Statue of Liberty
Copyright: dvrcan / 123RF Stock Photo

On our Emerging Companies Insider blog, Fox associate Alex Radus provided an update on the new International Entrepreneur Rule by the U.S. Citizenship and Immigration Services (USCIS). The rule, which would grant limited entrée to entrepreneurs establishing stateside startups, has undergone a public comment period. Slated to become effective July 17, 2017, the rule would permit the Secretary of Homeland Security to offer parole (temporary permission to be in the U.S.) to individuals whose businesses provide “significant public benefit.” That means the startup should have a substantial potential for rapid growth and job creation, and that the entrepreneur’s parole would significantly help the startup conduct and grow its business in the U.S. As a result of public comments, USCIS generally made it easier for foreign entrepreneurs to establish startup companies in the U.S. via the program.

Alex outlines the changes made in the final rule since his previous discussion, including the timeframe for startup formation, the definition of “entrepreneur,” the minimum investment amount and other aspects. He also notes that with the change to the Trump administration, the future of the role, which was spearheaded by former President Obama, is uncertain. He also notes some of the practical concerns surrounding the rule as proposed. We invite you to read his valuable discussion.

Statue of Liberty
Copyright: dvrcan / 123RF Stock Photo

On our Emerging Companies Insider blog, Fox associate Alex Radus published an excellent piece covering a proposed new rule by the U.S. Citizenship and Immigration Services (USCIS). The rule would grant limited entrée to entrepreneurs establishing stateside startups. The rule would permit the Secretary of Homeland Security to offer parole (temporary permission to be in the U.S.) to individuals whose businesses provide “significant public benefit.” That means the startup should have a substantial potential for rapid growth and job creation, and that the entrepreneur’s parole would significantly help the startup conduct and grow its business in the U.S.

Alex outlines the qualifications that foreign entrepreneurs will have to meet when seeking to benefit from the program, as well as the investor requirements and timespan involved. He also notes some of the practical concerns surrounding the rule as proposed. We invite you to read his valuable discussion and join the debate during the public comment period provided by DHS.

Moving quickly along, the US Citizenship and Immigration Services (USCIS) informed the public that it completed data entry of all “winning” fiscal year 2017 (FY2017) H-1B cap-subject petitions (i.e., petitions that were selected in the computer-generated random process).  The announcement was made on May 2, 2016.  Considering that approximately 236,000 H-1B cap-subject petitions were received by USCIS in early April, it is quite a feat that the Immigration Service conducted the lottery and completed data entry on the selected petitions so fast.

Due to volume and to balance the workload, USCIS stated that it will be transferring some of the selected petitions from the Vermont Service Center (VSC) to the California Service Center (CSC).  Employers whose petitions are transferred will be notified via mail and should communicate with the indicated Service Center going forward, including for such things as upgrading to premium processing.

USCIS will return the “unselected” cap-subject H-1B petitions to employers, but could not provide a time frame for this due to the large number of petitions for which there were no available H-1B numbers.  USCIS stated that it will issue an announcement after all of the unselected petitions are sent for return.

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Catherine Wadhwani is a Partner in Fox Rothschild LLP’s Immigration Practice Group.  She may be reached at (412) 394-5540 or cwadhwani@foxrothschild.com.

 

As anticipated, the number of cap-subject H-1B petitions filed by U.S. employers exceeded the 65,000 general cap and the 20,000 master’s degree exemption for fiscal year 2017 (FY2017).

Yesterday, April 7, 2016, U.S. Citizenship and Immigration Services (USCIS or the Immigration Service) announced that the FY 2017 H-1B cap had been reached and that it had also received more than 20,000 petitions under the master’s or higher degree exemption.

At this point the Immigration Service will turn its attention to initial intake on the H-1B petitions that it received before the cap was reached.  Due to the high volume of petitions received, USCIS stated that it cannot yet say when it will implement use of its computer-generated H-1B Lottery process to determine which petitions will be processed.

As in prior years, petitions filed under the advanced degree exemption will be selected first.  Thereafter, presuming that there are in excess of 20,000 advanced degree petitions, the remaining advanced degree petitions will be added into the 65,000 general cap for consideration.

Petitions that are not selected and are not duplicate filings will be rejected and returned (with unused filing fees) to the petitioner.

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Catherine Wadhwani is a partner in Fox Rothschild LLP’s Immigration Practice Group.  You can reach Catherine at (412) 394-5540 or cwadhwani@foxrothschild.com.

 

As you likely know, April 1st was the first day when cap-subject H-1B petitions could be accepted for Fiscal Year 2017.  Now that the filings have started, here is a quick summary of some key information provided by the U.S. Citizenship and Immigration Services (USCIS or Immigration Services) in a March 16, 2016 release captioned, “USCIS Will Accept H-1B Petitions for Fiscal Year 2017 Beginning April 1, 2016”:

  • The congressionally mandated H-1B cap remains at 65,000 for FY 2017 along with the cap exemption for the first 20,000 petitions received for those with a U.S. master’s degree or higher (the latter being commonly referred to as the “Master’s Cap”).
  • It is again expected that USCIS will receive more than 65,000 petitions during the first 5 business days of April 2016.
  • USCIS will monitor the number of petitions received and let public know when the H-1B cap has been reached.
  • The H-1B Lottery system (computer-generated lottery system to randomly select the number of petitions required to meet the cap) will again be used if as expected, during the first 5 business days of April, USCIS receives more cap-subject H-1B petitions than there are numbers available.
  • If your petition isn’t selected in the Lottery or is received after the cap is closed, USCIS will reject it.
  • An H-1B petition is “accepted” only on the date when USCIS receives a properly filed petition with the appropriate fees.
  • Premium (15-day) Processing of cap-subject H-1B petitions is expected to be delayed, but begin no later than May 16, 2016.  This is to allow personnel time to enter data on the massive number of petitions that are expected during the first 5 business days of April.
  • USCIS provided special instruction for employers whose H-1B workers will work in different locations as follows:  “H-1B petitioners are reminded that when the temporary employment or training will be in different locations, the state where your company or organization’s primary office is located will determine where you should send your Form I-129 package, regardless of where in the United States the various worksites are located. Please ensure that when temporary employment or training will be in different locations, the address on page 1, part 1 of Form I-129 is for your organization’s primary office. Please note that when listing a “home office” as a work site location on Part 5, question 3, USCIS will consider this a separate and distinct work site location.”

Let the data entry begin…

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Catherine Wadhwani is a Partner in Fox Rothschild LLP’s Immigration Practice Group.  Catherine is situated in Fox Rothschild’s Pittsburgh, Pennsylvania office though she practices throughout the United States and at Consulates worldwide.  You can reach Catherine at (412) 394-5540 or cwadhwani@foxrothschild.com.

 

America’s traditional view on immigration has been: “Give me your tired, your poor, your huddled masses yearning to breathe free.” As we head into the fall presidential elections, we’re now hearing such promises as: “I will stop illegal immigration, triple border security and put in the surveillance and biometric tracking to secure the border.” Not to mention the beautiful wall.

Immigration is again dead center in the political crosshairs. The thrust of the discussion is border security and illegal immigration rather than legal immigration. That’s unfortunate.

Security and illegal immigration are important issues, of course, but our broken legal immigration system is probably more harmful to our nation.

I just got off the phone with a Pittsburgh-based entrepreneur whose high-tech start up is starved for workers. He has plowed his personal funds and investors’ capital into his business, which provides unique online learning opportunities and services for disabled children. While investors project that this company could achieve significant profits and educational advances, it needs highly specialized talent to get there.

The entrepreneur has identified two individuals whose specific expertise is desperately needed now to get the technology and the firm off the ground. The problem is that they are not U.S. workers. They are not tired or poor or part of the huddled masses; they are highly credentialed research scientists with European doctoral degrees. They need employment authorization, which comes in the form of a non-immigrant status, the most popular of which is the H-1B visa. But without proper authorization, they can’t work, so neither can the start-up.

While the H-1B visa is popular, it’s impractical because getting one is unpredictable. There are only a limited number available in any given year. Due to high demand by employers in recent years, H-1B status has been awarded only through a lottery each April — forcing companies to depend on luck in making business decisions.

Each fiscal year, the U.S. Citizenship and Immigration Service grants up to 85,000 “cap subject” H-1B visas. Subject to the cap are new applications by most for-profit employers. The cap allows 20,000 H-1Bs for people with qualifying master’s or higher degrees, 1,400 for Chileans, 5,400 for Singaporeans and 58,200 for all other eligible petitioners. Last year, more than 240,000 applications were filed for 85,000 visas.

H-1B petitions are generally filed in the first five business days of April. After that, the cap-subject visas are gone until the next year. The applications are for employment to begin Oct. 1, the beginning of the federal fiscal year. So, if an employer is unlucky in the lottery in April, he or she must wait another year to try again.

The largest users of the H-1B visa are the huge information-technology staffing firms, each of which file hundreds or thousands of applications for consultants to be employed by American businesses. Their lottery chances per application are no different than those of the start-up entrepreneur, but their business model focuses on providing as many foreign consultants to serve as many U.S. businesses as they can.  In contrast, many start-ups are trying to hire one or two workers with specialized skills not otherwise available and without whom the business is in jeopardy.

To qualify for H-1B status, a potential employee must have an offer of employment (not self-employment) to perform work that is usually performed by a person with at least a bachelor’s-level of education and who is otherwise qualified for the position. If a license is required, for example, the alien must have the license. There are special rules for physicians.

A potential U.S. employer must offer at least the prevailing wage, as determined by the U.S. Department of Labor and have the capital to pay it. The employer must post a notice of the hiring and attest that working conditions for the visa holder will not adversely affect other workers similarly situated, among other things.

Then there are the filing costs. Even if there were no legal fees, an employer must pay a $325 filing fee, a $500 anti-fraud fee and a $1,500 training fee. The training fee is $750 for employers of fewer than 25 employees. If the employer loses the lottery, it gets its filing fees back, but no employee.

There are more details involved in obtaining H-1Bs and other work-authorized visas. One H-1B strategy is to seek employment with a nonprofit institution of education or an affiliated employer that is cap exempt.

There has been some high profile H-1B abuse reported by both employers and employees. There has been controversy over whether the practices of some H-1B employers or their customers negatively impact wages and working conditions of American workers. But this is truly the exception.

As for the Pittsburgh-based entrepreneur, we had a difficult conversation. I explained the lottery.

“Why can’t there be enough H-1B visas to keep up with the need?” he asked. “The law hasn’t changed this century; it’s 2016 and our company’s future depends on a lottery — that’s crazy!”

But that’s the law. We discussed having his potential employees work remotely and other unattractive alternatives. For now, we are preparing the applications and crossing our fingers.

It is clear that the supply of H-1B visas does not meet the demand required by our economy. The H-1B is for educated, typically energetic individuals yearning to contribute to America. The law should reflect this reality by periodically adjusting the H-1B cap to meet demand and the economy’s needs, while still protecting U.S. workers.

For a decade or more, our elected officials have considered fixing this and other parts of our broken legal immigration system. If not now, when?

 

Originally published in the Pittsburgh Post Gazette on March 27, 2016

 

The Immigration Service has issued a reminder to designated EB-5 Regional Centers to file a Form I-924A Supplement to Form I-924 no later than December 29, 2015.  The I-924A filing is required in order for a Regional Center to show its continued eligibility for designation and participation in the Regional Center program.  This filing requirement applies to all approved Regional Centers issued a designation letter dated on or before September 30, 2015.  It does not include terminated Regional Centers nor those with pending I-924 Applications.

Regional Centers that do not file an I-924A may lose their designation and participation in the Regional Center program.

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Ms. Wadhwani is a partner in the Immigration Practice Group of Fox Rothschild LLP.  She may be reached at cwadhwani@foxrothschild.com.

With the end of STEM OPT looming, the US Department of Homeland Security (DHS) published a much-awaited Proposed Rule on October 19, 2015, regarding STEM OPT and Cap-Gap Relief.  (See https://www.federalregister.gov/articles/2015/10/19/2015-26395/improving-and-expanding-training-opportunities-for-f-1-nonimmigrant-students-with-stem-degrees-and.)

Highlights of the Proposed Rule, captioned “Improving and Expanding Training Opportunities for F-1 Nonimmigrant Students with STEM Degrees and Cap-Gap Relief for All Eligible F-1 Students”, include:

  • 24-months of employment authorization, an increase of 7 months from the current 17-month extension period (up to two times if the 2nd is based on a higher degree);
  • Oversight of STEM OPT extensions would be increased by such things as:
    • Formal employer Mentoring and Training Plans,
    • Wage and other protections for STEM OPT students and U.S. workers, and
    • Extensions only for students with degrees from accredited schools.

STEM OPT is “optional practical training” (OPT) for certain students who have earned degrees in a science, technology, engineering, or mathematics (STEM) field from a U.S. institutions of higher education and who will be employed by employers enrolled in E-Verify.  E-Verify is the Immigration Service’s (USCIS’s) electronic employment eligibility verification program.

The Proposed Rule, released after the Washington Alliance of Technology Workers v. U.S. Department of Homeland Security case, includes a provision to continue “Cap-Gap” relief.  Cap-Gap relief, which was first introduced in 2008, enables an employer to continue uninterrupted employment of a student during the period after 12-month OPT ends and before October 1st when H-1B status may begin following a year when demand for H-1B numbers exceeds supply.  (For more information regarding the Washington Alliance of Technology Workers v. U.S. Department of Homeland Security, see Robert Whitehill’s ImmigrationView posts at https://immigrationview.foxrothschild.com/employment-verification-compliance-including-i-9s-e-verify-and-enforcement/stem-opt-in-jeopardy-after-judges-order/ and https://immigrationview.foxrothschild.com/general-immigration-news-and-updates/future-of-stem-opt-extension/.)

It is stated that the changes set forth in the Proposed Rule should:

  • Better ensure that students gain practical STEM experience that supplements their academic studies, while also preventing adverse effects to U.S. workers.
  • Enabling students to earn a functional understanding of how to apply their academic knowledge, thus better positioning them for careers in STEM fields.
  • Limiting STEM OPT employment to work with employers that commit to developing students’ knowledge and skills through practical application.
  • Ensuring that US colleges and universities remain globally competitive in attracting international STEM students to study and lawfully remain in the United States.

Presumably, if implemented, the changes will provide a sense of stability to US employers in need of highly valued STEM OPT employees, but who face concerns that an H-1B lottery number may not be available for the employment to continue beyond 12 months, as well as to students with STEM OPT employment authorization who had incentive to use their STEM education abroad due to uncertainty here.  The comment period is open until November 18th so the Final Rule may include changes, but the Proposed Rule seems like a good start.

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Ms. Wadhwani is a partner in the Immigration Practice Group at Fox Rothschild LLP.  She may be reached at cwadhwani@foxrothschild.com.

 

In a move that has crushed the hopes of untold numbers of would-be applicants for US permanent residence, the US Department of State (USDOS) issued a revised October 2015 Visa Bulletin which dramatically set back the new “Dates for Filing Applications”.  See http://travel.state.gov/content/visas/en/law-and-policy/bulletin.html.

The revised October 2015 Visa Bulletin was issued last Friday, September 25, 2015, and supersedes the October 2015 Visa Bulletin that was issued on September 9, 2015.

As a result, the following categories now have later filing dates as indicated:

Category                  NEW Filing Date

EB-2 China…………..1/1/2013 (back 1 year and 5 months from the original October 2015 Visa Bulletin)

EB-2 India……………..7/1/2009 (back 2 years from the original October 2015 Visa Bulletin)

EB-3 Philippines…..1/1/2010 (back 5 years from the original October 2015 Visa Bulletin)

FB-1 Mexico…………..4/1/1995 (back 3 months from the original October 2015 Visa Bulletin )

FB-3 Mexico…………..5/1/1995 (back 1 year and 5 months from the original October 2015 Visa Bulletin ).

This means that an intending greencard applicant may only file an adjustment application in October 2015 if his or her priority date is earlier than the Date for Filing as listed in the revised October 2015 Visa Bulletin (the one that was released on September 25, 2015).

It’s impossible to tell how many people were fervently working toward preparing adjustment applications AND making life decisions based on the previously issued Dates for Filing.

As they say, “easy come, easy go”, but this just doesn’t seem fair.  Questions are also being raised regarding the legality of this unexpected move.

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Ms. Wadhwani is a partner in the Immigration Practice group of Fox Rothschild LLP.  She may be reached at cwadhwani@foxrothschild.com.

If you’re waiting for your employment card or greencard to be issued, your wait may be slightly longer than usual by a few weeks. 

AILA (the American Immigration Lawyers Association) provided notice that there have been reports of delayed issuance of employment cards (EADs) and of US Permanent Residence cards.  The delay is not in the adjudication period, but rather in the amount of time between the date of an approval and the date when USCIS issues the EAD or greencard to the beneficiary. 

The delay is said to result from maintenance measures at one of the card-production facilities, which in turn necessitated the temporary transfer of card production processes to a different facility.  The timings are expected to return to normal sometime in the second half of September.

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Ms. Wadhwani is a partner in the Immigration Practice Group at Fox Rothschild LLP.  She may be reached at cwadhwani@foxrothschild.com.