Articles Posted in Employment Based

country-town-series-1-69122-m.jpgThe EB-5 visa category is an immigration option for those who can afford to invest at least $1,000,000 in job creation or entrepreneurship in the U.S. (The investment requirement is half as much if it is to be made in a designated “Target Employment Area,” which is either rural or suffering from an unemployment rate at least 1.5 times the national average.) There are two routes to accomplishing this: directly, or through a Regional Center. A simple way of differentiating them is that Regional Centers are for those who want to invest in order to immigrate, while the direct option is for people who want to immigrate in order to invest. EB-5 Direct is the method one uses when the investment is geared toward buying a business, and it allows more personal control over one’s investment, giving the immigrant the chance to maximize his or her profit from the venture. However, without the guidance of a Regional Center, the process can be complex and difficult to navigate. Due to some unpredictable USCIS methods of evaluating EB-5 Direct cases, there are many ways an immigrant can err and potentially delay or lose their chance at the unconditional permanent residence that follows a successful EB-5 investment. This is an area where the right immigration council and make a huge impact in the client’s favor.

For all forms of EB-5, in order to obtain unconditional permanent residence, an immigrant investor is given a two year period in the country (with up to an additional year in many cases) to show that their investment led to the creation or preservation of at least 10 jobs. One needs to only show the “preservation” of jobs if the company being bought is a “troubled business.” (Out of its at least two years of existence, to be classified as “troubled,” a business must have had at least a 20% net loss over the one year or two year period prior to the investor’s I-526 priority date.) Things are difficult on the onset, as the immigrant investor must be able to know how the USCIS will view the acquisition of business assets. In most cases, unless the investor is purchasing a troubled business, he or she should try to avoid becoming a successor in interest of the company selling the assets.

Becoming a successor in interest means obtaining a company’s tax liabilities (among other things). A buyer of all or “substantially all” goods of a business can be considered a successor in interest of that business. While the owner and the name of the business can change, the immigrant buyer can be viewed by USCIS as only continuing the prior business. In such a situation, proving that the immigrant investor is the source of any new jobs becomes more difficult. There have been cases where immigrant investors put the necessary amount of money at risk in starting a business and hiring at least 10 employees, only for USCIS to say that there was inadequate evidence of the employment criterion being met. It appeared that the USCIS suspected that the new employees of the immigrant investor were either carryovers from the prior business or just their replacements. In this sort of case, the net creation of opportunity for U.S. workers is not evident.

airplane-1445545-m.jpgThis year marks the 10th anniversary of the PERM regulations, which govern the labor certification process for the permanent employment of immigrant foreign workers and establish responsibilities of employers who wish to employ these workers permanently in the United States. The Department has not comprehensively examined or modified the PERM requirements and process since its inception in 2004. However, pursuant to President Obama’s Executive Action on Immigration, the U.S. Department of Labor recently announced its plan to review the PERM labor certification program and relevant regulations, in an effort to modernize the program to be more responsive to changes in the national workforce.

As part of its review, the DOL has specifically stated it plans to seek input on the following, with aims of modernizing processes and improving efficiency:

  • Options for identifying labor force occupational shortages and surpluses and methods for aligning domestic worker recruitment requirements with demonstrated shortages and surpluses;

noinvest.PNGLate in the previous fiscal year, something happened for the first time: the EB-5 investor immigrant visa category’s quota of 10,000 annually was reached. Once the visas allocated to this visa category run out, (which is what happens when the quota is reached) annual per-country limits are designed to come into effect. This outcome has not been properly planned for and would have serious consequences for the many local economies that benefit from international investment. Luckily, the quota was reached at the very end of the fiscal year, after the State Department (DOS) released its official monthly visa bulletin saying that the visas would be available until the very end of the year based on its calculations. With its hands somewhat tied, DOS decided to act as if though it had more visas to give out by borrowing some from the following fiscal year’s supply.

Because of this, DOS has not yet instituted the per country limits. However, the problem has nowhere near resolved itself. In fact, this is evidence that the clock has almost run out on EB-5 investment immigrants from (The People’s Republic of) China. This is because almost 80% of the people who receive visas under the EB-5 category are from China. In order to prevent an oversubscription of visas, there will most likely soon be a priority date cut-off introduced for Chinese immigrants, but likely not for anywhere else (though this may happen too). (This translates to an introduction of a “waiting period” for the visa to Chinese immigrants.)

The EB-5 category is for those wishing to move to the United States to invest. The process is slightly different than usual employment based immigration. In most cases, the immigrant must invest $1,000,000 dollars in U.S. enterprise and create or save at least ten jobs. (The immigrant may only have to invest $500,000 if they are doing so in a high-unemployment area.) Comprehensive business plans and proof of irrevocable investment and risk must be prepared before petition submittal. For immigrants wishing to move to the U.S. to work (and not to invest), they must prove to the U.S. Department of Labor that they are not displacing American workers by either lowering the average wages or taking a job that one of them is seeking. In the case of investors, they must show that they are helping American workers by improving the job market with their investment.

chasing-the-markets-182457-m.jpgIn October 2011, the US Citizenship & Immigration Service began a new initiative called the “Entrepreneur in Residence” (EIR) program and launched a new interactive website a year later called “Entrepreneur Pathways,” intending to emphasize a new USCIS horizon in the usage of various visa types to welcome foreign investors to the United States. One of the visa categories listed in the new website is the intracompany transferee (L-1) visa.

The USCIS announced its intentions to work with the investor community and to become more pragmatic in the manner the agency reviews and adjudicates visa petitions and applications filed by international investors wishing to establish new businesses in the United States. The investor community and their immigration attorneys hailed the program as a step in the right direction to utilize various visa categories including the B-1 visitor’s visa, for example, and other unconventional visa categories as means to widen the visa path for international entrepreneurs to invest in the US.

Even after the introduction of the EIR initiative, the USCIS remains very cautious in the manner it reviews intracompany L-1 visa petitions. One can argue that the EIR did little to improve the adjudication personality of the USCIS when it comes to intracompany L-1 visa transfers. When planning to file an L-1 visa petition for a new or existing office, it is critical to work with competent immigration counsel specifically with experience in submitting intracompany L-1 visa petitions.

immigration-rally-2-520993-m.jpgModernizing the PERM Process

There are some problems with the current labor certification process, which is also known the PERM process. PERM (which stands for program electronic review management), is the first step to obtaining employment based permanent residence. It must be approved before an I-140, immigrant petition for alien worker is filed. Its intended function is to be the vehicle in which an American company begins to hire someone who isn’t in this country for a future position that no qualified American worker is now applying for. This creates much uncertainty for the employer and the alien future employee.

The law requires that employment-based immigrants aren’t “taking away” jobs that qualified American workers are seeking, so the employer must place a job advertisement for at least thirty days. This step ensures that the company isn’t hiding the job from American workers–that the process was open and fair. In addition, the company must prove it isn’t trying to hire a foreign national because it thinks it can pay immigrants less than American workers. This procedure (known as the prevailing wage determination) involves the Department of Labor and can alone take several months.

Thumbnail image for visa-approved11.jpgLooking back on the most recent H-1B Cap season, it becomes clear that the H-1B process works best when employers, employees and attorneys work clearly and efficiently together. There are many things that your employer’s attorney will need from you to determine if you qualify for a H-1B visa and to prepare the best petition possible for you. The basic things that will be needed from you include:

  • Your current passport
  • Your educational credentials (diplomas and transcripts)
  • Evidence of your current status, if applicable.

Your employer’s attorney will then use this information to demonstrate to USCIS that you meet the qualifications for an H1B visa. For you to qualify to accept a job offer in a specialty occupation you must meet one of the following criteria:

  • Have completed a U.S. bachelor’s or higher degree required by the specific specialty occupation from an accredited college or university
  • Hold a foreign degree that is the equivalent to a U.S. bachelor’s or higher degree in the specialty occupation
  • Hold an unrestricted state license, registration, or certification which authorizes you to fully practice the specialty occupation and be engaged in that specialty in the state of intended employment
  • Have education, training, or progressively responsible experience in the specialty that is equivalent to the completion of such a degree, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.

Thus, ensuring that the attorney has sufficient time to review your job description and your relevant education and experience will help give them an opportunity to thoroughly review your credentials and determine if you qualify or require and academic evaluation. An academic evolution will demonstrate to USCIS that your degree is the equivalent of a US degree in the specialty occupation field, or that your degree plus experience is the equivalent of a bachelor degree in the relevant field. It is very important to get a quality education evaluation as USCIS can reject poor ones. Thus, it is very important to get the attorney all your education information early so that they can review and determine the best course of action for your petition.
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On Tuesday April 1, 2014, the U.S. Citizenship and Immigration Service (USCIS) will begin accepting new H-1B petitions for the 2015 fiscal year, with a start date of October 1, 2014. The cap was reached almost instantly last year. With increased demand for H-1B visas expected in 2014, employers who plan to petition for a foreign worker under H-1B should begin the process early to be ready to file on March 31, 2014.

The 2013 H-1B Season
Last year, the statutory H-1B cap of 65,000 was reached within the first week of opening their doors to cap-subject H-1B petitions. With nearly 124,000 H-1B petitions filed, USCIS implemented a computerized random selection process, called the “lottery” to select the lucky 65,000 cap subject and 20,000 advanced degree H-1B petitions for filing. Last year, the regular cap-subject petitions had a 62.5 percent chance of being selected. Those H-1B petitions that were not selected were rejected and returned, along with the filing fees, to the petitioners.

Increased Demand for H-1B Visas in 2014
It is certain that demand for H-1B visas will be even higher this year for two big reasons. First, the Federal Reserve is predicting good growth in the job market in 2014. The correlation between the job market and H-1B visas is impossible to ignore. When the unemployment rate was nearly 10 percent in 2010, the cap wasn’t reached until November. As the unemployment rates have slowly gone down since then, the cap has been reached earlier each year. Last year, the unemployment rate was averaging around 7.7 percent when the cap was reached. The Federal Reserve forecasts a healthy job market with an unemployment rate as low as 6.4 percent in 2014. Thus, demand for H-1B visas will be even higher this year.

In addition to the improving job market, employers have not been able to file for new H-1B workers since April of last year. Thus, the demand has been building for almost a year. With nearly 39,000 H-1B petitions rejected last year, there are thousands of people ready to try their luck again in 2014. Taking this into consideration, employers seeking to file a new H-1B petition in 2014 must be ready to file when USCIS opens the door in April.
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1280927_ticked_checkbox.jpgLove it or hate it, the Department of Homeland Security’s E-Verify Program, which enables employers to verify employment eligibility of new employees electronically, is likely here to stay. Since its introduction in 2008, a major concern with E-Verify was the fact that the program was not able to catch an employee’s fraudulent use of another person’s name and social security number (SSN), enabling employees and employers alike to circumnavigate immigration laws by using or overlooking the common issue of identity theft. In the past, as long as the SSN provided by an employee matched the employees name and other personal information, E-Verify confirmed the information as valid and the employee was authorized to work, with no way of determining if the SSN was fraudulently obtained.

With hopes to remedy this flaw in the system, Director of the U.S. Citizenship & Immigration Services (USCIS), Alejandro Mayorkas released a statement introducing new security enhancements to the E-Verify program. According to Director Mayorkas, these enhancements will help curb identity theft and falsely obtained employment authorization by detecting and preventing the fraudulent use of SSNs for work authorization.

This new safeguard enables USCIS to “lock” SSNs that appear to have been stolen or fraudulently obtained. Using algorithms and detection reports and analysis, USCIS will track SSN usage patterns in order to track and detect suspicious pattern usage. If it appears that an SSN is being used fraudulently, USCIS will lock that SSN and prevent further usage of that SSN until the issue is resolved. For instance, if an SSN is used to obtain employment in California one day and then used the very next day to obtain employment in New York, the SSN would be locked from usage to obtain work authorization. If an employee attempts to gain work authorization using that locked SSN, the employee will receive a Tentative Nonconfirmation (TNC). A TNC does not automatically mean the employee is not authorized to work in the United States. However, in that situation, the employee may contest the lock at a local Social Security Administration (SSA) field office. If the field officer finds that the employee’s identity matches the SSN, the field officer will change the TNC to “Employment Authorized” status with E-verify. Director Mayorkas explained that this is similar to how credit card companies will lock a credit card if suspicious activity is detected.

calendar.jpgIn 2013, we saw some interesting changes in processing times, from rapid progressions in some visa categories to retrogression in others. Using the latest Visa Bulletin for January 2014 along with the predictions made by Charles Oppenheim of the Visa Office, our team has come up with some of our own predictions for processing times for the upcoming year. Here is a highlight of the Visa Bulletin predictions for 2014:

The Good

  • It is possible that the cut-off dates for India EB-2 visas will return to pre-retrogression dates (circa December 2008) in August or September of 2014.
  • china eb2 eb3 chart compressed.pdf.jpg
    Since the June 2013 Visa Bulletin was released, the priority date cut-off for Chinese nationals filing under the EB-3 immigrant visa category has been more recent than the priority date cut-off for the EB-2 visa category. In fact, the cut-off date for EB-3 visas for Chinese nationals has progressed nearly four years since June 2013, from September 1, 2008 to April 1, 2012, thanks in large part to a dramatic 18 month jump between August and September of 2013. Contrastingly, cut-off dates for the EB-2 category have lingered around the second half of 2008, progressing only five months, to December 8, 2008, between June 2013 and January 2014. In October 2013, Charles Oppenheim of the Visa Office predicted that the cut-off dates for EB-3 visas for Chinese nationals will likely continue to progress more rapidly than the EB-2 visa category.

    With this in mind, employers who have already petitioned for Chinese nationals under EB-2 or those who are planning to file for an employment-based immigrant visa in the near future should consider alternative options that could accelerate their path the permanent residence. For instance, employers who have petitioned for Chinese nationals and have a pending or approved EB-2 immigrant petition may subsequently file under the EB-3 category for the same beneficiary (“downgrade”). Employers who seek to file a new Form I-140, Immigrant Petition for an Alien Worker from China may also concurrently file under both EB-2 and EB-3 visa categories.

    This is possible because the federal regulation at 8 CFR §204.5(e) indicates that when a beneficiary has more than one approved petition, either because of concurrent EB-2/EB-3 filing or because of subsequent “upgrading” from EB-3 to EB-2, the beneficiary’s priority date is the earliest priority date assigned. Similarly, though less common, if a petitioner originally files under EB-2 and subsequently files under EB-3, the beneficiary will be assigned the earlier priority date.