March 9, 2011 | 11:03 am

H-1B visas

Posted by Cedric M. Shen

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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 | 4:18 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 | 9:53 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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February 28, 2011 | 11:46 am

E Visa: For the international 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.

I will be comparing the E-2 visa with the EB-5 green card shortly.  In the meantime, please feel free to contact me if you have any questions!

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February 24, 2011 | 11:13 am

The B visa (Part 2)

Posted by Cedric M. Shen

B-2:  If you are coming to the U.S. for vacation or to visit family and friends for a short period of time, then a B-2 visa is for you.  These visas are generally valid for up to six months at a time.  If you plan to stay longer, be sure to apply for an extension of status (or leave and re-enter).  There are other unique situations in which you may enter on a B-2.  For example, you may come to the U.S. on a B-2 visa if you are seeking medical treatment.  To do so, be sure to bring appropriate documentation, including a copy of your diagnosis, a letter from the medical establishment in the U.S. which has agreed to treat you, as well as documents indicating that you can support yourself financially while in the U.S.

While these visas may appear straightforward on its face, several things must be considered before coming to the United States under a B visa, particularly if your intent is something other than just a temporary visit. For example, if you are engaged to a U.S. citizen and are planning to come to get married, a B-2 visa is not for you. You need to obtain a K visa (to be discussed in the near future).  However, if you enter on a B visa, meet someone and get engaged, then you may change to a K visa.  If you are a prospective student traveling to the U.S. looking to apply for a school, you may do so on a B visa.  Once you enroll in a school, you can change your status to an F visa (to be discussed in the near future).  However, you NEED TO SPECIFY THIS with the customs agent that you are entering the U.S. as a prospective student when applying for a B visa.  Otherwise, you will likely have difficulty changing your status to an F visa later on.  Few people know this, and prospective students often find themselves having trouble enrolling in a U.S. school after they choose one and try to enroll.

On balance, the B visa is rather straightforward.  However, its simplicity masks plenty of subtle complications that may seem innocuous at first blush.  Most of these complications stem from the foreign national’s intent when he/she first arrives in the country on a B visa.  Please feel free to contact me directly if you have any questions about the B visa.

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February 22, 2011 | 1:44 pm

The B visa (Part 1)

Posted by Cedric M. Shen

OK, since this blog is called the “ABC’s of Coming to the USA,” I figure the best place to kick it all off is with the “A.”  Unfortunately, that would be a very short post, since the A visa is reserved for diplomats and heads of state. This probably constitutes a small minority of JJ readers. So let’s talk about the B-1 visa.

Generally, a citizen of a foreign country who wishes to enter the United States must first obtain an appropriate visa. The most common visa for visitors is the B visa. This applies to people entering the United States temporarily for business (B-1), or for pleasure or medical treatment (B-2).  Today we’ll talk about the B-1 visa.

B-1:  What does “business” mean? In lay terms, it basically means coming to the U.S. to engage in business.  Examples including traveling to the U.S. to consult with business associates; to attend a scientific, educational, professional or business convention; to settle an estate; or to negotiate a contract.  The best way to think about it is that you can come to the U.S. to conduct business, but you should not be employed by a U.S. employer, or take a wage/salary while you are down here.  If you do, then a B-1 may not apply, and you should consider something else like an L, O, TN, or H visa.  Professional athletes coming to the U.S. to compete for prize money can enter on a B-1 visa.  While you are receiving compensation, it is not really a salary or employment that would require another type of visa.  You may be required to pay U.S. taxes on any prize money you win.

I will discuss the B-2 visa in the next post.  In the meantime, please feel free to contact me if you have any questions.

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February 20, 2011 | 2:29 pm

Happy President’s Day weekend

Posted by Cedric M. Shen

I’m just starting to get the hang of this blog.  I’d like to thank the editors at Jewish Journal for giving the ability to blog about immigration issues.  My practice focuses mainly on helping people come into America (green card, work visas, etc.).  I deal with some removal/deportation/asylum issues as well.  I plan to update this blog regularly - providing readers with information on different immigration topics.  I would love get get any feedback, suggestions or comments from readers.  Please feel free to contact me.  Thanks in advance and I look forward to blogging for you!

- Cedric M. Shen

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February 15, 2011 | 10:25 am

The ABCs of immigrating to the USA

Posted by Cedric M. Shen

Immigration. 

Rarely has such an innocuous word caused so much debate, stirred so much passion, and given so much hope, in recent times.  From 9/11, to the Great Recession, to SB 1070, to the DREAM Act - immigration issues permeate just about every facet of our lives.  I am a U.S. immigration and nationality attorney based in Los Angeles, and I will be updating this blog on a regular basis with the goal of educating readers on various immigration issues.  I hope you will find this blog informative and insightful.  Please feel free to contact me if you have any suggestions, opinions or questions.

Cedric M. Shen is a Los Angeles-based immigration attorney experienced in helping foreign nationals enter the United States. His law practice focuses on employment-based green cards, family-based green cards, marriage-based green cards, investor-based green cards/visas, work visas, fiancé visas, and removal/deportation issues. His firm is MAXIMILIAN LAW INC., located at 3424 Wilshire Blvd, Suite 928, Los Angeles, California 90010.  (310) 882-5294 [dir], (888) 228-4525 [toll free], (866) 882-8684 [fax]. Email:  .(JavaScript must be enabled to view this email address). Website:  www.maxlawinc.com.

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