Immigration Lawyer Blog – H1B Visa & Employment Based Visas | Global Law Centers » Recent Updates

EB-5 Investment Visa and Recent related AAO decision

admin — Fri, 12 Sep 2008 15:05:26 +0000

The fifth employment based preference (EB5) category is designed specifically for Employment Creation.. To qualify, a foreign national must invest between $500,000 and $1,000,000.00 depending upon the employment rate in a specific geographical location. The national must invest in a commercial enterprise in the U.S. that will create at least 10 new jobs for U.S. citizens, lawful permanent residents, or other lawful immigrants, not including the investor and his/her family. Accordingly, the regulation at 8 C.F.R. §204.6(j) states that to show that the petitioner has invested or is actively in the process of investing the required amount of capital, the petition must be accompanied by evidence that the petitioner has placed the required amount of capital at risk for the purpose of prospective investment arrangement entailing no present commitment, will not suffice to show that the petitioner is actively in the process of investing. The alien must show actual commitment of the required amount of capital. Regulations define Capital as cash, equipment, inventory, other tangible property, cash equivalents, and indebtedness secured by assets owned by the alien entrepreneur, provided that the alien entrepreneur is personally and primarily liable and that the assets of the new commercial enterprise upon which the petition is based are not used to secure any of the indebtedness. Additionally, the regulations define Invest as to contribute capital. A contribution of capital in exchange for a note, bond, convertible debt, obligation, or any other debt arrangement between the alien entrepreneur and the new commercial enterprise does not constitute a contribution of capital for the purposes of this part.

The Administrative Appeals Office (AAO) recently dismissed an appeal in which the petitioner sought classification as an alien entrepreneur pursuant to section 203(b)(5) of the Immigration and Nationality Act. The director of the Texas Service Center initially denied the petition because the petitioner failed to demonstrate a qualifying investment of lawfully obtained funds, and this appeal followed.

UPDATE ON TWO-YEAR EAD CARDS

admin — Fri, 12 Sep 2008 15:05:00 +0000

We recently reported that DHS Secretary Chertoff announced that USCIS will begin issuing Employment Authorization Documents (EAD) with a two-year validity period for a limited number of individuals who have applications for legal permanent residence status pending with the U.S. Citizenship and Immigration Services (USCIS). On June 12, 2008, USCIS issued a addressing frequently asked questions regarding the eligibility requirements for the two year EAD. In summary the fact sheet states:

The two-year EAD cards will be available to individuals with pending adjustment of status applications who have filed for an EAD and are currently unable to adjust their status to that of a permanent resident because an immigrant visa number is currently not available. Individuals with visa numbers that are available will continue to be granted EADs that are valid a one-year period.
USCIS expects to implement these new rules for issuing EADs on June 30, 2008.
Applicants who file for an initial EAD application with their adjustment of status application (Form I-485) will only receive a one-year EAD because such individuals can only file for adjustment of status if visa numbers are current. EAD Applicants are only eligible for a two-year EAD if their immigrant visa availability date retrogresses after their adjustment of status application is filed.
The USCIS will decide whether to issue a two-year EAD based upon the most recent Department of State Visa Bulletin.

The Visa Efficiency and E-Verify Extension Act of 2008

admin — Fri, 12 Sep 2008 00:17:00 +0000

Recently, the American Immigration Lawyers Association (AILA) issued a section-by-section analysis of the Visa Efficiency and E-Verify Extension Act of 2008. In summary this bill recaptures unused family based and employment based visas from fiscal years 1992 through 2007 and allows unused family and employment based visas in future years to automatically “roll over” to the next fiscal year. Although the maximum number of visas issued is mandated by law, the actual number of visas issued in a given year can be significantly lower based on processing or other bureaucratic delays. In order to ensure that all authorized visas are actually used, the Act permits calculation of the final number of visas available that takes into account unused visas from past years. Additionally, the bill reauthorizes the Department of Homeland Security’s (DHS) electronic employment eligibility verification program known as “E-Verify.” The Act provides a 5 year extension of the voluntary program and it also includes provisions that ensure that DHS provide timely reimbursements to the Social Security Administration (SSA) for the resources utilized to maintain the E-Verify program.

Medical Reports and the Zoster Vaccine Shortage

admin — Fri, 12 Sep 2008 00:16:48 +0000

On July 24, 2008, the USCIS posted changes to the vaccination requirements to adjust status to that of a Legal Permanent Resident for Form I-693. The new vaccination requirements require the following age-appropriate additional vaccinations to adjust status: Rotavirus, Hepatitis A, Meningococcal, Human papillomavirus, and the Zoster vaccine. These new vaccine requirements went into effect on July 1, 2008. The new vaccinations must be administered for USCIS to approve the applicant for adjustment of status.

As of August 12, 2008, the Centers for Disease Control and Prevention (CDC) informed USCIS that the Zoster vaccine is currently unavailable due to shipping delays with the manufacturer. The new Zoster vaccine is required to be administered to applicants age 60 and older. Until further notice from the CDC, Form I-693 may be accepted by USCIS if it is only missing the Zoster vaccine.

A Unified Voice on U.S. Immigration Reform and ICE Worksite Enforcement

admin — Fri, 12 Sep 2008 00:16:35 +0000

From June 20-24, 2008, U.S. Mayors from across the United States met in Miami, Florida for their annual conference. One important piece of their agenda was to establish a unified voice in dealing with U.S. Immigration Reform and ICE Worksite Enforcement. The U.S. Conference of Mayors have adopted several resolutions in regards to establishing this unified voice. The most important of the 2008 adopted resolutions are provided below:

Immigration Reform

NOW, THEREFORE, BE IT RESOLVED by The U.S. Conference of Mayors acting on behalf of its constituents to call on the President of the United States to issue an executive order to cease and desist in the execution of all raids and deportations that do not relate to our national security or to criminal activity until comprehensive immigration reform is completed and to suspend immediately all deportations of parents with U.S. citizens children; and

BE IT FURTHER RESOLVED that the U.S. Conference of Mayors supports comprehensive immigration reform which promotes the reunification of families, provides legal status with a path to earned citizenship to the estimated 12 million undocumented workers and designs a plan for current and future immigrant workers.

ICE Worksite Enforcement

NOW, THEREFORE, BE IT RESOLVED that The U.S. Conference of Mayors calls upon U.S. Immigration & Customs Enforcement to develop a national policy for its workforce enforcement activities that focuses on employers with a demonstrated history or reasonable suspicion of engaging in exploitative practices, such as violation of wage, hour or occupational safety laws and regulations; and

BE IT FURTHER RESOLVED that ICE not prioritize responsible employers for worksite enforcement activities before accurate verification systems are available or comprehensive immigration reform regularizes the status of workers on whom they rely; and

BE IT FURTHER RESOLVED that ICE should strive to keep in close communication with the nation’s mayors when conducting worksite enforcement activities in their cities.

Although the U.S. Conference of Mayors have agreed to establish a unified voice on the matters listed above, comprehensive immigration reform and changes with ICE Worksite Enforcement will not change unless the President or Congress elect to change them. Therefore, the MVP Law Group, P.A. recommends that you contact your local representative to express your concerns on the matters mentioned above.

DHS Secretary Chertoff Announces that USCIS will begin issuing Employment Authorization Documents with a 2 year validity period for individuals with green card applications pending.

admin — Fri, 12 Sep 2008 00:16:20 +0000

DHS Secretary Chertoff Announces that USCIS will begin issuing Employment Authorization Documents with a 2 year validity period for individuals with green card applications pending.

On June 9, 2008, Homeland Security Secretary Michael Chertoff announced at his State of Immigration Address that the Department of Homeland Security (DHS) will be extending the validity period of the employment authorization documents (EAD) that are issued to individuals who applications for adjustment of status to lawful permanent resident status (“green card”) pending.

Currently, such individuals are granted EADs with a maximum validity of one year. According to Secretary Chertoff, beginning later in June 2008, the U.S. Citizenship and Immigration Service (USCIS) will start issuing EADs with a validity period of two years for individuals who have adjustment of status applications filed that are expected to be pending for more than one year.

FY2009 H-1B Cap Update

admin — Sat, 06 Sep 2008 19:59:09 +0000

According to the American Immigration Lawyers Association (AILA), the U.S. Citizenship & Immigrations Service (USCIS) has provided the following update regarding H-1B cap subject cases that were received for fiscal year 2009:

1. The Service Center Operations reports that as of May 24, 2008, all receipts have been issued for those cases selected in the random lottery. The only cases that have not been issued a receipt are cases that are being reviewed for duplicate filings.

2. The USCIS has received approximately 500 petitions that are believed to be duplicates. Each of these cases will be reviewed and determination of duplicate filing will be made on a case-by-case basis.

3. The USCIS received a sufficient number of petitions during the random selection process to meet the cap limit. Consequently, the USCIS will not have to utilize the cases that were saved on the reserve list. The USCIS begun to mail back rejected cases this week.

I-140 Premium Processing to be resumed for individuals running out of time on H-1B status

admin — Sat, 06 Sep 2008 19:58:16 +0000

The American Immigration Lawyer’s Association (AILA) reports that beginning July 16, 2008, the U.S. Citizenship and Immigration Service (USCIS) will resume premium processing for I-140 petitions in limited circumstances. Premium processing should be available for those beneficiaries whose six year H-1B status will expire within 60 days of filing the premium processing request so that they can utilize the approved I-140 petition to become eligible for additional time on H-1B status. The I-140 petition process is the second phase of most employment-based immigration proceedings . An official notice has not yet been issued by USCIS.

This is definitely positive news for individuals who will be running out of time on H-1B status.

Explanation about the sudden advancement of EB-2 Visa Numbers in the China and India category

admin — Sat, 26 Jul 2008 04:40:49 +0000

The U.S. Department of State has provided further information regarding the Visa Bulletin’s EB-2 and EB-3 Categories for the month of July 2008. The DOS claims that under the Immigration and Nationality Act, if the total demand for visas in an employment preference category is insufficient to use the unused numbers may be made available without regard to the annual per-country limit. For example, the second preference annual limits were 40,000, however number use by “All Other Countries” was estimated to be only 25,000. The China/India combined number use based on their per-country limits were 6,000, with 9,000 numbers unused. The DOS determined that the demand from “All Other Countries” for second preference numbers, plus the quantity of numbers available under the China and India second preference per-country limit, would be insufficient to use all available numbers under the annual limit for this category. Therefore, unused numbers have been made available to China and India second preference applicants. Because such unused numbers must be made available strictly in priority date order, the China and India applicants have been subject to the same cut-off date as worldwide applicants. In addition the DOS claims that in providing the unused numbers to China and India “in no way disadvantages applicants from any other country and helps to insure that the worldwide annual limit can be reached”. The latest Visa Bulletin containing this and other information on priority dates is available at Visa Bulletin - Employment.

Three bills introduced in the House addressing changes to the EB Greencard System

admin — Sat, 26 Jul 2008 04:40:27 +0000

U.S. employers, education institutions, and trade associations have signed on to show their support for three bills introduced into the House of Representative which they believe will address the many shortcomings in the employment based green card system. The three bills include: H.R. 6039, which aims to exempt highly educated, foreign-born students earning an advanced degree in science, technology, engineering or mathematics from a U.S. university from the annual EB green card limit. This change would help U.S. employers retain talented individuals in the U.S. workforce. In the U.S. foreign nationals comprise of nearly half of the master’s and 70 percent of the Ph.D.s in electrical engineering from U.S. universities. H.R. 5921 will help put an end to multi-year wait times by eliminating unduly restrictive per country limits on EB green cards; and finally H.R. 5882 will try to help reduce visa backlogs by “recapturing” EB green cards from prior years that went unused due to government processing delays and making them available immediately to those who meet the requirements.