When Immigration Matters

Immigration Reform: What it means for Highly Skilled Foreign Workers

Posted by Karen-Lee Pollak on Mon, Dec 01, 2014 @ 9:00 AM

immigration reform, executive actionAs part of President Obama’s executive action, he has ordered new policies and regulations to be implemented which will benefit highly-skilled foreign workers by enabling businesses to more easily hire and retain these workers and allow them to make natural career progressions with their employers or seek similar opportunities within the United States thereby creating increased career stability for those foreign workers waiting for green cards. 

The November 20, 2014 memorandum from DHS Secretary Jeh Charles Johnson to USCIS Director Leon Rodriguez (the Memorandum) outlines these new policies and regulations and includes the following: Modernizing the Employment-Based Immigrant Visa System and increasing Worker Portability. 

One of the biggest gripes with the current visa system is the long waits for Immigrant visas or green cards due to outdated numerical limits established almost a quarter of a century ago.  These numerical limits do not cater for the visa demands of today.  For example, a foreign worker with an advanced degree who is a citizen of India is currently waiting almost 10 years for an Immigrant visa to be available according to the November 2014 visa bulletin.  This numerical limit is juxtaposed against an immigration system which also has failed to issue all available immigrant visas for a fiscal year.

The resulting backlogs prevent US. employers from attracting and retaining some of the best and brightest highly-skilled workers who are often educated in the United States.  Often a highly-skilled foreign worker’s time in temporary non-immigrant status runs out before the backlog becomes current.  For example, a L1b intracompany employee with specialized knowledge only has 5 years in L1b status but it is currently taking at least a minimum of 11 years, according to November 2014 visa bulletin, to obtain a green card assuming that person is an citizen of india, has a Bachelor Degree and has four years of experience. 

This makes little sense especially where as part of the Green Card process, the employer has to test the labor market and show the unavailability of US. workers.  That process in itself is disingenuous as it requires the employer to spend substantial time and money advertising and recruiting for a job and making applicants waste time on interviewing for a job which has already been filled.  Only after that charade can an employer file a labor certification with the Department of Labor which is currently taking in the best case scenario 8 months to be adjudicated. 

The permanent labor certification process delays the filing of the Green Card application with USCIS.  This delay is further exacerbated by the unavailability of immigrant visas for workers from certain countries.  Not only are wait times an inconvenience for these workers but these wait times are an impediment to their natural career progression.  Workers can only change jobs if the job “is in the same or similar occupation”.  The uncertainty of what this phrase really means often prevents workers from accepting promotions or accepting better job opportunities.  

Secretary Jeh Jonson proposes the following solutions in his Memorandum:

 USCIS should continue to work with the Department of State to ensure that all immigrant visas authorized by Congress are issued when there is a sufficient demand.

  • Improve the current system to determine when visas are available to applicants during a current fiscal year. 
  • USCIS must issue policy and regulatory changes to provide stability to beneficiaries of employment-based immigrant petitions.
  • Specifically, USCIS must clarify and amend its regulations to ensure that approved long-standing visa petitions remain valid in certain circumstances where the employee has changed jobs or has obtained a promotion to a supervisory position.

 In addition to these proposals, it is expected that regulations will be enacted that will allow workers with approved immigrant petitions who are unable to file adjustment of status applications due to visa quota backlogs to obtain the benefits of adjustment of status applications such as employment authorization and advanced parole.  This will help foreign workers evade the capricious adjudication of renewal of non-immigrant when they travel abroad and allow employees to switch employers.

Reforming Optical training for Foreign Students and Graduates of US. Universities.

Under current regulations, foreign students on F-1 visas may request 12 months of additional F-1 visa status for optional practical training (OPT).  OPT allows a student to obtain temporary work in their field of study to gain practical experience.  It must be approved by the educational institution and may occur before or after graduation. Students in the science, technology, education or mathematical (STEM) fields can obtain an additional 17 months of OPT for a total of 29 months. This extension has helped the United States in retaining some of its most talented STEM graduates from departing the United States and taking their skills overseas.  

The November 20, 2014 Memorandum recommends that USCIS develop regulations for notice and comment that expands the degree programs eligible for OPT and extends the time period and use of OPT for foreign STEM students and graduates including extending post-Masters OPT where only the first degree is in a STEM field.

Promoting Start-Ups, Research and Development in the US.

President Obama has underscored the importance of enhancing employment opportunities for foreign inventors, researchers and founders of start-ups wishing to create jobs and conduct research and development in the United States.  The November 20, 2014 Memorandum recommends two administrative improvements to our employment-based immigrant system for this purpose:

The National Interest Waiver which provides aliens with advanced degrees or exceptional ability to apply for green cards without employer sponsorship if their job is in the national interest, is one of the most underutilized visas.  USCIS is directed to issue guidance or regulations to clarify the standard by which a National Interest Waiver can be granted for the purpose of promoting its greater use in benefitting the US. Economy.

  1. USCIS is directed under its “significant public benefit” parole authority to propose a program that will permit DHS to grant parole status on a case-by-case basis to researchers, inventors and founders of start-up businesses who have obtained significant US. funding or otherwise hold the promise of job creation and innovation through the development of new technologies or cutting-edge research. Parole in these instances would help entrepreneurs start businesses in the United States instead of abroad. 

Bringing Greater Consistency to the L1B Program. Many multinational companies bring employees to the United States who have specialized knowledge in the company’s products or processes.  This visa is known as the L1B visa.  Inconsistent adjudications of these visas has created uncertainty for many companies relying on bringing foreign employees with specialized knowledge to the United States.  USCIS is directed to issue a policy memorandum that clarifies exactly what is meant by “specialized knowledge” to provide greater consistency in the adjudication of L1B petitions and to enhance companies’ confidence in the program.

These provisions, once implemented, will help alleviate some of the problems produced by our broken immigration system but it is really the duty of Congress to finish the job.  The only provision that has a projected timeline is the plan to give employment authorization to certain spouses of long time H-1B visa holders who have been approved for permanent residency (issued in May of this year). We anticipate the final rule to be published this month or in early January 2015. Regulations which have a limited impact can be issued as interim rules and take effect immediately. However, most regulations require the publication of a proposed rule with a 30 to 60-day comment period. Afterwards, the government agency must cull though public comments and decide if revisions to the proposed regulation are in order.

Of particular note is the Department of Labor’s (DOL) announcement, separate and apart from the November 20 Memorandum, that it will modernize the PERM regulations.  DOL has announced it will initiate a review of the decade old PERM program and relevant regulations. As part of this review, the Department will seek input on the current regulation, including how it could be modernized to be more responsive to changes in the national workforce.

Specifically, the Department will seek input on the following:

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

  • Methods and practices designed to modernize U.S. worker recruitment requirements;   
  • Processes to clarify employer obligations to insure PERM positions are fully open to U.S. workers;
  • Ranges of case processing timeframes and possibilities for premium processing; and
  • Application submission and review process and feasibility for efficiently addressing nonmaterial errors.

While we are excited about these proposed changes, we can only be cautiously optimistic.  Historically, promised policy guidelines often take years to be issued or have never materialized. USCIS specifically states on its website that “USCIS and other agencies and offices are responsible for implementing these initiatives as soon as possible.  Some of these initiatives will be implemented over the next several months and some will take longer.”  The challenge for the business community, foreign workers and all stakeholders is to make sure that these measures are initiated, drafted, and implemented in a timely fashion.

The E-2 Investment Visa may soon be available to Israeli citizens.

Posted by Karen-Lee Pollak on Thu, Mar 29, 2012 @ 6:16 PM

E-2, investment, visaH.R. 3992, introduced on February 9, 2012 by Rep. Berman (D-CA), would make Israeli nationals eligible to enter the U.S. as nonimmigrant investors as provided for under the Immigration and Naturalization Act, if Israel provides reciprocal nonimmigrant treatment to U.S. nationals.

On February 28, 2012, the House Judiciary committee passed H.R. 3992 by a voice vote.  On March 19, 2012, the House of Representatives passed H.R. 3992 by a vote of 371-0.  The Senate Judiciary committee has not yet considered this bill.  If passed, H.R. 3992 would allow Israelis to qualify for the E-2 Investment Visa. 

The E 2 visa provides benefits to nationals of foreign countries who invest in the United States.  The E visa category can be used by various types of companies, whether owned by individuals or large multinational corporations. The E visa can be used by the company’s principals or by its employees.

Germany, Italy, Switzerland, United Kingdom, Taiwan, Pakistan, Japan and Australia are just some of the countries that have E-2 Investment treaties with the United States.  Majority ownership or control of the investing or trading company must be held by nationals of the foreign country. 

An investment must meet several criteria in order to qualify for an E-2 visa. These criteria include:

  • Showing that "substantial" investment or funds are available and committed to the investment
  • The investment must be in an active business as opposed to passive investment such as purchasing a home
  • At least 50% of the business must be owned by an alien from a country which has a treaty with the United States
  • The investment must create enough profit to provide a living for more than just the alien and his/her family

There is no minimum amount of investment necessary to obtain an E-2 visa, and whether an amount will be considered "substantial" depends on the type of business involved. In most cases, the investment must be at least $100,000USD.

Employees of E-2 companies may be granted E-2 visas if they are or will be engaged in duties that are executive, managerial, or supervisory in nature. If he/she is employed in a minor capacity, the employee may be granted E-2 visa if he or she has special qualifications that make the services to be rendered essential to the enterprise. 

The E-1 Treaty-trader visa is already available to Israeli Citizens.  This Visa involves more than 50% trade between Israel and the United States.  The amount of trade must be sufficient to ensure a continuous flow of international trade between the U.S. and the treaty country.

The spouse and children (unmarried and under 21) of E-1 or E-2 visa holders are entitled to the same E-1 or E-2 classification as the principal.

E Visa Application Process

The application process for the E visa includes filing a petition with the USCIS or U.S. Consulate. If filed with the USCIS, the application waiting period is generally several months. The USCIS offers an option for premium processing. For a $1,225.00 fee, the USCIS will process the petition in 15 days. If filed with a U.S. Consulate, it usually takes a a few days from the interview to have the E-2 visa stamped in the applicant’s passport. 

We will update this blog as soon as more information becomes available.

 

Alternative Visa Options Once H-1B Cap Is Reached

Posted by Michael Pollak on Sat, Feb 27, 2010 @ 8:45 AM

IMPACT OF THE EARLY CUT-OFF OF H-1B VISAS

After the H-1B cap is reached, private employers cannot hire new temporary professional workers in H-1B status for the 2011 fiscal year.  For those employers in need of hiring temporary professional foreign workers after the H-1B cap is reached, there may be alternative options available.

WHAT OTHER VISA OPTIONS ARE AVAILABLE?

The L-1 Intracompany Transferee Visa

The L-1 or intra-company transfer visa facilitates the transfer of key employees from a foreign corporation to a U.S. branch, parent, subsidiary, or affiliated entity.  This visa allows a U.S. company to bring in top-level managerial, executive, or specialized knowledge employees for a temporary period.  The employee must have worked for the foreign company for at least one of the past three years or six months for blanket L scenario and must work for the U.S. company in a similar position.  It need not be the same status as overseas (ex: specialized knowledge overseas could be a manager in the United States.  Only needs to be in one of the three classes:  manager, executive, or specialized knowledge).  The foreign entity may pay the employee his or her salary but the U.S. company must control the employee's performance of his or her work.  Authority to engage and terminate the employee is strong evidence of control.  There are no numerical limits on the L visa and the spouse of an L visa holder may apply for work authorization.  The L visa is initially valid for up to three years in the case of an existing business and up to one year where a new business is established in the United States.  There is a five-year limit on L-1B employees with specialized knowledge staying in the United States and a seven-year limit for L-1A managers and executives.

Consular posts generally see an increase in L-1 applications after the H-1B cap is reached.  However, there is no legal reason why aliens eligible for H-1B status cannot legitimately seek out other type of visas, including L visas. 

The Treaty-Trader/Treaty -Investor Visa (E-1/E-2)

E or treaty visas are available to persons or entities engaging in trade between the United States and their home country or persons and entities coming to the United States to develop and direct enterprises in the United States in which they are investing substantial amounts of capital.  The E-2 category includes individual investors and managers, executives, and essential skills employees of business entities that do the investment.  As a threshold issue, in order for a foreign national to qualify for this visa there must be a trader or investor treaty between the U.S. and the applicant's home country.  For treaty traders, the company set up in the United States must be at least 50% owned by a treaty country national but the applicant does not have to be an owner of the business.  There must be a "substantial" flow of trade (either goods or services) between the U.S. business and the treaty national's home country.  The USCIS determines whether the trade is substantial on a case-by-case basis.  Factors that may be considered include the nature of the business, the number of transactions, amount of trade and capital outlay.

With respect to an investment visa, again the business must be at least 50% owned by treaty nationals and there must be a substantial investment, which like the treaty-trader visa is determined on a case-by-case basis.  The investor must have experience in the business and must be actively involved.  The investor cannot simply invest in a company run by someone else. An E visa holder is normally admitted to the U.S. for a two-year period with unlimited two-year renewals.  Spouses of E visa holders may apply for work authorization.

TN Status

Employers may continue to sponsor Canadian and Mexican nationals in TN status under the North American Free Trade Agreement (NAFTA).  This visa is available to Mexican and Canadian nationals who have been offered a temporary position in one of the professions described in schedule 2 of NAFTA.  The applicant must have the degree or credentials required for that profession.  The TN visa is valid for three years and may be renewed indefinitely.  A spouse of an employee in TN status is not eligible for work authorization.

The O Visa

Foreign nationals with extraordinary ability in the arts, sciences, athletics, education or business, may apply for an O visa.  Beneficiaries in the sciences, athletics, education or business field must show that they have risen to the top of their field evidenced by national or international recognition.  Beneficiaries in the arts must show prominence and a record of extraordinary achievement.  Beneficiaries in the motion picture or television industry need to show a high-level of accomplishment, above that ordinarily encountered in the field.  The O visa is usually granted for three years and is renewed in one-year increments.  The O visa may be renewed indefinitely.  A spouse of an O visa holder cannot apply for work authorization.

The J-1 Exchange Visitor Visa

This visa is available to foreign nationals to enter the United States as exchange visitors to participate in government approved exchange programs.  First, the prospective employer must establish an approved exchange program.  Such program may be sponsored by government agencies, private businesses or educational agencies.  The foreign national may then enter the United States for the purpose of doing research, gaining training or studying.  Depending on the foreign national's qualifications and the type of exchange program, the J-1 visa is available anywhere from eighteen months for most trainees to forty two months for professors and research scholars.  Certain foreign nationals may be subject to a two-year home residency requirement at the end of their stay.

Immigration Question

Non Immigrant Visa Options (E-1 & E-2 Visas) to Obtain a Green Card

Posted by Michael Pollak on Fri, Oct 09, 2009 @ 8:35 AM

Learn how to obtain a green card via the E visa category.  This article outlines the three basic requirements for obtaining an E-1 (Treaty Trader) or E-2 (Investment) visa though trade and investment in the U.S. 

Read more in Karen's article, Green Cards Via Trade and Investment in the U.S. published in HG.Org Wordwide Legal Directories.

Have an immigration question?  Our immigration attorneys share their experience and expertise.  Click below to ask your question.

Immigration Question 

Immigration 101: E-2 or Investment Visa

Posted by Michael Pollak on Mon, Aug 17, 2009 @ 2:14 PM

The E-2 or Investment visa is available for investors in a new or existing U.S. business. The investor must play an active role in the development and direction of the business. As with the E-1 visa, the E-2 investor must show that a "substantial" investment or funds are available and committed to the investment. Again, the "substantial" requirement is determined on a case by case basis. Investment in a manufacturing plant would require a higher dollar investment than investment in a consulting business, which may simply require a computer, facsimile and a telephone.

E-2 Investment VisaThe E visa application may either be filed with the United States Citizenship and Immigration Service for those already in the United States or with a U.S. consulate for those foreign  nationals outside the United States. If filed with the USCIS, the application waiting period is generally several months. The USCIS offers an option for premium processing. For an additional $1,000 fee, the USCIS willprocess the application in 15 days. If filed with a U.S. consulate, it usually takes a few days for the visa to be issued after the interview. Wait times for interviews vary by consulate.

The E visa also has several advantages over other nonimmigrant visas for the families of E visa holders. First, the spouse and  children (unmarried and under 21) of E-1 or E-2 visa holders are entitled to the same E-1 or E-2 classification as the principal. They
also may apply for work authorization once they arrive in the United States and may renew their E visa status indefinitely as long as the primary E visa holder maintains E status. Finally, these dependents may also apply for permanent residency with the primary E visa holder.

Immigration 101: Green Cards via Trade & Investment in the USA

Posted by Michael Pollak on Mon, Aug 17, 2009 @ 1:45 PM

For most foreign nationals wanting to permanently live and work in the United States, the ultimate goal is to obtain a "green card" or permanent residency status. The most common method of obtaining permanent residency is through sponsorship by an employer or family member.

For wealthy individuals, a $1 million investment in a business that Green Cards via Trade and Investment in the U.S.creates or preserves at least 10 full-time jobs is also an option. That amount is reduced to $500,000 where the business is located in areas of high unemployment or other qualifying rural areas.

However, where these options are unavailable, foreign nationals from countries with investment or commerce treaties with the United States may still obtain a visa to live and work in the United States by either investing in a business in the United States (E-1 visa) or by conducting trade with the United States (E-2 visa). The requirements of the E visa may be found in §101(a)(15)(E) of the Immigration and Naturalization Act; 8 U.S.C.A. §1101(a)(15)(E).

The E visa category may be used by various types of companies, whether owned by individuals or large multinational corporations, and may be used by the company's principals or by its employees. Although the E visa is considered a non-immigrant visa, unlike other nonimmigrant visas, it may be renewed indefinitely and the
E visa holder may apply for a green card through the business supporting the E visa.

There are three basic requirements for obtaining an E-1 or E-2 visa. First, a treaty must exist between the United States and the foreign national's home country. Germany, Italy, Switzerland, United Kingdom, Taiwan, Pakistan, Iran, Japan and Australia are just some of the countries that have treaties with the United States. Second, majority ownership or control of the investing or trading company must be held by nationals of the foreign country. Third, every employee or principal of the company seeking E visa status must be a citizen of the foreign country where the company
is based.

The Treaty-Trader/Treaty Investor Visa (E-1/E-2)

Posted by Michael Pollak on Sat, Aug 01, 2009 @ 1:07 PM

"E" or "treaty" visas are available to persons or entities engaging in trade between the United States and their home country or persons and entities coming to the United States to develop and direct enterprises in the United States in which they are investing substantial amounts of capital. The E-2 category includes individual investors as well as managers, executives, and "essential skills" employees of business entities that make the investment. As a threshold issue, in order for a foreign national to qualify for this visa there must be a trader or investor treaty between the United States and the applicant's home country. For treaty traders, the company set up in the United States must be at least 50% owned by a treaty country national, but the applicant does not have to be an owner of the business. There must be a "substantial" flow of trade (either goods or services) between the U.S. business and the treaty national's home country. The USCIS determines whether the trade is substantial on a case-by-case basis. Factors that may be considered include the nature of the business, the number of transactions, the quantity of trade and the outlay of capital.

With respect to an investment visa, again the business must be at least 50% owned by treaty nationals and there must be a substantial investment, which like the treaty-trader visa is determined on a case-by-case basis. The investor must have experience in the business and must be actively involved. The investor cannot simply invest in a company run by someone else. An E visa holder is normally admitted to the United States for a two-year period with unlimited two-year renewals. Spouses of E visa holders may apply for work authorization.

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