Immigration

Startup Visa Announced – New Updates

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President Obama announced new regulations today aimed at helping startup founders have a new legal pathway to living in the US.

SophiAlcorn
Sophie Alcorn Alcorn Immigration Law

Under this new proposal, investors, researchers and entrepreneurs who will establish a startup could qualify.

The founder would be required to show either that they have been awarded substantial U.S. investor financing or “otherwise hold the promise of innovation and job creation through the development of new technologies or the pursuit of cutting edge research.” To receive the status, the founder must demonstrate factors such as investment and job-creation to receive temporary parole.

The legal mechanism behind this proposed rule would be the “public-benefit” provision parole regulation. The purpose is to “encourage entrepreneurs to create and develop start-up entities in the United States with high growth potential to create jobs for U.S. workers and benefit the U.S. economy.” This rule will help attract entrepreneurs to the U.S. and increase U.S. competitiveness.

In terms of a founder’s long-term immigration prospects, a track record from this “Startup Visa” could lead to “meeting eligibility requirements for existing nonimmigrant or immigrant classifications.”

The public is invited to learn more about the startup visa at a free event:


Title: Significant Public Benefit Parole for Entrepreneurs

Abstract:
The Department of Homeland Security (DHS) is proposing to establish a program that would allow for consideration of parole into the United States, on a case-by-case basis, of certain inventors, researchers, and entrepreneurs who will establish a U.S. start-up entity, and who have been awarded substantial U.S. investor financing or otherwise hold the promise of innovation and job creation through the development of new technologies or the pursuit of cutting edge research. Based on investment, job-creation, and other factors, the entrepreneur may be eligible for temporary parole.

Agency: Department of Homeland Security(DHS) Priority: Other Significant
RIN Status: Previously published in the Unified Agenda Agenda Stage of Rulemaking: Proposed Rule Stage
Major: Undetermined Unfunded Mandates: No
CFR Citation: 8 CFR 212.5
Legal Authority: 8 U.S.C. 1182(d)(5)(A)
Legal Deadline: None

Statement of Need:
The Immigration and Nationality Act (INA) authorizes the Secretary, in the exercise of discretion, to parole arriving aliens into the United States on a case-by-case basis for urgent humanitarian reasons or significant public benefit. INA section 212(d)(5), 8 U.S.C. 1182(d)(5). No existing regulation explains how DHS determines what provides a significant public benefit to the U.S. economy. This regulation clarifies this standard with respect to entrepreneur parolees.

This regulation focuses specifically on the significant economic public benefit provided by foreign entrepreneurs because of the particular benefit they bring to the U.S. economy. However, the full potential of foreign entrepreneurs to benefit the U.S. economy is limited by the fact that many foreign entrepreneurs do not qualify under existing nonimmigrant and immigrant classifications. Given the technical nature of entrepreneurship, and the limited guidance to date on what constitutes a significant public benefit, DHS believes that it is necessary to establish the conditions of such an economically-based significant public benefit parole by regulation. Combined with a unique application process, the goal is to ensure that the high standard set by the statute authorizing significant public benefit parole is uniformly met across adjudications.

In this rule, DHS is proposing to establish the conditions for significant public benefit parole with respect to certain entrepreneurs and start-up founders backed by U.S. investors or grants. DHS believes that this proposal, once implemented, would encourage entrepreneurs to create and develop start-up entities in the United States with high growth potential to create jobs for U.S. workers and benefit the U.S. economy. U.S. competitiveness would increase by attracting more entrepreneurs to the United States. This proposal provides a fair, transparent, and predictable framework by which DHS will exercise its discretion to adjudicate, on a case-by-case basis, such parole requests under the existing statutory authority at INA section 212(d)(5), 8 U.S.C. 1182(d)(5).

Lastly, this proposed rule provides a pathway, based on authority currently provided to the Secretary, for entrepreneurs to develop businesses in the United States, create jobs for U.S. workers, and, at the same time, establish a track record of experience and/or accomplishments. Such a track record may lead to meeting eligibility requirements for existing nonimmigrant or immigrant classifications.

Summary of the Legal Basis:
The Secretary’s authority for this proposed regulatory amendment can be found in the Homeland Security Act of 2002, Public Law 107-296, section 102, 116 Stat. 2135, 6 U.S.C. 112, and INA section 103, 8 U.S.C. 1103, which give the Secretary the authority to administer and enforce the immigration and nationality laws, as well as INA section 212(d)(5), 8 U.S.C. 1182(d)(5), which refers to the Secretary’s discretionary authority to grant parole and provides DHS with regulatory authority to establish terms and conditions for parole once authorized.

Alternatives:
Anticipated Costs and Benefits:
DHS estimates the costs of the rule are directly linked to the application fee and opportunity costs associated with requesting significant public benefit parole. DHS does not estimate there will be any negative impacts to the U.S. economy as a result of this rule. Economic benefits can be expected from this rule, because some number of new ventures and research endeavors will be conducted in the United States that otherwise would not. It is reasonable to assume that investment and research spending on new firms associated with this proposed rule will directly and indirectly benefit the U.S. economy and job creation. In addition, innovation and research and development spending are likely to generate new patents and new technologies, further enhancing innovation. Some portion of the immigrant entrepreneurs likely to be attracted to this parole program may develop high impact firms that can be expected to contribute disproportionately to job creation.

Risks:
Timetable:
Action Date FR Cite
NPRM 12/00/2015
Regulatory Flexibility Analysis Required: No Government Levels Affected: None
Federalism: No
Included in the Regulatory Plan: Yes
International Impacts: This regulatory action will be likely to have international trade and investment effects, or otherwise be of international interest.
RIN Data Printed in the FR: No
Agency Contact:
Kevin J. Cummings
Chief, Business and Foreign Workers Division
Department of Homeland Security
U.S. Citizenship and Immigration Services
Office of Policy and Strategy, 20 Massachusetts Avenue, NW.,
Washington, DC 20529-2140
Phone:202 272-8412202 272-8412
Fax:202 272-1480
Email: kevin.j.cummings@uscis.dhs.gov

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What HR Legal needs to know about – Intermittent Employees and I-9 Issues

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Law Office of Sweta Khandelwal
Law Office of Sweta Khandelwal

Occasionally, a company requires an intermittent employee to complete a certain project or goal.  A foreign national on an H-1B or L-1 visa may be employed in the US for a short period of time. Regardless of how long a particular employee stays or how often they come in and out of the United States, an employee in the United States must comply with I-9 requirements, , even if they are paid by a foreign employer.

Attend HR Immigration Compliance Workshop by Sweta Khandelwal . Click here for details

An employer must ensure, at a minimum, that Section 2 of Form I-9 is completed within three days of the employee commencing employment.  Sometimes an overseas employee may enter the US for the limited duration of a project and leave US without completing the I-9 Form. In such a situation, the employee must complete the Form I-9 upon their next arrival in the United States.  However, this does not always cure the violation; the employer may find themselves in trouble with E-Verify standards.

A common misconception by employers is that rules/laws regarding worksite compliance do not apply to foreign employees. This is not true. Although for an employee  on a foreign payroll the missing Form I-9 may not come up in an I-9 audit, the Immigration and Customs Enforcement may find it in their own audit; or if company tax records are scrutinized.

On a separate note, complying with the IRS tax requirements for both the employer and employee can be a very complicated process, requiring an analysis of the employee’s primary residence, the days spent in the United States, current income tax guidelines, the employee’s income, and other factors.  It is imperative to check with a CPA.

Having a foreign employee work in the US requires the assistance of an expert immigration attorney, irrespective of the duration of employment in the US. Contact our office if you need assistance with hiring a foreign employee, I-9 compliance, or any other immigration issues.

Changes to H1-B and L-1A Filing fees. New Updates!

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SophiAlcorn
Sophie Alcorn Immigration Lawyer

BY IN Immigration On 11-10-2015

On September 30, 2015, Public Law 111-230 sunset. Since 2010, this law has required additional filing fees of $2,000 for certain H-1B petitions and $2,250 for certain L-1A and L-1B petitions. H-1B status is for nonimmigrants working temporarily in specialty occupations; L-1A status is for intracompany transferee managers and executives; and L-1B status is for intracompany transferees with specialized knowledge.

The PL 111-230 fee used to apply to companies with over 50 employees, at least 50% of whom were in H-1B, L-1A or L-1B status. The company had to pay this fee for any new H1-B or L petitions or for an H-1B or L-1 nonimmigrant change employers to come work for them.

These fees no longer apply to any petitions filed on or after October 1, 2015. It is unclear whether and when Congress will reauthorize this law and if so, when the fees might go back into effect, or if the fees would increase. Currently, USCIS is accepting Form I-129 for H-1Bs and L-1 without this fee, even if the company has over 50 employees, 50% of whom are H-1B or L-1 nonimmigrants.

What this means: if you have a compL1-Aany with more than 50 employees and at least 50% of them are on H-1B or L-1 status, this is a great opportunity. Since it is not the H-1B cap-subject lottery season (which takes place next winter for applications for new H-1Bs to be filed starting on April 1, 2016), you could take advantage of hiring a current H-1B or L-1 nonimmigrant either full-time with a change of employer, or by adding hiring him or her for part-time concurrent employment, without being subject to the PL 111-230 fee.

The current H-1B filing fees that remain, in the absence of the PL 111-230:

  • The Form I-129 base fee is $325.
  • If this H-1B is initial H-1B petition on behalf of a particular beneficiary, a change of status to H-1B or change of H-1B employer, or the first petition requesting an extension of H-1B stay by the same petitioner filing on behalf of the same beneficiary, it is subject to the American Competitiveness and Workforce Improvement Act of 1998. The ACWIA fee is $750 for corporations that have fewer than 25 employees, and $1,500 for corporations that have 25 or more employees. The ACWIA fee is not required for some simple amendments, second or later extensions, colleges, nonprofits, schools, and certain other employers.
  • New H-1Bs and transfers to new employers, including new concurrent employment but not renewals or extensions, are subject to the Fraud Prevention and Detection fee of $500.
  • If you need fast turnaround, USCIS offers premium processing for an additional $1,225. They will adjudicate the petition in 15 days or refund this money.

The current L-1 filing fees that remain, in the absence of the PL 111-230:

  • The Form I-129 base fee is $325.
  • New L-1s and transfers to new employers, including new concurrent employment but not renewals or extensions, are subject to the Fraud Prevention and Detection fee of $500. If you are filing a petition for a beneficiary to change status from L-1A to L-1B or from L-1B to L-1A, this fee isn’t required. It is only required for an employer seeking an initial L-1 for an individual.
  • If you need fast turnaround, USCIS offers premium processing for an additional $1,225. They will adjudicate the petition in 15 days or refund this money.

There are even more details for the fees for Chileans, Singaporeans, and people returning to a job they had previously, so if any of these situations apply you should definitely consult with an attorney.

Congress could decide to reauthorize the PL 111-230 fee, but there doesn’t appear to be any movement on this right now. So, if you’re from a large company with a lot of H1-B and L employees and you are considering hiring a new employee currently in H1-B status and not subject to the cap, or in L-1 status, this could be a great opportunity for you to save $2,000 or more on the process.

Visa/Immigration Webinar for Startups, Companies, & Individual

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AdviseHub is pleased to invite you to attend a free webinar on “Visa & Immigration options for Startups, Companies, and Individuals”

Host: AdviseHub, Inc.
When: Friday, September 18th at 11:30 AM – 1:00 PM
Where: Webinar
Phone: 408-548-0462

Note*: RSVP here confirm your spot.

AdviseHub immigration software & legal marketplace founder Sanjay Yadgirkar, along with guest immigration lawyers Ann Cunn and Madhuri Nemali, will discuss various options that need to be considered when hiring foreign workers.

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Disclimer: AdviseHub is not a law firm, and the employees of AdviseHub are not acting as your attorney. AdviseHub does not practice law and does not give legal advice.

USCIS’ “Citizenship Public Awareness Initiative” seeks to demystify the immigration process for legal permanent residents

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USCIS’ “Citizenship Public Awareness Initiative”
USCIS’ “Citizenship Public Awareness Initiative”

The United States Citizenship and Immigration Services (USCIS) has launched a Citizenship Public Education and Awareness Initiative, a media campaign that builds on the previous efforts of President Obama’s executive actions on immigration to demystify the naturalization process. The program provides those seeking citizenship with information on the naturalization process, and promotes the importance of U.S. citizenship rights, responsibilities, and educational resources for legal permanent residents (LPRs).

According to the Department of Homeland Security’s Office of Immigration Statistics, roughly 8.8 million lawful permanent residents are eligible to apply for citizenship, with an average span of seven years spent as an LPR in the United States.  Green card holders who meet all eligibility requirements may apply for citizenship after five years, or three years if they are married to a U.S. citizen.

The media campaign announced today includes print advertisements in English, Chinese, Vietnamese, and Spanish. This first phase will be supported by online digital advertisements running through the end of August. At the beginning of September, a second phase of the initiative will begin.

USCIS Now Accepting Some H-4 Spouses’ Employment Authorization Applications

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USCIS Now Accepting Some H-4 Spouses’ Employment Authorization Applications
USCIS Now Accepting Some H-4 Spouses’ Employment Authorization Applications

U.S. Citizenship and Immigration Services (USCIS) has begun accepting employment authorization applications for certain H-4 dependent spouses of H-1B nonimmigrants seeking employment-based lawful permanent resident (LPR) status. This is a key element of President Obama’s Immigration Accountability Executive Action initiative. USCIS estimates the number of eligible applicants for work authorization under this rule could be as high as 179,600 in the first year and 55,000 annually thereafter.

USCIS issues H-4 visas to immediate family members (spouse and children under 20 years of age) of the H-1B visa holders. To qualify for work authorization, the H-4 applicant’s H-1B spouse must have either an approved I-140, Immigrant Petition, a pending I-140 petition or have been granted an extension of H-1B status under the American Competitiveness in the Twenty-first Century Act of 2000 (AC-21). These extensions are granted to H-1B workers who have filed PERM applications at least 365 days prior to the six-year max out date, have an I-140 petition pending or have an approved I-140 petition.

Under the rule, eligible H-4 dependent spouses must file Form I-765, Application for Employment Authorization, with supporting evidence and a corresponding $380 fee. USCIS began accepting applications on May 26, 2015. Once USCIS approves the Form I-765 and the H-4 dependent spouse receives an Employment Authorization Document (EAD), he or she may begin working in the U.S.

Supporting evidence to be submitted with Form I-765 includes the following: (1) Evidence of the spousal relationship to the H-1B holder; (2) Evidence that the H-1B holder is the beneficiary of an approved I-140 or has been granted a one-year H-1B extension under AC-21 pursuant to a PERM or I-140 that has been pending for 365 days or more; (3) Evidence that the H-1B beneficiary is currently in H-1B status; and (4) Evidence that the H-4 nonimmigrant spouse is currently in H-4 status.

USCIS has temporarily suspended Premium Processing of H-1B visas in order to implement this new H-4 program.

Is your Visa stopping you from starting your own company. What you need to know…

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Recently, there has been so much noise around immigration laws passed in support of H-4 spouses. Many foreign immigrants want to start their own company with their current visa. Here is some information that Madhuri Nemali, an immigration attorney from Cameo Law Group shared recently.

H-1B Filing Tips for Startups

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Author : Madhuri Nemali
Given the global nature of today’s economy, start-ups recognize that international workers are avaluable addition. For companies sponsoring H-1B workers for the first time, though, the process can be daunting. Here are seven things you should know when looking to file H-1B visa applications with United States Citizenship and Immigration Services (USCIS).

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H-1B Submission Deadline coming up

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H1BApplicationDeadlinr

The submission date for H-1B petitions is Wednesday, April 1. The cutoff for submission is April 5.

By now, you and your employer should have submitted all paperwork and documents to your Immigration attorney. The attorneys and paralegals are very busy doing the final steps for submission. They will be finalizing petitions so that they can be sent on Tuesday. If you go to their offices, you might see stacks of completed petitions just waiting for the overnight delivery service driver to pick them up. You can help ease this process by doing the following things:

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Green Card (Employment and Family Based)- 10 things to know about

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TravelOnH1B

  1. You have the full protection of National, State and Local laws, and you are required to support the democratic form of government in the United States.
  2.  You can work for any employer that will hire you.  You do not have to work for the employer that sponsored your PERM and I-140.
  3. You can sponsor your spouse, minor and adult children, for an immigration visa, but not your parents or siblings.
  4. Your unmarried children over 21 lose their H-4 status.  They can apply for F-1 status to continue their education, or for an H-1B as a Temporary worker. If they receive a Green Card before they are 21, receive
    their own H-1B, or are married to a US citizen, they do not have to leave.

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