March 23, 2011 | 10:49 am

H-1B visa season in full swing

Posted by Cedric M. Shen

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As discussed in my previous blog post, the annual H-1B cap quota starts anew on April 1st.  Last year, the cap did not get filled until late January (taking almost 10 months), while in previous years - when the US economy was good - the cap was filled within the first few days.  Since the USCIS begins accepting H-1B petitions on April 1st, most employers and their attorneys aim to file the petitions via overnight mail on March 31st.  In fact, the USCIS usually rejects petitions that were received prior to April 1st.

I’m sure there are a lot of employers out there who are curious about the H-1B process.  While I won’t bore you with the details, I do want to offer a few tips.  First of all, any employer looking to file an H-1B petition on April 1st should have started the process at least one month prior - if not more.  The first step, filing the Labor Condition Application with the Dept of Labor, usually takes a week for approval.  This does not factor in the 10 days the employer has to post the LCA at the workplace.  However, that’s assuming the LCA doesn’t get rejected for a variety of reasons.  One of the most common delays does not even originate from the employer or the attorney.  There have been many instances where the DOL does not recognize the FEIN number (aka Tax ID Number) of the employer - causing the LCA to be denied and requiring the employer to submit written documentation to prove the FEIN.  It could take several days for the DOL to confirm the FEIN and another several days to get the re-submitted LCA approved.  By then, at least three weeks have already passed and you still have to prepare the I-129 and all supporting documents.

In my experience, it’s always best to start the H-1B petition in February if you want to have it filed on April 1st.  As of today, there are only 10 more days before the start of the FY2012 H-1B cap.  I do not anticipate the cap to fill up within the first month (though you never know).  So if you’re still contemplating filing an H-1B petition, it’s certainly not too late to do so.  If you start the process today, an experienced lawyer will probably be able to get it filed by the second week of April.

March 22, 2011 | 4:27 pm

Alert: Diversity Visa Program scam

Posted by Cedric M. Shen

From the USCIS:  Many people have contacted USCIS about fraudulent e-mails or letters saying they have been selected in the Diversity Visa program. The scammers pose as the U.S. government in an attempt to get money from people hoping to get a visa. Be very cautious about responding to any suspicious e-mails or letters. The U.S. Department of State runs the Diversity Visa Program and has everything applicants need to know at travel.state.gov.

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March 20, 2011 | 10:56 am

J visa

Posted by Cedric M. Shen

The J visa originates from the Exchange Visitor Program, “promotes mutual understanding between the people of the United States and the people of other countries by educational and cultural exchanges, under the provisions of U.S. law.”  There are several categories of individuals who may be eligible for a J visa, including physicians, scholars, nannies, au pairs, students, teachers. camp counsellors, interns and government visitors.  To obtain a J visa, the applicant must first be accepted into a SEVP (Student and Exchange Visitor Program) approved program.  These programs usually charge a fee to the applicant or the sponsor/host/employer.  Furthermore, the foreign applicant has to demonstrate that their intent to remain in the United States is temporary; that they have sufficient funds to cover their expenses while in the United States; and that they have “compelling social and economic ties abroad” that will ensure that they return home upon the expiration of the J visa.

J visas require jumping through more hurdles than a B visa.  So one should consider whether a B visa is more appropriate for your intended activity.  In fact, some activities under a J visa are also permitted on the B visa.  For example, studying for short periods of time, or recreational study (as opposed to vocational study), may be permitted on a B visa.  For example, you may take a one day dance class or cooking class on a B visa, so long as you do not earn any type of formal credit or certification.

Finally, one crucial component of the J visa is the 2-year foreign residence requirement, which requires certain J-1 visa holders to return to their country of nationality or permanent residence for an aggregate of at least two years upon completion of their program.  This prevents a J visa holder who is subject to the requirement from changing or adjusting status until the 2-year requirement is satisfied.  So who falls under the home residency requirement?

- The program in which the exchange visitor was participating was financed in whole or in part directly or indirectly by the U.S. government or the government of the exchange visitor’s nationality or last residence
- The exchange visitor entered the U.S. to receive graduate medical education or training
- The exchange visitor is a national or permanent resident of a country which has deemed the field of specialized knowledge or skill necessary to the development of the country.

However, applicants subject to the requirement may be able to apply for a waiver of the foreign residence requirement under certain circumstances, such as persecution or exceptional hardship.

The J visa is an excellent visa for a narrow category of individuals.  However, I would always recommend that foreign applicants consider other visas before deciding on a J visa, simply because it may eliminate the need to go through an approved exchange program.  For example, nannies/au pairs may opt for an H-2B visa instead of a J visa.  A medical doctor may opt for an F, H-1B or L-1 visa.  Many others may simply qualify for a B visa.

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March 15, 2011 | 11:35 pm

F visa for students

Posted by Cedric M. Shen

There are a few things you should consider when coming to the U.S. to study. If you are coming to the U.S. to look for a school, but have not yet enrolled, you will be admitted on a B-2 (tourist) visa. It is imperative that you state your intention to the customs officer that you are a prospective student here to look for a school to enroll in when entering the U.S. Once you are admitted to a school, you will have to change your status by filing a form I-539, to go from a B-2 visa to an F-1 or M-1 visa. If you didn’t express your intent to look for a school while on a B-2 visa, you may be denied an F-1 visa. Moreover, you cannot enroll in classes before you are issued an F-1 visa. Otherwise, you will be in violation of your visa status and would be required to leave the United States.

Whether enrolling in college, university, post-graduate school or any other educational institute, Maximilian Law Inc. will prepare your student visa application, as well as your Optional Practical Training (OPT)/Curricular Practical Training (CPT) application.  OPT and CPT will be discussed in depth in a future post.  In light of the recent events in Egypt, Libya and Japan, it is worth noting that students on F visas may be able to get temporary work authorization because of extreme hardship.  Situations such as a drastic change in the exchange rate of the home country or inability to access funds may be grounds for such relief.  However, the student needs to have been enrolled in school full-time for at least one year before qualifying.  As always, feel free to contact me if you have any questions.

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March 14, 2011 | 8:26 am

Relief for Japanese citizens in the U.S.

Posted by Cedric M. Shen

From the USCIS:

This advisory is for Japanese and other foreign nationals from the Pacific stranded in the United States due to the earthquakes and tsunami devastation in the Pacific. If you have exceeded or are about to exceed your authorized stay in the U.S. you may be permitted up to an additional 30 days to depart.

Visitors traveling under the Visa Waiver Program (VWP):

• If you are at an airport, contact the U.S. Customs and Border Protection office at the airport.

• All others, please visit the local U.S. Citizenship and Immigration Services office. Visitors traveling under a nonimmigrant visa:

• Visit the local U.S. Citizenship and Immigration Services office. • Bring your passport, evidence that you are stranded (such as an itinerary for the

cancelled flight), and your I-94 departure record.

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March 9, 2011 | 12:03 pm

H-1B visas

Posted by Cedric M. Shen

H-1B visas

OK, I’m going to jump ahead of the alphabet a little bit just because the H-1B season is in full swing.  This is probably one of the most popular, and most sought after, work visas offered by the United States.  Even people who are unfamiliar with U.S. immigration law have probably heard of the H-1B.  In fact, I was on an H-1B visa for a couple of years.  Every year, Congress issues 65,000 of H-1B work visas and most, if not all, are used up.

What is it?

The H-1B Non-Immigrant Work Visa may be issued to applicants seeking temporary work in a “Specialty Occupation” which requires the skills of a professional. “Specialty Occupations” may include: accountants, computer analysts, programmers, web designers, engineers, financial analysts, doctors, nurses, scientists, architects and attorneys, etc. In addition, Congress has authorized an additional 20,000 H-1B visas for people with advanced degrees (M.D., J.D., MBA, Ph.D. etc.).

Employers submit petitions based on their need for the prospective non-US.-resident employees. Generally speaking, H-1B visa holders should have at least a bachelor’s degree. However, relevant experience may be considered in lieu of such education requirement. In previous years, this type of applications reached the prescribed application quota in a short period of time.

The H-1B fiscal year begins on April 1st and, in prior years, the entire quota was met within the first few days.  That has not been the case in the past year.  In fact, the 2010 quota has not been met as of January 2011.  With April 1st lurking around the corner, most employers and attorneys have been working hard the past couple of months to get their applications ready.  I don’t expect the cap to be reached within the first few days as it did back in 2006.  However, it is probably wise for any potential H-1B applicants to start getting their papers ready for filing as soon as possible.

How do I apply?

You will need an employer who is willing to petition an H-1B visa on your behalf.  You will have to get a Labor Certification Approval, and the employer must pay you the minimum prevailing wage or higher.  The entire application process should take a couple of months.

What you need to know

If this is your first H-1B application, be sure to have the application prepared for filing on April 1st.  While the quota was not immediately met after April 1st in the last couple of years, it is likely that the quota will fill up fast as we come out of this recession.  The last thing you want is to have the quota met by May and not be able to file for H-1B for another year.  Depending on your country of citizenship, consider other visas to fill the time gap, such as a TN visa or L-1 visa.

You should also know that the H-1B allows for dual intent, which means that you can apply for permanent residency while on the visa.  Most people on an H-1B also have their employer sponsor them for a green card.

The H-1B is good for three years plus an additional three year extension.  You can also change employers on an H-1B.  If you are waiting for a green card while on your H-1B, you may request additional1-year extensions beyond the six years for an indefinite period of time.

Little known fact:  If you are seeking an H-1B extension and your application for green card is approved, you can seek a three year H-1B extension even beyond the first six years.

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March 7, 2011 | 5:18 pm

A comparison of the EB-5 green card v. E-2 visa

Posted by Cedric M. Shen

Many people have been asking me whether they should apply for an E-2 treaty trader visa or an EB-5 green card.  I have previously discussed each one of them in my previous posts.  There are several advantages and disadvantages to each one, which I will outline in this post.  Which one is right for you depends on your specific needs and resources.

If your goal is to simply live in the United States, I would recommend an EB-5 green card through a Regional Center.  An investment of $500,000.00 gets you and your family an immediate green card without the need to start up a company or to oversee operations.

If your goal is to start up your own business operation, then an E-2 visa would be ideal unless you have a significant amount of money to invest – in which case a $1 million EB-5 green card may be appropriate.

Advantages of an E-2 visa

- Renewable indefinitely

- Smaller investment than and EB-5 green card (as little as $50,000.00 to $250,000.00)

Disadvantages of an E-2 visa

- Money must be substantial and at risk

- No path to permanent residency

- Visa expires upon termination of the business

- Unable to accept income until E-2 is granted; even though you have already put the investment at risk prior to approval

Advantages of an EB-5 green card

- Immediate residency in the U.S.

- Spouse and children under 21 obtain residency under the primary applicant’s investment

- Live, work, travel, study in the United States without any restrictions

- Residency is permanent – generally no expiration

Disadvantages of an EB-5 green card

- Higher investment amount ($500,000.00 to $1 million)

- Investment tied up for extended period of time.

This is a rather cursory overview, but hopefully you get an idea of the differences between the two.  As always, please feel free to contact me if you need more details.

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March 4, 2011 | 10:53 am

EB-5 Green card

Posted by Cedric M. Shen

Some of you may have heard that you could pay a certain amount of money to get a green card.  Guess what?  It’s true – though it’s not that simple.  The EB-5 investor green card allows foreign nationals to invest $500,000.00 to $1 million in an enterprise.  For new investments in non-rural, non-targeted employment areas (TEA), the investment must be $1 million and create 10 direct jobs.  The foreign national must also direct oversee the development of the enterprise.  If the investment is in a rural area, or a TEA, you only need to invest $500,000.00, demonstrate the creation of 10 indirect jobs, and you do not have to be directly involved in overseeing the business.  To qualify for a TEA, an area must have an unemployment rate of 150% of the national average.
What do I need to do?

Generally, a foreign national has to put the entire $500,000.00 or $1 million at risk.  The funds may be derived from gifts, but they must come from lawful sources.  Upon deposit of the funds, the application process takes approximately six months.  Upon approval, the foreign national receives conditional residency.  Approximately two years after, the foreign national must apply to remove the condition, thereby making him/her a permanent resident.
Is there an easier way to get a green card?

Needless to say, most foreign nationals seeking a green card would opt for the $500,000.00 green card since: 1) it’s half the price; 2) does not require direct management of day-to-day operations; and 3) it only needs to show the creation of 10 indirect jobs.  However, applying for an EB-5 green card and demonstrating that your new/proposed business meets the requirements takes a lot of time and money.  Fortunately, foreign nationals looking for a green card with minimal effort can look to investing in a Designated Regional Center.
What is a designated regional center?

A designated regional center (RC) is a USCIS pre-approved investment/enterprise that has already met the requirements to accept $500,000.00 investments in exchange for a green card.  In other words, investors do not have to show that the enterprise is in a TEA or rural area, or that it has created 10 jobs.  This has already been done by the individuals/groups who created and had the RC approved.  All the foreign national has to do is invest $500,000.00 in the RC of his/her choice.
There are approximately 130 regional centers in the United States.  However, many of them are shell companies that were started simply to get investors – but not offering any legitimate business to invest in.  As a result, most of investors in these regional centers have their EB-5 application for green cards denied.  There are probably only a handful of regional centers that are legitimate, operating companies.  These centers have 100% – or near 100% – approval rates for EB-5 green cards.  Any denials in the green cards usually stem from the source of investor funds – and not from your business program.  Thus, even though there are a lot of regional centers, investors only have a few choices if they want a good shot at getting a green card.  If your business proposal fits this mold, Maximilian Law Inc. can help you target overseas investors who want a green card and possibly a small return on investment, then you can be one of the very few regional centers that investors would flock to.
What if I want to create a Regional Center to attract foreign investors?

In addition to investing in a RC, you can also apply to become a RC.  This is a very lengthy process, not unlike applying for an EB-5 green card through conventional (non-RC) means.  There is a moratorium on these regional centers at the moment because so many people want to get on the band wagon.  As such, there is about a one and a half year wait from the time any application is filed. They are also very complicated to set up.  However, they can be very lucrative for your business after it is approved.

BENEFITS

Some of the benefits of an EB-5 green card have already been discussed.  You get a green card within six months and are thus free to live, work, study and do anything you want in this country (legal, of course!).  Another benefit is that your spouse and children under 21 all get green cards under the same $500,000.00 investment!  So if you are married with four children, that’s 6 green cards for $500,000.00 (if you invest in a RC).  Pretty good bang for your buck, huh?

Most foreign investors put the $500,000.00/$1 million simply to get a green card and don’t expect a return on investment.  However, some of the legitimate RC’s do, in fact, offer a return on your investment.  So for those of you who want something more than just a green card, picking the right RC could yield a financial return that would be, as they say, “icing on the cake.

FACTS

Since the EB-5 program started, approximately 90% of all foreign investors elect to apply for EB-5 green cards through an existing regional center rather than creating their own investment enterprise.

There were 110 applications for new proposed regional center applications in 2010, with 71% of the applications being approved.

1,955 foreign investors filed EB-5 green card applications in 2010.  Only 332 applications were filed in 2005, and the numbers have gone up drastically since then.  It is expected that even more investors will apply in the coming years.

89% of foreign investors who applied for an EB-5 green card in 2010 had their applications approved.

41% of the approved green cards were granted to citizens of China.  16% came from citizens of South Korea.

The current processing time for the USCIS to adjudicate a proposed regional center application is 5 months.

Please feel free to contact me if you are interested in investing in a Regional Center.  We can match you with a designated RC that best suits your comfort level and get you going on the fast track to permanent residency in the United States.

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