Lawler & Lawler

Regional Center Amendments

2011-10-05T11:24:00.000-07:00

If a Regional Center wants to add a project which has a new industry code, not previously approved for the Regional Center by the USCIS, an amendment must be filed. Significant (“material”) changes to the operation of the Regional Center also require an amendment.

Unfortunately, the USCIS has not been very forthcoming in explaining what types of changes constitute a “material” one.

Recently we received approval by the USCIS for two amendments I prepared for a Regional Center. One involved increasing the number of investors in a previously approved project as well as expanding the territory of the Regional Center. The other amendment involved a large new project. They were filed about four months apart and were granted the same day.

Martin

How Do I Start the EB-5 Process?

2011-09-29T13:14:00.000-07:00

Our EB-5 team at Lawler & Lawler will guide you step by step.

• We will set up a call to review the rules and procedures as well as explain how the investment should be made.

• We will provide you a list of items to gather and go over it to meet your needs and situation.

• We will then work with you to document the source of funds.

• Meanwhile, you may conduct your due diligence on the investment and decide in which Regional Center or business in which you will invest.

• The investment will be made and we will gather project and financial documents from the Regional Center or business including proof the investment has been received. We will then assemble the I-526 petition and file it with the USCIS.

• We will regularly keep you appraised as we advance the application.

Martin

EB-5 IIUSA Conference

2011-09-19T11:35:00.000-07:00

I attended the IIUSA (Regional Center Trade Association) Conference in Seattle a few weeks ago. There was over 200 in attendance. There was a little interesting news including:

• The AILA EB-5 committee met with Alejandro Mayorkas. Premium processing (expediting case for a government fee) will be implemented in stages; the first being email questions by the USCIS' examiners to attorneys rather than a Request for Evidence (RFE). This started on September 1 (and is pretty useless). Otherwise when premium processing will begin remains unknown.

• The USCIS will not challenge a state's Targeted Employment Area (TEA) designation provided it does not contain a math error in calculating the unemployment rate and is not a gerrymandered district or used a totally unacceptable methodology. This is very good news and what I have been predicting based on the last USCIS stakeholder's call.

• The Economist Jeff Carr said many states have been intimidated by USCIS' reluctance to accept TEA letters and they are now more restrictive.

• The Canadian investor immigration program has so many applicants backed up (20,000) they have imposed a moratorium.

It was a good meeting for sharing ideas.

Martin

Is There Any News on When the USCIS Will Start Its EB-5 Expedite Service?

2011-09-14T09:40:00.000-07:00

Recently, the Head of the USCIS said on an EB-5 stakeholder’s call that he is committed to rolling out the new expedite service called “Premium Processing.” He refused to give a timeframe, but he did say that the government did not have to submit the program for formal rule making (under the Administrative Procedures Act which can take months), which is good news.

More recently, the USCIS issued an unclear pronouncement that seemed to say premium processing would begin in 30 days. What it stated is that the program will start 30 days after the USCIS reviews the comments on the program and decides when to implement it. USCIS says it has started to email attorneys rather than issue Requests for Evidence (RFEs), but premium processing remains a goal and no start date can be predicted.

As soon as there is any news about the premium processing program I will notify all our clients and post a message on this blog and on my web page.

Martin

Stages of an EB-5 Green Card

2011-07-04T08:52:00.000-07:00

What are the stages of an EB-5 Green Card for a person investing from abroad?

The first stage is the filing of the EB-5 petition [Form I-526].

The second stage is processing the application at the National Visa Center [Form DS-230].

The third stage is the interview by the American Consul in the applicant’s home country after which the applicant is admitted to the U.S. as a “conditional” permanent resident for two years.

The fourth stage is to apply for removal of conditional resident status [Form I-829] and become a full permanent resident (green card holder).

We have easy to understand flow charts of the EB-5 process.

Martin Lawler

EB-5 Equity vs. Loan Plan

2011-07-04T08:50:00.000-07:00

Each EB-5 investor must make an equity investment in a Regional Center or business. The Regional Center or business may then either make an equity investment in a project or loan the capital to the project. What is the difference?

Many like the loan plan as there is a due date on the note and the time is set for return of the capital. The equity investment requires refinance or sale of the project or some other source of funds for return of the investor’s capital. Both investments must be “at risk,” which means the capital is subject to loss.

The investor should discuss the “exit strategy” with the Regional Center for when the capital may be returned.

Martin Lawler

Use the Proper Visa or Else

2011-07-04T08:47:00.000-07:00

The New York Times on June 22, 2011 reported the large Indian outsourcing company and labor contractor InfoSystems is being indicted for visa fraud. An employee has claimed workers were brought from India on B-1 [temporary work] visas but worked in the U.S. for which they should have had an H-1B visa for local work.

A word to the wise – use the proper visa. The government takes its restrictive rules very seriously. Feel free to consult with me about the type of visa for the service the employee will perform.

Martin Lawler

How Quickly Can an EB-5 Application be Filed?

2011-07-04T08:46:00.000-07:00

We filed one in three weeks. It usually takes the applicant about one to two months to provide us all the documents needed to show the path of funds and the source of the investment comes from a legal source.

It is best to provide as many documents as possible. We work closely with our clients to document each application. We guide our clients and explain the type of evidence usually required, which varies with each case. One client received a gift from her father who earned the funds when he sold a ship, which involves a lot of paperwork.

We have well trained staff who advise our clients on the documents needed to prove each aspect of the case.

Martin Lawler

EB-5 Family Immigration

2011-07-04T08:44:00.000-07:00

Can My Family Immigrate With Me?

Yes, provided the child(ren) are under age 21 when the first EB-5 petition is filed – the I-526. The Child Status Protection Act should freeze the child’s age. Thus, even if a child turns 21 after the I-526 is filed, they can still immigrate with the principal applicant.

Family dependents may immigrate with the principal applicant or later on following to join the investor. The dependents may not however immigrate first, unless they have their own EB-5 application which requires a separate petition.

Martin Lawler

EB-5 - Regional Center or Own Business

2011-07-04T08:41:00.000-07:00

Should I Invest in a Regional Center or Create my Own Business?

Regional Center investments have many advantages. Here are a few:

• Regional Centers may count indirect employment creation as opposed to direct jobs at the project. This is often critical, such as for a shopping center or a hotel which may have many more indirect than direct jobs created.

• Regional Centers are run by someone else. It is difficult to operate a business upon arrival in the U.S. and some are not born entrepreneurs.

• As soon as the Regional Center investment is made the I-526 EB-5 petition can be filed as the funds are “at risk.” Those who create their own business must first spend a substantial portion of the capital. That can be hard to do when one is abroad without a trusted business manager.

• Often Regional Center projects have been pre-approved by USCIS as far as the business plan and job creation methodology is concerned.

I am pleased to discuss the other advantages of Regional Centers with investors.

Martin Lawler

EB-5 Regional Centers

2011-07-02T10:18:00.000-07:00

The EB-5 Regional Center (but not self) investor law expires on September 30, 2012. Extension is, however, expected. The law was first enacted in 1993 and has been extended many times.

At Congressional hearings when this law was last extended, no one spoke against it. It is one thing Democrats and Republicans can agree upon.

When the law was last extended, it happened just before expiration. USCIS expedited the cases and the Consuls quickly issued the EB-5 visas – some in a matter of days. Even if the statute is not extended, it appears that USCIS will continue to process I-829 Removal of Conditional Resident Status applications, but USCIS has never explained its policy, if the statute were to expire.

The Association to Invest In the USA (IIUSA), the EB-5 Regional Center trade association, is starting to lobby Congress for extension of the statute, which as I said, is expected to be extended but historically has not been extended until the last minute before expiration.

The EB-5 statute is creating thousands of jobs and funding many projects. Thus, it is expected the law will be extended.

Martin Lawler

Expediting EB-5 Investor Green Cards and Regional Center Applications

2011-05-31T09:16:00.001-07:00

The USCIS announced a proposed new rule that will allow expediting many, but not all, EB-5 Investor Green Card petitions. The proposal also includes applications for Regional Center designation and their amendments for new projects.

The May 19, 2011 announcement only applies to investments involving a “shovel ready” project that is about to be constructed (as opposed to a hypothetical project).

Under the proposal (it is not yet in effect), one can pay a premium processing (expedite) fee, the amount of which is not yet announced by the USCIS, and have the application reviewed in a few weeks. The decision may be an approval, or a request for more evidence, or a notice of intent to deny the application.

Developers and financiers setting up Regional Centers will also be afforded the opportunity to have a telephone hearing to resolve questions the USCIS may have. The hearing will be before a board comprised of a USCIS officer and an economist assisted by a government attorney. The hearing is intended to quickly identify and resolve issues.

This is a breath of fresh air if the program is implemented and cases proceed timely. With most seeking the expedited processing the system may not run as smoothly as one would hope.

I will keep you posted on developments of this new procedure.

USCIS EB-5 Call

2011-02-02T08:12:00.000-08:00

A few times a year, the USCIS holds a call to address EB-5 legal and procedural issues. In the past, the calls have provided little new information and often our questions are not answered. Recently the USCIS held a call and provided some highly technical and more general information.

For example, the USCIS said, total EB-5 staffing at the California Service Center has substantially increased, and should ultimately reduce the current EB-5 case processing time of five months. We have seen such claims before and processing times are still slower than a few years ago.

• USCIS has begun gathering data about the number of applications filed for specific regional centers. The USCIS expects to begin releasing the data for publication later this year.

• USCIS clarified their policy on Office of Foreign Assets Control (OFAC) licenses, stating that a license would not be required of an Iranian national residing outside of Iran if the money is shown to be obtained through a lawful source and transferred to the U.S. without traveling through a prohibited Iranian bank. Previously USCIS issued Requests For Evidence (RFEs) requesting an OFAC license or an OFAC letter of no objection.

EB-5 Investor Green Cards

2011-01-26T10:44:00.000-08:00

Source Versus Path of Funds

What is the difference between the “source” and path of funds?

We use these terms to prove that the funds belong to the investor and the funds were derived from legal activity.

Source. The funds must be shown to have been earned legally and not be drug or mafia profits. Documents include tax returns when available, company papers, wills, property sales records, bank savings documents, etc.

Path. We gather documents to show the transfer of the funds from the source to the investor to the investment (usually a Regional Center). We gather the bank wire transfer records. In some cases there is a gap in the chain from the source bank account to the investment. Sometimes, the funds go to an agent who helps send the funds out from certain countries such as China, Iran, Nigeria, and other countries with currency restrictions. So far, USCIS usually accepts the documents provided when agents are used.

We spend considerable time with our clients to assist with this aspect of the case.

Martin

Regional Center Set Up

2011-01-20T16:09:00.000-08:00

Martin Lawler and his team of EB-5 expert lawyers advise developers on structuring of EB-5 Regional Centers; the necessary documents; timing; and advice on the Regional Center’s operation.

We have represented a number of developers to set up Regional Centers for investors to qualify for EB-5 investor green cards. Within four months of approval, one Regional Center has filed over 12 I-526 applications and has many more in the process of investing.

We are also helping set up seven more Regional Centers. We can recommend economists and business plan writers who quickly prepare the necessary documents.

In some cases, investors can invest in the Regional Center’s project directly and the investor’s EB-5 I-526 application filed before the Regional Center is approved by the USCIS. In other cases, investments can be made in the Regional Center while its designation application is pending with the USCIS, but the I-526 individual petition cannot be filed until the Regional Center application is granted.

Regional Centers are complex, expensive and time consuming projects. They involve constant marketing, government compliance, and locating and managing projects. They can be excellent means of raising capital. But they require a substantial commitment. Martin Lawler is pleased to discuss creating a Regional Center with interested developers and financiers.

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

2010-09-10T10:33:00.000-07:00

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

2010-09-03T16:45:00.000-07:00

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

2010-08-23T17:36:00.001-07:00

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

2010-08-23T17:35:00.000-07:00

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

2010-07-29T09:30:00.000-07:00

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

2010-07-29T09:18:00.000-07:00

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

2010-07-23T16:29:00.000-07:00

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

2010-07-07T12:49:00.000-07:00

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

2010-06-30T16:32:00.000-07:00

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

2010-06-30T16:30:00.000-07:00

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

2010-06-17T17:31:00.000-07:00

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

2010-06-16T14:19:00.001-07:00

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

2010-06-16T14:05:00.000-07:00

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

2010-06-15T14:59:00.000-07:00

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

2010-06-10T20:02:00.000-07:00

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

2010-06-07T14:43:00.000-07:00

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

2010-06-07T14:04:00.001-07:00

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

2010-06-04T07:04:00.000-07:00

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

2010-05-25T16:46:00.000-07:00

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

Martin

2010-05-25T13:58:00.000-07:00

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

2010-04-26T13:58:00.000-07:00

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

2010-04-15T08:00:00.000-07:00

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

2010-04-12T07:35:00.000-07:00

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

2010-03-23T07:16:00.000-07:00

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

2010-03-19T06:09:00.000-07:00

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

2010-03-10T08:27:00.000-08:00

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

2010-02-05T12:19:00.000-08:00

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.

More EB-5 News

2009-12-02T10:53:00.000-08:00

Why the EB-5 green card is so fast.

EB-5 investor visas are now the quickest way to immigrate and obtain a green card, behind marrying a U.S. citizen, being a person of extraordinary ability, an outstanding researcher or a national interest waiver petition (except for China and India the national interest is slower than EB-5). This is because there are a guaranteed 10,000 EB-5 visa numbers each year and only about a third have never been used.

The typical employment-sponsored visa categories take years to complete. For example, the employment based 2nd and 3rd preferences require a labor certification from the Department of Labor proving worker shortage (which in this economy can be hard to obtain for non-technology workers) that can take a year and a half to be issued. One must then wait for a visa number to complete the green card process. Applicants from China and India under the EB-2 must wait years for visa numbers.

The EB-3 category for all countries can take seven to eight years for a visa number and up to 20 years for a person from China or India. Some day Congress will fix the system – but in the meantime, EB-5 processing in about one year remains very appealing. Most EB-5s invest in Regional Centers, which are limited partnerships.

There are now 70 approved Regional Centers and 30 on file. Many are placeholders and not off the ground. Only about 20 are active. I can send you a list of the established Regional Centers and a few of the new ones. Another alternative involves investing in one’s own business. In either the regional center or your own business 10 jobs must be created.

I can refer investors to a risk analyst to help evaluate regional center projects. I also have an easy to understand flowchart of the EB-5 process. It is up on my website in English and Chinese.

Martin J. Lawler

H-1B Visa Filings are Rapidly Using All Available Visa Numbers

2009-12-02T10:48:00.000-08:00

All wanting an H-1B visa should apply now. As of November 30, USCIS has received about 58,900 H-1B cases for the 64,000 available visa numbers (the law provides 65,000 numbers and some are reserved for Singapore and Chile). In the past week, the USCIS received about 2,000 applications up from 1,300 the week before.

I hope you had a good Thanksgiving holiday.

Martin J. Lawler

Are H-1B Visas Running Out?

2009-11-12T09:19:00.000-08:00

USCIS announced that about 53,800 H-1B visa numbers have been used. 85,000 are available each year. 20,000 are reserved for U.S. advanced degree holders (MS, PhD, etc.) and USCIS says those have been exhausted for this year. About 40,000 numbers were used on April 1 when they first became available.

The guessing game now is how soon the remaining numbers will be used. Some will be reserved for Chile and Singapore per free trade agreements. Those can be allocated up to 6,800. But since typically only a few hundred of those are used per year, the expected extra are made available to applicants worldwide.

A colleague predicts the remaining H-1B visa numbers will be used by the end of 2009. Thus, anyone wanting an H-1B visa should apply now.

Certain people are exempt from obtaining an H-1B visa number. They include people sponsored by colleges or universities, nonprofits related to universities, and certain research institutes. People with an H-1B visa number can change employers without obtaining a new visa number, but a new application must be filed by the new employer.

H-1B workers contribute greatly to the U.S. economy and create employment. The founders of many technology companies started out on H-1B visas. Some created whole new industries and hundreds of thousands of American jobs. The economic footprint of an H-1B worker is also significant. They buy cars, groceries, and books and pay U.S. taxes. I have clients on H-1B visas who are researching cures for cancer, developing new medical devices, creating new electronic technologies, and advancing biotechnology, among other fields.

Martin J. Lawler

EB-5 Investor Green Card Update

2009-11-10T07:57:00.001-08:00

There have been a number of developments on EB-5 investor green cards. The EB-5 immigrant investor category allows a person and his or her dependent family members to get a green card (i.e., live permanently in the U.S.) by investing in the U.S. and creating or saving 10 U.S. jobs. The minimum amount of investment is $500,000 if invested in a rural or high unemployment area. Otherwise one must invest at least $1,000,000. Most invest in limited partnerships called Regional Centers and the investment amount including their fee is $525,000 to $550,000. People can create their own business as well.

Congress has passed a three-year extension of the Regional Center statute which now sunsets October 30, 2012. Senator Leahy, Chair of the Senate Judiciary Committee, has introduced a bill for a permanent extension – a link to the bill is found on my web page http://www.aboutvisas.com/ in the EB-5 section. It contains my proposal for a “good faith waiver” in case the 10 jobs are not created through no fault of the investor. This is a safety net which I proposed and is being supported by many others.

USCIS has begun to process cases faster. USCIS announced at the American Immigration Lawyers Association (AILA) first all EB-5 conference that they would decide a sample EB-5 petition for the Regional Center so that the center project aspect of the EB-5 investor case did not have to be decided with each investor’s application. The investors still must prove the investment is made, funds are at risk and the funds come from a legal source. This new process should streamline the deciding of cases.

I spoke at AILA’s EB-5 conference on the process of obtaining removal of conditional resident status, the I-829 application.

I have learned this fiscal year (beginning 10/1/09) that 422 EB-5s have been issued conditional green cards. Most were cases which could not be completed in September, the last month of fiscal year 2009.

The EB-5 classification is one of the fastest ways to immigrate compared to the other slow immigrant EB-2 and EB-3 preference categories.

Contact me for an EB-5 flowchart explaining the EB-5 immigration process.

Martin

H-1B Site Visits

2009-11-05T19:33:00.000-08:00

USCIS is conducting unannounced site visits to randomly selected companies sponsoring H-1B visas. USCIS says that some such 40,000 site visits will be conducted. So, the odds of a visit are high. I also anticipate in the future that there will be site visits for L-1 and possibly other work visas. USCIS is using contractors not USCIS officers.

Here are some guidelines:

· USCIS has a legitimate interest in verifying that the company exists and the H-1B worker is appropriately employed. However, USCIS is not allowed to compromise proprietary processes, information and trade secrets by touring the company or taking photographs on the premises. It is essential that accurate information be provided by a knowledgeable management team member about the H-1B employee's terms of employment including the job duties and salary. Inadvertent misinformation provided by, for example, a receptionist, may cause complications for the employer and H-1B worker. It is important to alert reception personnel that a site visit may happen and who will be the only person designated to talk with the inspector.

· Problems might arise by innocent characterizations provided about job duties, the job title, and salary which may seem different from those on the H-1B visa petition. For example, the H-1B petition may contain the generic job title of “software engineer” but the employer's internal title is “technical staff.” Or the H-1B petition may describe the job in lay terms, but the investigator is given a technical job description he/she does not understand. Or perhaps the employee provides his net pay instead of gross. For this reason the management team member and the H-1B employee should be familiar with the H-1B paperwork.

· USCIS guidelines provide that a site visit will be terminated if an employer requests presence of a lawyer. But I have heard conflicting reports as to whether this is happening in practice. You should evaluate your situation to decide how you wish to respond to a site visit. If you are more comfortable with counsel present, get me on the phone and we can discuss it with the inspector together.

· I recommend cooperation with the site inspector so long as safeguards are in place to be sure accurate information is provided.

If you would like to discuss this further, please call me or Hope Frye. Hope is an expert on worksite enforcement.

Premium Processing Resumes for Some Green Card Petitions

2009-06-30T16:38:00.000-07:00

USCIS is resuming Premium Processing service for Form I-140 workers involving EB-1 Aliens with Extraordinary Ability, EB-1 Outstanding Professors and Researchers, EB-2 Members of Professions with Advanced Degrees or Exceptional Ability but not seeking a National Interest Waiver, EB-3 Professionals, EB-3 Skilled Workers, and EB-3 Other Workers.

Under the Premium Processing Service, USCIS guarantees it will issue either 1) an approval notice, 2) a notice of intent to deny, 3) a request for evidence, or 4) open an investigation for fraud or misrepresentation within 15 calendar days of receipt. There is a filing fee of $1,000, which does not include legal costs associated with the application.

USCIS promises a refund of the $1,000 fee if the petition is not processed within 15 calendar days from the date it receives the premium processing request. However, this does not mean that USCIS must refund the fee if it fails to complete the case within 15 days. If USCIS reviews the petition and issues a notice of intent to deny, a request for evidence, or opens an investigation during the 15 day period, the fee will not be refunded.

Premium Processing may greatly expedite some cases and save six months to one year of waiting time for a green card. If you are potentially interested, please contact Martin Lawler at mlawler@aboutvisas.com to discuss the specifics of your petition.

Martin

Professionals: A Matter of Degree, 5th Edition

2009-06-09T08:01:00.000-07:00

My new law book on business visas has been published. It is 530 pages of text plus an Appendix of materials. The book, Professionals: A Matter of Degree, is in its 5th Edition. It covers green cards and all nonimmigrant visas used by professionals including H-1Bs (for professionals), L-1s (for intracompany transferees), P-1s (for athletes), and the latest on the new religious worker visas, among others.

In updating Professionals, I was struck by how many changes have taken place in the law and procedures during the past five years. I also anticipate this rate of change to continue.

The severe backlog of visa numbers means more will wait longer for visas, and the investor visas are more attractive than ever -- E-2 temporary and the EB-5 green card.

Martin

Department of State Advises of Shortage of Visa Number Availability Especially for those Born in India or China

2009-06-02T12:22:00.000-07:00

Charles Oppenheim of the Department of State (DOS) Visa Office advises news about the movement of priority dates in the future. He estimates that all 140,000 employment based immigrant visa numbers will be used this fiscal year (10/1/08 through 9/30/09). Other significant points include:

The employment-based 4th preference, which includes religious workers and other special immigrants, has experienced a surge in usage of immigrant visa numbers this year. While this preference is current for June 09, continued heavy demand for numbers could require the establishment of a cut-off date later in the fiscal year.
The employment-based 5th preference (immigrant investors) has also experienced a surge in usage of immigrant visa numbers this year.
The surge in employment-based 4th and 5th preference numbers is significant beyond those specific categories. Historically, there have been substantial unused numbers in these categories which have been used to meet demand for visas in the employment-based 1st and 2nd preference categories. This has allowed the China and India cut-off dates to advance further than would be possible if those categories were finished at their annual limits. This means EB1 and EB2 immigrants from China and India could have an even longer wait to obtain green cards.
The EB1 category (extraordinary ability, outstanding researchers and multinational managers) worldwide will remain current the rest of the fiscal year but demand is high.
The EB1 categories for India and China will be current during the month of June 09, but could require a cut-off date in Aug. or Sept. should EB1 demand remain heavy. China and India have benefited from the excess EB1 numbers for all other countries. However, because of the high demand from other countries this year, there are fewer numbers to "fall across" to India and China.
EB2 (MS or BS + 5 yrs exp.) India. The prognosis is grim. For June 09, the cut-off date is 1/1/2000, and the category may become unavailable completely in Aug. or Sept. 09. There are currently approximately 25,000 EB2 India cases which have been reviewed by USCIS and queued up at the DOS only awaiting a visa number. India, as are all other countries, has a limit of 2,800 EB2 numbers available per year plus the "fall across" and "fall down" from EB4, EB5 and EB1 visa numbers, if there are any leftover numbers. Translated, the waiting time for Indian EB2 applicants can be measured in years, even decades, without legislative relief.
EB2 (all other workers) China. The prognosis is equally grim. As of July 09, the cut-off date will be 1/1/2000 and the category may become unavailable completely in Aug. or Sept. 09. There are a significant amount of EB2 China cases which have been reviewed by USCIS and queued up at the DOS only awaiting a visa number to be approved. China, as are all other countries, has a limit of 2,800 EB2 numbers available per year plus the "fall across" and "fall down" from EB4, EB5 and EB1 visa numbers, if there are any leftover numbers. Translated, the waiting time for India born EB2 applicants may be measured in years, without legislative relief.
EB3 worldwide will be unavailable the remainder of this fiscal year. As the DOL cleared up its long backlog of Alien Labor Certification cases, there were tens of thousands of I-485 applications with priority dates in 2004 and earlier years which were processed by USCIS this year. As of 10/1/09, the DOS currently estimates the EB3 worldwide cut-off date will be 3/1/03. There will be extended delays in this category.
EB3 visas for India, China and Mexico applicants will be unavailable this fiscal year. It is estimated, based on current demand for visa numbers that as of 10/1/09, the following cut-off dates could be established: China will be 3/1/03; India will be 11/1/01; and Mexico will be 3/1/03.
There are approximately 25,000 EB2 and 25,000 EB3 applicants currently queued at the DOS awaiting a visa number.
There are 2.7 million family based applicants on the waiting lists for consular processing. This information was listed in the March Visa Bulletin.
There could be approximately 50,000 employment based applicants on the waiting lists for consular processing.
Currently almost 90% of all employment based visa numbers are used by USCIS and 75% of all family-based visa numbers are used by consular posts.

The solution to this long backlog is to advocate that Congress add more visa numbers or exempt spouses and children from needing a visa number. For those who can afford it, the EB-5 (investor) category is looking better all the time. See our web page http://www.aboutvisas.com/ for details on all these visa categories and the EB-5.

Martin

Individual EB-5 investments

2009-05-05T11:06:00.000-07:00

Individuals may wish to apply for an EB-5 green card based on a $500,000 or $1 million investment in their own business (as opposed to a regional center). They need to have an accountant who works closely with immigration counsel to ensure the investment is reported properly on the business and individual’s tax returns.

Individual EB-5 petitions require considerable documentation of the enterprise’s activities and job creation.

Ankle Bracelet

2009-04-22T12:51:00.001-07:00

Often people arrested by the immigration police are released from custody after placement of an electric monitor on the person’s ankle. This is commonly referred to as an ankle bracelet.

The monitor placed on an ankle is uncomfortable, cannot be removed for washing, and is anything but pretty. It is definitely not a “bracelet.”

Assigning deceptively pleasant words to bad things is a marketing ploy often adopted by the government and continued by the press. For example, genocide and mass slaughter which are anything but clean are called “ethnic cleansing,” and wars are called “conflicts” as though they were domestic spats.

I suggest electronic monitors be called “electronic cuffs” or “electronic ankle shackles” or “electronic shackles.”

I am aware wearing an electronic shackle beats going to jail but language matters, at least sometimes.

Regards,

Martin

Good News – H-1B Cap Not Reached

2009-04-10T07:08:00.000-07:00

USCIS has announced that the H-1B visa cap of 65,000 visas, and the 20,000 for U.S. advanced (Ph.D., Master’s) degrees, has not been reached. This means that all applications properly submitted through April 7th will be accepted and adjudicated (and there will be no lottery for these applications). Further, there is time remaining in which to submit new applications.

USCIS says almost all the 20,000 advanced degree visa numbers have been used, but only about half of the 65,000 used.

Initially, rumor was that the cap would be reached on April 7th but this has turned out not to be so. Last year 163,000 applications were received in the first five business days of April.

As a reminder, regardless of when decided new H-1B’s will not be valid until October 1, 2009 at the earliest.

As we have more information we will let you know.

Martin

Wanted: A Few Good Immigrants for the U.S. Military in Exchange for U.S. Citizenship

2009-02-27T09:42:00.000-08:00

On February 15, 2009, the New York Times reports:

"The Army’s one-year pilot program will begin in New York City to recruit about 550 temporary immigrants who speak one or more of 35 languages, including Arabic, Chinese, Hindi, Igbo (a tongue spoken in Nigeria), Kurdish, Nepalese, Pashto, Russian and Tamil. Spanish speakers are not eligible. The Army’s program will also include about 300 medical professionals to be recruited nationwide. Recruiting will start after Department of Homeland Security officials update an immigration rule in coming days."

Pentagon officials expect that the lure of accelerated citizenship will be powerful. Under a statute invoked in 2002 by the Bush administration, immigrants who serve in the military can apply to become citizens on the first day of active service, and they can take the oath in as little as six months." http://www.nytimes.com/2009/02/15/us/15immig.html?scp=3&sq=immigrants&st=cse

FYI, the U.S. military has always had authority in wars to enlist nonimmigrants and people who entered illegally.

Naturalization

2009-02-23T08:11:00.000-08:00

Naturalization applicants in San Francisco are now swearing in as U.S. citizens in Oakland. All ceremonies will now take place at the Paramount Theatre in Oakland.

Naturalization applications are currently taking about three to four months to process in San Francisco. San Jose office processing time is approximately four to five months.

The USCIS has a new set of naturalization questions – a little harder than in the past but they are similar.

Martin

Investor Visas

2009-02-20T09:01:00.000-08:00

Individuals who seek to apply for green cards as an EB-5 investor based on their $500,000 or $1 million investment in their own business (as opposed to a regional center) should choose a business accountant carefully to work with the individual’s immigration attorney. The primary evidence that the government will look at to determine if the individual has invested the requisite $500,000 or $1 million is the business’s tax returns. Often accountants try to lower the business’s taxes by classifying the individual’s contributions to the business in ways which may be good for taxes but in doing so may hurt the individual’s EB-5 application. For more information on investor visas see www.aboutvisas.com.

Martin

H-1B Dance

2009-02-19T10:19:00.000-08:00

Possible strategy tip:

The government rules say that one may extend H-1B status beyond the 6 year limit if a labor certification is filed for a green card before the end of the 5th year of H-1B status. If one decides to apply for a labor certification and it cannot get on file before the end of the 5th year, one alternative is for the foreign national to depart the U.S. before the end of the 5th year for a few weeks or months until the labor certification is filed and then return. Time out of the U.S. will not count toward the 6 years. Thus, if this dance is done in time, it will preserve the ability to extend the H-1B beyond the 6 year limit.

Martin

Can I Volunteer?

2009-02-18T08:47:00.000-08:00

Lately a number of people have asked me whether a nonimmigrant visa holder can “work for free,” or just stock options?

All workers in the U.S. are required by law to prove they have a right to work at the time they take up new employment, U.S. citizens and green card holders included. Nonimmigrants must have work authorization. Employment is defined in the USCIS regulations as providing services for wages or “other remuneration.” So, if one works for stock, a place to live or another benefit, that is employment requiring a work permit.

One can volunteer. I volunteered at a lawyer’s office in Washington, D.C. for a few months when in college. It was educational not work. But if one is waiting tables at a restaurant, no one will believe the work is for free. A gray area is where a PhD researcher gives some advice to a new start up. If they do so for stock options that is employment. If they do so out of friendship, it is probably OK. Helping out without pay at Habitat for Humanity or the local sustainability group is also OK.

Martin

Electronic System for Visa Waiver Travel Authorization

2009-02-17T07:34:00.000-08:00

Beginning January 12, 2009, all visitors entering the US under the visa waiver program are now required to register with US Customs and Border Patrol prior to travel through the newly-created Electronic System for Travel Authorization (ESTA).

ESTA is an automated system that will determine whether a traveler is eligible to enter the US using the visa waiver program and is otherwise admissible. To register, go to: www.cbp.gov/esta and obtain pre-travel authorization. To complete the registration, the traveler must submit biographic information and answer questions. Most applicants receive an immediate decision. If an application is denied, the traveler must apply for a visitor's visa at the US Consulate. An ESTA is valid for two years. New reports say that people not aware of ESTA are being admitted with a warning to use the new system.

Martin

Facing the Future

2009-02-13T09:42:00.000-08:00

What does the future hold for visas and green cards? No one really knows. But here are some thoughts based on conversations I had with people in Congress and at USCIS.

Short term. Using a team of temporary officers, USCIS is quickly processing the backlog of naturalization cases. This project will be complete soon. The team will then be assigned to clear out the backlog of adjustment of status (green card) cases.

The Department of Labor's processing of labor certifications is slowing. This agency as a whole seems to be going in reverse. It may even return to supervised recruitment which is the method used before PERM started about a decade ago.

Mid term. Due to the economy and increased influence of the unions with the Democratic Congress, there is little likelihood of more temporary work visas such as H-1Bs in the short term.

A recent USCIS study of H-1B visas found 21% had either technical violations of the rules or were fraudulent. Some in Congress now say there is an "H-1B problem." This bodes poorly for legislation increasing H-1B visa numbers.

Long term. Congress may provide some relief to technology companies and immigrating professionals by creating a new visa to bridge the gap between filing for a green card and its issuance. This is an interesting concept which might replace the H-1B visa for many.

Congress is working on a bill to recapture about 500,000 unused green card visa numbers lost due to slow processing after 9/11. If this bill passes, it will speed the processing of the EB-3 category for all and the EB-2 for China and India which are quite backlogged. Many agree that change is needed so the U.S. can more easily retain recent technology graduates as well as those with MS and Ph.D. degrees.

More Countries Added to Visa Waiver Program

2009-02-12T09:00:00.000-08:00

The "visa waiver" (VW) program allows nationals from certain countries to enter the United States without a visa for up to 90 days. The Department of Homeland Security recently added more countries to the program. The newly added countries are; the Czech Republic, Estonia, Hungary, the Republic of Korea, Latvia, Lithuania, Malta and Slovak Republic.

These countries join: Andorra, Australia, Austria, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, the Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, and the United Kingdom.

But there is a new wrinkle for those using VW. They need to receive an ESTA prior to travel. See the next story.

Martin

L-1 Visas

2009-02-11T09:32:00.000-08:00

L-1 visas for intracompany transferees are receiving more scrutiny by USCIS. A recent case decided by the USCIS Appeals Board (AAO) severely restricted the definition of a specialized knowledge worker. Requests for additional evidence and requests for documents (in addition to the employer's explanation) verifying the employee's specialized knowledge are now common.

Martin

USCIS Texas Service Center is Rocking

2009-02-10T11:24:00.000-08:00

The USCIS Texas Service Center (TSC) is deciding some new green card cases in as little as three months! The TSC has recently approved three of our extraordinary ability cases in about that time. Because this may not continue, now is a good time to file EB-1 cases which include extraordinary ability, outstanding researcher and multinational company executives and managers.

Martin

April 1 - First Day to File H-1B Petitions

2009-02-09T09:13:00.000-08:00

New H-1B petitions may be filed April 1, 2009. If approved, an applicant may start work on October 1, 2009. Those working on OPT on April 1 can continue doing so until their H-1B visa becomes effective on October 1.

Last April, there were about 163,000 applications for the 85,000 H-1B visa numbers. This year there may be fewer due to the slow economy and some STEM technology graduates who may opt out of the H-1B process. Thus, the chance of getting an H-1B visa may be higher than last year.

Martin