Department of State Reciprocity Schedule for China Allows for 12 Month, Multiple Entry H Visas

Effective 7/9/10, the Department of State's reciprocity schedule for China has been amended to allow for a 12 month multiple entry visa for H visa applicants. An unreleased Cable related to this change has been forwarded to diplomatic and consular posts.

EB-5 Investor Green Cards

I spoke at an EB-5 investor green card conference in Boston on August 26th. There are now 105 USCIS approved Regional Centers, and about 50 remain on file. Regional Centers are firms approved by the USCIS to take in capital from investors who apply for EB-5 green cards. The capital is invested in various projects from real estate to new energy companies. For details see my web page www.aboutvisas.com.

A Regional Center application I submitted for a client in the Midwest was approved this week.

The USCIS continues to decide applications by developers to create Regional Centers in about 3½ months unless a Request for Evidence is issued. Some can take longer.

The USCIS EB-5 Unit separates green card applications from investors in Regional Centers from those by investors who create their own businesses. USCIS says they give priority to Regional Center cases, but I see both Regional Center and investor created business EB-5 applications being deciding in about the same timeframe.

I next speak on EB-5 investor green cards in Texas on September 23, 2010.

I may hold my own EB-5 seminar in Palo Alto this fall and soon I will hold an EB-5 teleconference monthly. As soon as the date is set I will post it on this blog.

Martin

New Immigration Book

I have co-authored a new book, Immigration Options for Investors and Entrepreneurs published by the American Immigration Lawyers Association. I wrote one chapter of this 688 page treatise. This book for lawyers is the most comprehensive book on E-2 and EB-5 visas to date.

H-1B Visa Numbers

Since May 14, USCIS had counted 8,300 regular H-1Bs, or about 750/week and 3,500 U.S. Master’s numbers, or about 320/week. At current rates, that leaves about 50 weeks of regular numbers and 26 weeks of Master’s numbers. Assuming the Master’s move over to the regulars after their numbers are exhausted, at current rates, all numbers should run out about 40 weeks from now. In sum, there are plenty of H-1B visa numbers available.

EB-5 Summer Update

EB-5 green card applications continue to be approved quickly.

Our last three petitions (I-526) were granted in about three months. The adjustment of status applications were approved in less than two months.

There are more approved Regional Centers and some have new projects. Still, most are investing with established Regional Centers that have hundreds of approvals.

I will be speaking on EB-5 visas at the American Immigration Lawyers Association Conference in Boston on August 27, and in El Paso, Texas on September 23.

There has been a shake up of the USCIS California Service Center management. The Director and her Deputy have been replaced. It is unsure if this will impact the EB-5 unit. USCIS policy still seems to be to let the CSC run the EB-5 program with little input from Washington.

Martin

Martin Lawler’s EB-5 Conference Talks

I will be giving a talk at the American Immigration Lawyers Association (AILA) EB-5 Conference on Friday, August 27, 2010, in Boston; a comprehensive one-day training on EB-5 investor law. I will also be speaking at the AILA Conference on September 23, 2010, in Texas on practice tips and documentation of EB-5 petitions.

Regional Center – Principal Place of Doing Business

Regional Centers can offer at least two kinds of commercial enterprises: those that are themselves the job creating entities, and those that channel capital to job-creating entities. In the latter situation, the commercial enterprise is merely a vehicle for investment in a company that creates jobs. The vehicle for investment is the “commercial enterprise” and the company that creates jobs is the “capital investment project.”

I mentioned in an earlier post that the USCIS had stated at a stakeholder’s meeting that commercial enterprises and their investment projects must be located in a Targeted Employment Area (TEA) in order to meet the $500,000 investment requirement. The USCIS clarified that where the commercial enterprise is legally domiciled is not relevant. The relevant fact is whether the commercial enterprise is “principally doing business” in a targeted area. The USCIS has used this language elsewhere as well, and it is supported by the regulations at 8 C.F.R. 204.6.

In the above scenario where a regional center’s commercial enterprise merely funds a capital investment project, the job creating entity (in this case the capital investment project) must be located within the TEA. I believe job creation should be at the heart of this analysis. The EB-5 visa is intended to create jobs. TEAs are the areas in particular need of jobs. Therefore, less capital is required to coax investors to capitalize companies that would crate jobs in those areas that particularly need it.

The USCIS Ombudsman's Annual Report

The USCIS Ombudsman's Annual Report to Congress has recently been published with the USCIS response.

Of interest, USCIS reaffirmed for the I-829 removal of conditional residence application:

EB-5 adjudicators should not re-adjudicate the indirect job creation methodology for Regional Center cases absent clear error or evidence of fraud. USCIS will, however, continue to review the I-829 petitions to ensure that all measurable variables and assumptions that underlie the indirect job creation methodology have, in fact, been met.

For example, an investor may make a proposal to create a shopping center that would be leased to various businesses. At the I-526 stage, the investor may claim that this proposal would result in the hiring of a certain number of employees by the tenant-businesses and that a certain number of indirect jobs would be created as well. USCIS must ensure that the tenant jobs have substantially been filled to support the indirect job count. This is not re-adjudicating the job creation methodology, merely, verification of an assertion previously made during the I-526 stage.

In the alternative, if the job creation was based on total expenditure of capital to create the shopping center, USCIS must make sure that the full amount has, in fact, been invested in the job creating enterprise to support the job count.”

Where jobs have not yet been created by the time an I-829 is filed, the USCIS said:

“USCIS regulations provide some flexibility to respond to changed circumstances at the time the I-829 is filed by permitting the conditions to be removed from the alien investor’s permanent residence based upon a showing that the jobs will be created within a reasonable time.”

Regarding petitions based on investment in a regional center:

“USCIS currently prioritizes the review and processing of all Regional Center-affiliated petitions and will continue to do so. Regional Center-affiliated petitions are separated and assigned to specific officers who are trained to complete such specialized adjudications. With the increased number of staff dedicated to the processing of I-526 and I-829 petitions, we fully anticipate that the cycle times will continue to decrease.

Avoid Years of Waiting for a Visa Number to Immigrate

One can immigrate quickly via the EB-5 investor visa. There are plenty of EB-5 visa numbers, whereas immigration under the EB-3 (labor certification) can take 7+ years. The EB-2 for people with an MS or a BS + 5 years of work experience from India and China will wait for years just for an available visa number needed to complete the immigration process.

The investment amount is usually $535,000. I can send you a list of limited partnership investments for EB-5 visas.

One can borrow the funds or they can be gifted by a relative. With an EB-5 investor green card one can run the business, enjoy retirement, go to school, or run another business.

One can also create a new business for an EB-5 visa.

This visa classification is a great way to immigrate to the United States relatively quickly.

Martin

Quick Labor Certifications

The Department of Labor is now processing some labor certifications in a matter of a few months. Many older cases remain pending while new filings are quickly decided. We recently assisted a client with a labor certification proving worker shortage for a technology worker. The application was granted in 60 days.

Now we are preparing the I-140 petition and adjustment of status papers to file with the USCIS. Many petitions and applications are processed in 3 to 6 months, but not all cases will be processed as quickly.

For a step-by-step explanation of the labor certification process see www.aboutvisas.com.

Martin

EB-5 Processing Times

Today the USCIS is quickly processing many EB-5 investor green card cases. Our most recent I-526 petition (first step) was approved in about 3½ months. Our two most recent applicants for adjustment of status to permanent resident (second step) were approved in about 6 weeks. It takes time to assemble the documents and file the applications. Overall, these cases were granted from investment to permanent residence in less than 7 months. Other case may take longer. It will also take longer for those obtaining an immigrant visa at an American consul overseas. For a flowchart of the process see my web page www.aboutvisas.com and click on EB-5 Investor Green Card.

Martin

EB-5 Stakeholder's Call

USCIS held an EB-5 stakeholder’s call yesterday. There were a few interesting comments.

1. So far in 8 months (Oct. 1, 2009 to May 30, 2010) this fiscal year, more EB-5 visa applications have been filed than were filed all last year.

2. Regional Centers will be required to file annual reports.

3. Expediting I-526 forms will not be permitted with a premium processing fee as with many other applications.

4. The economist at USCIS likes the RIMS II multiplier model.

5. The Regional Center and the Regional Center’s project’s investment must be in the TEA. This is completely new and shocking as this has never been required.

Overall, USCIS refused to answer many questions claiming they were too case specific. USCIS again was not very helpful.

Martin

EB-5 Investor Green Cards

The invested funds must be “at risk,” which means they must be subject to loss if the business in which they are invested fails. The capital may not be loaned to the enterprise. A Regional Center may, however, loan the funds to a project or business. The funds must be fully invested in the enterprise before the first EB-5 visa petition (Form I-526) is filed.

For more details see my web page www.aboutvisas.com.

Martin

Fast EB-5 Investor Green Card Adjustment of Status

The EB-5 investor permanent residence process involves approval of a visa petition, after which one pursues an immigrant visa via the National Visa Center and American Consul in one’s homeland. If in the United States and eligible, one may apply here for “adjustment of status” (i.e., change from a work or student visa to permanent resident). Recently, USCIS has been processing our EB-5 adjustment cases in less than 60 days! This may slow down. Many of our EB-5 cases are being processed in 7-8 months from filing to conditional permanent residence.

Martin

EB-5 Investor Green Card

CNBC News ran a good story about the EB-5 investor visa. I was interviewed with one of my EB-5 clients. The link is http://classic.cnbc.com/id/37357190.

EB-5 investor visas allow one to immigrate in about one year, usually with an investment of about $525,000. One can create their own business or invest in a limited partnership. I can send you a list of the limited partnerships, called Regional Centers.

In both cases, 10 jobs must be created. For more information see my web page www.aboutvisas.com and click on “EB-5 Investor Green Card” at the top, or see the CNBC story. They did a good job in summarizing the requirements.

Here are some statistics on EB-5 cases:

EB-5 immigrants:
2009 – 4,191
2008 – 1,443
2007 – 793

Regards,

Martin

The USCIS published notice that it proposes to raise the fees it charges on EB-5 investor visa applications to removal conditional residence (Form I-829) to $3,655.00. The current fee is $2,855.00.

USCIS also proposes for the first time to charge a filing fee for an application for a developer to operate a regional center in which EB-5 applicants may invest. The proposed fee is $6,230.00.

The new proposed fee increase notice also indicates a rule will be published providing for reports to maintain EB-5 regional center status.

Martin

Extraordinary Ability Green Cards

Extraordinary ability green card cases can be approved by USCIS in about 6 months, although they can take longer.

Preparing a winning case involves thorough preparation and documentation. Here are a few examples of our recent successful cases:

- Dr. B is a chemist. He edits a journal, speaks at conferences, has published 20 journal articles and has about 6 patents. He works in an interesting area which is clearly beneficial to the U.S.

- Dr. C is a cancer researcher with about 15 journal articles. Her first case prepared by another attorney was denied. We reworked the case, and with a new patent application, the case was granted.

- Dr. K is a recent Ph.D. graduate. He had a few journal articles and a number of patents pending for a new medical device. He also reviews other articles for four journals. His EB-1 petition was supported by excellent reference letters.

A self-petition per the EB-1 has many advantages: no employer sponsor is needed; there are visa numbers available; no labor shortage to be proven to the Department of Labor. We file many of these applications. Keep in mind, each case is different and must be carefully analyzed.

Martin Lawler

CNBC

CNBC’s interview of me ran on May 26, 2010, about EB-5 investor visas. CNBC also interviewed one of my EB-5 clients who set up a software company.

EB-5 green cards usually involve an investment of $525,000. Most are granted conditional green cards in a year. For details see www.aboutvisas.com. The link to the CNBC interview is http://classic.cnbc.com/id/37357190.

Martin

Visa Fees

Petition-based Visas:
• H Visa – Temporary Work Visa: $150
• L Visa – Intra-company transferees: $150
• O or P Visa – Persons with extraordinary ability in Sciences, Arts, Education, Business or Athletics: $150
• Q Visa – Visa International Cultural Exchange: $150
• R Visa – Visa Religious Worker: $150
• K Visa – Fiancé(e) visa: $350

Non-Petition-based Visas:
• A/G/C-3 Visa – Diplomatic, Government Official/Employees of an International Organization/Diplomatic, Official Transit Visas: No Fee
• B-1 Visa – Business visitors, Domestic Employees: $140
• B-2 Visa – Holiday, tourism, medical treatment: $140
• C Visa – Transiting the United States: $140
• D Visa – Crewmembers working on air or sea carriers: $140
• F-1/M-1 Visa – Students: academic & vocational: $140
• I Visa – Journalists & Members of the Media: $140
• J-1 Visa – Exchange Visitor, Academics, Au-pairs, Interns: $140
• E-1/E-2 Visa – Treaty Trader/Investor: $390
• E-3 Visa – Australian professional specialty: $390

CNBC Interview

CNBC will interview me tomorrow about EB-5 investor visas. Tune in at 11:40 a.m.(EST)/8:40 a.m.(PST).

Martin

Today I was interviewed by CNBC News about EB-5 investor visas. CNBC is doing a major story on immigration tomorrow. I explained the benefits of the EB-5 investor green card and how long the application takes. I hope you can see the program tomorrow. For more on how to immigrate quickly with an investor visa see my webpage at www.aboutvisas.com, and click on "EB-5 Investor Green Cards."

Martin Lawler

Listen to My Webinar

On April 15, I gave a webinar to the American Chemical Society. For an hour and a half I spoke about changes in H-1Bs, green cards via extraordinary ability, outstanding researchers and professors, and national interest waivers, in addition to labor certifications. I also answered questions. To listen to my talk go to http://boilthisdown.org/?p=1625.

Here are some of the listeners’ comments:

--“Mr. Lawler is a very knowledgeable lawyer and excellent speaker. Many thanks for an excellent webinar. Linda… Ph.D.”

--“Very good webinar. Big thanks to Martin! I would like to see more webinars like this.”

--“This is a good seminar. I wish something like this had been presented a couple of years earlier, so I could have prepared my immigration case and improved my CV. Thanks.”

--“Thanks, it’s a great topic and very helpful, at least as I feel, to the foreign researcher community striving in USA for existence. Please have such webinars from time to time.”

--“Thanks a lot for set up this webinar. It is very informative!”


--“More time for discussions are needed. It’s really useful webinar.”

--“It was very informative and useful. Thank you.”

--“I want to thank everybody for that very informative seminar.”

--“I found the webinar very informative.”

--“I am glad I listened. Very informative.”

I am pleased to speak to other groups.

Martin

Kazarian v. USCIS

Kazarian v. USCIS
(March 4, 2010)

The decision can be accessed from the 9th Circuit’s website:
http://www.ca9.uscourts.gov/datastore/opinions/2010/03/04/07-56774.pdf

Martin Lawler

VSC Reports on H-1B Petitions Received at VSC

Cite as "AILA InfoNet Doc. No. 10040730 (posted Apr. 7, 2010)"

At the VSC Stakeholder meeting held on Tuesday, April 6, 2010, VSC reported that, as of close of business on Monday, April 5, 2010, VSC had received a total of 9,525 cap-subject H-1B petitions.

Of those petitions, 6,791 were "regular" cap, and 2,734 were advanced degree. All cases received before April 7, 2010, will have an April 7, 2010 receipt date. Those received on April 7, 2010 or later will bear the actual receipt date. For those submitted for Premium Processing, the clock will start on April 7, 2010.

Visas for Start-Ups

The USCIS and Consuls have become more restrictive in issuing visas for new company’s founders and employees.

Substantial documentation, detailed job descriptions, and data are needed to prove the firm is viable and sustainable. The founder’s track record of success can be a key factor. With each visa application I carefully explain the company’s technology, services, products and the role the visa applicant will play in the firm’s expansion.

USCIS is making H-1B and other visa applications much more challenging with a January 8, 2010 policy memo finding company owners have no employer-employee relationship with a visa sponsoring company. There are, in certain circumstances, ways to show such a relationship exists, even for start-ups.

American Consuls are also more restrictive with E-2 (treaty investor) visas for start-ups. They want to see the source of capital, detailed business plans, and see the capital invested in the new enterprise is “at risk,” and not just in the company’s bank account.

I just succeeded in assisting a new start-up from Ireland with an E-2 visa for the start-up’s founder. As with many cases in the past, I proved that intellectual property was an asset of the company which, in addition to cash investment, met the “substantial investment” requirement for an E-2 visa.

The attitude of the USCIS toward start-ups is disappointing. Small companies are the ones that create the employment the country needs in times of recession. Some companies created by H-1B visa holders have become large multinational firms. If the USCIS is concerned about a firm’s viability, all they need to do is issue a visa petition for one year, and require a progress report when an extension application is submitted. Stifling start-ups will stifle inspiration and give competitive advantage to overseas competitors.

I am a strong believer in the power of start-ups and the role they play in all fields. I am not dissuaded by the government’s anti-small business attitude.

I am pleased to discuss visas for start-ups with you.

Martin Lawler

EB-1 Case Opinion

Here is an interesting opinion on an EB-1 case. I will discuss it more later:

http://www.aila.org/content/default.aspx?docid=31441

EB-5 Investor Green Cards – Regional Center or Individual Investment

EB-5 investor green card applicants often ask me whether they should make an investment in a Regional Center or in a business they create. Both have advantages depending on the individual. Here are some general factors to consider:

• 70% to 90% of EB-5 investor choose Regional Centers but they are not for everyone.

• Regional Centers may count indirect employment toward the 10 jobs each investor must create. One’s own business must create the jobs as direct hires.

• The investment amount is $1 million unless the enterprise is in a high unemployment or rural area. High unemployment is defined as 150% above the national average. Most Regional Centers are located in a high unemployment or rural areas and thus the amount of investment is $500,000 not $1 million; to create a new company with $500,000 it must be in a rural or high unemployment area and with today’s high national unemployment rate this can be a challenge.

• Regional Centers are run by developers and one does not have to operate the enterprise. One may go to school, enjoy retirement, or own another business. The same is true for a self-owned business; it may be run by another manager, although the investor may choose to manage its day-to-day operations. Some prefer to manage their own company and investment, and are not interested in relinquishing control to another.

• Returns on Regional Center investments are usually low. Creating one’s own business may generate a much higher return.

• As soon as the case can be documented and the investment made in a Regional Center, the first step of the EB-5 process (Form I-526) can be filed. Usually the same is true if one purchases a business. However, for one creating a new firm from the beginning, the funds must be substantially spent and not just sitting in the company’s bank account – for the funds to be “at risk,” and the I-526 filed. Thus, investing in a Regional Center can be a faster visa process than creating a new business.

• Often there is no temporary visa until the owner/investor immigrates allowing an investor to run a new enterprise. This can complicate the process of opening a new business unless one has a trusted manager to run the new enterprise until the EB-5 green card is issued.

• The USCIS has approved hundreds of EB-5 cases for two of the Regional Centers and more than 70 for two others. Other Regional centers have had some petitions approved indicating the USCIS accepts the Regional Center’s business concept. People creating a new business must provide the USCIS substantial documentation about the enterprise to prove it is a viable business, the funds are at risk, and the jobs will be created.

• Individuals may be more comfortable in investing with relatives or business acquaintances or in a business they form than with a Regional Center developer they do not know.

These are just some of the factors to consider. I am pleased to talk with investors about the process and advantages of both Regional Centers and individually created businesses. I help people file both types of EB-5 cases.

Martin J. Lawler

Seminars and Speaking Engagements

Martin Lawler is a popular speaker on visa matters. He has a number of upcoming seminars and speaking engagements. They cover a broad range of important immigration topics from H-1Bs and Green Cards for Students, EB-5 investment visas, and information on visas for scientists. The list up to April 2010 is as follows.
H-1B & Green Card workshops:
Location: University of San Francisco
Dates: February 17, 2010 and March 11, 2010
2010 American Chemical Society Spring National Meeting:
Location: San Francisco, CA
Date: March 22, 2010. Martin Lawler will be part of a panel discussion entitled "Foreign National Scientists: Obtaining a Job in the U.S."
EB-5 Investor Green Cards
American Immigration Lawyers Association
Location: Texas/Oklahoma/New Mexico Chapter's Spring Conference
Date: April 17, 2010
For more information, please contact Martin Lawler at mlawler@aboutvisas.com or call us on 415-391-2010. Martin is available to speak to other groups.