June 15, 2012 | 10:24 am

Obama administration to grant deferred action and work permits to young undocumented immigrants

Posted by Cedric M. Shen

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On June 15, 2012, the Secretary of Homeland Security Janet Napolitano announced that certain young people who were brought to the United States as young children, do not present a risk to national security or public safety, and meet several key criteria will be considered for relief from removal from the country or from entering into removal proceedings. Those who demonstrate that they meet the criteria will be eligible to receive deferred action for a period of two years, subject to renewal, and will be eligible to apply for work authorization. 

In order to be eligible for deferred action, individuals must:

- Have entered the United States prior to the age of sixteen;
- Have continuously resided in the United States for at least the past five years, and are currently in the United States;
- Currently be in school; have graduated from high school; have obtained a GED certificate; or have been honorably discharged from service in the Coast Guard or the U.S. Armed Forces;
- Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety;
- Be thirty (30) years old or younger.

It should be noted that individuals eligible for deferred action are not eligible for lawful status (permanent residency or citizenship).  Further, it does not absolve individuals of any previous or subsequent periods of unlawful presence.  It also does not provide dependents or immediate relatives with work authorization or deferred action.

All eligible applicants will be required to undergo a background check and biometrics.  Applicants will also have to provide documentation to prove that he/she meets the eligibility requirements.  Documentation can include financial records, medical records, school records, employment records or military records.

May 29, 2012 | 4:35 pm

H-1B Regular Cap v. Master’s Cap: What’s the difference?

Posted by Cedric M. Shen

Every year, Congress allots 65,000 H-1B work visas for U.S. Employers to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields, such as scientists, engineers, or computer programmers.  This is known as the “regular cap.”

Some of these petitions are exempt from the regular cap under the advanced degree exemption, which provides a visa to the first 20,000 petitions filed for a beneficiary who has obtained a U.S. master’s degree or higher.

The USCIS begins accepting applications on April 1st for every upcoming fiscal year, which begins on October 1st.  The 2013 fiscal year began on April 2, 2012 and nobody expected the cap to begin filling up at this pace.  As of May 18, 2012 – less than 1.5 months after the USCIS began accepting petitions – 42,000 petitions were submitted under the regular cap, accounting for 65% of the cap.  Furthermore, 16,000 petitions were received under the master’s cap, accounting for 80% of this exemption reached.

So what happens once the 20,000 master’s cap is reached?  Does the USCIS only accept petitions for beneficiaries with bachelor’s degrees?  The answer is no.  Unless otherwise exempt from the cap, petitions filed under the master’s cap after the 20,000 visa cap is reached will be counted against the regular cap.  In other words, all cap-subject petitions will fall under the regular cap, whether the beneficiary has a master’s degree or not.  What this will mean is that once the master’s cap is reached, the USCIS will begin receiving petitions under the regular cap at an even faster pace.  It is widely expected that all 85,000 H-1B visas will be accounted for by July – the fastest since the Great Recession began in 2008.

For employers looking to file an H-1B petition, it is strongly recommended that you start the process as soon as possible.  Given that the average petition takes at least 2-3 weeks to prepare, the cap may very well be reached by the time it is submitted.

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April 25, 2012 | 10:14 am

H-1B Visa Filling Up Fast - Your Strategies & Options

Posted by Cedric M. Shen

The USCIS began accepting H-1B work visa petitions for the 2013 fiscal year on April 2, 2012. Every year, Congress allots 65,000 H-1B visas for qualified applicants with bachelor’s degrees (regular cap). An additional 20,000 are reserved for applicants with master degrees or higher (i.e.- MBA, JD, MD, etc.). Prior to the Great Recession in 2008, the 85,000 cap was reached very fast – sometimes within weeks or days of the start of the fiscal year. With the U.S. economy in decline since 2008, the cap began to take much longer to fill. For FY 2011, it took approximately nine months, whereas it took approximately seven months for FY 2012.

This fiscal year, the USCIS seen an astonishing turnaround in the number of H-1B petitions filed. On April 9, 2012, the USCIS announced that it had received 25,600 petitions (17,400 regular + 8,200 master’s). Thus, the cap was already 30% reached within one week of the start of the fiscal year. On April 13, 2012, the USCIS received 30,300 petitions (20,600 regular + 9,700 master’s) – accounting for 36% of the total cap. By April 20, 2012, the USCIS received 35,900 petitions (25,000 regular + 10,900 master’s) – accounting for 42% of the total cap.

Given this data, the H-1B cap is trending at about 5,000 petitions per week. With U.S. employers willing to hire foreign workers, this is a good indicator that perhaps the U.S. economy is finally turning around. The bad news, however, is that H-1B visas may be unavailable much earlier this year than it has been in the past two years. In fact, it is very possible that the cap is 50% full by the start of May 2012 and fully reached by June 2012. The cap may be reached even sooner if employers realize how quickly the cap is being reached this year, as more and more employers scramble to submit H-1B petitions on behalf of foreign employees. Employers seeking to hire a foreign worker under an H-1B visa are encouraged to start the process immediately in order to have the petition submitted before the cap is reached. It takes approximately three weeks to prepare a petition and to submit it to the USCIS, so time is of the essence.

If the cap is reached before an employer can submit an H-1B petition, there are other options. Canadian and Mexican citizens may apply under a TN work visa provided that the job falls within a designated list of professions. Foreign workers who have been working for companies abroad for at least one year in the past three years may transfer to the company’s U.S. Office on an L-1 visa. Foreign nationals with extraordinary abilities in their respective occupations may be eligible for O-1 visas.

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April 5, 2012 | 1:23 pm

H-1B petitions for FY2013 already 50% more than this time last year

Posted by Cedric M. Shen

Sign of an improving economy?  22,323 cap-subject H-1B petitions have already been received by the USCIS in the first three days since H-1B season started.  25% of these cases are for U.S. advanced degrees.  The number of filings received in the first three days is almost double the number of filings received during the same time last year.  We can expect the cap to be reached much sooner this fiscal season than last season, where it was reached in November.

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April 3, 2012 | 10:17 am

Illegal relatives of US citizens could stay in the U.S. while applying for green cards

Posted by Cedric M. Shen

The Obama administration is attempting to ease the way for undocumented individuals who are immediate family members of U.S. citizens to apply for permanent residency.  Under current rules, an undocumented spouse or child of a U.S. Citizen who wishes to file for permanent residency must leave the United States, file the waiver application in his/her home country, and wait for the application to be processed while remaining separated from their families for an extended period of time.  The proposed change would enable undocumented spouses and children of U.S. citizens who are physically present in the country to apply for a provisional waiver needed to seek permanent residency without having to depart the country during the pendency of the application.  This proposed will be posted for public comment on April 2, 2012 and will remain open for sixty (60) days.

The rule has some limitations and would not apply to all undocumented individuals.  To qualify for the waiver, undocumented individuals need to demonstrate that a separation would result in extreme hardship to their immediate US citizen relatives.  If the waiver is granted, the undocumented individual must leave the U.S. briefly to apply for, and to receive, a green card abroad before re-entering to the U.S.  Other undocumented individuals, such as those without immediate US citizen relatives, would not be.

Updates will be provided as new information becomes available.

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April 2, 2012 | 10:38 pm

Visa Processing Fees to Change on April 13, 2012

Posted by Cedric M. Shen

The Department of State will be adjusting certain visa processing fees as of April 13, 2012.  Some fees have increased while others have decreased.

Non-Immigrant Visas

B-1 business/B-2 visitor:  $160 (previously $140)
F-1 student/J-1:  $160 (previously $140)
H, L, O, P, Q R:  $190 (previously $150)
E-1/E-2 treaty:  $270 (previously $390)
K fiancé:  $240 (previously $350)
Border crossing cards:  $160 (previously $140) (age 15+)
Border crossing cards:  $15 (previously $14) (age 15-)

Immigrant Visas

Immediate relative:  $230 (previously $330)
Employment based:  $405 (previously $720)
Diversity visa:  $330 (previously $440)

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March 21, 2012 | 10:14 am

U.S. HOR passes bill that would allow Israelis to qualify for E-2 treaty trader visas

Posted by Cedric M. Shen

As discussed in my previous post, Rep. Berman (D-CA) introduced H.R. 3992 on February 9, 2012, which would make Israeli nationals eligible to enter the U.S. as nonimmigrant traders and investors as provided for under the INA (E-2 treaty trader nonimmigrant visas) if Israel provides reciprocal nonimmigrant treatment to U.S. nationals.  On February 28, 2012, the House Judiciary committee passed H.R. 3992 by a voice vote and on March 19, 2012, the House of Representatives passed it by a vote of 371-0.  According to Rep. Berman, “”[w]ith passage of this bill, Israeli investors are one step closer to expanding their businesses to the United States and creating jobs for hard-working American workers.”  Senator Schumer added a companion bill in the Senate on May 9, 2011, which has not yet been considered by the Senate Judiciary Committee.  Updates to the progress of this bill will be provided as they become available.

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February 21, 2012 | 12:57 pm

New Bill Seeks to Expand E-2 Investor Visa for Citizens of Israel

Posted by Cedric M. Shen

Recently, U.S. Rep. Howard L. Berman, Ranking Member on the House Foreign Affairs Committee, introduced the bill H.R. 3992 allowing Israeli nationals to apply for an E-2 investor visa to the United States.  According to Rep. Berman, this legislation seeks to “encourage Israeli business leaders to invest in the United States and lead to the creation of jobs for American workers.  Israel is one of our closest allies in the world and a significant investor in the U.S. economy.  The E-2 investor visa program will strengthen the vital U.S.-Israel relationship, boost the American middle class, and help grow the economies of both countries.”

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. The unwritten rule of thumb is that the investment should be approximately $250,000.00 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 that act as a subsidiary to a parent company in the foreign national’s home country. In these types of situations, the investor may also want to consider an L visa.

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 amount 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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