August 13, 2015

Entrepreneurs: Thinking About Starting or Expanding a Business in the United States?

Although a foreign national entrepreneur must usually obtain authorization from the U.S. Citizenship and Immigration Services (USCIS) through the immigrant or nonimmigrant visa process to live and work in the United States, there are a variety of options available to come to the United States to start or expand a business. For example, an entrepreneur may be eligible for certain nonimmigrant classifications such as E-2 Treaty Investor or a B-1 Business Visitor. An E-2 classification enables an entrepreneur from a country that has a treaty of commerce and navigation with the United States to invest a substantial amount of money in a new or existing U.S. business. And a B-1 classification allows an entrepreneur to come to the United States to secure funding or office space, negotiate a contract, or attend certain business meetings in connection with opening a new business in the United States.

It is important to determine which classification works best as not every classification that USCIS administers will allow an entrepreneur to work in the United States. Most employment-based petitions are issued for a specific type of activity with a specific employer. Also, certain nonimmigrant classifications are subject to annual numerical limitations. These limitations can affect the amount of time it may take for an entrepreneur to obtain authorization to live and work in the United States.

We practice exclusively immigration law, and our office can assist in determining the appropriate visa classification for your circumstances and business plans. Please feel free to contact us to learn more information. We recommend that you consult with us early to best explore your U.S. immigration options in light of your business and personal goals.

For additional general information about the visa categories available for foreign nationals looking to start or expand businesses in the United States, visit USCIS’s Visa Guide for Entrepreneurs.

August 13, 2015

September 2015 Department of State Visa Bulletin

The visa bulletin is out at this link: September 2015 Visa Bulletin

In the September Bulletin, there is a retrogression in the EB-2 category for India and China, with a slight forward movement in most other visa categories.

Employment-based categories are as follows: EB-1 remains current for all countries; EB-2 is current for all countries except India and China (January 1, 2006); EB-3 is at August 15, 2015 for all countries except India, China, and the Philippines (December 22, 2004); EB-3 other workers is at August 15, 2015 for all countries except India and the Philippines (December 22, 2004) and China (January 1, 2004); EB-4, religious workers are all current; and EB-5 targeted employment areas and regional centers and EB-5 Pilot Programs are current for all countries except China (September 22, 2013). Family based petitions are backlogged, with the most recent date at March 1, 2014 for F2A (spouses and children under 21 of lawful permanent residents) and the longest queue for F4 Philippines (brothers and sisters of U.S. Citizens) of March 1, 1992.

August 12, 2015

California Governor Signs Bill Removing “Alien” from Law

California Governor Jerry Brown signed a bill that removes the term “alien,” used in reference to foreign-born workers, from the California Labor Code. According to KPCC, Democratic Sen. Tony Mendoza of Artesia stated that removing the term was an important step toward modernizing California law because it is now commonly viewed as derogatory term.

To read the KPCC article please go to the following website.

July 10, 2015

August 2015 Department of State Visa Bulletin

The visa bulletin is out at this link: August 2015 Visa Bulletin

Employment-based categories are as follows: EB-1 remains current for all countries; EB-2 is current for all countries except India (October 1, 2008) and China (December 15, 2013); EB-3 is at July 15, 2015 for all countries except India, China, and the Philippines (June 1, 2004); EB-3 other workers is at July 15, 2015 for all countries except India, China, and the Philippines (June 1, 2004); EB-4, religious workers are all current; and EB-5 targeted employment areas and regional centers and EB-5 Pilot Programs are current for all countries except China (September 1, 2013). Family based petitions are backlogged, with the most recent date at December 15, 2013 for F2A (spouses and children under 21 of lawful permanent residents) and the longest queue for F4 Philippines (brothers and sisters of U.S. Citizens) of January 15, 1992.

May 20, 2015

USCIS Announcement

http://http://www.uscis.gov/news/uscis-temporarily-suspends-premium-processing-extension-stay-h-1b-petitions

Starting May 26, 2015, U.S. Citizenship and Immigration Services (USCIS) will temporarily suspend premium processing for all H-1B Extension of Stay petitions until July 27, 2015. During this time frame, petitioners will not be able to file Form I-907, Request for Premium Processing Service, for a Form I-129, Petition for a Nonimmigrant Worker, requesting an extension of the stay for an H-1B nonimmigrant. USCIS will continue to premium process H-1B Extension of Stay petitions filed with Form I-907 premium requests prior to May 26, 2015.

This temporary suspension will allow USCIS to implement the Employment Authorization for Certain H-4 Spouses final rule in a timely manner and adjudicate applications for employment authorization filed by H-4 nonimmigrants under the new regulations.

April 29, 2015

Amended H-1B petition is required for any material change to the H-1B employee’s worksite location

In a decision issued on April 9, 2015, the Administrative Appeals Office (AAO), which conducts administrative review of certain categories of appeals to denials of immigration benefits, to ensure that immigration law and policy is interpreted accurately and consistently, published a binding ruling in the Matter of Simeio Solutions, LLC, 26 I&N Dec. 542. This decision supports the need to file an amended H-1B petition for any material change to the H-1B employee’s worksite location. The AAO declared that a change in the beneficiary’s worksite location to a geographical location not covered by the original Labor Condition Application (LCA) constitutes a material change for purposes of the immigration regulations, requiring a new LCA that reflects these changes. Furthermore, where there is a material change in the terms and conditions of employment, the petitioner must file an amended or new H−1B petition with the corresponding LCA certified by the Department of Labor (DOL), with both documents indicating the relevant change.

This means that any time an H-1B beneficiary changes his or her worksite location, it is critically important that the employer reviews the previously submitted petition and LCA to ensure that the employee remains in compliance. A new employment location is covered by an existing LCA if it is within the same Metropolitan Statistical Area (“MSA”) or area of intended employment identified on the existing LCA. Because the prevailing wage requirements are tied to the area of employment, if the employee’s new location is out of the geographical location that is covered by the original LCA, this is considered a material change in the terms and conditions of employment that might affect the employee’s eligibility.

In light of this decision, employers should be aware of the possible impact of changes in the terms and conditions of employment, and consult with immigration counsel to determine if any material changes in work locations have occurred since approval of the H-1B petition that may require the filing of a new or amended H-1B petition.

March 27, 2015

April 2015 Department of State Visa Bulletin

The visa bulletin is out at this link: April 2015 Visa Bulletin

In the April Bulletin, there is a retrogression of nearly 10 months in the EB-3 category for China, with a slight forward movement in most other visa categories.

Employment-based categories are as follows: EB-1 remains current for all countries; EB-2 is current for all countries, except India (September 1, 2007) and China (April 1, 2011); EB-3 is at October 1, 2014 for all countries, except India (January 8, 2004) and China (January 1, 2011)*; EB-3 other workers is at October 1, 2014 for all countries, except India (January 8, 2004) and China (August 15, 2005); EB-4, religious workers, EB-5 targeted employment areas and regional centers, and EB-5 Pilot Programs are all current. Family based petitions are backlogged, with the most recent date at August 1, 2013 for F2A (spouses and children under 21 of lawful permanent residents) and the longest queue for F4 Philippines (brothers and sisters of U.S. Citizens) of September 22, 1991.

February 24, 2015

Extending Employment Authorization to H-4 Dependent Spouses of Certain H-1B Workers

The Department of Homeland Security’s (DHS) regulatory change will extend employment authorization eligibility to H-4 spouses of certain H-1B workers who have already started the process of seeking employment-based lawful permanent resident status. Applications for employment authorization for eligible H-4 spouses will be accepted beginning May 26, 2015.

Eligible individuals include H-4 dependent spouses of certain H-1B workers who:

(a) Have an approved Form I-140, Immigrant Petition for Alien Worker; or
(b) Have been granted H-1B status in the U.S. under the American Competitiveness in the Twenty-first Century Act of 2000 as amended by the 21st Century Department of Justice Appropriations Authorization Act. The Act permits H-1B workers seeking lawful permanent residence to work and remain in the U.S. beyond the six-year limit.

Please contact our office for assistance in applying for H-4 employment authorization, or if you have questions about the eligibility requirements.

More information is available on the following website.

January 31, 2015

USCIS Delays in Processing EAD Applications

The employment authorization document (EAD) provides for employment authorization. Once the EAD expires, however, the employee must stop working. Continued employment is not permitted based on the filing an application to extend the EAD.

The USCIS is required by law to adjudicate EAD applications in 90 days. However, it has recently acknowledged that this requirement is not being met in many cases. The USCIS allows an EAD applicant or their counsel to initiate a service request once the person's EAD application has been pending for at least 75 days. Such a request can be made by calling the National Customer Service Center or using its e-Request system. The expectation is that, once a service request is made, the USCIS will prioritize the case and issue the EAD within the 90-day timeframe.

We recommend applying as far in advance of the EAD expiration date to minimize the probability of a gap in employment eligibility. EAD renewal applications may be filed up to 120 days prior to the expiration date of the existing EAD.

If you have any questions or need assistance, please contact our office.

January 30, 2015

USCIS Will Begin Accepting Requests for Expanded DACA on February 18, 2015

On January 29, 2015, U.S. Citizenship and Immigration Services (USCIS) announced it will begin accepting requests for expanded Deferred Action for Childhood Arrivals (DACA) on February 18, 2015.

The expanded DACA program expands the population potentially eligible for DACA to individuals of any current age who entered the U.S. before the age of 16, and have lived in the U.S. continuously since January 1, 2010. In addition, the validity period of DACA’s accompanying work authorization is extended from two years to three years.

Please contact our office if you need any assistance filing a DACA request, or if you have questions about the eligibility requirements.

For a summary of USCIS’s planned initiatives relating to the President’s executive actions on immigration, including information on the expanded DACA program, you may go to the following website: http://www.uscis.gov/immigrationaction#1

January 30, 2015

February 2015 Department of State Visa Bulletin

The new visa bulletin is out at this link: February 2015 Visa Bulletin

Employment-based categories are as follows: EB-1 remains current for all countries; EB-2 is current for all countries, except India (September 1, 2005) and China (March 15, 2010); EB-3 is at January 1, 2014 for all countries, except India (December 22, 2003) and China (September 1, 2011); EB-3 other workers is at January 1, 2014 for all countries, except India (December 22, 2003) and China (August 15, 2005); EB-4, religious workers, EB-5 targeted employment areas and regional centers, and EB-5 Pilot Programs are all current. Family based petitions are backlogged, with the most recent date at May 8, 2013 for F2A (spouses and children under 21 of lawful permanent residents) and the longest queue for F4 Philippines (brothers and sisters of U.S. Citizens) of August 8, 1991.

December 12, 2014

January 2015 Department of State Visa Bulletin

The new visa bulletin is out at this link: January 2015 Visa Bulletin

Employment-based categories are as follows: EB-1 remains current for all countries; EB-2 is current for all countries, except India (February 15, 2005) and China (February 1, 2010); EB-3 is at June 1, 2013 for all countries, except India (December 15, 2003) and China (March 1, 2011); EB-3 other workers is at June 1, 2013 for all countries, except India (December 15, 2003) and China (July 22, 2005); EB-4, religious workers, EB-5 targeted employment areas and regional centers, and EB-5 Pilot Programs are all current. Family based petitions are backlogged, with the most recent date at April 15, 2013 for F2A (spouses and children under 21 of lawful permanent residents) and the longest queue for F4 Philippines (brothers and sisters of U.S. Citizens) of July 15, 1991.