When Immigration Matters

5 Options to Get from F1 Student Visa to Green Card

Posted by Karen-Lee Pollak on Tue, Oct 17, 2017 @ 11:30 AM

Businessman standing in front of opened doors and making decision-604915-edited.jpegF1 Student Visa to Green CardThe U.S. is not just home of the world’s largest and most robust economy, which attracts investors and entrepreneurs from across the globe. It is also an academic and research leader that, each year, attracts hundreds of thousands of students from around the world who wish to advance their knowledge.  

If you are a student currently living in the U.S. on an active F1 visa, then you may be eligible to apply for a Green Card (a.k.a. Permanent Resident Card). Obtaining this will allow you to legally live and work in the U.S.

Regular vs. Conditional Permanent Resident Green Card 

If you qualify as a regular permanent resident, your Green Card will be valid for 10 years. If you qualify as a conditional permanent resident, your Green Card will be valid for 2 years. Typically, conditional permanent resident status is available to petitioners who seek to obtain their Green Card through a marriage that is less than two years old (this is discussed further in this article).

A regular permanent resident Green Card can be renewed, but a conditional permanent resident Green Card cannot. However, those with the latter type of Green Card can petition to have their status changed from conditional to permanent, which if granted would extend the expiration date and be subject to possible renewal. Keep in mind that either a regular permanent resident or conditional permanent resident Green Card will can be revoked at any time if the visa program’s rules are broken.

Generally speaking, there are 6 options that could allow you to get from F1 student visa to Green Card:

F1 Student Visa to Green Card Option #1: Get an Employer Sponsorship

Provided that an employer meets certain eligibility requirements, you can petition for an EB2 or EB3 visa (a.k.a. Employment-Based Green Card).

F1 Student Visa to Green Card Option #2: Enter the Green Card Lottery 

Once each year, USCIS offers the Green Card Lottery (formally known as the Electronic Diversity Visa Lottery). Be aware that there are a limited number of Green Cards available, and petitioners from certain countries cannot enter the lottery because their country has sent more than 50,000 immigrants to the U.S. in the last five years. Check to ensure that your native country is not on the list before pursing this as a potential option.

F1 Student Visa to Green Card Option #3: Marry a U.S. Citizen

It may be possible to obtain a Green Card through marriage (as noted above, this would almost certainly be a conditional permanent resident Green Card if the marriage is less than two years old).

However, be advised that USCIS is highly skeptical of petitioners who pursue this option. They will conduct rigorous background checks, examine documents, and perform interviews to determine if, in their view, the marriage is legitimate, or if the union is for the purpose of helping one spouse obtain a Green Card.

With this being said, if you do indeed obtain a Green Card by way of marriage, you are not forced to stay married. Ideally you will have a happy matrimonial life. But if you ultimately separate or divorce, you will not necessarily lose your Green Card. However, you will need to convince USCIS that the marriage ended for legitimate reasons, and not because it was expedient to do so once you received your Green Card. 

Also note that if successfully petition to switch from a conditional permanent resident Green Card to permanent resident Green Card (usually after you have been married for at least two years), then a dissolution of your marriage will not be factored into your eligibility consideration.

F1 Student Visa to Green Card Option #4: Petition for Asylum

If there is a civil war currently happening in your native country, or if you are part of a persecuted population or group and returning would put your life in danger, then you may be able to obtain a Green Card by petitioning for asylum. USCIS assess each petition on a case-by-case basis, and the process is extremely detailed and complex.

F1 Student Visa to Green Card Option #5: Get Sponsored by a Relative 

If you have a relative who owns a business in the U.S., then you may be able to obtain sponsorship that would result in a Green Card. However, this is a difficult option and several criteria must be met. For example, you must be hired for your qualifications, and not because you are a relative. In addition, the employer (i.e. your relative) must demonstrate to the Department of Labor that they attempted in good faith, but ultimately failed, to fill the position by hiring a U.S. citizen.

An Important Note

If you wish to get from F1 student visa to Green Card, then regardless of which option you pursue, your application will need to take into consideration all of your unique details — especially since USCIS evaluates petitions on a case-by-case basis, and many are rejected for being incomplete, because of missed deadlines, or because the argument for the petitioner to remain the U.S. was not convincing enough. 

To learn more, and have your questions clearly and fully answered, contact the Pollak PLLC team today. We are here to help!  

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Karen-Lee Pollak is the Managing Attorney at Pollak PLLC located in Dallas, Texas. She is a frequent speaker, author and blogger on immigration issues. She can be reached at [email protected] or under her twitter handle law_immigration.

The Differences Between the H1B Visa and H2B Visa

Posted by Karen-Lee Pollak on Tue, Oct 10, 2017 @ 11:30 AM

Pretty young lady taking a decision with scale above her head-007260-edited.jpegH1B visa vs. H2B visaHere at Pollak PLLC, we are pleased to offer articles and videos to help you get the reliable, accurate and easy-to-understand information you need about various visa and immigration options (obviously we cannot provide specific legal advice, since that can only be done on a case-by-case basis after learning all of the details, factors, variables and so on).

As part of our commitment to educating and empowering you, here is a look at the differences between the H1B visa vs. the H2B visa. Looking at these two visa categories is particularly important in the current political climate, since they have both been in the headlines over the last several months — although for different reasons.

About the H1B Visa

The H1B visa, which is valid for three years (after which it can be renewed for an additional three years), is designated for individuals who have specialized skills that are typically earned through advanced graduate degrees obtained from qualifying institutions. 

Foreign nationals who petition for an H1B visa must have a job offer in their area of expertise from a U.S. based employer, and the Department of Labor must confirm that the role cannot be filled by a U.S. citizen (i.e. the employer must try, and fail, to recruit locally for the position). What’s more, the employer must affirm that it will pay the foreign national the prevailing average salary, and that working conditions will be in alignment with employees who are U.S. citizens.

In addition to the H1B visa described above, there are also the H1B2 and H1B3 visa sub-categories, respectively. The H1B2 visa is for government research work (typically facilitated by an agreement between the U.S. government and petitioner’s government), while the H13B visa is for high-profile fashion models. 

Also note that there is a statutory limit (“cap) of H1B visas available each year. For the 2018 fiscal year, this number has been set at 65,000.

About the H2B Visa

The H2B visa is designed to allow U.S. employers (or U.S. agents who meet specific regulatory requirements) to bring non-professional foreign workers to the U.S., so they can work in non-agricultural temporary jobs, such as those in the tourism and hospitality industry. Once their H2B visa expires, foreign national must return home. The maximum authorization period is one year, although in some cases employers may extend this to three years. Keep in mind that if USCIS or DHS is not fully satisfied that a petitioner intends to return, they will not approve the application in the first place. 

At the current time, Congress has set the H2B visa cap at 66,000 per fiscal year (33,000 for workers who begin employment in the first half of the fiscal year, and 33,000 for workers who begin employment in the second half of the fiscal year). In July 2017, the DHS and DOL agreed to a one-time increase of 15,000 H2B visas for the 2017 fiscal year only, and further announced on September 15 that it is no longer accepting petitions under this provision. While it is possible that another one-time increase will be enacted for the 2018 fiscal year (and beyond that), this is by no means guaranteed, and in the current political climate some observers say it is unlikely.

Learn More About the H1B Visa vs. the H2B Visa

If you are a U.S. employer that wants to augment your workforce with a foreign national(s) — either professional and permanent (H1B visa) or non-professional, non-agricultural and temporary (H2B visa) — then contact the Pollak team today.

We also invite you to contact us if you are a foreign national, and want to get a clear understanding of the visa petition process, and how you and your prospective U.S. employer can work together to put together a robust, complete and timely application package.

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Karen-Lee Pollak is the Managing Attorney at Pollak PLLC located in Dallas, Texas. She is a frequent speaker, author and blogger on immigration issues. She can be reached at [email protected] or under her twitter handle law_immigration.

Resources to Help You Choose the Right Immigration Attorney

Posted by Karen-Lee Pollak on Fri, Sep 15, 2017 @ 11:30 AM

Resources written in search bar on virtual screen-389258-edited.jpegimmigration attorneyChoosing the right immigration attorney is a critically important decision that will have lasting consequences for your organization (if you are an employer), for your career future (if you are a student or researcher), or for your financial well-being and family (if you are an alien worker who wants to live and work in the U.S). 

However, at the moment you may be unsure — or perhaps you may be confused and concerned — about how to move forward and find the right immigration attorney, which is a professional who is experienced, knowledgeable, responsive and dedicated to guiding you through the process step-by-step.

Recently, we shared a list of 5 critical questions that you should ask an immigration attorney. As part of this commitment to help you make a smart and safe decision, here are some publicly-available online resources to learn more about immigration attorneys in your area:

Avvo is one of the best known (if not the best known) online resource that features profiles for lawyers in different practice areas — including immigration law — and in various regions and cities in the country. In addition, each lawyer is rated based on aspects such as experience, knowledge, client service, and so on. Importantly, the Avvo rating cannot be influenced by advertising or any other form of payment.

LII is housed at Cornell Law School, and is a collaboration of publishers, legal scholars, computer scientists, government agencies, and other groups and individuals around the world who promote open access to law. Among other useful features (such as an online legal encyclopedia), LII features profiles of immigration lawyers across the country.

Facebook reviews, which typically include written feedback and a rating out of 5 stars, are provided by current and former clients. While these reviews can indeed be useful, it’s important to keep in mind that some individuals who are deeply disappointed with a decision by USCIS or the Department of Labor (or sometimes even their own employer) may “vent” their frustration through a negative review. As such, it is wise to approach this resource accordingly and understand that, in many cases, there is more to the story.

Birdseye is a unique source of information on immigration attorneys (along with other types of attorneys), because it does not feature reviews posted by users/visitors. Rather, it aggregates feedback from various review sites, social media, customer surveys, etc.  

Similar to LII, Justia offers free legal information to the public on a broad range of topics, as well as profiles of lawyers across the country.

A Final Word

Please note that while the above resources can indeed help you learn more about an immigration attorney, they should not be treated as “100% authoritative” — simply because they are not vetted by a third party (e.g. State Law Board, industry association, etc.). The best approach is to use them as part of your evaluation process. 

Learn more about Pollak PLLC's managing partner Karen-Lee Pollak, and be sure to check our profiles out on any of the above resources. Then contact us for your free, no obligation consultation to learn more about our experience, approach, and commitment to client service.

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Karen-Lee Pollak is the Managing Attorney at Pollak PLLC located in Dallas, Texas. She is a frequent speaker, author and blogger on immigration issues. She can be reached at [email protected] or under her twitter handle law_immigration.

Choosing the Right Immigration Attorney: 5 Critical Questions to Ask

Posted by Karen-Lee Pollak on Fri, Sep 08, 2017 @ 11:30 AM

Young woman in casual holding balloon shaped like question mark-698963-edited.jpegimmigration attorneyThe difference between choosing the right immigration attorney vs. the wrong one is significant, and will have long-term implications for you and your family. Obviously, your goal is to make a smart and safe decision — and steer clear of a partnership that may ultimately prove to be disappointing, excessively and unnecessarily costly, and stressful.

To help you head in the right direction — and make the correct choice — here are 5 critical questions to ask any prospective immigration attorney during your initial consultation. 

1. How long have they been practicing immigration law?

Just as doctors, engineers and other professionals have varying degrees of experience — some are emerging in the field, while others are established — immigration lawyers have proficiency and knowledge.

Simply put: when it comes to choosing the right immigration attorney, there is no substitute for experience. Obviously, this includes knowing the law; especially in light of recent rulings and opinions. Less obviously, it includes and in-depth understanding of the application process for various petitions (e.g. USCIS Visa categories).

2. What is their knowledge and experience working on cases like yours?

In a sense, this is an extension of the first question, but it is so important that it warrants its own spot on the list. While a prospective immigration attorney must (as noted above) have in-depth experience in the field, he or she should also have knowledge that relates to your specific case.

For example, whether you are an employer looking to hire an alien worker, or you are an individual who wants to live and work in the U.S. (and possibly petition to have family members join you), you want to ensure that your immigration attorney knows the specific process and protocol inside and out. 

3. Will you be personally working on my case?

It is fine — and often necessary — for the immigration attorney you choose to take a team-based approach to your case, which means that additional skilled staff members (e.g. researchers, etc.) will also be working on your behalf.

However, what is NOT fine — and what you should ensure does not happen — is that your immigration attorney essentially “farms out” your case to colleagues, and does provide both leadership and direct hands-on professional services. It is crucial that your immigration attorney is involved in your case, and is therefore accountable for providing you with agreed upon services in a timely and appropriate manner. 

4. Can you give me an estimate of the cost involved?

This question has a few important aspects that need to be unpacked. The first is that immigration law issues are complex, and as such cannot be “sold” as commodities — i.e. there is no standard fixed price. This is also because a key factor in the length and complexity of your case will be determined by the government.

With this being said, you have every right to receive a realistic estimate of costs, based on a prospective immigration attorney’s experience working on similar cases (again, keep in mind that the word “similar” is used here — not “exactly the same,” since there is no such thing in the legal world as every case is different to some degree).

5. How will we communicate and what can I expect our interaction to be like?

Effective and efficient communication with your immigration attorney is not just important: it is vital. No, this does not mean you will have daily teleconferences lasting several hours. But it certainly does mean that you will receive regular updates (often by email so you have a reference and can review at a time that is convenient to you), and that you are completely up-to-date on all relevant aspects of your case or petition, including the stage it is in.

And of course, all interaction should be professional, respectful, and conveyed in a manner that helps you understand the situation. For example, your immigration attorney should clearly and fully explain various legal terms and processes, and patiently answer your questions. You should never feel intimidated, or that you are “just a file.” You are a human being and immigration matters are, to a greater or lesser extent, life-changing. Your immigration attorney must respect this. If not, then frankly speaking, they are in the wrong field. Immigration law is about people, not about things. 

Learn More

At Pollak PLLC, we have in-depth experience in immigration law covering a full range of cases and petitions for employers, entrepreneurs and workers (and their family members). Our principal Karen-Lee Pollak personally leads and works on each case, and ensures that all communication is effective, efficient and client-focused. To learn more, schedule your initial consultation today. There is no cost or obligation.

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Karen-Lee Pollak is the Managing Attorney at Pollak PLLC located in Dallas, Texas. She is a frequent speaker, author and blogger on immigration issues. She can be reached at [email protected] or under her twitter handle law_immigration.

4 Options After OPT Expires to Stay in the U.S.

Posted by Karen-Lee Pollak on Tue, Aug 15, 2017 @ 2:30 PM

Options After OPT ExpiresHand with marker writing the question Whats Next?-1-023510-edited.jpegMany students who are pursuing or have completed their studies (usually a degree) in the U.S. on an F1 visa apply for Optional Practical Training (OPT). If approved, they are granted a student visa under which they may remain in the U.S. and work for up to 12 months in order to obtain practical education that compliments their education (note that at the current time, students in qualifying STEM fields are eligible for a 24-month extension instead of a 12-month extension).

For emerging professionals who wish to remain in the U.S., below we highlight four potential options after OPT expires:

Option #1: Apply for an H-1B Visa

Individuals who have a Bachelor’s Degree or advanced certification, as well as an employer to sponsor their petition (note: this is a complex process that must be started months before OPT expires), may be eligible to apply for an H-1B visa. This is a temporary worker visa, and if granted, it can last for up to six years. However, if the individual quits or is terminated by the sponsoring employer, the visa becomes invalid and the individual must either find a new sponsor, or return to their home country within the specified timeframe.

Option #2: Apply for a J-1 Visa

A J-1 visa is typically issued by USCIS to professors, researchers or exchange students. The application must be sponsored by an academic institution, government or private business, and the work performed must be primarily focused on teaching, consulting, or carrying out specialized research. As with the H-1B visa, this position must not eliminate a job for a similarly qualified and available U.S. citizen.

Option #3: Start a Business

Individuals who have the means to launch a start-up may qualify for various permanent immigration visas, including those in the EB-5 category that are available for petitioners with specialized knowledge or advanced degrees.

Option #4: Go Back to School

Individuals may be allowed to maintain their F1 visa if they return to school to pursue an advanced degree (Master’s or PhD). This option is sometimes selected by those who were unable to obtain an H-1B visa due to the limited supply available each year.

Learn More

All of the above options involve complex application processes and very specific timelines and deadlines — especially for those wishing to apply for an H-1B visa. If you wish to explore any of these options after OPT expires, contact the Pollak PLLC team today. We are here to help!  

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Karen-Lee Pollak is the Managing Attorney at Pollak PLLC located in Dallas, Texas. She is a frequent speaker, author and blogger on immigration issues. She can be reached at [email protected] or under her twitter handle law_immigration.

Permanent Resident vs. U.S. Citizen: What's the Difference?

Posted by Karen-Lee Pollak on Thu, Jul 27, 2017 @ 11:00 AM

American flag with a sky as a background-380698-edited.jpegPermanent Resident vs. U.S. CitizenOne of the most important questions that we receive here at Pollak PLLC is, “What is the difference between a permanent resident and a U.S. citizen?” First of all, while these terms are often used interchangeably on the web, and even by some people in the media, they are categorically different. Here is an overview of each designation.

Permanent Residents

A permanent resident is an individual who is lawfully permitted to live in the United States. Contrary to what many people believe, permanent resident status is indefinite — though it can be revoked if certain transgressions are committed, including but not limited to:

  • Leaving the U.S. at any time for more than a year. Note that technically, permanent residents may be deemed to have abandoned their status by leaving the U.S. for a single day. However, USCIS typically begins scrutinizing an individual’s intentions if they are out of the country for six months or longer.  
  • Committing certain serious crimes or security violations.
  • Failing to advise USCIS of a change of address. Historically, breaching this requirement has not typically resulted in deportation. However, it is not something that permanent residents should treat lightly (i.e. it is not on the same level as updating USPS or phone companies, etc.). And in today’s rather volatile and uncertain political climate, avoiding any and all transgressions — however seemingly minor — is certainly prudent.

Permanent residents may also legally work in the U.S. and petition USCIS to have their spouse and any unmarried children under age 21 join them in the U.S. However, be advised that there is a limited pool of immigration visas available to family members (referred to as “preference relatives”), and the waiting list is several years long.

In addition, permanent residents do not have to abandon their native citizenship, but if they leave the U.S., they must travel with their valid passport and permanent resident card (a.k.a. green card). Without these documents, they will not be allowed to re-enter the U.S.

Permanent residents cannot vote in U.S. elections at any level. After living in the U.S. for a few years — usually around five or six — they can apply for U.S. citizenship, provided that they demonstrate good conduct, can read, speak, and write English to an acceptable standard, and successfully pass a test on U.S. history and government.

U.S. Citizens

Naturalized U.S. citizens are eligible to receive a U.S. passport and can leave and re-enter the U.S. as often as they wish, for as long as they wish. While they are obviously subject to the same laws and rules as all travelers (e.g. no violating customs laws, etc.), U.S. citizens cannot be denied re-entry to the U.S. or deported to their native country for committing any crime or security violation — unless it is established that they committed fraud to obtain their citizenship status.

U.S. citizens can also vote in U.S. elections at all levels, obtain government jobs that are (legally) designated for U.S. citizens only, and they may also serve on juries. In addition, some government benefits, scholarships and grants are only offered to U.S. citizens. 

The category of “preference relatives” for U.S. citizens is larger than that for permanent residents. In addition to spouses and unmarried children under 21, it also includes married children, children over 21 years of age, and siblings. However, the immigration process for relatives is very time consuming and often takes several years (especially for siblings).

Learn More 

The process of applying for either permanent resident status (a.k.a. a green card) or naturalized U.S. citizenship is complex and detailed. Errors and omissions will cause petitions to be delayed or denied. To learn more and have your questions clearly and fully answered, contact the Pollak PLLC team today. We are here to help!  

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Karen-Lee Pollak is the Managing Attorney at Pollak PLLC located in Dallas, Texas. She is a frequent speaker, author and blogger on immigration issues. She can be reached at [email protected] or under her twitter handle law_immigration.

What is the EB-3 Visa? 

Posted by Karen-Lee Pollak on Wed, Jul 12, 2017 @ 11:00 AM

Diverse group of workers standing against white background-245700-edited.jpegEB3 VisaThe EB3 visa is a preference category for individuals who are designated by USCIS as a Skilled Worker, Professional, or “Other Worker” (i.e. unskilled labor). Each of these sub-categories is outlined below.

EB3 Visa Eligibility Requirements for Skilled Workers 

Individuals who wish to apply for an EB3 visa under the Skilled Workers sub-category must:

  • have at least (and be able to prove) at least two years of job experience or training;
  • not be performing a job that is of a seasonal, temporary or part-time nature;
  • not be performing work for which qualified workers in the U.S. are unavailable.

In conjunction with their prospective employer, petitioners must first obtain certification from the Department of Labor verifying all of the above.

EB3 Visa Eligibility Requirements for Professionals

Individuals who wish to apply for an EB3 visa under the Professionals sub-category must:

  • have a B.A. degree from an accredited U.S. college or university, or an approved foreign degree equivalent (note: education combined with experience is not viewed by USCIS as an equivalent);
  • demonstrate that a B.A. degree is the normal requirement for the U.S.-based position they wish to attain (note: USCIS deems it irrelevant if a B.A. degree is required for a similar job in the petitioner’s native country);
  • establish a clear connection between the B.A. degree that the petitioner has achieved and the type of B.A. degree that is required for entry to the position they wish to obtain (i.e. if the petitioner’s B.A. degree is in nursing, and position requires a B.A. degree in engineering, USCIS will deem that this eligibility criteria has not been met and will reject the petition);
  • not be performing work for which qualified workers in the U.S. are unavailable.

As with the skilled workers category, petitioners who wish to obtain an EB3 visa as a professional must obtain certification from the Department of Labor verifying all of the above.     

EB3 Visa Eligibility Requirements for “Other Workers”

The “Other Workers” sub-category is for unskilled workers who wish to live and work in the U.S. Petitioner must:

  • be capable at the time of filing their petition of performing unskilled labor (USCIS defines this as labor requiring less than two years of training or experience);
  • not be performing a job that is of a seasonal, temporary or part-time nature;
  • not be performing work for which qualified workers in the U.S. are unavailable.

Again, petitioners who wish to obtain an EB3 visa as unskilled workers must obtain certification from the Department of Labor verifying all of the above. In addition, there is currently lengthy backlog for this sub-category. USCIS periodically updates this via monthly bulletins on their website at: http://travel.state.gov/content/visas/english/law-and-policy/bulletin.html. 

Family Members

Petitioners who successfully obtain an EB3 visa may request that their spouse and minor children (under the age of 21) join them in the U.S. If granted, spouses of EB3 visa holders are eligible to file for an Employment Authorization Document to legally earn income while they are applying for permanent resident status (i.e. green card).

Learn More 

The process of applying for an EB3 process is very complex and extremely detailed. Significant effort and coordination is required on the part of employers, and petitioners must ensure that their application is complete, compliant and 100% error-free.

To learn more, contact the Pollak Immigration team today. We will clearly and thoroughly answer your questions, help you fully understand the rules and requirements of all visa preference categories to which you may be eligible, and completely support you step-by-step if you and your employer wish to move ahead with a petition.

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Karen-Lee Pollak is the Managing Attorney at Pollak PLLC located in Dallas, Texas. She is a frequent speaker, author and blogger on immigration issues. She can be reached at [email protected] or under her twitter handle law_immigration.

 

What is the EB5 Visa?

Posted by Karen-Lee Pollak on Mon, Jul 03, 2017 @ 11:00 AM

Managing Partner Page image (1).jpgInvestment - Business Background. Golden Compass Needle on a Black Field Pointing to the Word "Investment". 3D Render.-633865-edited.jpegInvestment - Business Background. Golden Compass Needle on a Black Field Pointing to the Word "Investment". 3D Render.-633865-edited.jpegInvestment - Business Background. Golden Compass Needle on a Black Field Pointing to the Word "Investment". 3D Render.-633865-edited.jpegThe EB5 visa was launched by Congress in 1990 and is administered by U.S. Citizenship and Immigration Services (USCIS). The fundamental purpose of the program is to stimulate economic activity, capital investment and job creation through investments by foreign investors who want to live in the U.S.  

Qualifying for an EB5 Visa
A foreign investor may potentially qualify for an EB5 visa in three different ways:
  • Investing $1,000,000 and hiring 10 full-time employees anywhere in the U.S.
  • Investing $500,000 and hiring 10 full-time employees in a high unemployment area or a rural area.
  • Investing either $1,000,000 or $500,000 (if the investment is made in a high unemployment area or rural area) in a designated Regional Center, and creating 10 full-time indirect or induced jobs.

Investment Requirements

All EB5 investors must invest in what USCIS designates as a new commercial enterprise. This is a business that meets either of the following requirements:

  • It was established on or before November 29, 1990, and the investment will fund restructuring and/or reorganizing such that the enterprise effectively becomes new again; or the investment will result in at least a 40 percent increase in the business’s net worth or employee headcount.
  • It was established on or after November 30, 1990.

The investment itself does not necessarily have to be in cash. It can partly or wholly take the form of inventory, equipment, tangible property, cash equivalents or secured indebtedness.  

Job Creation Requirements

As noted, job creation is one of the pillars of the EB5 visa program. Foreign investors who invest $1,000,000 must create 10 full-time positions anywhere in the U.S. Those who make their investment in a high unemployment area or a rural area (which USCIS refers to as a Targeted Employment Area or TEA) can reduce their commitment to $500,000.

A high unemployment area is defined as one where the unemployment rate is at least 150% that of the national average. A rural area is defined as an area that is outside a metropolitan statistical area (MSA) and has a population of less than 20,000 (based on the most recent census data).

Foreign investors who allocate their $1,000,000 or $500,000 investment to a USCIS-approved Regional Center do not have to create 10 full-time jobs. Instead, they must prove that their investment creates (at least) 10 indirect jobs or 10 induced jobs.

Indirect jobs are defined as jobs within the community that are created to provide goods or services to the Regional Center project. Induced jobs are defined as jobs within the community that are or will be created as a result of income spent by employees working on the Regional Center project.  

Investing in Troubled Businesses

In some cases, a foreign investor may also be allowed to invest in what USCIS deems a “troubled business,” and satisfy the job creation requirements by preventing job loss (i.e. maintaining 10 full time jobs that would otherwise be in jeopardy of being eliminated). A troubled business meets all of the following requirements:

  • The business has been operating for at least 24 months.
  • The business has experienced a net loss in the 12 or 24-month period immediately preceding the priority date on the EB5 investor’s Form I-526.
  • The loss for the period in question was at least 20% of the business’s net worth.
  • The business employs at least 10 full-time employees, and is expected to maintain at least this level of employment for the next 36-42 months.

It is important to note that the process of designating a business as troubled for the purposes of EB5 investment is complex and time consuming. This is because USCIS conducts extensive diligence to ensure that such businesses are indeed facing imminent workforce terminations or layoffs.  

Additional Details

Investors are not obligated to provide day-to-day management in any business that is associated with their EB5 visa. They are also not obligated to be the majority owner or the sole investor, and they can live anywhere within the U.S. They can also petition to have their spouse and children (under 21 years of age) join them in the U.S. as part of the EB5 visa.

Learn More

The EB5 visa program is complicated and requires extensive documentation. To learn more, contact the Pollak Immigration team today. We will learn about your unique situation and immigration objectives, clearly answer your questions regarding the EB5 visa program — as well as other programs that may be an option for you or your family members — and help you create a solid, complete, timely and impressive application.

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Karen-Lee Pollak is the Managing Attorney at Pollak PLLC located in Dallas, Texas. She is a frequent speaker, author and blogger on immigration issues. She can be reached at [email protected] or under her twitter handle law_immigration.

Enforcement Alone Will Not Solve Immigration Issues

Posted by Karen-Lee Pollak on Thu, Jun 15, 2017 @ 8:50 AM

Managing Partner Page image (1).jpgKaren-Lee PollakKaren-Lee was featured in Law360's Expert Analysis Section writing about President Trump's deportation plan.  

As part of President Trump’s massive deportation plan, several anti-immigration bills have recently come before the U.S. House of Representatives that focus on immigration enforcement. On May 24, 2017, the House Judiciary Committee passed three bills  the “Michael Davis, Jr. and Danny Oliver in Honor of State and Local Law Enforcement Act” (the Davis Act), H.R. 2406, and H.R. 2407. And on the evening of June 7, 2017, the House passed The Anti-Border Corruption Reauthorization Act (H.R. 2213). These four bills create an unprecedented expansion of immigration enforcement.


The first bill, known as the Davis-Oliver Act, H.R. 2431 cracks down on sanctuary cities, and strengthens the authority of U.S. Immigration and Customs Enforcement to arrest and deport unauthorized immigrants by granting states and localities the authority to enforce federal immigration laws. "Sanctuary city" is a broad term applied to jurisdictions with policies in place to limit cooperation or involvement with federal immigration actions. Many U.S. cities, counties and some states have a myriad of informal policies and laws that qualify as "sanctuary" positions.

This bill gives additional authority to and encourages local police and sheriffs to engage in immigration enforcement like Arizona’s SB1070 “show me your papers law”  key provisions of which were held unconstitutional by the U.S. Supreme Court. Not only does the bill authorizes police to arrest and detain anyone based solely on suspicion of being unlawfully present in the U.S., it also prevents local government from restricting its personnel from engaging in immigration enforcement in concert with ICE. This bill passed the House Judiciary Committee even though federal courts have held that local governments violate the Fourth Amendment when they jail individuals without probable cause.

To ensure local law enforcement cooperates in immigration enforcement, the Davis Act calls for the withholding of federal funds from state and local governments notwithstanding Fourth Amendment concerns or the goal of ensuring that victims and witnesses cooperate with law enforcement and report crimes. The bill also creates a private right of action allowing crime victims or their family members to sue localities if the crime was committed by someone who was released by the locality that did not honor an ICE detainer request.

This is particularly disturbing since in April 2017, federal Judge William H. Orrick, blocked the Trump administration from enforcing its threat to take away funds from sanctuary cities. Judge Orrick, in his ruling, sided with jurisdictions such as Santa Clara County in California and the city of San Francisco, who argued that a threat to take away federal funds from cities that do not cooperate with some federal immigration enforcement could be unconstitutional.

In addition, under the Davis Act, if people overstay their visas even by a single day, they could be liable for a six-month prison term. The Davis Act criminalizes unlawful presence and permits the prosecution and incarceration of every unauthorized individual at immense cost to the American people. According to Homeland Security, 628,799 people overstayed their visas in 2016. Furthermore, children who have been afforded protection under the Deferred Adjudication for Childhood Arrival Act (DACA) would no longer be exempt from deportation if they knew they were brought here illegally.

The Davis Act includes many provisions that would heighten visa screening procedures and clearly violates due process for individuals who have already been screened and admitted to the United States. Under this act, a lawfully admitted individual whose visa has been revoked could be removed from the United States without any administrative or judicial review of the decision. The Davis Act would also significantly restrict the ability of consular posts to waive the visa interview process, and imposes burdensome and unnecessary requirements on individuals seeking immigration benefits such as a thorough review of all social media and genetic testing of those seeking immigrant visas through a family relationship.

The House Judiciary Committee also passed H.R. 2406, which, together with the Davis Act, authorizes 12,500 more ICE detention or deportation officers, and both bills require officers to be armed with M-4 assault rifles and other weapons. H.R. 2407 would also make E-Verify permanent without implementing any of the important due process protections to ensure authorized workers are not mistakenly identified as being unauthorized. These are common errors in the E-Verify pilot system which have erroneously harmed U.S. workers seeking employment.

There is still a long way to go before these bills become law but they are concerning. These bills would require at least eight Democratic votes in the Senate to pass there, assuming all Republicans support the bills.

More likely to become law is the Anti-Border Corruption Reauthorization Act (H.R. 2213) passed by the House on the evening of June 7, 2017, by a 282 to 137 vote  largely on party lines. H.R. 2213 now moves to the Senate, where the Homeland Security and Government Affairs Committee passed a similar bill S. 595 out of committee last month known as the "Boots on the Border Act."

Both bills would weaken the U.S. Customs and Border Protection hiring process by waiving the polygraph examination requirements for certain law enforcement and military applicants. Two-thirds of applicants fail the polygraph. Criticizing these bills, James Tomsheck, former head of the Office of Internal Affairs for CBP stated “I know from first-hand experience that the bills moving in Congress, backed by current CBP leadership desperate to hire more agents, would exacerbate corruption and abusive misconduct by adding unsuitable personnel who conceal criminal pasts …”

The Davis Act would also be extremely expensive. An earlier version of the Davis Act, reported out of the House Judiciary Committee in 2014, received an estimated cost of $23 billion over five years from the Congressional Budget Office. While these bills increase enforcement, of ICE officers and immigration prosecutors, these bills do not address our overburdened immigration courts and the shortage of immigration judges.

Although immigration enforcement is necessary to keep our nation safe, we need comprehensive immigration reform to address both unauthorized and authorized immigration. Enforcement alone will not solve the problems present in our outdated immigration system which has not been revised in 25 years.

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Karen-Lee Pollak is the Managing Attorney at Pollak PLLC located in Dallas, Texas. She is a frequent speaker, author and blogger on immigration issues. She can be reached at [email protected] or under her twitter handle law_immigration.

Sponsoring an Employee on an H-1B Visa | Public Access File

Posted by Karen-Lee Pollak on Tue, Jun 13, 2017 @ 9:00 AM

dream-act-button-resized-120.jpgh-1b visaThe H-1B is a non-immigrant visa that allows U.S. employers to temporarily employ foreign workers in a specialty occupation for a period of three years. The visa can be extended for an additional three years. The employer can also employ the employee part-time.

Public Access File 

Regulations require that the employer maintain a public access file which is to be made available for public inspection. As part of the LCA and H-1B visa petition process, the employer must agree to make certain information relating to the LCA available for public examination at the employer’s principal place of business in the U.S. or at the place of employment within one working day after the date on which the LCA is filed with the Department of Labor. Such information is referred to as the Public Access File and should consist of the following items: 

  • A copy of the LCA and related cover pages.
  • Documentation providing the wage rate to be paid to the employee.
  • A detailed explanation of the employer’s system used to set the actual wage to be paid to the employee.
  • Documentation used by the employer to determine the prevailing wage.
  • Documentation evidencing that the employer has complied with the union employee notification requirements, if there is a union.
  • A summary of the employer’s benefits offered to U.S. workers in the same occupational classification, an explanation regarding the difference in benefits offered to such employees if all employees in the same occupational classification are not offered the same benefits and, if applicable, an explanation of any home-country benefits the employee will receive.
  • Additional information is required to be placed in the Public Access File if the employer is H-1B dependent or a willful violator.

The employer should maintain a Public Access File for each employee and should keep this file separate from the employee’s personnel file. The Public Access File must be maintained by the employer for at least one year past the date of the employee’s related employment. 

Additional requirements for H-1B dependent employers. Employers are considered to be dependent if they have less than 25 workers and more than 7 H-1B workers; between 26 to 50 workers and more than 12 H-1B workers; or more than 50 workers with 15% or more of them being H-1B foreign nationals. In this case, H-1B dependent employer must fulfill 2 additional requirements. Displacement of US workers: An H-1B dependent employer must attest that by hiring a H-1B worker, it is not displacing any US worker for a similar position within 90 days before or after filing a H-1B petition. 

Recruitment efforts: The H-1B dependent employer must also attest to making good faith attempts to recruit US workers and offering prevailing wages for this position. 

Terminating an H-1B Visa Holder

Upon terminating an H-1B visa holder, the employer is obligated to pay for the reasonable costs associated with the employee’s return flight home. In most instances, this is not an issue because typically when an H-1B visa holder leaves one employment, he or she is accepting another employment opportunity and, as a result, does not return to his or her home country. 

When Should You File?

The H-1B visa has an annual numerical limit, or cap, of 65,000 visas each fiscal year. The first 20,000 petitions filed on behalf of beneficiaries with a U.S. master’s degree or higher are exempt from the cap. Additionally, H-1B workers who are petitioned for or employed at an institution of higher education (or its affiliated or related nonprofit entities), a nonprofit research organization, or a government research organization are not subject to this numerical cap.  

Cap numbers are often used up very quickly, so it is important to plan in advance if you will be filing for an H-1B visa that is subject to the annual H-1B numerical cap. The U.S. government’s fiscal year starts on Oct. 1. H-1B petitions can be filed up to 6 months before the start date, which is generally April 1 for an October 1 start date. In recent years there has been more H-1B applications than visas available so USCIS has resorted to a lottery system in selecting H-1B visa applications for adjudication.

Learn More

To learn more about how to sponsor an employee on an H-1B specialty occupation visa, contact the team at Pollak PLLC today.

We are passionate about helping people realize the American Dream, reuniting families, and bringing the best and brightest minds to the U.S. so they can pursue their goals and make a positive, meaningful contribution to the community.

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Karen-Lee Pollak is the Managing Attorney at Pollak PLLC located in Dallas, Texas. She is a frequent speaker, author and blogger on immigration issues. She can be reached at [email protected] or under her twitter handle law_immigration.

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