Business Immigration Changes

Following Obama's announcement on Executive Action, DHS will begin to identify the conditions to allow talented entrepreneurs to be paroled into the U.S., on the ground that their entry would yield a significant public economic benefit.

In addition, DHS will take a number of administrative actions to enable U.S. businesses to hire and retain highly skilled foreign-born workers and strengthen and expand opportunities for students to gain on-the-job training. The regulations will also be amended to provide more flexibility to workers with approved employment-based green card petitions that are affected by long green card backlogs.

Changes for Foreign Entrepreneurs and Startups

Foreign entrepreneurs play an important role in the U.S. economy, forming businesses that create jobs and producing products/services that facilitate technological advancement of the nation. Unfortunately, there are no visa options available for many promising entrepreneurs.

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Q: What are current visa options and challenges for foreign entrepreneurs?

A: Under existing immigration laws, there are limited visa options available to foreign entrepreneurs, such as for example E-1/E-2, H-1B, TN, O-1, and L-1. However, each of these visa options has certain limitations that preclude many entrepreneurs from coming to the U.S.

  • E-1/E-2 Visa . E-1/E-2 allows foreign nationals to come to the U.S. to open and run their company. E-1/E-2 treaty trader/treaty investor visa is only limited to the nationals of the countries with which the U.S. has signed a special treaty. List of treaty countries can be found here.

    Many nationalities do not have E-1/E-2 treaties with the U.S. and are thus excluded from this visa option.

  • L-1 visa . L-1 Visa is also known as intracompany transferee visa and has 2 subcategories: 1) L-1A for executive/management employees and 2) L-1B for employees with specialized knowledge.

    L-1A allows a foreign national who has worked for a foreign subsidiary, affiliate or parent company in a managerial or executive capacity for at least a year within the preceding 3 years to come to the U.S. to engage in managerial or executive duties for the affiliated company. This visa option is great if you have an affiliated company abroad where you have worked.

    L-1B is a visa for employees of the foreign subsidiary, parent or affiliate who possess specialized knowledge of the company's products/processes and who want to come into the U.S. to provide that specialized knowledge to the U.S. affiliate.

    While L-1 option can be appropriate for some entrepreneurs, this visa is not feasible for someone who does not have a foreign company's affiliation and wants to open a startup in the U.S.

  • H-1B VisA: H-1B is a "specialty occupation" visa that allows you to work for a company in the U.S. Apart from the numerical cap placed on the amount of visas that can be issued per fiscal year, there are many other restrictions. H-1B is designed for scientists, doctors, lawyers, engineers but is much harder to get for those who are in business or marketing fields because of the restrictive interpretations of the term "specialty occupation" by USCIS. Thus, even though entrepreneurs may qualify for H-1B visa to work in their own company if there is outside control over the immigrant's work, CEO and other positions entrepreneurs normally hold are not often appropriate job categories for H-1B as these occupations not specialized enough and cannot be categorized under "specialty occupations" according to USCIS. With no list of specialty occupations or clear guidance on which positions qualify for H-1B, there is a lot of uncertainty and too much discretion on the part of USCIS in the adjudication of H-1B visA:
  • O-1 Visa . O-1 is an extraordinary ability visa that allows certain entrepreneurs to come to the U.S. if they can prove recognition in the field for their work. However, this visa is not appropriate for young entrepreneurs with bright innovative ideas with no established record of achievement.
  • TN visA: TN is another available work visa but is only available to the nationals of Canada or Mexico who wish to work for a U.S. company in the select list of professional positions. Among those professional positions, there is a designation for Management Consultant, which is relevant but may not be appropriate for certain entrepreneurs.

As you can see from the visa options above, each of the currently available visas has certain restrictions that prevent many entrepreneurs from coming to the U.S. President's measures are intended to ease the entrepreneurs' access to the U.S. so they could build companies, bring in investments and hire American workforce.

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Q: How will the President's measures help foreign entrepreneurs?

A:

  1. USCIS will issue clarified guidance on who can qualify for green cards based on National Interest Waiver category without employment sponsorship;
  2. The President's initiatives will allow certain inventors, researchers, and founders of startups to be "paroled" into the U.S. or be granted a "parole-in-place" if already in the U.S. Grant parole or parole-in-place to allow certain individuals who do not yet qualify for a national interest waiver but who have been awarded substantial U.S. investor financing or otherwise hold the promise of innovation and job creation to enter the U.S.

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Q: What is a National Interest Waiver?

A: A National Interest Waiver (NIW) is a direct route for a green card and is classified under the EB-2 second preference employment-based immigrant category. Under EB-2, certain individuals with an advanced degree or exceptional abilities may obtain green cards based on employment.

In most EB-2 cases, the individual must have a job offer from a U.S. employer and has to go through a tedious DOL's Labor Certification process before being able to file an immigrant petition.

With the National Interest Waiver, certain individuals whose work in the U.S. would greatly benefit the nation are able to self-petition without a job offer and can bypass the Labor Certification process.

Upon approval of the NIW, the individual may apply for a green card if visa numbers are available.

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Q: What are the requirements for NIW?

A: USCIS relies on a 1998 Administrative Appeals Office precedent decision setting forth a three-prong test for evaluating requests for a national interest waiver. See Matter of New York State Department of Transportation, 22 I&N Dec. 215 (Comm'r 1998) ("NYSDOT").

You have to demonstrate that you satisfy all three prongs below:

  1. you will work in the area of substantial intrinsic merit
  2. the proposed impact of your work must be national in scope (meaning that the benefits of your work extend beyond the location of your work or a particular state and benefit the entire nation);
  3. the benefit derived from your work substantially outweighs the national interest in using labor certification process. For this third element, you need to demonstrate a past record of specific prior achievement which justifies projections of future benefit to the national interest. This means that your evidence must show that you serve the national interest to a substantially greater extent than the majority of your colleagues and that you have established a degree of influence on your field that distinguishes you from your colleagues.

While the requirements are relatively straightforward and there are no restrictions on the professional occupations the aliens must be in to qualify, it is still quite hard to satisfy the prongs of the NIW test. While the first two elements are easier to prove if the individual's work is important and is disseminated nationwide (e.g. through published articles, presentations at conferences, etc.), the third element normally presents the most challenges. In order for USCIS to decide whether a particular individual can serve the nation's interest to a substantially greater extent than the majority of peers, you have to prove the applicant's past recognition for work in the field, which can be challenging.

Many individuals with great innovative ideas and prospects in the U.S. are recent graduates who have not yet established themselves in the field. While it is not clear whether the new regulations will benefit those individuals, we remain hopeful for positive changes.

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Q: How will the National Interest Waiver category be changed?
  1. DHS will issue a new regulation or guidance clarifying how certain inventors, researchers and founders of startups can be eligible for a national interest waiver with the aim of promoting the category's greater use for the benefit of the U.S. economy.

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Q: What is "parole"?

A: Parole is not a visA: It is a discretionary measure to let someone enter in the U.S. or obtain the status of lawful admission. The President's actions alone cannot create new visas, which is why this measure is intended to supplement available visa options and give the ability for certain deserving individuals to come to the U.S. to engage in research or business creation if they do not qualify for another visA: Upon the grant of parole, USCIS will most likely create a pathway for these individuals to obtain work authorization.

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Q: Who qualifies for parole or parole-in-place?

A: So far, the only information we have is that the new policies for granting parole will apply to certain inventors, researchers, and founders of startups if they show a certain amount of investment funding or otherwise hold the promise of innovation and job creation through the development of new technologies or the pursuit of cutting-edge research to enter the U.S.

Parole will allow the qualified individuals to temporarily pursue research and development of promising new ideas and businesses in the United States, rather than abroad. The regulation will include income and resource thresholds to ensure that individuals eligible for parole under this program will not be eligible for federal public benefits or premium tax credits under Health Insurance Marketplace of the Affordable Care Act.

However, no guidance has been released yet to clarify these general parameters. Please check our website often for updates.

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Modernization of Employment-Based Immigrant Visa System

Currently, employment-based immigrant visa system is plagued with long visa wait times that occur due to the limited numbers of immigrant visas ("green cards") authorized to be issued each year. Countries such as China and India are particularly affected by the lengthy backlogs, resulting in the wait for sometimes over 10 years. The problem is exaggerated by the fact that many visa numbers authorized to be issued can be unused. In addition, the current way of determining visa availability through the DOS' Visa Bulletin is so complex that it presents challenges to most individuals to understand where they are in the line and when they can expect to receive the green card.

To help improve the immigrant visa process, three measures will be implemented:

  1. USCIS will work with the U.S. Department of State to ensure that all immigrant visas authorized are issued if there is demand for such visas;
  2. USCIS will work with the DOS to improve the system for determining when immigrant visas are available to applicants during the fiscal year. By this measure, Visa Bulletin is supposed to be modernized to be a more user-friendly guide to visa availability;
  3. USCIS will consider other policy changes to better assist beneficiaries of approved employment-based immigrant petitions.

Ability to File Adjustment of Status Application (Form I-485) upon approval of Employment-based Immigrant Petition (I-140)

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Q: What do these changes mean for the individuals caught in the backlogs?

A: Those individuals who have approved employment-based immigrant petitions will be able to file for adjustment of status ("green card") upon approval of the immigrant petition. Adjustment of Status is the final step in obtaining the green card. While they would still have to wait in line to actually receive the green card, they will be able to receive the benefits from the "pending green card."

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Q: What is the process for Adjustment of Status now?

A: Depending on the country of birth, many skilled workers cannot file Adjustment of Status Application, Form I-485, before their wait in line for visas is over. This means that upon approval of an immigrant petition, these individuals have to wait for many years before they can file for the actual green card.

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Q: What are the challenges in the current Adjustment of Status procedure?

A: Without being able to file Adjustment of Status application, you have to maintain other nonimmigrant status, such as for example H-1B, O-1, or L-1 visA:

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Q: What are the problems that arise from having to maintain another nonimmigrant status?

A:

  • You have to keep renewing your nonimmigrant status each time;
  • Your spouse cannot generally work in the dependent visa category (such as H-4, O-3 dependent categories);
  • You cannot easily change jobs.

If you change jobs while waiting in line for your visa number, you cannot use the previously approved I-140 immigrant petition and the new employer has to go through the entire Employment-based green card process all over again.

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Q: What are the benefits from filing adjustment of status application?

A: If you file adjustment of status application, you may simultaneously file applications for Employment Authorization (EAD) and Travel Permit (Advance Parole) for yourself and your spouse.

Normally, within 90 days of filing, you and your spouse will receive the employment authorization document and travel permit.

After 6 months of filing for adjustment of status, you may be able to change jobs more easily.

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Q: What happens if you change jobs after 6 months of filing Adjustment of Status application?

A: The new employer does not need to go through the Employment-based immigrant process again. You may keep the same approved Employment –based Immigrant Petition, Form I-140 from the previous employer. The new job however should be in a "same or similar occupational classification" as the old job in order to transfer your eligibility.

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Increasing Worker Portability with Pending Adjustment Applications – Clarifying the term "Same or Similar" occupational classification

Current law allows workers with approved I-140 employment-based immigrant petitions and with adjustment of status applications pending for at least 6 months to change jobs without jeopardizing their ability to seek permanent residence. The only pitfall is that your new job has to be in a "same or similar" occupational classification as your old job. Unfortunately, there is some uncertainty as to what is considered same or similar job, which prevents most workers from changing employers. To help improve the system, USCIS will issue a memorandum providing additional guidance with respect to the types of job changes that constitute a "same or similar" job.

Q: Are there any examples how the guidance will clarify the term "same or similar" job?

A: For now, we only know that USCIS will make clear that a worker can accept a promotion to a supervisory position or otherwise transition to related jobs within his or her field. We will update the page once more information comes out.

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Reforming Optional Practical Training (OPT)

Foreign students in the U.S. under F-1 visas are eligible to qualify for 12 months of OPT, which allows them to work and obtain experience in the field of their study. In addition, students in science, technology, engineering, and mathematics (STEM) fields are eligible for an additional 17 months of OPT, for a total of 29 months.

Under the changes, new regulations will be implemented to expand the degree programs eligible for OPT and extend the time period for STEM students. The new regulations will also require a stronger ties between OPT students and their colleges and universities following graduation.

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Reform of the L-1B Visa Program

L-1B visa allows companies to transfer certain employees from the multinational company's overseas office to the U.S. The qualified employees must possess "specialized knowledge" of the company's products or processes. To date, however, vague guidance and inconsistent interpretation of the term "specialized knowledge" in adjudication of L-1B petition has created great uncertainty and prevents many companies from applying.

Q: What will be done under the L-1B visa reform?

A: To solve the issue, USCIS will issue a policy memorandum to provide clear guidance on the meaning of "specialized knowledge."

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Work Authorization for H-4 Spouses

Under the proposed changes, USCIS has also promised to finalize its regulation and publish the rule on H-4 spouses' employment authorization. Under the proposed rule, certain spouses under H-4 visa will be able to get employment authorization.

Q: Will all H-4 spouses be eligible to get employment authorization?

A: No, the rule will only include H-4 spouses who are dependents of principal H-1B holders who have begun the process of seeking lawful permanent resident status through employment and have extended their authorized period of admission or "stay" in the U.S.

Q: What are two main requirements for H-4 EAD eligibility?

A:

  1. Having an approved I-140 for the principal H-1B beneficiary
  2. Having extended H-1B status beyond 6 years
Q: When will the rule be finalized?

A: We anticipate that the rule will be published in January 2015.

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MODERNIZING THE PERM PROGRAM

A: PERM Program is administered by the Department of Labor and is designed as a test of the labor market before a foreign national can be sponsored for permanent residency by a U.S. employer. Before the DOL approves the Permanent labor certification on behalf of a foreign worker, the DOL must certify that there are no sufficient U.S. workers who are able, willing, qualified and available to perform the proposed work and that employment of the foreign national will not adversely affect the wages and working conditions of similarly employed U.S. workers.

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Q: What are the drawbacks in the current administration of the PERM program?

A:

  • Created 10 years ago, PERM system is outdated and does not always represent current business realities. Under the proposed changes, the DOL will look into the ways to modernize the system and make it more responsive to changes in the U.S. workforce.
  • Currently, adjudication of PERM application takes 6 months or more on average without an audit and more than a year with an audit (audit is a request of the DOL to provide more information or documentation in support of the application).
  • Any errors on PERM application or in the underlying recruitment process may result in the denial of the application. This means that any immaterial changes along the way, sometimes after over a year of processing, can result in the denial.

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Q: What are the examples of the proposed changes to PERM process?

A: The DOL will seek input on the following:

  • ways to modernize recruitment requirements
  • options for identifying labor force occupational shortages and surpluses and methods for aligning domestic worker recruitment requirements with demonstrated shortages and surpluses
  • processes to clarify employer obligations to insure PERM positions are fully open to U.S. workers
  • possibility of premium processing, and
  • application submission and review process and feasibility of addressing non-material errors without denial

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Q: When will changes be implemented?

A: There are no timeframes for implementation of the changes. Check this page for updates.

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