Visa Lawyer Blog

Articles Posted in Entrepreneur Immigration

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Source: Flickr Creative Commons License, Gage Skidmore

In this blog post, we bring you some long-awaited news. In a much-anticipated move, the Biden administration decided on Wednesday, February 24, 2021, to immediately revoke Presidential Proclamation 10014, a controversial order passed under former President Donald Trump that halted the issuance of most U.S. visas at Consulates and Embassies worldwide.

Our office has known since early January that the Biden administration was planning to revoke this Proclamation, and yesterday the rumors were finally put to rest.

Presidential Proclamation 10014 is no more.

What was Presidential Proclamation 10014 about?

P.P. 10014 essentially imposed a 60-day ban on the issuance of visas for most immigrant and nonimmigrant visa categories. The Proclamation began on April 23, 2020 and was set to continue by President Trump until March 31, 2020.

P.P. 10014 proved to be exceedingly harmful given the wide variety of immigrants to which it applied.

Specifically, the order halted the issuance of U.S. visas for the following classes of immigrants at U.S. Consulates and Embassies worldwide as of the date of the proclamation (April 23, 2020):

  • Spouses and children of green card holders (US citizens were not affected) applying at the consulate
  • Parents of US citizens applying at the consulate
  • Brothers and sisters of US citizens applying at the consulate
  • Sons and daughters (meaning over 21 years old) of US citizens applying at the consulate (children under 21 years old of US citizens were not affected)
  • Sons and daughters (meaning over 21 years old) of green card holders applying at the consulate
  • EB1A extraordinary abilities and their family applying at the consulate
  • PERM EB3, PERM EB2, NIW employment based and their family applying at the consulate
  • EB4 religious workers immigrants applying at the consulate
  • H1B and H4 dependents applying at the consulate
  • L1 and L2 applying at the consulate
  • J1 applying at the consulate  

Individuals residing in the United States and those who had a valid visa or travel document to enter the United States, on or before the date of the proclamation, were not impacted.

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The H-1B cap season for FY 2022 is almost upon us!

USCIS has announced that the H-1B initial registration period for the FY 2022 cap is scheduled to open at noon ET on March 9, 2021 and will remain open until noon ET on March 25, 2021.

As our readers are aware, USCIS recently implemented a new mandatory H-1B electronic registration system for the H-1B cap.

Under this new electronic registration process, prospective petitioners (also known as registrants), and their authorized representatives, who are seeking authorization to employ H-1B workers subject to the cap, must complete an electronic registration process on the USCIS website that requires basic information about the prospective petitioner and each requested worker.

The H-1B selection process will then be run on properly submitted electronic registrations. Only those with selected registrations will be eligible to file H-1B cap-subject petitions.

That means that in order to have a chance of being selected, from now on all prospective petitioners and their authorized representatives seeking to file H-1B cap-subject petitions for FY 2021, including for beneficiaries eligible for the advanced degree exemption, must first register during the registration period (March 9, 2021 to March 25, 2021) and pay the associated $10 registration fee for each beneficiary.

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A brand-new bill called the H-1B and L-1 Visa Reform Act of 2020 (S. 3770) sponsored by Republican Senator Chuck Grassley has recently surfaced. As you might have already guessed, the bill seeks to make changes to the current H-1B and L visa programs to reduce fraud and abuse within the H-1B and L visa programs, provide protections for American workers, and enforce stricter requirements for the recruitment of foreign workers. The H-1B visa program is aggressively targeted in this new piece of legislation.

Proposed Changes to the H-1B visa program

First, as it relates to the H-1B visa worker program, the bill proposes changes to existing wage requirements.

The law would require employers to pay the highest wage from three categories:

1) the locally determined prevailing wage level for the occupational classification in the area of employment

2) the median average wage for all workers in the occupational classification in the area of employment; or

3) the median wage for skill level 2 in the occupational classification found in the most recent OES survey.

Second, the bill would make changes to current law and require U.S. employers seeking to hire H-1B workers to publish job postings on a website established by the Department of Labor. After filing the labor condition application, the employer would be required to post the job on the website for at least 30 calendar days. The job posting would have to include a detailed description of the position, including the wages and other terms and conditions of employment, minimum education, training, experience, and other requirements for the position, as well as the process for applying for the position.

Third, all H-1B employers would be required to prove that they have tried to recruit American workers for jobs offered to H-1B workers. Under current law, only H-1B dependent employers (those with more than 50 full time employees of which at least 15% are H-1B employees) are required to recruit American workers for H-1B positions. This would be a drastic change in the law creating additional burdens for U.S. employers seeking to hire foreign workers with specialized skills.

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President Signs New Bill Authorizing Additional Funding for PPP

Last week President Trump signed a new bill into law that provides an additional $310 billion in aid to small business owners that will be funneled into the Paycheck Protection Program (PPP) and the Economic Injury Disaster Loan program (EIDL) administered by the United States Small Business Administration (SBA).

As a recap, the PPP and EIDL was first introduced by the CARES Act (Coronavirus Aid, Relief, and Economic Security Act) to help small businesses keep workers on their payroll.

Out of the $310 additional funding, $60 billion will go toward the EIDL program, $250 billion will go toward PPP loans, and $60 billion will be set aside for community banks and community development financial institutions (CDFIs).

Additional funding was required because the first round of $349 billion in aid ran out after just a few weeks of the program being put into effect.

Small business owners who are still need of funds to help pay their company’s payroll costs should take advantage of the additional funding as soon as possible. Intense demand remains high for these forgivable-low interest loans, and funding will dry up quickly.

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Are you a small business owner feeling the pinch of the Coronavirus (COVID-19) pandemic? Have no fear, the newly passed Coronavirus Aid, Relief, and Economic Security Act (CARES) provides emergency financial relief for small to mid-sized businesses in the United States, to help business owners keep employees on their payroll.

This federal relief package allocates nearly $350 billion in emergency aid for businesses through a small business loan program called the Paycheck Protection Program. This program is separate from existing federal loan programs, including existing Small Business Administration (SBA) disaster relief loans which you may also decide to pursue.

Paycheck Protection Program

What is it about? 

The Paycheck Protection Program is a loan forgiveness program (available through June 30, 2020) designed to provide a direct incentive for small businesses to keep workers on their payroll.

For small business owners who participate, loans obtained through this program will be fully forgiven if (1) all employees are kept on the payroll for 8 weeks and (2) the money is used for payroll costs, rent, mortgage interest, or utilities (at least 75% of the forgiven amount must have been used for payroll). As an additional incentive, loan payments will be deferred for six months. No collateral or personal guarantees are required to obtain a loan.

According to the SBA, loan forgiveness is based on the employer maintaining or quickly rehiring employees and maintaining salary levels. Forgiveness is reduced if full-time headcount declines, or if salaries and wages decrease.

Please note: PPP loans are not grants, instead they are loans—the majority of which can be forgiven if used for payroll costs as outlined above.

Who is Eligible?

Any small business with less than 500 employees (including sole proprietorships, independent contractors, self-employed persons, private non-profits, and 501(c)(19) veteran’s organizations) affected by the coronavirus pandemic can apply.

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House Passes CR Bill to Fund EB-5 through November 21st 

Great news! On September 19, 2019, the House of Representatives passed H.R. 4378, a continuing resolution bill that will fund the EB-5 Immigrant Investor Program through November 21, 2019.

H.R. 4378 has now passed on to the Senate where it will be considered and voted on. The bill is expected to clear the Senate and be signed into law by the President prior to September 30, 2019, the fiscal year deadline.

If the Senate is unable to pass the bill by that date, a government shutdown will likely occur until Congress is able to pass the continuing resolution bill to keep the government open and federal programs afloat.

Performance Data Form I-829 and Form I-526

Just days before the House passed H.R. 4378, USCIS published its third quarterly report for FY 2019 providing insight on performance data for petitions filed by entrepreneurs to remove conditions (Form I-829) and performance data for Immigrant Petitions filed by Alien Entrepreneurs (Form I-526).

What does the Quarterly Report reveal?

  • First off, USCIS is approving dramatically fewer I-526 than ever before:
    • Completion rates for I-526 have fallen 63%, comparing FY2019 with FY2018 year-to-date.
    • In FY2019 Q3, USCIS processed fewer I-526 than ever before in its history – only 579 completions for the whole quarter, as compared with 3,000-4,400 completions per quarter last year.
    • In FY2019 Q3, a record number of I-526 decisions were denials — 42%. The average I-526 denial rate is 20% in FY2019 YTD, as compared with 9% in FY2018 YTD.
  • Secondly, USCIS is processing dramatically fewer forms in total than ever before:
    • Completion rates across EB-5 forms (I-526, I-829, I-924) have collectively fallen 59%, comparing FY2019 with FY2018 year-to-date.
    • In FY2019 Q3, IPO processed more I-829 than in the previous quarter, but still a low volume – lower than average 2017/2018 performance for I-829.
  • Overall this data reflects reduced performance combined with backlogs causing extremely long processing times (The Current Processing Times report indicates that an I-924 is only considered “outside normal” processing after 90 months)

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USCIS has announced that it will be closing all of its International Immigration Offices by March 10, 2020.

As of June 30, 2019, USCIS has already permanently closed its field office in Ciudad Juarez, Mexico, and on July 5th, the office in Manila, Philippines permanently closed.

By the end of January 2020, the majority of international USCIS field offices are expected to be closed, including offices in Mexico City, London, Athens, and Guatemala City.

The first offices to close will be those in Monterrey, Mexico, Seoul, South Korea, and Manila, Philippines, with a projected closing date of September 2019.

The following is a complete list of USCIS International Immigration Offices expected to close:

Latin America, Canada and the Caribbean (LACC) District

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The H-1B season for Fiscal Year 2020 has officially come to a close.

The United States Citizenship and Immigration Services (USCIS) has begun the process of returning all H-1B cap-subject petitions that were not selected in the H-1B lottery for fiscal year 2020.

As you may recall, the H-1B lottery for FY 2020 took place on April 10, 2019. Petitioners who were selected in the lottery were mailed receipt notices of selection from USCIS during the month of April. If you or your petitioner did not receive such a notice, then your petition was not selected in the lottery and will be returned.

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In this post, we would like to keep our readers informed about Visa Bulletin projections for the coming months. Charles Oppenheim, Chief of the Visa Control and Reporting Division of the U.S. Department of State provides a monthly analysis of each month’s Visa Bulletin including discussion of current trends and future projections for immigrant preference categories.

Below are the highlights of those trends and projections for August 2019:

EB-1 Worldwide: As demand has increased in recent weeks, this category is expected to retrogress in early August, and return back to April 22, 2018 in October of this year.

EB-1 India: This category is not expected to advance prior to October 2019. During October 2019, this category is expected to return to a Final Action Date of February 22, 2017.

EB-1 China: This category is not expected to advance prior to October 2019.  

EB-2 Worldwide: Due to increased demand in recent weeks, this category is no longer expected to remain current through September 2019. A retrogression is expected in this category in early August 2019. EB-2 Worldwide is expected to become current again in October 2019.

EB-2 India: This category is expected to continue to advance slowly, by a few days or a week.

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Photo: JM Parrone

In this post, we would like to keep our readers informed about Visa Bulletin projections for the coming months. Charles Oppenheim, Chief of the Visa Control and Reporting Division of the U.S. Department of State provides a monthly analysis of each month’s Visa Bulletin including discussion of current trends and future projections for immigrant preference categories

Below are the highlights of those trends and projections for July 2019:

For Employment-Based Preference Filings:
You must use the Final Action Dates chart in the Department of State Visa Bulletin for July 2019.

Employment-Based Categories:

EB-1 Worldwide: Demand for this category remains steady. For the month of July EB-1 remains at April 22, 2018 and is not expected to become current in the foreseeable future. The Final Action Date will likely not change in July.

  • EB-1 India: No forward movement is expected in this category before October 2019. It is expected that this category will return to a Final Action Date of February 22, 2017 in October of this year.
  • EB-1 China: Has advanced to May 8, 2017 in the July visa bulletin.

EB-2 Worldwide: Current in July and will remain current through September 2019.

  • EB-2 India: Is expected to advance slowly during the month of July by a few days or one week at a time. Some forward movement may occur during the summer is there is lower EB-2 Worldwide demand.
  • EB-2 China: Has advanced to November 1, 2016 in the July visa bulletin. The category will continue to advance due to low demand.

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