April 27, 2011 | 4:41 pm

Free legal clinic - Saturday May 7, 2011

Posted by Cedric M. Shen

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Every 1st Saturday of the month, attorney Cedric Shen will provide complimentary legal advice regarding your immigration issues.  The next scheduled clinic is:

DATE:  SATURDAY MAY 7, 2011
TIME:  10:00 AM TO 12:00 PM
LOCATION:  3424 WILSHIRE BLVD, SUITE 928, LOS ANGELES, CALIFORNIA 90010
RSVP:  (888) 228-4525

April 26, 2011 | 10:32 am

E-2 Visa:  Treaty Investor

Posted by Cedric M. Shen

The E-2 visa allows foreign nationals of a country that has a treaty with the United States, to make an investment in a business enterprise.  Generally, the investment must be ‘substantial,’ ‘at risk,’ and the investor must oversee and direct the day-to-day operations.  The visa is valid for three years, and is renewal indefinitely so long as the business continues to operate.

What is a ‘substantial investment’?

Unlike the EB-5 green card, which expressly states a $500,000.00 or $1 million investment, the term “substantial” for an E-2 visa is not so clear cut.  Generally, the investment should be approximately $250,000 USD if the business/enterprise is new.  There may be some cases where the investment is as low as $50,000.00.  However, these cases usually involve businesses which act as a subsidiary to a parent company in the foreign national’s home country.

What does ‘at risk’ mean?

This means that the investment must be at risk of being lost of the business is unsuccessful.  Otherwise, there would be a glutton of people applying for E-2 visas - knowing that there is no risk in losing their investment.

Pros and Cons

The E-2 visa is a great vehicle for foreign nationals and their families to live in the United States while operating a business.  One advantage is that the application can be processed within three weeks under Premium Processing.  Another advantage is that the visa is valid for three years, and renewable indefinitely so long as the business continues to operate.  The downside is that the investment can be significant, and you risk losing all the money and being forced to return to your home country if the business is unsuccessful.  There is also no direct path to permanent residency on an E-2 visa.  While an E-2 visa holder may obtain a green card through employment or marriage, the E-2 visa itself does not make one eligible for permanent residency.

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April 8, 2011 | 4:39 pm

The Looming Federal Shutdown - What It Means For You

Posted by Cedric M. Shen

For the past week, every media outlet has been talking about the repercussions of a federal government shutdown.  To be sure, this will impact Americans (and non-Americans) in many ways.  Federal employees will be furloughed, U.S. military personnel may not get paid, just to name a few things.  The federal shutdown will have an effect on the U.S. immigration systems as well.  The primary department is the United States Citizenship and Immigration Service.  Thankfully, the USCIS has indicated that will continue operations throughout the shutdown – largely because it is funded by the filing fees.

E-Verify, a system that allows employers to determine an employee’s eligibility to work in the United States based on the completed I-9 forms, may not operate.  The Department of State has reported that it will likely shutdown the majority of its operations, only processing visas that under “life or death” emergencies.  The Department of Labor has indicated that it will cease all operations in the event of a shutdown.  Many popular visas, such as the H-1B, require the employer to file a Labor Condition Application, which is processed by the DOL.

So what does this all mean?  We are not really going to know the long-term effects of a federal shutdown.  Much of it will depend on how long the shutdown lasts.  It is probably safe to say that citizens trying to apply for passports in order to travel may face long delays – resulting in cancelled travel plans.

The effects could be more far-reaching for U.S. employers.  A shutdown of the E-Verify system could mean an inability to place newly hired employees on payroll.  Employers of foreign workers may also face a delay in their work visa applications – most notably any H-1B applications.  Prior to filing an H-1B application, an employer must submit a Labor Condition Application to the Department of Labor attesting, among other things, that it will pay the foreign worker a salary higher than the prevailing wage, as determined by the DOL.  This process usually takes at least a week, and the H-1B application may not be filed with the USCIS until the employer receives a certified LCA.  The 2012 H-1B fiscal year began on April 1st, so many employers who plan to hire foreign workers likely submitted their H-1B applications on March 31st.  So they do not have to worry about the DOL shutdown.  However, those employers who are just now starting the LCA process may have to wait considerably longer than one week to get it certified.  Given that the H-1B quota is 65,000 (plus an additional 20,000 for those with master’s degrees), time is of the essence for employers and any delay in filing could result in an inability to get timely approval of a work visa for their foreign employees.

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April 6, 2011 | 7:05 pm

H-2B visas for guest workers

Posted by Cedric M. Shen

I’ve had several inquires from employers who want to employ a foreign worker who does not qualify under the more common work visas, such as an H-1B, TN, L or J visa.  Several of these employers are families wanting to know how they can sponsor their nannies or au pairs – most of whom are citizens of Mexico.  The two most common options are the H-2B visa and the J-1 visa.  I’ve already discussed the J visa in a previous blog, so this post will discuss the H-2B visa.

H-2B
The H-2B is a non-immigrant visa that applies to foreign workers who are not working in the agricultural field. The visa is for employer who have a temporary need for the foreign employee that is intermittent, recurring, peak-load or a one-time occurrence.

To qualify for an H-2B an H-2B visa:

The employer must establish that its need for the prospective worker’s services or labor is temporary, regardless of whether the underlying job can be described as permanent or temporary. The employer’s need is considered temporary if it is a one-time occurrence, a seasonal need, a peak-load need, or an intermittent need
The employer must demonstrate that there are not sufficient U.S. workers who are able, willing, qualified, and available to do the temporary work
The employer must show that the employment of H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers
Generally, a single, valid temporary labor certification from the U.S. Department of Labor (DOL), or, in the case where the workers will be employed on Guam, from the Governor of Guam, must be submitted with the H-2B petition. (Exception: an employer is not required to submit a temporary labor certification with its petition if it is requesting H-2B employment in a position for which the DOL does not require the filing of a temporary labor certification application) ***Source USCIS website
The H-2B visa is valid for one year or less, though it can be renewed for up to three years.  There are many benefits to the H-2B visa.  First, the visa covers a broad spectrum of jobs, such as seasonal ski instructors, au pairs, etc.  These are jobs that may not normally qualify or other work visas.  This visa is also a good option because the educational requirements and work experience requirements are generally less stringent and more flexible than that of other work visas.  For example, an H-1B visa generally requires a specialty occupation and a minimum bachelor’s degree.  These requirements alone usually preclude a nanny from qualifying for an H-1B.  Other work visas, such as a TN visa, do not include nanny or au pairs on the occupation list.  Finally, the visa is ideal for employers who need employees, and can only pay wages lower than that which may be required for jobs under a TN or an H-1B visa.  However, the downside is that the H-2B visa requires considerable recruiting efforts by the petitioner – something that many employers may not be able, or willing, to do for an employee who will only be in the United States for a relatively short period of time.  On balance, however, the H-2B is a great option for employers who have a short-time need for foreign workers.

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