Articles Posted in Employment Based

business-man-modified-484010-m.jpgCompetition in the global market place, the recovering economy in the United States and the continued rise of emerging markets are giving rise to mergers, acquisitions and business restructuring at an increased pace. These types of transitions can often affect employment based applications for permanent resident status. Employers are urged to include experienced immigration counsel in their due diligence team before and during the process of negotiating the terms of a deal that will change the structure of a business. Below are three common ways in which a merger or acquisition can affect the green card application for an employee.

Fundamentally, it must be determined whether there will be a change in ownership of an employer, or whether the target employer will cease to be an employer. There are many stages and types of asset purchase deals that must be examined from an immigration standpoint to determine whether the new business entity formed from the transaction will be a successor-in-interest of the old business.
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1409592_gavel_2.jpgIn order to grasp a true understanding of the criteria a foreign national entrepreneur must meet in order to qualify for an immigration visa, it is extremely helpful to study relevant court case law that illustrate the real-world application of the black letter law. The USCIS Administrative Appeals Office issued a recent and important ruling on June 13, 2013 in a case involving an EB-1 immigrant visa petition for alien worker as a multinational executive or manager.

This case is important because the AAO’s decision here is favorable toward foreign national entrepreneurs who may seem ineligible based upon the black letter law, yet actually do meet the necessary criteria upon closer review.
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1223513_us_flag_1.jpgThe EB2 employment-based second preference immigration visa requires a labor certification and job offer. There is an exception to these requirements if it can be established that granting a visa is in the national interest of the United States. This is the national interest waiver. The criteria are a three-part test established by case law:

  1. The foreign national’s work must be in an area of substantial and intrinsic merit;
  2. It must be established that the foreign national’s benefit will be national in scope;
  3. The foreign national must benefit the US to a substantially greater degree than those with equivalent minimum qualifications;

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file000537259480.jpgWhen making the decision whether to file for adjustment of status (AOS) in the United States or to get consular processing (CP) abroad, there are several factors to examine. The processing time to get an immigrant visa and the time to get adjustment of status can vary. Many foreign nationals are eager to finish the process as fast as possible. Employment-based immigrants may worry about getting laid off before their process has completed. Family-based immigrants may be anxious to ultimately reach naturalization and obtain US citizenship so that they may begin filing petitions for other family members.

Advantages of Adjustment of Status Continue reading

Since the Twenty-First Century Act of 2000 (AC21) was passed by Congress, H1B visas can be extended beyond the six year maximum under Sections 106(a) and 104(c). Section 106(a) allows extensions of three-year increments beyond the six-year maximum if 365 days or more have passed since the labor certification was filed. S544229_calendar_series_1.jpgection 104(c) allows extensions in one-year increments beyond the six-year maximum in cases where there is an approved labor certification, and an approved I-140 petition, and the foreign national H1B worker’s priority date is not yet current to allow the filing of an I-485 application for permanent residence.

Pay attention to time traveled abroad and time spent in other visa status Continue reading

1282502_magnifying_glass.jpgIn the adjudication of permanent labor certification cases, the US Department of Labor (DOL) said that it will increase its scrutiny of PERM applications even further by conducting more integrity checks, meaning more audit investigations and more supervised recruitment. The DOL’s current objective is to conduct integrity checks on 30% of all PERM applications it receives. The DOL uses two methods for conducting integrity checks: audit investigations and supervised recruitment.

Audits Investigations Continue reading

India Flag.jpgIt is readily apparent that in the few weeks leading up the presidential election, neither President Obama, nor former Governor Romney are willing to commit themselves to any firm and unequivocal stance on employment based, legal, immigration. This reluctance to take a stand further frustrates the thousands of Indian nationals and their employers who have undertaken the emotional, financial and time investment of who have placed themselves at the mercy of the USCIS, US Department of Labor and US Department of State though use of the current employment based preference system. However, while explicit pledges will not be forthcoming from either the current or the potential future president until the elections have passed, their subordinates continue to make the true stance of the candidates known through their actions and interactions with foreign dignitaries. Recent comments from Timothy Geithner, secretary of the treasury (and fifth in the line of succession to the president) to his counterpart in the cabinet of India are indicative of this phenomenon.

Indications of Future Executive Policy toward PERM and H-1B Visas for Indian Nationals.
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1038472_3d_elevation_bar_graph.jpgU.S. Citizenship and Immigration Services (USCIS) Director Alejandro N. Mayorkas announced yesterday that it will create a new office to oversee adjudication of the EB-5 Immigrant Investor program. The EB-5 program allows foreign nationals to become eligible for permanent residency by making a capital investment in a commercial enterprise in the United States. The new office is needed due to the recent exponential growth of the EB-5 program, which is caused by economic growth from capital invested in the U.S. economy from foreign investors to project developers. More than 3,100 EB-5 petitions were approved by the USCIS in Fiscal Year 2012, which is three times the number of petitions approved in fiscal year 2009.

The size of the USCIS’ EB-5 adjudication team has been quadrupled since 2009. Eight new expert economists have been brought on board to ensure expeditious handling of EB-5 cases. The USCIS plans to hire two new full-time attorneys who will bring transactional experience to the EB-5 team. At the end of July, every pending application for which a denial has been recommended will be reviewed by a special review board consisting of two Supervisory Immigration Services Officers and one economist, and applicants will be given the opportunity to discuss their cases in person before the USCIS renders any final adverse decision. Today, the USCIS is posting an advertisement for a new position titled Chief of Immigrant Investor Programs, who will lead the new office.
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file0001066192156sm.jpgThe Immigrant Investor Program, otherwise known as the “EB-5,” allows foreign nationals to obtain permanent residency (green card) by making a capital investment in a commercial enterprise in the United States. Congress created the EB-5 program in 1990 as a way to stimulate the economy by creating jobs. A commercial enterprise is defined as any for-profit activity formed for the ongoing conduct of lawful business including, but not limited to a sole proprietorship, partnership (whether limited or general), holding company, joint venture, corporation, business trust or other entity that may be publicly or privately owned.

One the immigrant investor is admitted to the United States he/she is granted Conditional Permanent Resident status. This status is conditional upon whether 10 full-time jobs are created for qualifying U.S. workers within a two year period. These jobs may be either direct jobs or indirect jobs. Direct jobs are real identifiable jobs for qualified employees situated inside the company in which the immigrant investor has directly invested capital. Indirect jobs are those that were made collaterally or as a consequence of capital invested in a commercial enterprise affiliated with a regional center by an immigrant investor. A foreign investor may only use the indirect job calculation if affiliated with a regional center.
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360px-Curly3.jpgImmigrants and advocates for immigrants’ employment rights have had several victories in recent weeks, with many challenges remaining. First, the Obama administration announced a policy of “deferred action” for young undocumented immigrants who arrived in the United States as children and meet certain criteria for education or military service. Qualifying immigrants may obtain work authorization if the government approves an application for deferred action. Then, the U.S. Supreme Court issued its ruling in Arizona v. United States last week overturning several employment provisions in Arizona’s immigration law. One provision struck down by the court would have made it a state crime for an immigrant to work without authorization. The court held that this infringed on the federal government’s authority to regulate immigration. Now, a recent study suggests that the state of Ohio lags behind the rest of the country in its immigrant workforce, but that the state could benefit from more immigration. At the same time, some surveys suggest that public opinion is turning against further immigration.

A recent survey of immigration and employment statistics by the Dayton Daily News reportedly found that the rate of growth of immigrant groups in Ohio is slower than in other states. The rate of growth appears explosive over the past twenty years, with the total number of immigrant workers in the state doubling and an increase of over sixty percent in the number of immigrants owning small businesses. The rate of growth of the immigrant worker population, however, places Ohio in forty-second place nationally. Between 1990 and 2010, immigrant workers went from 2.5 percent of Ohio’s workforce to 4.7 percent, but the national average is sixteen percent. In terms of immigrant small business owners, Ohio’s growth rate puts it in thirty-seventh place among the thirty-nine states with available data.
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