Last updated Thursday, January 23, 2014, 12:31 pm
Our foreign national clients and readers often ask us about the requirements on carrying specific immigration documents with them while they are in the U.S. – whether around town or for domestic U.S. travel. We find that this topic is not very well covered and many foreign nationals are not aware of the applicable requirements to carry specific immigration-related documents with them at all times inside the United States. This article seeks to explain the law and provide answers to this and related questions.
The Law: Registration and Carrying of Registration Documents
Section 262 of the Immigration and Nationality Act (INA) dictates that almost all foreign nationals in the U.S. must be “registered” with the proper government agency. For example, registration happens when someone is admitted into the U.S. at the border or if someone’s status in the U.S. is extended or changed. The registration is a mechanical process, set in the law and in existence for many years, and has been well established and are fairly transparent – many foreign nationals do not even realize (nor do they often need to) that their status in the U.S. has been “registered” with the government. After the registration takes place, Section 264(d) requires the U.S. government to provide a “registration certificate” to the foreign national.
This is where the requirement to carry registration evidence comes in. Section 264(e) of INA requires every individual over the age of 18 to carry their “registration” documents with them at all times. Specifically, section 264(e) reads:
e) Every alien, eighteen years of age and over, shall at all times carry with him and have in his personal possession any certificate of alien registration or alien registration receipt card issued to him pursuant to subsection (d) [where the government issues a "registration certificate" after each foreign national's registration]. Any alien who fails to comply with the provisions of this subsection shall be guilty of a misdemeanor and shall upon conviction for each offense be fined not to exceed $100 or be imprisoned not more than thirty days, or both.
Many of our clients and readers are surprised to learn about this requirement – and the reason is simply that the Department of Homeland Security (DHS) has generally not enforced the “at all times” language. Often the requirement has been satisfied by an expectation (and ability) that the foreign national would be able to produce the registration document within certain period of time — perhaps by getting them from home or from a safe deposit box.
What Exactly Should I Carry: What is the Registration Certificate?
As explained above, the law requires every foreign national to carry their “registration certificate” so the natural question is – what is this document? The list is described in the federal regulations under 8 CFR. § 264.1(b). Notable registration documents are the Form I-94 card, I-551 (green card), I-766 (EAD card).
For many people in the U.S., their registration certificate would be the Form I-94 card which is issued either at the port of entry (see below) or upon approval of someone’s extension or change of status (usually attached to the bottom of the Form I-797 approval notice).
It is important to note that effective May 2013, Customs and Border Protection (CBP) stopped issuing paper Form I-94 cards at the port of entry for most foreign nationals (exceptions are certain land entry points where paper is still used). Under the new and current procedure (more details), most foreign nationals who are admitted into the U.S. have their passport stamped with a notation of the status type and the status expiration date. To obtain their Form I-94 card (the “registration certificate”), a foreign national must take an extra step by going to the CBP I-94 website, completing the requested information and printing their electronic Form I-94 on paper.
In addition to the Form I-94 card (the registration certificate), we recommend foreign nationals carry with them a photo ID and, if applicable, their visa document (such as Form I-20, Form DS-2019, or I-797 approval notice).
Enforcement and Applicability of the Requirement to Carry Registration Documents
As mentioned above, this requirement is very old and has been on the books for many years. And yet, many people do not know about it and have never encountered a situation where they had to present their immigration registration document to an officer. In certain parts of the U.S., it is more common for officials to ask for these documents. For example, it is significantly more likely for an official to ask for the immigration registration documents in southern California or the southern border states (Arizona, Texas) compared to the Midwest or Northeast states.
Although domestic transportation lines and law enforcement officers do not often ask for these documents, in many cases they have the right to do so. And if asked, a foreign national is supposed to have those documents with them. We recommend foreign nationals to consider the possibility of requests for their registration documents at transportation terminals or elsewhere even if they will never leave the territory of the United States. Again, for foreign nationals the most common item of identification is the passport and the most common forms of evidence of lawful status in the U.S. are the I-94 card accompanied by the appropriate visa document (I-20, DS-2019, I-797, etc.).
We hope that this article alert would be helpful to many of our clients and readers to understand the requirements to carry immigration documents even while they are within the U.S. and even when they do not travel out of town. We would love to hear stories or reports on officials requesting registration documents from our clients and readers. We also invite you to contact us if our office can be of any assistance in your immigration matters or you have any questions or comments about this article. Also, please visit us again or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcements.
The Department of Homeland Security (“DHS”) Office of Inspector General (“OIG”) has released a report on the L-1 visa program after a thorough analysis of the program, its weaknesses and opportunities for improvement. The report makes a number of recommendations to DHS on how to strengthen the L-1 visa program by making more robust review of a number of aspects, but also, importantly, calls for a better definition and training to officers with respect to “specialized knowledge” standard, which has been one of the main issues in the L-1 program recently.
Brief Background of the L-1 Program
The L-1 visa program was institute in the 1970s and is a work-based visa which allows companies with international operations to place employees in the U.S. for a limited (5 or 7 years) term.
The L -1 visa is one of many visa types that require an approved petition. Before a foreign traveler can apply for such a visa, a multinational company (the petitioner) must submit a petition (Form I 129) to USCIS requesting that USCIS make a determination that the intending traveler (the beneficiary) fits within the L-1 visa category.
An L-1 employee sent to work temporarily in the United States by the petitioning employer must qualify in one of two subcategories: L-1A (an alien performing services in a managerial or executive capacity) or L-1B (an alien performing services as a specialized knowledge worker). Most L-1 petitions are adjudicated by Immigration Services Officers (ISOs) at the California and Vermont Service Centers. After USCIS approves a petition for a beneficiary who is overseas, a Department of State (DOS) consular officer interviews the individual at a U.S. consulate or embassy.
L-1 Adjudication Trends
According to USCIS, the rate of L-1 approvals have been trending down since fiscal year (FY) 2007 when the peak of 57,218 approvals was reached. For example, in Fy2011, the approvals were only 33,301. Out of this number, Indian nationals held the majority (26,919), followed by nationals of UK, Japan, Canada and Mexico.
The downward trend in L-1 approvals over the past several years has many causes, but from our experience, the biggest reason for the decline in the rate of L-1 approvals is the “specialized knowledge” standard which is applied to all L-1B applications.
(Not-so-Brief) Background on the “Specialized Knowledge” Issue
The L-1 visa classification was created by Congress in 1970 without providing a statutory definition of “specialized knowledge.” The first definition was published in 1983 and in 1987, the INS revised the definition of specialized knowledge to be “knowledge possessed by an individual whose advanced level of expertise and proprietary knowledge of the organization’s product, service, research, equipment, techniques, management, or other interests of the employer are not readily available in the United States labor market.” This definition required an employee to be a key person with materially different knowledge and expertise that is critical for job performance and relates exclusively to the employer’s proprietary interest.
In 1988, INS issued a policy memorandum instituting a broader interpretation of specialized knowledge, defining it as “special knowledge possessed by an employee that is different from or surpasses the ordinary or usual knowledge of an employee in the particular field.
The Immigration Act of 1990 (IMMACT) enacted the first statutory definition of specialized knowledge, clarifying that the beneficiary’s knowledge need not be proprietary to the petitioner or limited in the U.S. labor market. IMMACT states that an “alien is considered to be serving in a capacity involving specialized knowledge with respect to a company if the alien has a special knowledge of the company product and its application in international markets or has an advanced level of knowledge of processes and procedures of the company.” Following the passage of IMMACT, Congress noted that nonimmigrant visas, such as the L-1 and H-1B, had enhanced trade and accommodated useful movement of people and products.
As a result of IMMACT, INS promulgated the existing regulatory definition of specialized knowledge at 8 CFR § 214.2(l)(1)(ii)(D). Federal immigration officials issued several policy memorandums providing guidance on what should be considered specialized knowledge. A July 1991 INS regulation gave the interpretation of specialized knowledge that the individual must possess “special knowledge” that applies in international markets or “an advanced level of knowledge or expertise in the organization’s processes and procedures.” In March 1994, INS issued the memorandum “Interpretation of Specialized Knowledge,” which noted that a petitioner’s assertion that an alien’s knowledge is different does not establish that the alien possesses specialized knowledge. In September 2004, USCIS issued the memorandum “Interpretation of Specialized Knowledge for Chefs and Specialty Cooks seeking L-1B status.” This memorandum clarified guidance in the 1994 memorandum that chefs or specialty cooks generally are not considered to have “specialized knowledge” for L 1B purposes, even though they may have knowledge of a restaurant’s special recipe or food preparation technique.
In 2008, the Administrative Appeals Office (AAO) issued a non precedent decision on an appeal submitted by GSTechnical Services (GST). In the GST decision, the AAO concluded that routine work experience and knowledge of a company’s products do not constitute specialized knowledge.
Specialized Knowledge Improvements Suggested
This background is helpful to give us perspective and to highlight how difficult it is to explain, in an objective way, what “specialized knowledge” is. The OIG, in their report, support this assertion by concluding that immigration officers do not apply the specialized knowledge definition uniformly and there is much confusion as to what the test even means.
When OIG interviewed immigration offers about this standard, among the most common terms used to described the immigration officers’ concerns were “unquantifiable”, “subjective”, very difficult to adjudicate”, “open to interpretations, unfortunately.” According to the OIG report, immigration officers refer to specialized knowledge as “you know it when you see it.” Obviously, this is alarming for a number of L-1 program stakeholders because the lack of objective guidance which can be followed leads to great deal of uncertainty and lack of faith in the system.
The OIG report concludes that the statutory definition of specialized knowledge is vague and unclear, leading to inconsistent decision-making and confusion among petitioners as to the actual denial reasons. This leads to the OIG report to recommend DHS to publish new clear guidance on the specialized knowledge standard.
Additional Recommendations on the L-1 Program
In addition to the specialized knowledge issue, discussed above, the OIG report makes a number of other recommendations to improve the L-1 program. Among these recommendations are:
- Establish a process to prevent the practice of L-1 blanket beneficiaries who are denied due to lack of specialized knowledge to petition and obtain approval/stamping under an individual L-1 petition by establishing a more uniform beneficiary tracking system;
- Provide thorough training to CBP officers who are often the first government officers to handle an L-1 petition submitted by a Canadian L-1 applicant at the port of entry;
- Establish better mechanism to track whether an L-1 petitioner is subject to the $2,250 filing fee when they employ 50 or more employees in the US and when 50 percent of their US workforce is on L-1 status;
- Strengthen the tools to review “new office” L-1 petitions to be able to adjudicate properly cases where a new office is being established in the US and to determine whether the conditions of the new office have been met for the purpose of the first (and subsequent) L-1 petition extensions – for example, OIG recommends a site visit to the new office be mandatory before the new office L-1 petitions are extended;
- Increase use of VIBE to check petitioner information and eliminate fraud and abuse and extend the use of VIBE to other agencies, including CBP;
The L-1 OIG report is helpful in providing a good review of what needs to be improved in the L-1 program. We have worked with many clients over the past several years who have expressed frustration by the L-1 program and the lack of uniformity and predictability. In its internal response to the OIG report, DHS has indicated that they are working on an memorandum to establish more clear guidance with respect to the specialized knowledge standard. This memorandum is under internal review and we hope to see public release soon.
Please do not hesitate to contact us if we can help you. Also, please visit us again or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcements.
Earlier this afternoon the U.S. Senate voted 68-32 in favor of final passage of S. 744, the “Border Security, Economic Opportunity, and Immigration Modernization Act” which seeks to provide a comprehensive immigration reform. We have provided an overview and analysis of S.744 when it was introduced in the U.S. Senate on April 16, 2013 and we urge our readers and clients to review the main points of S. 744. Our clients and readers can also refer to the full text of S.744, as it was passed earlier today.
Hold the Champagne: Senate Passage is an Important but Early Step in Legislative Process
While S. 744 is not perfect in many ways, we are pleased to see the US Senate pass a comprehensive reform bill. However, it is important to underscore that this proposal would become a law in its current shape only after an identical bill is passed by the US House of Representatives and then signed by President Obama. The House has indicated that they would not vote on this bill and would instead take a deliberate approach to draft their own version of an immigration reform. This process can take months to complete and much can happen during this time.
We are very happy to be finally able to share some concrete developments on the proposal for a comprehensive immigration reform. After the Senate vote, we expect a lot of activity and focus on the US House of Representatives over the next days and weeks and we will monitor closely and report on any substantial developments on immigration reform. Also, we will be conducting a series of live chats and webinars to discuss and analyze this proposal, in its current form and as it may be amended before it becomes law. In the meantime, please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics. If our office can be of any help, please feel free to contact us.
Last week, the Homeland Security Department has ordered U.S. border agents, “effective immediately”, to verify that every international student who arrives in the US has a valid student visa, according to an internal memorandum obtained by the Associated Press.
This decision came after it was discovered that a friend of suspected Boston Marathon bomber Dzhokhar Tsarnaev was admitted on an F-1 student visa even though his status had been revoked in SEVIS. Last year more than 500,000 student visas were issued by the U.S. Department of State.
CBP officers must now verify the status of each F-1, M-1 and J-1 nonimmigrant in the Student and Exchange Visitor Information System (SEVIS) before admission. However, not all border officers are equipped with access to SEVIS, so after preliminary processing, most students and exchange visitors are referred to secondary inspection, where their SEVIS record is reviewed and where they may be questioned further about their U.S. activities.
As a result of these new entry procedures, F-1 students and J-1 exchange visitors entering the United States should anticipate possibility of long waits at U.S. ports of entry. As always, we recommend that they are patient and answer all questions clearly and fully.
On May 8, 2013, U.S. Citizenship and Immigration Services’ (USCIS) released a summary and assessment of efforts taken during the first year of its Entrepreneurs in Residence (EIR) initiative. Launched in February 2012 in Silicon Valley, the EIR initiative brought together startup experts and USCIS immigration experts to work collaboratively to streamline pathways for a range of existing visa categories often used by entrepreneurs. As stated by Director Alejandro Mayorkas, the goal of the EIR program is “to ensure that we capture the full potential of current immigration laws to attract and retain startup enterprises that promote innovation and create jobs in America…”. With the uncertainty that continues to surround comprehensive immigration reform, initiatives like EIR become all the more important.
Some of the highlights of the EIR initiative over the past year include:
- Nearly 30,000 visits to Entrepreneur Pathways, which was designed to help prospective entrepreneurs understand their immigration options and the related processes;
- Approximately 500 participants across the United States in USCIS’s entrepreneur-focused engagements;
- More than 400 USCIS employment-based immigration officers trained on startup businesses and the environment for early-stage innovation; and
- More than 100 USCIS officers receiving additional specialized training to handle entrepreneur and startup cases.
In efforts to expand the program, USCIS is “seeking new private sector experts, using the Department of Homeland Security’s (DHS’s) Loaned Executive Program, in the areas of performing arts, health care and information technology.” The purpose of seeking expert input into these industry sectors, which are a critical part of the country’s economy, is to provide the agency with insights into these areas, and help strengthen USCIS’s policies and practices in an informed manner. It is anticipated that the range of industries will be broadened over time.
At the initiation, the EIR initiate set three key goals: 1) production of public materials intended to assist entrepreneurs in understanding the visa categories; 2) equipping Immigration Service adjudicators to process petitions in the context of the complex business environment; and the streamlining of USCIS policies toward better reflecting issues and realities encountered by foreign entrepreneurs and startup businesses.
While the full impact on EIR remains to be seen, USCIS continues to move away from policies that discourage high-skilled immigrants’ contributions to the economy. A broad and successful EIR program would ensure that the system is a magnet for both talented human capital and money. Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics. If our office can be of any help, please feel free to contact us.
Yesterday, May 8, 2013, the Congressional Budget Office (“CBO”) released an updated report to Congress analyzing the current immigration population in the United States. The report is interesting not only in the context of the ongoing debate on the proposed Comprehensive Immigration Reform (CIR) bill which is currently in Congress but also to get a current glimpse of the trends of composition of the immigrant population in the United States. We are happy to provide a summary of the report findings.
Size and Composition of the Foreign-Born Population
In 2012, about 40 million foreign-born people lived in the United States, making up about 13 percent of the U.S. population—the largest share since 1920. The number of immigrants was about the same in 2011, the latest year for which certain data on immigrants are available. Of that total in 2011, naturalized citizens (foreign-born people who have fulfilled the requirements for U.S. citizenship) accounted for about 18 million, and noncitizens (foreign-born people authorized to live and work in the United States either temporarily or permanently and people who are not authorized to live or work in the United States) accounted for about 22 million. About half of the noncitizens were people without authorization to live or work in the United States, either temporarily or permanently. See chart.
In 2011, about 37 percent of foreign-born people in the United States were from Mexico or Central America; the next-largest group came from Asia and constituted about 28 percent of the total foreign-born population. Of noncitizens unauthorized to live in the United States, an estimated 59 percent were from Mexico, and an estimated 14 percent were from El Salvador, Guatemala, or Honduras. See chart.
Lawful Permanent Residents
From 2000 to 2012, more than 13 million people were granted lawful permanent resident (LPR) status in the United States, an average of about 1 million per year. Lawful permanent residents are permitted to live, work, and study in the United States, and receiving LPR status is an important milestone on the path to U.S. citizenship. Roughly two-thirds of new LPRs were immediate relatives of U.S. citizens or were admitted under family-sponsored preferences.
Demographic Characteristics of the Foreign-Born Population
In 2012, about 1 in 4 people in California and about 1 in 5 people in New York and in New Jersey were born in another country. However, in another 31 states, taken together, only about 1 person in 20 was foreign born. See chart.
Between 1999 and 2012, the share of the population constituted by foreign-born people increased in all but two states and, for the nation as a whole, rose by 2.8 percentage points, to roughly 13 percent. See chart.
Level of education is somewhat less, on average, among foreign-born people than among native-born people, and it varies considerably depending on immigrants’ country of origin. In 2012, 27 percent of the foreign-born population between the ages of 25 and 64 had not completed high school, compared with 7 percent of the native-born population. More than half of the people from Mexico and Central America, 54 percent, had not finished high school, but only about 9 percent of the people from Asia and 5 percent of the people from Europe and Canada had less than a high school education. In addition, about 55 percent of the people from Asia had at least a bachelor’s degree, as did 51 percent of the people from Europe and Canada; just 33 percent of the native-born population had earned at least a bachelor’s degree. See chart.
Labor Market Characteristics
An interesting analysis focused on the ability to seek/find employment and on the salaries received by various segments of the immigrant population. For example, foreign-born men are more likely to be working or looking for work (that is, to be
in the labor force) than are native-born men; foreign-born women, however, are less likely than native-born women to be in the labor force.
The differences in educational attainment and participation in the labor force (as well as in groups’ concentration in particular occupations) were reflected in differences in annual earnings. The amount and distribution of annual earnings were similar for naturalized and native-born citizens, but earnings tended to be much lower among noncitizens. The amount of annual earnings among foreign-born workers also varied greatly by their country of origin. For example, in 2011, the median annual earnings of male workers from Mexico and Central America was $24,000—whereas among male workers from Asia, the median was $50,000; among their counterparts from Europe and Canada, it was $55,000; and among native-born male workers, $46,000. Among female workers from Mexico and Central America, median annual earnings were $17,000—whereas among their counterparts from Asia, the median was $30,000; among those from Europe and Canada, it was $35,000; and among native-born female workers, $32,000.
The CBO report is very interesting as it raises some questions with respect to the demographics and labor market participation of the individuals who would be covered under the proposed CIR. Also, this report is likely to be used by all sides in the CIR debate as to why certain parts of the proposed reform should be kept or changed, depending on the political standpoint of those making the argument.
We continue to monitor closely developments in Congress related to Comprehensive Immigration Reform and we expect a lot of activity over the next days and weeks. Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics. If our office can be of any help, please feel free to contact us.
Earlier today, a group of eight U.S. Senators released a proposed framework for a comprehensive immigration reform. The document signed off by Senators Charles E. Schumer of New York, John McCain of Arizona, Richard J. Durbin of Illinois, Lindsey Graham of South Carolina, Robert Menendez of New Jersey, Marco Rubio of Florida, Michael Bennet of Colorado, and Jeff Flake of Arizona, outlines the framework for comprehensive immigration reform, including a pathway to U.S. citizenship for about 11 million undocumented immigrants currently in the U.S.
Our office has closely monitored Congress’ attempts to enact into law a comprehensive immigration reform over the past few years; however, this time around it seems that passing a comprehensive immigration measure is actually possible, and even likely. After the November 2012 elections, the Republicans have embraced the idea of immigration reform more warmly. As a result, we will continue monitoring serious developments on this topic and provide updates for the benefit of our readers and clients.
The Proposed Comprehensive Immigration Reform Framework
Create a Path to Citizenship for Unauthorized Immigrants Already in the U.S.
Under the proposal, the law would allow undocumented immigrants with otherwise clean criminal records to quickly achieve probationary legal residency after paying a fine and back taxes. Such immigrants could pursue full citizenship — giving them the right to vote and access to government benefits — only after new measures are in place to prevent a future influx of illegal immigrants. Such measures would include border security, a new program to help employers verify the legal status of their employees and more stringent measures aiming to prevent immigrants to overstay their visas.
Minor children who are not documented and who were brought to the U.S. would not be subject to the “back-of-the-line” provisions and would have an easier path to citizenship. Similarly, agricultural workers who have been working without documentation would have an easier path to citizenship.
Improve the Legal Immigration System and Attract the World’s Best and Brightest
The proposal seeks to reduce current backlogs in the family and employment-based visa categories so that future immigrants see the lawful immigration system as the only way of entry into the U.S. Also, a green card would be awarded to Ph.D. or Master’s degree holders in science, technology, engineering or math (STEM) from an American university.
Stronger Employment Verification
The proposal calls for a “tough, fair, effective and mandatory” employment verification system making employers liable for hiring undocumented workers and making it harder for undocumented workers to falsify documents and find employment.
Increasing Foreign Workers Quotas
The proposal seeks to improve the system for hiring lower-skilled workers by U.S. employers by allowing more lower-skilled workers’ quotas and making it faster and easier for U.S. workers (after following procedural safeguards to ensure no U.S. workers are available for the job) to bring foreign workers.
Other Immigration Proposals in Congress
There are other immigration proposals, in varying stages, intended to deal with related issues. For example, Senator Orrin G. Hatch of Utah, a Republican, and Senator Amy Klobuchar of Minnesota, a Democrat, would propose a bill which would nearly double the number of H-1B temporary visas available each year to highly skilled immigrants. It would also free up more permanent resident visas, known as green cards, so those immigrants could eventually settle in the United States and go on to become citizens.
It seems as finally there seems to be broad enough consensus here in Washington, DC that the current immigration system must be reformed to deal with structural problems. Our office faces and helps individuals who have to deal with such structural immigration system problems every day and we welcome these proposals. Just because this is a framework, it is subject to (and will likely) change, negotiation and political manipulation by many; however, we hope that what would emerge as immigration reform law is a fairer system which would allow certainty and path to achieving the American dream to many.
We will certainly follow developments very closely and provide updates. We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics. We also invite you to contact us if our office can be of any assistance in your immigration matters or you have any questions or comments about this article.
In recent years, despite the U.S.’s rich history as a haven for ambitious immigrants, many foreigners looking to work in the U.S. have had to cope with increasingly restrictive immigration policies. As a result, the number of immigrant-founded startups in Silicon Valley, to take an example, has declined from 52.4% in 2005 to 43.9% in 2012. A few days ago, on November 28, 2012, U.S. Citizenship and Immigration Services (USCIS) Director Alejandro Mayorkas marked a significant milestone for the USCIS Entrepreneurs in Residence (EIR) initiative by launching an online resource center. The resource center, Entrepreneur Pathways, provides entrepreneurs who seek to start a business in the United States an intuitive way to navigate the immigration process.
The Online Entrepreneur Resource Center
By launching the online resource center, USCIS acknowledged that “our nation has always attracted individuals with great drive and entrepreneurial spirit.” As the world’s greatest economy and a global leader in innovation, the United States must continue to welcome and retain the next generation of foreign entrepreneurs who will start new businesses and create new jobs here in America.
The Online Entrepreneur Resource Center is essentially a collection of materials describing (in a fairly cursory manner) the visa options for foreign entrepreneurs. The guide has few sections, explaining what visa options there may be, how to file an application, what happens after approval, when an arrival can be expected, etc. However, the descriptions and guidance provided are extremely broad and vague and are unlikely to provide an entrepreneur, willing to start a business or invest a substantial amount of funds, the level of accuracy and detail which are key for a sound business decision.
Clarifications to Options for H-1B Holders-Entrepreneurs
An interesting portion of the guide is how it deals with the option for H-1B work visa for entrepreneurs. Our office has previously reported on the problems H-1B holders entrepreneurs face in the U.S. Specifically, the issue of “right to control” (discussed below) effectively prevented many foreign entrepreneurs establishing a company and then having this company sponsor an H-1B for them.
By way of background, the H-1B temporary work visa program was made off-limits to many individual entrepreneurs, as a result of the January 8, 2010 Neufeld Memorandum which required each H-1B work visa petition to show that the petitioning employer has the right to control, including to hire and fire, the foreign national employee. Most often entrepreneurs are the owners or have a controlling interest over a company, and the right to control in many cases could not be shown. Effectively, the Neufeld Memorandum prohibited H-1B self-sponsorship for foreign entrepreneurs. In subsequent guidance, USCIS has indicated that certain corporate structures may permit companies to sponsor H-1B work visas for founders/owners if there is a mechanism (such as independent board of directors) which can provide the company’s right to control over the sponsored H-1B employee/owner.
The Online Entrepreneur Resource Center provides more information on the kind of documents/information which may be needed to establish the employer-employee relationship (or the right to control). Specifically,
If you own your company you may be able to demonstrate an employer-employee relationship if the ownership and control of your company are different. For example, if your company has a board of directors, preferred shareholders, investors, or other factors that show your organization has the right to control the terms and conditions of your employment (namely the right to hire, fire, pay, supervise or otherwise control the terms and conditions of employment), you may be able to meet this requirement. Some of the evidence you may submit to demonstrate the distinction between your ownership interest and the right to control your employment includes: Term Sheet, Capitalization Table, Stock purchase Agreement, Investor rights Agreement, Voting Agreement, Organizational documents and operating agreements.
This additional information is helpful as it provides a clearer guidance on what USCIS is looking for. Essentially, it seems that they may consider the employer-employee relationship and the right to control established when the ownership (by the sponsored entrepreneur) and the control (voting, etc.) are by different parties. In many situations, this may permit a foreign entrepreneur to qualify for H-1B; however, in many others, especially small startup companies, this structure may not be feasible or practicable.
In the welcome move, the EIR initiative announced that while the entrepreneurs will not be able to file the petition on their own behalf, in some cases the business entity that they will run or create may file as their employer. This effectively contradicts the 2010 Neufeld Memorandum’s requirement for a petitioner’s right to control.
We welcome USCIS Director Mayorkas’s announcements and welcome the additional options for entrepreneurs who seek to start a business in the United States. Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics. If our office can be of any help, please feel free to contact us.
The U.S. Citizenship and Immigration Service (USCIS) has announced the creation of a separate office which would be tasked with overseeing the EB-5 immigrant investor program.
Yesterday, July 18, 2012, USCIS Director Mayorkas announced that his agency has and will continue to increase the number of staff dedicated to the EB-5 immigrant investor program. This is in a direct result of earlier criticism of too-long processing times and aims to streamline and provide a faster and (hopefully) more predictable EB-5 application review process. Director Mayorkas identified the tens of thousands of new jobs for US workers and the billions of dollars injected by EB-5 immigrant investors into the US to date. He also summarized efforts to date to increase agency resources dedicated to the EB-5 program.
USCIS is recruiting a new Chief of Immigrant Investor Program to manage the newly created office and that two full-time attorneys are being added to the program’s team. Also, a Review Board is expected to be instituted by the end of July to review every pending application for regional center designation in which a denial has been recommended (essentially, a secondary review process for denials). Regional center applicants will receive the opportunity to discuss their cases in-person before any final adverse decision. The goal is to continue to deny regional center applications which do not deserve certification, but to allow legitimate regional center applications to have the certainty that adequate process exists to explain and support an application which may otherwise be denied.
EB-5 Program Office Creation Positive Step; Impact Yet Unknown
It is still too early to anticipate what the impact of the newly created EB-5 Program office would be. The government’s goals are clear — make it easier for the U.S. to attract qualified foreign investors by streamlining the process and making the process faster and more predictable. The EB-5 immigrant visa category remains one of the few categories with available visa numbers for this fiscal year. According to recent data provided by the State Department, approximately 6,200 immigrants will take advantage of the EB-5 program during this fiscal year, well under the allotted maximum of 10,000. Demand is highest by nationals of China (3,710), South Korea (335) and Taiwan (106) distant second and third.
We will continue monitoring the development of this EB-5 Program Office and report on related news and developments as we continue to pursue EB-5 applications on behalf of our clients. Please do not hesitate to contact us if we can be of any assistance or answer any questions. We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.
We have been monitoring developments around the H.R. 3012 legislation aimed at removing the per-country annual limits for the immigrant visa categories. We have written extensively in the past and many of our clients and readers are very interested in any developments with H.R. 3012 because of its wide (and significant) impact on employment-based immigrant visa applicants.
Senator Grassley Removes Hold on H.R. 3012 – July 11, 2012
Many of our readers would remember that Senator Grassley placed a hold on H.R. 3012 because of his concerns with the H-1B program and possible abuses. We wrote on June 28, 2012 of Senator Grassley’s proposal that in exchange of his lifting his hold on the bill, the bill would be amended to include significant H-1B audit and enforcement mechanisms.
Subsequently, Senators Grassley and Schummer have reached an agreement and on July 11, 2012, Senator Grassley removed his hold from H.R. 3012. Here is his statement, as added into the Congressional Record on July 11th:
Mr. GRASSLEY. Mr. President, today I lift my hold on H.R. 3012, the Fairness for High-Skilled Immigrants Act. This bill would eliminate the per-country numerical limitations for employment based immigrants and change the per-country numerical limitations for family-based immigrants. When I placed a hold on the bill, I was concerned that the bill did nothing to better protect Americans at home who seek high-skilled jobs during this time of record unemployment. Today , I lift my hold because I have reached an agreement with the senior Senator from New York, the chairman of the Senate Judiciary Subcommittee on Immigration, Refugees and Border Security.
I have spent a lot of time and effort into rooting out fraud and abuse in our visa programs, specifically the H-1B visa program. I have always said this program can and should serve as a benefit to our country, our economy and our U.S. employers. However, it is clear that it is not working as intended, and the program is having a detrimental effect on American workers.
For many years, Senator Durbin and I have worked on legislation to close the loopholes in the H-1B visa program. Our legislation would ensure that American workers are afforded the first chance to obtain the available high paying and high skilled jobs in the United States. It would make sure visa holders know their rights. It would strengthen the wage requirements, ridding the incentives for companies to hire cheap, foreign labor.
While I could not get everything that was included in the Durbin-Grassley visa reform bill, there is agreement to include in H.R. 3012 provisions that give greater authority to program overseers to investigate visa fraud and abuse. Specifically, there will be language authorizing the Department of Labor to better review labor condition applications and investigate fraud and misrepresentation by employers. There is also agreement to include a provision allowing the Federal Government to do annual compliance audits of employers who bring in foreign workers through the H-1B visa program.
I appreciate the willingness of other members to work with me to include measures that will help us combat visa fraud, and ultimately protect more American workers. I look forward to working with others as H.R. 3012 progresses in the Senate.
Plenty of Work Still Ahead for H.R. 3012
Sen. Grassley’s hold removal is a significant step towards H.R. 3012 becoming a law. However, many steps (and time) remain before the bill would actually become a law. First, the bill must continue to make its way through the U.S. Senate where it must pass. Afterwards, the bill must be taken by the U.S. House of Representatives and must be reconciled with the version of H.R. 3012 which was earlier passed by the House in a different form.
A quick reminder on how Congress passes laws: a bill must pass both the Senate and the House in identical form and must be then signed by the President to become a law.
Only after the House votes on the bill, in identical form to the text which was approved by the Senate, would then President Obama have a chance to sign it into law.
In an election year, as the politics heat up, we simply do not know what other roadblocks the bill may face in the Senate or later, after it gets to the House. We will continue to monitor developments on this legislation and provide updates. Please do not hesitate to contact us if we can be of any assistance or answer any questions. We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.
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