing inconsistencies and other problems with the facts, as developed by the immigration officer, you begin to establish credibility to your case. The Immigration Lawyers at The Law Firm of Shihab & Associates are very experienced at analyzing the facts and respectfully presenting them correctly to the USCIS in an RFE response.

Secondly, you must scrutinize the quality and quantity of the legal research conducted by the immigration officer. Determine if the officer identified all the relevant legal authority. Often times, RFE's will present "biolerplate" legal authority. Did the immigration officer properly interpret the law? Did the officer correctly apply the law to the issue and the facts in the case at hand? Did the officer include legal authorities in the RFE, but not use them in the analysis or argument? Don't leave these questions unanswered. If there are flaws in the legal research conducted by the immigration officer, or flaws in the ways by which the officer cited legal authorities, point it out.

Finally, test the immigration officer's arguments. Has the officer adequately connected the issues with the facts and law? Have convincing analogies been developed by the officer? Has the officer adequately answered the questions asked? If there are flaws in the officer's arguments, point them out.

Revise, Revise, Revise....then Revise One More Time!
As Justice Louis Brandeis stated: "There is no such thing as good writing. There is only good rewriting." Justice Brandeis often revised his writing 15 or more times before he was satisfied. While this is obviously extreme, it is suggested that you revise your writing at least three times, more if time and money permit. Excessive use of passive voice, timid phrasing, vague words and other examples of poor writing are often found in first drafts. The lawyers at The Law Firm of Shihab & Associates spend the time to make sure your case is prepared with great diligence to grammer, form, substance and style.

As this article demonstrates, regardless of the inherent strengths or weaknesses of a given case, there is much that can be achieved by mastering the art of preparing a successful RFE response, Motion to Reopen/Reconsider brief or appeal. Our lawyers know this more than anyone!

Continue reading "Drafting a Motion to Reopen/Reconsider or Request for Evidence Response to USCIS: Proven Techniques for Success (Part 2)" »

USCIS provides minimal guidance regarding the preparation of a Motion to Reopen/Reconsider or Request for Evidence (RFE) response. Unlike other USCIS procedures, CIS does not require the completion of a form when filing an RFE response. This little guidance provides a wide range of possibile methods to responding to the RFE. This article presents techniques that the Columbus Immigration Lawyers at The Law Firm of Shihab & Associates have implemented for preparing a successful responses to USCIS and focuses on the brief in support of an RFE response.

Prepare a Roadmap: Presentation Matters
While this might sound obvious, the most important element of the RFE response is drafting the response itself. Don't spend all your time meeting with the client, gathering facts and conducting legal research. Too often, not enough time is spent on planning and presentation. Remember, an RFE has a strict deadline that often poses a tight timetable to prepare the supporting documentation and legal arguments. As the saying goes, "plan the work; work the plan." This is an axiom the lawyers at The Law Firm of Shihab & Associates live by. You must leave sufficient time to prepare a polished product. Preparing a polished written RFE response does not simply happen. It requires good planning, organization and writing.

Focus on the Facts: Don't Drive from Boston to Chicago via Nashville!
Regardless of what factual informaiton you decide to present, you must determine the order in which to present the facts. Consider the following illustration: If you decide to drive from Boston to Chicago, it is unlikely you would drive first to Baltimore, then to Nashville and finally to Chicago, unless of course time and money were of no concern. Likewise, the immigration officer will expect to see some logical order to the presentation of the facts in your RFE response letter. Don't confuse the Immigration officer by driving from Boston to Chicago via Nashville!

There are various approaches for ordering the presentation of the facts: chronological, biographical (e.g., describing key individuals along with facts associated with them), or transactional. Employ whatever approach you use consistantly throughout the RFE response. Your facts should be presented persuasively without being argumentative. Facts, not opinions, will convince the USCIS officer to look favorably upon your client's case.

Continue reading "Drafting a Motion to Reopen/Reconsider or Request for Evidence Response to USCIS: Proven Techniques for Success (Part 1)" »

Effective February 1, 2011, the U.S. Consulate in Toronto has implemented a new procedure to schedule appointments for the E-2 Treaty Investor Visa. The new system will require applicants to pay the fee and schedule an appointment prior to submitting the completed E-2 application to the consulate. This new procedure will affect many of our clients in Columbus, Ohio, who routinely renew their E-2 visas at the U.S. Consulate in Toronto. While the law remains the same, the procedures for a proper E-2 visa package have changed substantially. This article addresses the new procedures for an E-2 visa.

Required Documentation for Treaty Investor (E-2) Visa

1. Confirmation of appointment
2. DS-160 confirmation page for all applicants and dependents
3. DS-156E in paper form
4. Dependents - must submit a marriage certificate for spouse and birth certificates of any dependent children.
5. Signed statement of the applicant's intentions regarding the temporary nature of their stay in the United States.
6. One 2x2 passport-style photograph for each applicant (if your photograph could not be uploaded to your online DS-160)
7. A cover letter summarizing the requirements for an E visa and how the applicant(s) fulfill(s) them.
8. Comprehensive Index/Table of Contents.
9. Supporting documentation for E-2 status

As you can see, the guidelines for an E-2 visa at the U.S. Consulate in Toronto are onerous. One mistake in the form of the applicant can be doom for the applicant. An applicant must establish that the trading enterprise or investment enterprise meets the requirements of the law, and complies with the many requirements for the E visa classification. The consular officer may provide the applicant with special forms for this purpose. The applicant can expect the consular officer to request additional documentation, to make a determination about eligibility for a treaty trader or treaty investor visa. It is impossible to specify the exact documentation required since circumstances vary greatly by applicant.

Treaty Investor (E-2)
The Treaty Investor (E-2) visa is for a national of a country with which the United States maintains a treaty of commerce and navigation who is coming to the United States to develop and direct the operations of an enterprise in which the national has invested, or is in the process of investing a substantial amount of capital. For a list of treaty countries, please see this website.

The E-2 nonimmigrant classification allows a national of a treaty country to be admitted to the United States when investing a substantial amount of capital in a U.S. business.

Eligibility

• The investor must be a national of a treaty country.
• The investment must be substantial. It must be sufficient to ensure the successful operation of the enterprise. The percentage of investment for a low-cost business enterprise must be higher than the percentage of investment in a high-cost enterprise.
• The investment must be a real operating enterprise. Speculative or idle investment does not qualify. Uncommitted funds in a bank account or similar security are not considered an investment.
• The investment may not be marginal. It must generate significantly more income than just to provide a living to the investor and family, or it must have a significant economic impact in the United States.
• The investor must have control of the funds, and the investment must be at risk in the commercial sense. Loans secured with the assets of the investment enterprise are not allowed.
• The investor must be coming to the United States to develop and direct the enterprise. If the applicant is not the principal investor, he or she must be employed in a supervisory, executive, or highly specialized skill capacity. Ordinary skilled and unskilled workers do not qualify.

Family Information/Derivative Visas
An applicant's spouse and unmarried children under 21 years of age may apply for a visa to accompany or follow the principal applicant to the United States. If eligible, the family members will be issued a visa of their own based on the principal applicant's original visa. The principal applicant must be able to prove that the family can be supported financially during the stay in the United States.

1. The spouse of the principal applicant is permitted to work through work authorization; however, the children are not permitted to work.
2. Children with a derivative visa may attend either public or private schools.
3. A derivative visa cannot be issued to partners who are not legally married. They will have to apply for a Visitor Visa.

When applying for a derivative E-2 visa after the principal visa applicant has received a visa, the derivative visa applicant must submit certain documentation in addition to the required E-2 application documents:

Accompanying family members, only a spouse and unmarried children under 21, need a photocopy of marriage certificate for spouse and long-form birth/adoption certificates (showing both parents) for children. These documents need to be carefully submitted with the DS-160 confirmation to ensure proper handling. These documents should be civil documents that are issued under the original seal, stamp or signature of the government office of record. Notarized copies, religious documents and hospital records are not acceptable. The original copies of the civil documents are required on the day of the interview.

Continue reading "The New Treaty Investor (E-2) Visa Application Procedures at U.S. Consulate, Toronto" »

Effective February 1, 2011, the U.S. Consulate in Toronto has implemented a new procedure to schedule appointments for the E-2 Treaty Investor Visa. The new system will require applicants to pay the fee and schedule an appointment prior to submitting the completed E-2 application to the consulate. This new procedure will affect many of our clients in Columbus, Ohio, who routinely renew their E-2 visas at the U.S. Consulate in Toronto.

The New E-2 Application Procedures
To obtain an E-2 visa at a U.S. Consulate in Toronto, the applicant must first prepare the E visa application and supporting materials. Once the application is assembled, the consulate now requires applicants to schedule an appointment online at http://canada.usvisa-info.com/ or by calling 647-955-3736 (from Toronto) or 1-877-341-2441 (from elsewhere in Canada or from the U.S). The online scheduling system requires the applicant to set up a profile for each person needing a visa, including dependent children. The required fee ($390 USD) also must be paid at the time of making the appointment. Once the appointment is scheduled, the applicant must assemble the documentation following the consulate's guidelines rigidly. The list of documents needed are provided below.

The Department of Justice announced that it has awarded $720,321 in grants to 13 organizations throughout the country to conduct public education programs for workers and employers about federal protections against immigration-related job discrimination. The grants range from $43,664 to $88,000, and are awarded by the Office of Special Counsel for Immigration-Related Unfair Employment Practices. Recipients will assist discrimination victims; conduct seminars for workers, employers and immigration service providers; and place advertisements in local communities through mainstream and ethnic media to educate workers and employers about their rights.

Innovation and start up businesses are going to be the driving force in the Columbus, Ohio economy over the next 20 years. Our firm provides immigration solutions in a variety of forms to businesses of all sizes and varieties, including H-1B visas and E-2 visas. Below, we have listed some of the most popular and useful visas for business owners, managers and human resources professionals to use in order to attract and retain the world's top talent. Our firm will help you grow your business along with the dynamic city of Columbus, Ohio as new business as well as social and economic diversity lead this city to the forefront of United States business centers in the 21st Century.

E-2 Visa Solutions for Small Business Investors

The E-2 investor visa is one of the most popular and useful of all visas for start up and small businesses. In fact, the basic purpose of this visa is to promote foreign investment into the United States. The variety and type of business that is eligible to use the E-2 visa is almost limitless. Some of the most useful advantages of this visa include the relatively low investment threshold of $100,000 that needs to be made by the foreign national into the business. The E-2 visa is also renewable for an unlimited amount of time so long as the business and foreign nationals continue to qualify for the visa. Additionally, the E-2 visa allows for the foreign national to bring their family's over to live and work in the United States.

Non-owners can also obtain E-2 status through a company held by a person on an E-2 visa. Such employees must be executives, supervisors or essential employees so long as the worker holds the same nationality of the E-2 owner.

E-2 Visa Requirements that all start up / small business owners must know

E-2 visas are not just handed out by the USCIS or consular posts. They take some intensive collaboration between attorney and client in order to showcase a startup ventures' attributes. There are also numerous pitfalls for the unwary that must be avoided such as the following:

The funds to be used in the business must be at risk. This means the non-recourse loans will not make the grade when it comes to E-2 investments. The capital invested in the venture must be secured by the investor's own assets. If a loan is required for the business start up, the loan must be tied to the investor's personal assets of some soft.

The funds must be in the process of being invested in the business, within immediate control of the investor. This means that money that is not in hand or is tucked away in some other investment cannot be used to show the investment necessary for the E-2 visa. Rather the funds must be in the investor's control at the time of filing for the visa. One way to nullify the risk of pinning hopes on an E-2 visa that is never won is to place the funds into escrow pending the approval of the E-2 visa.

The business must be a commercial enterprise that is for profit and not for the mere passive ownership of assets.

The investment must be substantial and not fractional compared to the value of the investment. If the business is not worth much money, the ownership stake of the E-2 visa holder must be higher. If the business is worth multi-millions of dollars, the E-2 visa holder can have a lower amount of the worth of the business at risk and invested in the business.

The business cannot be marginal, meaning it must have the potential to eventually provide for more than just a living for the E-2 investor. This proposes a problem for startups as many start ups start small, with little in the way of salary to show for a few years. However, with the aid of a five year business plan, it can be shown to the USCIS that the business has the potential to provide profits for the owner and job opportunities to American Workers.

An E-2 owner must show that he or she is gaining the visa to develop and control the business. This means that the investor must be taking a leadership role in the direction of the activities of the business and has the voting power to veto decisions regarding the business that he or she disagrees with.

Our firm has procured E-2 visas for various types of endeavors from franchises to farms and from grocery stores to gas stations. We have the experience and the ingenuity to aid your start up business as it ventures out in our states capital.

H-1B Visa Solutions for Small Business and Startup Organizations

The H-1B visa is an excellent non-immigrant visa solution for companies who seek to hire a foreign national who holds a bachelors degree in a specialty occupation or its equivalent. Many types of positions can be hired on an H-1B visa basis. Persons who work in a specialty occupation, persons providing assistance to the department of defense through research and development projects and even fashion models can all qualify for an H-1B visa.

H-1B visa requirements that every startup business should know

The employer must pay the employee the prevailing wage for that occupation as decided by the Department of Labor. This can place a financial strain on some start up businesses with limited budgets; however there are four levels of prevailing wage for each occupation. Usually it can be shown that the experience and e4ducation of the foreign national is commensurate with a wage level that is acceptable to the business and the Department of Labor

The employer must be a US employer that has control over the foreign national's day to day work activities. This means that the business must have a federal tax identification number and that the employer must be able to direct the work that the foreign national is doing even when he or she is off site.

H-1B visas are not for self petitioners. This means that the H-1B visa holder cannot be the owner of the business for which they work. There is some debate as to whether holding any type of ownership interest may defeat the H-1B petition, so such issues must be addressed on a case by case basis.

Many of the problems that small or startup organizations face involving H-1B petitions are showing that the occupation is a specialty occupation and the foreign national will not carry out only menial tasks that any person could be trained to perform without a formal education. There a four standards that guide employers in whether or not a position is a specialty occupation:

• A bachelor's degree or its equivalent is normally required for entry into the position
• A bachelor's degree is the norm in the industry for similar organizations, or the position is so complex or unique that a bachelor's degree is required
• The employer normally requires a bachelor's degree
• The nature of the specific duties are so complex that the attainment of a degree is usually associated with the position

These requirements are sometimes difficult for a start up business to show given that start ups usually do not have a long track record of positions with similar duties to highlight. However, with the aid of innovative legal counsel, at least one of these criteria can be successfully argued, and one is all that is needed to succeed.

Finally, it must be shown that the foreign national has the education or experience to qualify for the position offered. Most of the time this requirement is easily met where a person holds a bachelor's degree in a field that is related to the business. When a person's degree is not as congruent with the position offered, some extra time and effort is required to argue that person into the position. This is common where a foreign national does not have a bachelor's degree or holds only a three year bachelor's degree. Equivalency evaluations and experience evaluations can be conducted in order to show that the foreign national qualifies for the job offered.

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