American Immigration Council Releases Fact Sheet on Foreign-born STEM Workers in the United States

The American Immigration Council recently released Foreign-born STEM Workers in the United States, a fact sheet that describes the role that foreign-born workers play in the country’s STEM (science, technology, engineering, and math) workforce.

The importance of foreign-born workers in STEM occupations cannot be overstated. STEM workers are essential to the U.S. economy in terms of productivity and innovation. As of 2015, the foreign-born comprised one-fifth to one-quarter of the STEM workforce, depending on what occupations are included within the definition of STEM. Notably, the total number of foreign-born STEM workers in the U.S. workforce has increased dramatically since 1990, both in absolute numbers and as a share of the total workforce. This is true at the national and state levels. Additionally, foreign-born workers make up an increasing share of STEM workers in all occupational categories.

To view the fact sheet in its entirety, see:

Vetting Procedure for U.S. Visa Applicants to Include Social Media Sites

Vetting Procedure for U.S. Visa Applicants to Include Social Media Sites

On May 24, 2017, the Department of State started using a new questionnaire for U.S. visa applicants that will ask for information on their social media.  Only certain applicants that pose a “threat profile” are impacted.  What remains uncertain is what applicants or application profiles will trigger the enhanced screening.  The DOS states that consular officers may opt for enhanced measures to “resolve an applicant’s identity” or to “vet for terrorism or other national security related visa ineligibilities” when the officer “determines that the circumstances of a visa applicant, a review of the visa application, or responses in a visa interview indicate a need for greater scrutiny.”

The questionnaire will request social media platforms, handles, and email addresses used during the last five years, and biographical data from the last fifteen years.  The proposed screening protocols are significant because they are designed to mine considerably more data than current protocols.  Some of the information is already collected on visa applications, but for shorter periods.

Among the data the DOS desires to collect is:

  • Travel history during the last fifteen y ears, including source of funding for travel;
  • Employment history during the last fifteen years;
  • Phone numbers and email addresses used during the last five years;
  • Names and dates of birth for all siblings;
  • Names and dates of births for all current and former spouses, or civil or domestic partners; and
  • Social media platforms and identifiers, also known as handles, used during the last five years.

These new vetting measures were approved by the Office of Management and Budget in response to President Donald Trump’s plan to strengthen national security.

Applicants will be asked to provide the additional information in cases where the State Department determines a need to confirm the applicant’s identity, or to conduct a more rigorous vetting in connection with national security issues that could make the applicant ineligible for a visa.

The questionnaire is voluntary and failure to provide information will not mean that an application will be denied, but it may delay the visa application process.

The inclusion of social media in the vetting process comes amidst the rulings of the Fourth and Ninth Circuit Courts of Appeals refusing to reinstate President Donald Trump’s travel ban on people from six Muslim-majority countries.

 

 

Sources:

 

The H-1B Visa and the Employment based Green Card: Explaining the Difference

Among the various ways in which foreign nationals can enter and legally work in the United States are two similar but distinct pathways.  First, there is the H-1B non-immigrant visa, and second is the employment based green card or immigrant visa.  Some aspects of the two programs are similar and even overlap, but there are other features that are radically different.  Whether you are a business that is interested in employing a qualified foreign professional, or you are a professional who is seeking to explore options for employment in the United States, this article will answer your questions regarding the two programs.

There is often some confusion among employers and employees alike regarding the criteria for the two programs, which unfortunately can sometimes result in failing to utilize them.  Part of the motivation to write this article is the fact that most H-1B petitions must be filed in the first week of April 2017, which is coming up soon.  The other reason is to provide a clear and concise explanation to employers and employees so that they can utilize the program that best suits them and not shy away from them because they have not understood the programs fully.

Don’t forget the April 2017 deadline for H-1B applications! You must be ready

Employers who have their eyes set on new workers or need to file an H-1B petition for current workers will need to have their paperwork finalized and ready for submission well before the April deadline.  Filing is only permitted between April 3rd and April 7th and that is for 2018 entry.  In recent years the cap of 65,000 is filled very quickly.  USCIS is expected to keep the filing open until the closing date and then use a random lottery to select those petitions that go on to the processing and adjudication stage.

The H-1B Employment Visa

H1BThe basic criteria for a H-1B employees is detailed in guidance issued by the U.S. Citizenship and Immigration Services (USCIS):[1]

  • Requirement 1 – You must have an employer-employee relationship with the petitioning U.S. employer.
  • Requirement 2 – Your job must qualify as a specialty occupation by meeting certain specified criteria.
  • Requirement 3 – Your job must be in a specialty occupation related to your field of study.
  • Requirement 4 – You must be paid at least the actual or prevailing wage for your occupation, whichever is higher.
  • Requirement 5 – An H-1B visa number must be available at the time of filing the petition, unless the petition is exempt from numerical limits.

An H-1B visa holder is allowed to also pursue a permanent residence application while in valid H status.  The H-1B visa is what is known as a “dual-intent” visa because it is one of the few temporary visas that can be held while a person applies for permanent residency.  This is in contrast to some other visa categories, such as the B-1/B-2 visitor visa, which does not allow a person to enter the United States with the intent of becoming a permanent resident.

Who can apply for the H-1B visa?

The applicant must be a well-qualified person who has been offered a job in the United States for a term of three years or less at the outset.  If the visa is granted, it can be extended for a further three years if the employer still requires the visa holder’s services at that stage.

The types of jobs that can qualify for an H-1B visa are quite broad and include those in the following fields:  sciences and mathematics, information technology, engineering, architecture, medicine, business and accounting, theology and the arts, education, the law, and other fields.

The H-1B annual lottery

Each year, there is a cap on the number of people who may be granted am H-1B visa.  In the last few years, the cap was immediately met on the first day. The cap at present is 65,000 a year, although this might change with the incoming Trump administration. The actual number of H-1B visas issued each year tends to be a lot higher than 65,000, as people who work at universities, non-profit research centers and government research centers are not included in the cap.  In addition, the first 20,000 applicants who already hold U.S. master’s degrees or higher are also not subject to the cap.

To participate in the H-1B visa lottery, applications must be submitted during the first week of April for employment start dates in the following October.  An employer must obtain approval of what is known as the Labor Condition Application, or LCA, from the Department of Labor (DOL).   This verifies that the employer is offering the H-1B worker during the period of authorized employment wages that are at least the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question, or the prevailing wage level for the occupational classification in the area of employment, whichever is greater, based on the best information available as of the time of filing the application.

Processing times

As long as there is sufficient preparation time before the April 2017 filing deadline, H-1B applications can be submitted and processed in a matter of weeks.  This is much quicker and less time consuming than a traditional employment based green card application.  Once the employer and employee agree that they would like to pursue an H-1B visa application, the attorney needs some time to complete the LCA electronic filing.  The approval of the LCA can take 10-15 days, though it can happen sooner.  Then the attorney prepares and files the I-129 form with the H petition supporting documents.  Applicants requesting expedited processing by USCIS can pay an extra fee for “premium processing” and receive a two-week processing turn around.  Therefore, the H-1B application can be prepared, filed and approved fairly quickly.  This is in contrast to the employment based green card application, which can take months in preparation, filing and approval.

Identify potential candidates as soon as possible

Sometimes, overseas candidates who have obtained US degrees might be given positions. They will be to start with on Optional Practical Training (OPT), but when this relatively short period is over and the employers still wants to retain the person’s services H-1B sponsorship will be required.

The Labor Condition Application (LCA) is the most important document, as this must get Department of Labor Approval (DOL) before the petition for the H-1B visa can be filed. You have to allow more than the 7 business days allocated for the approval as this time of the year is busy resulting in likely delays. There might be more applications than usual with the possibility of reforms imposed on the H-1B category by the present Trump Administration in the years to come.

There can be delays if the USCIS is not satisfied

USCIS can submit Requests for Evidence (RFEs) if it is not satisfied with the contents of an application.  These cause delays that most employers cannot afford if they want to get their staffing right for the next year. There are important issues like the job description, job category, where the job is located and what duties are involved in the position that the petitioner has to get correct.

 

The Employment Based Green Card

GCWhile the H-1B visa generally authorizes the employee to work for the sponsoring employer for up to 6 years, the employer may also petition for permanent residence for the employee.

Obtaining a green card through employment is a longer and more intense process than the H-1B process.  However, obtaining a green card is ultimately more rewarding as it allows the holder and any dependent family members to live permanently in the United States.  Further, permanent residents can generally apply for U.S. citizenship after 5 years of living in the U.S. as permanent residents.

As with the H-1B visa, the first step is taken by a U.S. employer who must submit what is called “Labor Certification” with the Department of Labor.  Information supplied must be able to confirm, with suitable evidence, that there is a lack of availability of a U.S. citizen or permanent resident for the position.   This is the key difference from the H-1B visa, where there is no requirement to demonstrate that qualified U.S. workers are unavailable.  Further, there is no specified time of the year when employment based green card applications must be filed as is the case with the majority of the H-1B petitions that must be filed in the first week of April.  Further, the quota limitations that may prevent some H-1B applicants from even being accepted are not an obstacle to work based green card applications.   But for green cards there are annual caps on employment based visa categories, resulting in significant waiting lists for certain nationalities.

Advertisements in Newspaper or Professional Journals

The U.S. employer must generally place an advertisement on two different Sundays in the newspaper of general circulation in the area of intended employment most appropriate to the occupation and most likely to bring responses from able, willing, qualified, and available U.S. workers.  This is not a requirement for an H-1B visa and can make the employment based green card more difficult to obtain.

Recruitment Report

The U.S. employer must also prepare a recruitment report signed by the employer or the employer’s representative describing the recruitment steps undertaken and the results achieved, the number of hires, and, if applicable, the number of U.S. workers rejected, categorized by the lawful job related reasons for such rejections. The DOL Certifying Officer, after reviewing the employer’s recruitment report, may request the U.S. workers’ resumes or applications, sorted by the reasons the workers were rejected.

Can be working for another employer on H-1B

If the employee is already in the U.S. on an H-1B visa, the petitioning employer does not necessarily need to be the same employer as the H-1B employer.  It can be another employer who wishes to employ that person after they obtain their green card.  After the Labor Certification is approved by the DOL, the same employer files an I-140 immigrant petition.  The person applying for the green card will have to wait for visa availability and will need to fill in a form to change their visa status if they are already living in the United States, or go through consular processing in their home country.

Green card annual number restrictions by country

There is a fixed quota of green cards issued every year which depends partly on the country and partly on the category of employment.  Currently, the annual number of green cards issued is 145,000.  Countries such as India and China are subject to long backlogs due to the huge number of applicants that belong to these countries.  In comparison, applicants from less populated countries have a shorter wait period to obtain a permanent resident visa.

Green card employment categories

There are five different green card categories and the number of green cards allocated to each category is also fixed as follows:

  • EB1: 28.6% of quota: Priority workers. There are three sub-groups: 1. Foreign nationals with extraordinary ability in sciences, arts, education, business, or athletics; 2. Foreign nationals that are outstanding professors or researchers with at least three years’ experience in teaching or research and who are recognized internationally; 3. Foreign nationals that are managers and executives subject to international transfer to the United States.
  • EB2: 28.6% of quota: Professionals holding advanced degrees (Ph.D., master’s degree, or at least five years of progressive post-baccalaureate experience) or persons of exceptional ability in sciences, arts, or business;
  • EB3: 28.6% of quota: Skilled workers, professionals, and other workers not in the above two categories;
  • EB4: 7.1% of quota: Special immigrants (e.g. religious workers, those working or previously working for the U.S. government or as U.S. Armed Forces translators);
  • EB5: 7.1% of quota: Immigrant investors who are prepared to invest a minimum of $U.S. 1 million into an approved business in the U.S. and employ at least 10 workers. (these minimum investment thresholds are slated to change shortly.)

As has been already mentioned, both the H-1B visa and the employment based green card application processes are lengthy and involve significant information and documentation to be provided. Confusing the process, or presenting insufficient or incorrect information can derail, prolong, or even lead to rejection of the applications.  It can help significantly if you have the assistance of an experienced U.S. immigration attorney to advise and assist you with each step of the visa process.

[1] https://www.uscis.gov/eir/visa-guide/h-1b-specialty-occupation/understanding-h-1b-requirements

Potential Changes in Immigration Law Affecting Business and Employment Visas

Few people around the world could fail to have heard about the controversy concerning the latest Executive Orders emanating from the White House regarding entry to the United States by citizens of seven Muslim majority nations and refugees recently. The controversy continues as the situation is by no means settled. More details of the current situation follow, but what should not be missed amongst the more newsworthy immigration proposals is the fact that the incoming Trump administration is drafting a new Executive Order that will affect business immigration. In addition, there are a number of bills that are being introduced in both levels of Congress that are designed to change the way visa applications for employees and green cards are made.

The latest on the temporary travel ban

Note that the situation regarding the controversial temporary ban on travel to the U.S. by citizens of seven majority Muslim nations (Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen) is likely to change almost by the day. The ban was suspended by federal Judge, Judge Robart, with an appeal by the White House dismissed by the U.S. Court of Appeals pending more convincing evidence that the ban was justified. It is possible that the case might eventually be decided by the U.S. Supreme Court.

The temporary ban would have prevented entry by citizens of the above nations for 90 days unless they already were in possession of a green card. Initially, there was confusion whether even green card holders with one of the 7 passports were going to be allowed entry. There was also confusion whether dual passport holders (e.g. those with both U.K. and Somalian passports) would be allowed entry.

The ban was also extended to include all refugees for the next 120 days and indefinitely for Syrian refugees.

The Executive Order also ensures that all visa applicants will now have to attend an interview even if the visa they are applying for is a renewal of one they had before. The interview had been waived up to now.

Note that it is the ban on travel that is currently disputed.

Possible new Executive Order regarding business immigration

The information given below should not be considered final as the next Executive Order on immigration is only at the draft stage. When finalized it may affect the current round of H1-B petitions and the H-1B lottery under the 2017 cap as well as plans for the near future regarding business immigration.

  • All business immigration regulations to be reviewed to ensure they comply with immigration law. The review is to take no more than 90 days.
  • A proposal to terminate the Deferred Action for Childhood Arrivals (DACA) policy as it stands at the moment. The policy had been introduced by the previous Obama administration to provide temporary work authorization for children brought to the U.S. without proper documentation.
  • Increase requirements for H1-B and L-1 visa applicants, to protect U.S. workers.
  • Improve the way the H1-B lottery process operates.
  • Proposal for a new Immigration Commission to review and make immigration policies. This to be done within a year.
  • Proposal for the expansion of the current worksite visit program to encompass all employment based visa categories. This to be done within 2 years.
  • Proposal to begin L-1 worksite audits and or visits within 180 days. The L1-A visits have already begun, so the changes will affect L1-B worksites next.
  • Changes to the regulations affecting F-1/J-1 work options.
  • Changes to what are regarded as acceptable activities for those employees on B-1 visas.
  • Proposed options for reforming the agricultural worker’s visa (H-2A) to be delivered to the President within 90 days.
  • New regulations for the J-1 Summer Work program and the E-2 Visa.
  • Proposed changes which will encourage employers to use the E-verify system together with the I-9 visa application process to be delivered to the President within 90 days.
  • Reform the way green cards are made available as well as the Visa Bulletin within 30 days.
  • Proposals for new regulations to change the way the I-485 applications are filed. These proposals are designed to reduce inefficiencies in the way green cards are allocated. This is also to be done within 30 days.
  • Report to the president within 9 months about any damage to U.S. workers perceived from the current foreign visa employment program or from any foreign citizens who are on the B-1, H-1B or L-1 programs.

Changes to work visas proposed by Congress

The bills described below have either already been introduced or are to be introduced soon in either the Senate or the House of Representatives.

The H-1B and L-1 Reform Act of 2017

This is a bill introduced into the senate by Senators Richard Durbin and Charles Grassley. It proposes the following changes:

  • The current H-1B lottery to be replaced with a new system to be created by the CIS that will give priority to H1-B petitions with higher salaries as well as those employers who are non H1-B dependent.
  • Audits and investigations of H1-B employers by the DOL to be increased.
  • No more H1-B visas to be allowed to employers who already have more than half of their workers on H or l category visas.
  • Make changes to the L1-B program to make it similar to the H-1B requirement for a prevailing wage.
  • Increase restrictions on L1-B specialized knowledge standards.
  • Cap the Numbers of l-1 visas issued annually.

The Protect and Grow America Jobs Act

This bill was submitted by Representative Darrel Issa in the House of Representatives. The bill makes the following proposals:

  • Increase the exemption for the H1-B dependent from $60,000 to $100,000.
  • Get rid of the exemption from H1-B dependency of the Master’s degree.

The bill is designed to make sure that any employers who currently employ a significant percentage (>15%) of their employees on H1-b visas must make sure that there are no suitable American applicants if the salary advertised is less than $100,000.

The High-Skilled Integrity and Fairness Act of 2017

This bill was introduced into the House of Representatives by Representative Zoe Lofgren. These are the changes proposed:

  • Get rid of the Level 1, entry level prevailing wage requirements, thereby increasing the H1-B prevailing wage requirements.
  • Change the green card allocation process so that it is first-come first-served only.
  • Increase the H1-B exemption to $130,000 and get rid of the master’s degree exemption. This part of the bill is very similar to that proposed by Rep. Issa.
  • Reserve 20% of the new H1-B visas for any new companies that intend employing less than 50 workers.
  • Let experience on the job be used by employees as part of their PERM Labor Certification Applications.
  • Get rid of the H1-B lottery with a new system. This will mean that new H1-B visas will be granted to high paid employees only.
  • Provide benefits to any foreign national who has attended a U.S. university who is applying for a H1-B visa.
  • Get rid of the requirement to file an amended H1-B if the workplace is changed.

Fairness for High Skilled Immigrants Act 2017

This bill was introduced by Representative Jason Chaffetz in the House of Representatives. The bill basically covers the same proposal as that of Zoe Lofgren as it proposes that applicants for the green card should be considered on a first-come, first-served basis only. Currently, nationals of certain countries (India, China, the Philippines and Mexico) have to wait much longer (up to 15 years) than nationals of other countries.

 

President Trump’s Potential Impact on Immigration

Many of our clients are understandably concerned about changes that might result in the immigration system after Donald Trump’s election as President of the United States.  To reduce fear of the unknown, we are sharing this explainer to outline how the Trump administration and a Republican-controlled Congress could impact the current American immigration structure. Much of this content is being used with permission of Scott Legal, P.C., who originally prepared it.

Admittance to the United States

President-elect Trump will have significant leeway when it comes to determining who can be admitted to the United States. The administration is allowed to stop issuing visas to applicants from certain countries without congressional approval, although it is unknown whether President Trump will take this step. At the very least, Trump-appointed officials at the State Department could increase the scrutiny applied to visa applications at U.S. Embassies and Consulates around the world.

The new administration will have tight control over the number of refugees allowed into the country, be they from Syria, Iraq, or elsewhere. Wielding this power could result in a dramatic decrease or cessation of refugees allowed entry from the Middle East, should the President-elect decide to fulfill certain campaign promises.

TN Visas for Canadian and Mexican citizens

The nonimmigrant NAFTA Professional (TN) visa allows Canadian and Mexican citizens to work in the United States in prearranged business activities. These visas are tied to NAFTA in its current form. On the campaign trail Trump repeatedly called for the U.S. to “rip up” trade agreements like NAFTA. While President-elect Trump will have the power to withdraw from the North American Free Trade Agreement, it is unlikely that he will do so. More likely is a renegotiation of the current deal – an idea that Mexican and Canadian officials have publicly supported. It is difficult to foresee immigration changes under a new deal, although trade agreement negotiations often take years to complete and discussions could continue past the life of the Trump administration. Therefore we believe that the immigration component of NAFTA will remain in its current form for the foreseeable future.

E-2 Treaty Visas

The E-2 nonimmigrant classification allows citizens of a country with which the U.S. maintains a treaty of commerce and navigation to be admitted to the United States when investing substantial capital in a U.S. business. (See our success in in obtaining E-2 status) Most E-2 countries have had a historically friendly relationship with the U.S., although some countries on the list, including Iran and Pakistan, have drawn the ire of President-elect Trump as well as previous administrations. While President Trump will have the power to cancel treaties, we believe it is unlikely that he will do so on a scale that will imperil the E-2 program, if at all.

Executive Orders

President Trump can quickly eliminate the deportation relief President Obama granted to young people under DACAand DAPA without congressional approval. We hope this will not happen, as almost 724,000 “dreamers” currently hold DACA status in the United States. Should President Trump choose to reverse these executive orders, virtually all protected young people would be placed back in deportation proceedings.

Immigration reform

Apart from the areas previously outlined, major immigration reform will have to originate in the Republican-controlled Congress rather than the executive branch. Recent immigration reform proposals drafted by a bi-partisan Senate committee included a number of changes, including a more streamlined immigration process, a pathway to legal status for undocumented workers, and changes that would make it easier for highly skilled workers to stay in the U.S. These and many other proposals – such as amnesty for the 11 million undocumented people living in the United States – will fall by the wayside in the next Congress, as reforms are more likely to focus on enhanced border security. It is unlikely that border security reforms will include funds for a wall along the Mexican-American border due to the incredible cost and scale of such a project, however funding for other measures that would enhance security will probably be approved.

Deportation

During the course of the campaign, candidate Trump called for a “deportation force” to round up 11 million undocumented people living in the U.S. Much like the wall along the Mexican-American border, this was a position that may have been attractive to some voters on the campaign trail, but will be virtually impossible to enact once Trump takes office. The wildly expensive program would require funding from a Congress that House Speaker Paul Ryan has already stated will not create a deportation force. There are, however, two practical deportation policies that President Trump could pursue with less resistance from Congress. The first option prioritizes the deportation of convicted criminals. In pursuing this course of action, Trump would reinforce the policies put in place under President Obama. The second option would encourage existing government agencies to raid factories, work places, and homes – a reversion to the policies in place before President Obama. The latter is undoubtedly worse for undocumented individuals, as they would likely live in near constant fear for the next four years.

What you can do

  • If you have held a Green Card for 5 years (or 3 years through marriage) you should consider immediately applying for citizenship
  • If you are eligible for a Green Card category, you should consider filing your paperwork immediately
  • Avoid criminal arrests or other poorly perceived conduct in the U.S.
  • Prepare petitions with care. Small errors or improper documentation will hurt your application.
  • Apply for non-immigrant visas prior to January 20, 2017 (inauguration day). E-2 visas are often granted for 5 years, beyond the length of the Trump administration’s first term

A Green Card Through a Job Offer

One of the most important documents sought by people wishing to migrate permanently to the United States is the Green Card. Once it has been acquired it gives you the same rights as a permanent resident, which means you can work and live permanently in the country anywhere without restriction.

One of the key ways of gaining access to a Green Card is through the offer of a job. This must be a permanent position. The employer will be required to get a labor certification before a permanent offer of a job is possible. This normally means that there is no other suitable American citizen available to fill the position. The employer needs to file Form I-140 on your behalf, which is called an ‘Immigrant Petition for Alien Worker’.

Sometimes, a Green Card acquisition is possible through investment. This can take place if the investor is providing money for an enterprise which will create new jobs.

There are limited situations where you are able to file for your own Green Card without assistance, such as under the category “Aliens of Extraordinary Ability.” It may also be possible if you are eligible for a National Interest Waiver. There are from time to time specialized jobs that are eligible for a Green Card, such as a broadcaster, a Panama Canal employee, an international organization employee, an Iraqi who gave assistance to the U.S. government, a national interest waiver for a physician, an Afghan/Iraqi translator, a religious worker and a NATO-6 Non-immigrant.

If you are not eligible to adjust your status within the United States and take up permanent residency, the U.S. consulate overseas will be responsible for undertaking the visa process. In order to file an application for a Green Card, you need to have a visa sorted out in advance.

If you Have Been Offered a Job

If you have been offered a permanent job or if, as an employer, you have a permanent job opening, there is a set procedure to follow, normally using Form I-140 petition for alien worker.

Application Process

If you do not reside in the United States it is possible to obtain permanent residency through consular processing through the U.S. consulate in your country. This is when the USCIS works with the Department of State to issue a visa on an approved Form I-140 petition when a visa is available.

If you do reside in the United States, you may be able to get permanent resident status and a Green Card through adjustment of your status. As soon as approval has been given through the I-140 (Immigrant Petition for Alien Worker) and a visa number has been issued, you may file your application on Form I-485, which is an Application to Register Permanent Residence or Adjust Status.

When you file Form I-485 you are required to provide certain documentation, including parole or admission into the U.S., evidence of inspection and your arrival and departure Record found on form I-94.

Other evidence should include the following:

* a letter with your job offer provided by your employer;

* 2 color photos less than 30 days old;

* if you are between 14 and 79 years you will need to provide Form G-325A, which is your Biographic Data Sheet;

* medical examination form I-693. This is not necessary if you have remained permanently in the U.S. prior to 1972 or if you have undertaken a medical exam based on a visa as a fiancé visa;

* Affidavit of Support, Form I-864, which should be filled in by your sponsor.

Once you have filed all the required information you are well on the road to gaining a Green Card and all the benefits that go with permanent residency status in the United States.

USA Immigration Work Permits and Visas

The B-1 in Lieu of H-1B Visa – Doing Business in the USA

The lesser known “B-1 in lieu of H-1B” visa is not used as often as the H-1B because employers are not familiar with its existence. It is becoming increasingly difficult for employers to hire much needed foreign workers through the H1-B visa program because of the shortfall in the number of visas in this category being made available. An important difference is that while the H1-B requires a US based employer the B-1 in lieu of H1-B requires a non-US employer.

Every year, only 65,000 3 year H-1B visas are offered with this cap being filled very early in the year. An extra 20,000 people are admitted based on obtaining at least a Master’s degree in the U.S.

The B-1 in lieu of H-1B, according to U.S. State department sources, is not a visa category in its own right. It can be used when foreign nationals qualify for a skilled worker visa but they fit the B-1 visa better.

To gain B-1 in lieu of H-1B visa status, an applicant has to be employed by and receive pay from a foreign company. He or she needs to possess a bachelor’s degree or equivalent experience, be taking part in work while on the visa that definitely needs a college degree, and only be intending on working for a few months.

A B-1 in lieu of H-1B visa is not based on an non-immigrant petition, so an applicant must file an application at a U.S. consulate. This visa status is in place to allow a foreign worker to undertake a professional level service in the U.S. and be employed and paid by an overseas employer. The funds to pay the worker must be sourced from overseas and the worker cannot be included on a U.S. payroll.

B-1 in Lieu of H1B Purpose

Basically, the B-1 in lieu of H1-B category provides foreign employers with the chance to send employees to the U.S. to take part in H1B-type jobs for short periods only and can be handy for employers who do not possess a U.S. affiliate, so would not have the opportunity to file an H-1B petition for a worker.

No one is sure how many B-1 in lieu of H1B visas are issued, due to the fact that the Department of State (DOS) keeps a record of the number of B-1 visas issued, but fails to track separately any notations on the visas so they are listed as B-1 visas in DOS records. The U.S. consulate in Chennai, India revealed that they do issue these visas but in limited numbers only; elsewhere, they are treated with caution.

Even though the H1-B is mentioned, a B-1 visa does not permit an employee to take part in U.S. employment on a daily basis but it is a “business” visa that is primarily available for business duties that do not require the need to perform day-to-day work duties. The sorts of activities that can be undertaken on a B-1 visa status are participating in any commercial transactions that do not necessitate being gainfully employed in the United States such as:
merchant recording orders for goods that have been manufactured overseas;
the negotiating of contracts;
consultations with business associates;
litigating in a court case;
taking part in a scientific, professional, educational, or a business convention, conference, or seminar;
taking part in independent research.
If you are thinking of using this visa status to procure a specialized worker from overseas, you will find that at the immigration level a “B-1 in lieu of H-1B” application may be scrutinized more than usual because the department is more likely to question the motives of the worker.

There was a case in 2013 when Infosys Ltd., a consulting firm, paid $34 million as a settlement after it was found the company had wrongfully used B-1 visa holders to undertake jobs that involved skilled labor that H-1B visa status holders should have done.

Of course for those who miss the cap on the annual H-B1 status visa there are other choices such as the TN visa, which is available for Mexicans and Canadians, the E-3 visa available for Australians, the O-1 visa category for applicants who possess abilities who are considered extraordinary, or the extension of optional practical training available for some F-1 visa holders.

The L-1 intracompany transfer should not be ignored and a company could consider moving a foreign national abroad to begin accruing the time required to apply for the L-1 visa for intracompany transfers.

Anyone considering going for this visa option should look at other possibilities first, otherwise they face the risk of denial. For other immigration related articles please visit our blog here: http://syedfirm.com/blog/

 

Syed Law Firm wins approval of nonimmigrant E-2 status for Korean business investor – E-2 visa update

Mohammad A. Syed obtained approval from the U.S. Citizenship and Immigration Service for an E-2 investor from Korea to operate a restaurant in Washington, DC.

The Korean restaurant Zannchi, located in the trendy Georgetown neighborhood of Washington, DC was conceived by Eunjung Kim, a recent MBA graduate of Georgetown University.  A recent Washington Post article – (Zannchi offers plenty of reasons to get acquainted with the Georgetown newcomer, June 24, 2016) features the exciting story of this incredible entrepreneur.

Ms. Kim wanted to bring to Washington, DC the flavors from her family’s multiple Korean restaurants in her home country.  In order to qualify for E-2 investor status Ms. Kim had to demonstrate that she met the six requirements for getting E-2 nonimmigrant status :

  1. The applicant must be a citizen of a country that has a treaty with the United States.  See here for a  List of treaty countries from U.S. Dept. of State.
  2. The applicant must be coming to work in the U.S. for a company that he or she either owns or that is at a minimum 50% owned by other nationals of the country of origin.
  3. The applicant must be either the owner or a key employee (executive or supervisor, or someone with essential skills) of the U.S. business.
  4. The applicant or the company must have made a substantial investment in the U.S. business. (There’s no legal minimum, but the applicant or company must be putting capital or assets at risk, be trying to make a profit, and the amount must be substantial relative to the type of business.
  5. The U.S. company must be actively engaged in commercial activities and meet the applicable legal requirements for doing business in its state or region. It also cannot be merely a means to support the investor. The underlying goal of the treaty investor visa is to create jobs for U.S. workers.
  6. The applicant must intend to leave the U.S. when his or her business in the U.S. is completed, although the person is not required to maintain a foreign residence abroad. The applicant will likely be asked to show the U.S. consulate evidence of eventual plans to leave the United States.

Mr. Syed assisted Ms. Kim with this process and successfully obtained approval from the US Citizenship and Immigration for Ms. Kim’s E-2 status.  He also assisted her top chef from Korea obtain an E-2 visa from the U.S. Embassy in Seoul, Korea as an essential employee.  If you are in Washington, DC please visit this amazing restaurant!!!

If you or someone you know is interested in applying for a treaty investor visa, kindly contact us today.

How to Start a Business in the U.S. as a Foreign National

The U.S. prides itself on being a nation born of immigrants and entrepreneurs. Opening its doors to foreign nationals seeking to live the American dream is something that continues to this day.

But if you’re looking to start a business in the U.S. as a foreign national or alien, you’ll no doubt have questions. What are the immigration requirements? How do you get started? What tax obligations must you adhere to? Can you get financing from U.S. banks?

While it’s advisable to get the help from trusted experts including lawyers and accountants, here are some basic considerations to get you started.

Can I Start a Business in the U.S. as a Foreign National?

Aside from U.S. citizens or naturalized citizens, individuals with the following immigration status can start a business in this country:

Green Card Holders – Also known as “permanent residents”, green card holders can work, live and study in the U.S. while maintaining their foreign citizenship. They can also join the armed forces and start a business.
EB-5 Investor Green Cards – The EB-5 Immigrant Investor Program is administered by the U.S. Citizenship and Immigration Services (USACE) and enables entrepreneurs, their spouses, and unmarried children under 21 to apply for a green card. Up to 10,000 visas are issued each year. Applicants have to meet very specific criteria including making an investment in a commercial enterprise in the U.S. ($1,000,000, or at least $500,000 in a targeted employment area (high unemployment or rural area) and plan to create or preserve 10 permanent full-time jobs. The process is fraught with pros and cons. Consult an immigration lawyer to understand the full implications of an EB-5 green card. Learn more about getting a green card through investment.
Other Immigrant and Non-Immigrants Visas – The USCIS’s Entrepreneur Visa Guide provides a menu of possible visa pathways for foreign entrepreneurs. Whether you are looking to explore or start a business, or are already in business and want to immigrate permanently, your options are extensive.
Once you’ve found the right visa pathway there are a number of steps to setting up a business in the U.S. If you’re a green card holder, you’ll take the same steps that an American citizen would (check out SBA’s Starting a Business Guide and don’t miss these 10 Steps to Starting a Business).

For everyone else, there are a number of key considerations you should be aware of:

Structuring your U.S. Business

One very important step in getting started is determining how to structure your business. You can choose to operate your business as a sole proprietorship, LLC, Corporation, partnership, or S Corporation.

While the process of incorporation is the same as it is for U.S. citizens and is handled at the state, not federal level, it’s important to understand and get advice about the ownership status and tax ramifications of your chosen entity. For example, an S Corporation is an increasingly popular choice for entrepreneurs, but its shares can only be held by U.S. citizens and resident aliens, while an LLC or C Corporation has no restrictions on non-U.S. citizen owners. This guide offers more insight into the main business entities operated in the U.S. and how to apply.

Establishing a U.S. Business Bank Account

Another key consideration is establishing a U.S. bank account. First and foremost, banks require valid ID. For a U.S. person that’s typically your social security number, driver’s license, passport, etc. For a non-U.S. national you’ll need a tax identification number (more on that below) and a government-issued document bearing a photograph. For a business account, you may also need to produce your articles of incorporation, U.S. business address, and more. Check with your bank to find out more as requirements vary.

Establishing an Online Retail Presence

Establishing an online retail presence in the U.S. is a popular choice for many foreign business owners. U.S. consumers are more likely to purchase from a U.S. ecommerce site than one that’s based overseas. You can read more about general resources for online businesses, including privacy and advertising regulations here, along with specific information on international sales.

Understanding U.S. Taxes

This is where you should most definitely get the advice on a tax practitioner who understands business tax law. Here’s a high level view of your key obligations:

Business Tax Filing and Payments – All non-resident aliens must file and pay state and federal taxes on business income. You will be taxed at regular U.S. corporate rates but only on income from U.S. sources that is connected with that business, and at 30% on income not connected with that business (sourceDownload Adobe Reader to read this link content). Much depends on the extent of the non-U.S. person’s presence in the U.S. The U.S. tax system is complex, so please consult an expert to determine your obligations.
Depending on the nature of your business, you are also obliged to pay sales tax, self-employment, social security, and Medicare taxes, make estimated tax payments, pay excise duties, etc.

The Internal Revenue Service (IRS) guide to Business Taxes can help introduce you to each of these. Check with your state and local government with regards your business tax obligations at that level, including sales tax, income tax, property tax, etc.

Apply for a Tax Identification Number – Most U.S. business (including permanent residents or resident aliens) require an employer identification number (EIN) from the IRS to support tax filing and reporting. This identifies the business entity (think of it as the business equivalent of a social security number). For non-resident aliens, an Individual Taxpayer Identification Number (ITIN) will suffice. The IRS issues these 9-digit tax processing numbers to individuals who are required to pay U.S. taxes but who are ineligible for a SSN, including non-resident aliens.
Getting Access to Financing

Access to capital is essential for small business growth, regardless of the nationality or immigration status of the owner(s). Being a non-U.S. citizen doesn’t preclude anyone from getting capital, although banks may enforce more stringent eligibility requirements so they can be assured you are not a flight risk!

In fact, the SBA oversees a number of small business loan programs that alien-owned U.S. businesses may qualify for, most notably its most popular program – the 7(a) loan program. During the application process, legal permanent residents must evidence their immigration status (usually your valid card) and majority ownership; while non-immigrant aliens or foreign nationals, need to pass more requirements. This includes providing evidence that they have been in business for 12 months prior to submitting the application, assuring an eligible manager will be in place indefinitely, providing a personal guaranty, and sufficiently pledging U.S.-based collateral to ensure that the total value of the loan can be paid back in the event of liquidation for the life of the loan.

Disclaimer: None of the above constitutes legal or tax advice and is not guaranteed. Readers are cautioned not to rely on this information. Please consult a professional for the latest information on immigration, business, and tax law.

F-1 Visa Start-Up Activities

Permissible Work for the Immigrant Student Entrepreneur

You are one of those sorts of people who are great at multi tasking. You are also a foreign student on a F-1 student visa. You should really be studying for mid terms, but your mind is preoccupied elsewhere. You have been burning the midnight oil, planning your first Start Up. You are not doing this alone of course, because your U.S. born roommate is planning the new business venture with you. This is convenient because you are together a lot of the time in the evening, which gives you plenty of opportunity to compile your Start Up business plan.

It’s not you, but your roommate, who suddenly questions the legality of setting up a Start Up if you are on a student visa and whether you have checked to see if you are allowed to do this. Because you had been so wrapped up finding your niche in the business world you hadn’t really thought whether what you were contemplating doing was legal or not. You had noticed that the information supplied with the foreign student I-20, F-1, or I-94 visas stated that authorization from the Government was required if you wished to work.

Fear creeps over you at the thought of all that time you had spent planning a lucrative Start Up and it could all be for nothing. No time is wasted. The next morning you go into the Foreign Student office and ask the question as to whether you are permitted to work while on an F1 visa. You get the answer you dreaded as you are told in no uncertain words that you must not work until you have graduated and then you will be eligible for OPT. Here is what an immigration lawyer could have told you.

A comment from an immigration lawyer

Anyone in the know who is on a F-1 student visa is fully aware that he or she cannot work unless authorized to do so by the government through the USCIS. If caught working in unauthorized employment you are breaching your F-1 status, which could jeopardize your stay in the U.S. and you may even be deported. This could shame your family and affect your long term career and earning potential. Is it worth the risk?

What is unauthorized employment?

Unauthorized employment is by definition “any services or labor performed by an alien for an employer within the U.S. that is not authorized.” As with many laws, there are often gray areas that are difficult to clarify when it comes to do’s and don’ts and F-I visas. However the outline below should help you better understand your position.

First of all, if you are investing and managing your own business and this is what you spend most of your time doing, this is employment that will definitely be considered illegal and unauthorized. A recent example of this was an F-1 student who bought a fleet of hot dog vans which he leased to hot dog sellers and made money by collecting rent from a percentage of the sales of hot dogs.

The student on the F-1 visa took part in daily activities of the hot dog business by purchasing the hot dogs and other stock for the vans and now and again participated in selling. This is definitely classed as “unauthorized employment”.

However, the simple act of owning a business is not considered to be employment and some start up activities are definitely allowed and do not compromise an F-1 visa status. These include incorporating a company, conducting market and feasibility research, holding and attending start up business meetings, and the development of goods, products and services. You are also even allowed to participate in fund raising activities such as putting on presentations and negotiating with Angel Investors, VCs and attorneys in an effort to source funding for your business. These are considered to be passive activities, which are permissible while day-day active business related duties are not.

When it comes to what is allowed is not so much based on getting paid but more whether the relationship you have is an employee-employer relationship or not when it comes to business activities.

Passive or active is the key to an authorized F-1 activity 

Running a business by employing workers is not authorized as this is considered active participation. However, the role as a Board member and major shareholder means you can select an officer who can hire workers on your behalf. Additionally, any important decisions regarding the daily running of the business could be directed to the board by your U.S. elected officer.

The following business activities should not negatively affect your F-1 visa status:

  • activities that aren’t considered employment e.g. taking orders for goods produced overseas;
  • negotiating contracts;
  • consulting with your business associates;
  • litigating;
  • taking part in conferences or seminars that are scientific, educational, professional, or business related;
  • undertaking independent research;
  • membership of a U.S. company’s board of directors;
  • seeking to invest in the U.S., which would qualify for E-2 investor status.

Curricular Practical Training (CPT) or Optional Practical Training (OPT)

CPT may be possible if practical training employment makes up some of your academic program or OPT if the employment is related directly to a major part of your study. Generally, OPT and CPT are available for 12 months only after completing your studies.  The designated school official has to authorize this, whether the employment is during your study or after.

Changing to an H-1B specialty worker

This is hard to do, especially if you are trying to transfer based on your own business, as no one has direct control over you.

Other visa categories post study

After completing your studies you may be eligible to apply for an H-1B Specialty Occupation visa, an O-1 Outstanding Ability visa, an E-2 Treaty Investor visa, a NAFTA “TN” Professional Visa (applies to Canadian and Mexican citizens) or an H-3 “training visa.”

EXPERTS IN IMMIGRATION LAW