By Yingfei Zhou, Esq.
Q: How can I apply for EB-5 visa?
A: There are two requirements on foreign investors seeking a green card. First, you must invest sufficient funds in an approved project of your choice. Second, ten new full-time jobs must be created as a direct result of that investment. The investment must be either in a new business or an existing business and the investment will spur either a 40% increase in net worth or employees of the existing business.
On April 07, 2014, in a much awaited public announcement, U.S. Citizenship and Immigration Services announced that it had already reached the statutory cap of H-1B petitions allotted for the 2015 fiscal year. According to the announcement, on the first five days USCIS began to count H-1B petitions, it was already flooded with more than 65,000 of regular cap H-1B petitions and more than 20,000 H-1B petitions qualifying for the advanced degree exemption.
USCIS began accepting H-1B petitions subject to the 2015 fiscal year cap on April 01, 2014. The H1-B visa program is utilized by U.S. businesses seeking to employ foreign workers in what are known as ‘specialty occupations’. Specialty occupations are those that necessitate highly specialized knowledge, whether theoretical or practical, as stated on the USCIS website. Specialty occupations include but are not limited to scientists, doctors, mathematicians, or engineers.
According to the announcement, USCIS completed initial intakes for all filings received by the filing deadline (April 07, 2014), and will conduct a random computer generated selection process also known as a lottery system of selection. Under this process, USCIS will select the number of petitions necessary to fulfill the 65,000 visa cap limit for the general category, and the 20,000 visa cap limit under the advanced degree exemption. Those whose cap-based petitions are not selected will have their cases rejected and filing fees returned to them. As stated by USCIS, the computer generated selection process will consider the advanced degree exemption first. Advanced degree petitions that are not accepted through the initial lottery system will be subjected to the lottery system for the general category.
Now that the H-1B cases have been filed, we are anxiously waiting to get the news from USCIS on the cap count.
Last year, USCIS announced on April 5 that it received approximately 124,000 H-1B petitions during the five day filing period, including petitions filed for the advanced degree exemption. Then, on April 7, 2013, USCIS used a computer-generated random selection process (commonly known as a “lottery”) to select for processing a sufficient number of petitions needed to meet the caps of 65,000 for the general category and 20,000 under the advanced degree exemption limit.
What to Expect This Year
Our office receives many inquiries from start-up companies that want to hire employees under H-1B visa. As the H-1B season has begun, we would like to provide our readers with the updates and important considerations for this category of H-1B visas.
The following article was prepared by attorney Ekaterina Powell from our office and was featured as the cover article in VOICE, the American Immigration Lawyers Association publication.
It is that time of year where companies and individuals are preparing to send their cases to US Immigration to apply for an H-1B visa. Last year the entire cap was filled in the first week of filing, meaning many people were left out and could not get an H-1b visa. When thinking about how many people could not get jobs through this process, an organization that has studied the affects of H-1b visas on the market came out with a job loss calculator, which estimates the numbers of American jobs lost due to the lack of H-1b visas. Compete America’s calculator estimates that 500,000 new U.S. jobs could have been created this year absent outdated restrictions on H-1B visas. From another perspective, according to Compete America, the 2.37 million new payroll jobs created in 2013 might have been increased by 21 percent under a different H-1B scheme.
So what does this calculator really highlight? Well, the calculator clearly shows the fact that higher-skilled immigrant workers impact the U.S. economy, helping push cutting-edge innovation, which then creates more jobs for everyone. According to a new report by Standard & Poor’s, “Adding Skilled Labor to America’s Melting Pot Would Heat Up U.S. Economic Growth,” which means highly skilled immigrants help create jobs for American workers, not take them away like many who stand opposed to increasing the cap would claim. Higher skilled workers actually complement U.S. workers’ skills instead of competing with them, and are more likely to start a new business than U.S.-born workers, which further increases innovation and productivity, according to S&P. Research from the National Foundation for American Policy suggests the hiring of each H-1B worker actually creates employment for 7.5 workers in small to mid-sized technology companies.
The insufficient number of H-1B visas goes to a deeper problem of having an outdated system that cannot respond to the demands of an ever-changing economy. Absent a few years of temporary increases, the cap on H-1B visas for skilled workers with bachelor’s degrees has been set at 65,000 per year for more than 20 years. Since demand far exceeds supply, the cap runs out every year, which last year’s cap was filled the first week it was open.
By Ekaterina Powell, Esq.
As April 2014 is approaching, we would like to remind our readers to start preparing for H-1B filing. As you may already know, there is a numerical limit on the H-1B visas allotted for each fiscal year. There are 65,000 H-1B visas available with additional 20,000 visas for those with U.S. Master’s degrees. What is important is that visas are not recaptured if H-1B is not approved, thus only 65,000 first filed H-1B petitions will be considered.
April 1 is the first day when you can file a cap-subject H-1B petition. If you do not file on April 1, you risk not getting into the cap. Even though the application is in April, the H-1B employee will not be available to start working for the employer until the beginning of the fiscal year, which is October 1, with the limited exceptions described below.
By Ekaterina Powell, Esq.
We get a lot of inquiries from entrepreneurs who want to come to the U.S. to engage in their businesses whether they can qualify for H-1B visa. Below is a summary of the current USCIS trends and practical tips in making H-1B for entrepreneurs a success.
Proving Valid Employer-Employee Relationship between Entrepreneur and Business
Over two years ago, USCIS has started its initiative to promote start-up businesses and spur job creation. Since then, USCIS has issued a number of updates describing the opportunities for entrepreneurs and explaining how they can qualify for H-1B and other visas to work in their own businesses.
Specifically, USCIS has clarified that entrepreneurs with an ownership stake in their own companies, including sole employees, may be able to obtain an H-1B visa if they can demonstrate that the company has the independent right to control their employment.
In other words, in order to qualify for H-1B in your own company, you have to show that there is an employer-employee relationship between you and your business, as indicated by the fact that the company has the authority to supervise your work, fire, and otherwise treat you as a regular employee of the company.
When USCIS updated its Questions & Answers: USCIS Issues Guidance Memorandum on Establishing the “Employee-Employer Relationship” in H-1B Petitions posted on USCIS website, it gave an example of a sole owner who could qualify for H-1B in his/her own company. USCIS states that the necessary employer-employee relationship can be established if there a separate Board of Directors which has the ability to hire, fire, pay, supervise or otherwise control the beneficiary’s employment.
USCIS has also recently created a website “Entrepreneur Pathways” dedicated to explaining the U.S. visa options for H-1B entrepreneurs. The website provides further information on the documentary evidence that can be presented to show a valid employer-employee relationship if the H-1B beneficiary has an ownership stake in the petitioning business.
Aside from showing a Board of Directors that controls your work, you can present evidence of preferred shareholders, investors or other factors establishing that the petitioning company has the right to control the terms of your employment.
As evidence of the right to control your work, you may be able to present the following:
• Term Sheet
• Capitalization Table
• Stock purchase Agreement
• Investor rights Agreement
• Voting Agreement
• Organizational documents and operating agreements/bylaws
In addition to the documents listed as examples, you may submit a combination of any other documents that sufficiently establish that there is a valid employer-employee relationship.
In our experience, we have found that it is also useful to present the documents below to show the right to control the beneficiary’s work:
• Employment Agreement between the petitioner and beneficiary or Employment Offer Letter detailing the terms and conditions of employment and explaining how the employer will exercise its right to control the beneficiary, how often the beneficiary will have to report on the progress of work and to whom, how the beneficiary will be supervised throughout H-1B employment, the extent of the employer’s discretion over when and how long the beneficiary will work, the method of payment, the employer’s role in paying and hiring assistants to be utilized by the beneficiary, the provision of employee benefits, and other relevant considerations;
• A description of the performance review process along with progress and performance evaluations;
• Letters from the directors/investors/preferred shareholders explaining how the right to control the work of the beneficiary will be exercised on a day-to-day basis, who will supervise the beneficiary and evaluate the work product of the beneficiary, and explaining the management structure of the company;
• Copy of petitioner’s organizational chart, demonstrating beneficiary’s supervisory chain;
• Other relevant documents.
Recently, US Consulates are reportedly increasing their scrutiny of H-1B visa applications with respect to the wage rates paid to H-1B workers. Before a H-1B worker may apply for a H-1B visa, his or her US employer obtain a certified labour condition application (LCA) from the Department of Labor before filing a petition with USCIS. The certified LCA lists the wage rate that the employer promises to pay the H-1B worker in the United States. This wage rate is based on the wage level selected by the US employer on the LCA, and is based on the complexity of the job duties and the amount of education and experience that is required to perform those duties. The Department of Labor issued guidance in 2009 that defines each of the four wage levels that US employers may select.
The four wage levels are based on the level of experience the H-1B worker has and the complexities of the job duties for the H-1B worker. For instance, the first level is the “entry” level position concerns those employees who perform routine tasks that require limited, if any, exercise of judgement. The tasks provide experience and familiarity with the employer’s methods, practices and programs. These employees may perform higher-level work for training and development purposes. These employees work under close supervision and receive specific instructions on required tasks and expected results. Their work is closely monitored and reviewed for accuracy.
On the other end of the wage level spectrum is the Level 4 (Fully Competent) H-1B worker. These workers are for competent employees who have sufficient experience in the occupation to plan and conduct work requiring judgement and the independent evaluation, selection, modification and application of standard procedures and techniques. Such employees use advanced skills and diversified knowledge to solve unusual and complex problems. These employees receive only technical guidance and their work is reviewed only for application of sound judgement and effectiveness in meeting the establishment’s procedures and expectations. They generally have management and/or supervisory responsibilities.
USCIS confirmed on October 23, 2013 that change of employment location within the same MSA does not require an amended H-1B petition. This is an important clarification from USCIS’ position on the issue was unclear.
Under USCIS regulations, amended H-1B petition is required if there is a material change in employment terms. However, there has been inconsistency in USCIS’ treatment of the changes in job location. While past USCIS guidance (Efren Hernandez letter, October 23, 2003) suggested that location changes, without any other changes in the employment relationship, do not constitute “material changes,” as a practical matter, USCIS has often denied H-1B petitions when during FDNS inspections the beneficiary could not be found at the job location that was provided to USCIS with the H-1B petition. USCIS, contrary to its own guidance, insisted that an amended H-1B had to be filed whenever the place of employment changes. This presented significant challenges to many employers who move offices within the same Metropolitan Statistical Area or who place employees at another job location not anticipated at the time of filing of H-1B petition. For employers who have a significant H-1B workforce that means thousands of dollars in USCIS filing fees.
The policies of USCIS and DOL seemed contradictory when it came to changes in job locations within the normal commuting distance of the place of employment. Under the DOL’s regulations, no new LCA is required to be filed if the employee moves within the “area of intended employment,” which is the area within a normal commuting distance of the place of employment. The normal commuting distance is not defined and has to be analyzed on a case by case basis. Normally, moves within the same Metropolitan Statistical Area (MSA) are considered to be within the normal commuting distance. Thus, any moves in job location within the same MSA generally do not require filing of a new LCA.
This informative article is provided by Attoney Ekaterina Powell from our office. In light of a recent AAO decision of September 4, 2013, that reviewed and overturned the finding of USCIS that the beneficiary was not qualified for the H-1B position, we have decided to revisit the issues associated with H-1B petitions based on the beneficiary’s work experience and provide explanations on how you can still qualify for H-1B even if you do not have a degree.
Despite USCIS’ restrictive interpretation of the regulations, it is still quite possible to obtain H-1B petition even if you do not possess baccalaureate-level education or if you have a degree in a field that is unrelated to the offered H-1B position.
To help our readers better understand the trends in USCIS adjudication, the author will first point out the regulations pertaining to H-1B petitions based on the beneficiary’s work experience.
The law states that in absence of a U.S. or the foreign equivalent degree, in order to qualify for H-1B position, the beneficiary can show education, specialized training, and/or progressively responsible experience that is: (1) equivalent to completion of a United States baccalaureate or higher degree in the specialty occupation, and (2) the beneficiary has to show recognition of expertise in the specialty through progressively responsible positions directly related to the specialty. See 8 CFR 214.2(h)(4)(iii)(C)(4).
So, what do you have to present to qualify under this rule?
(1) Proving Equivalence to U.S. Bachelor’s Degree in the Specialty
First of all, you have to show that your work experience or the combination of your education and work experience is equivalent to completion of a U.S. bachelor’s degree in a related field.
In other words, you will need to establish that you have achieved a level of knowledge and competence in the occupation that is equal to the level of knowledge associated with completion of a U.S. bachelor’s degree in the field.
How do you do that? There are several ways to show equivalency. You have to show at least one of the following: (a) an evaluation by a college official authorized to grant credit for training and/or experience in the specialty at an accredited college or university which has a program for granting such credit; (b) an evaluation of education by a credentials evaluations service which specializes in evaluating foreign educational credentials (*NOTE: while this method is mentioned, it refers to evaluation of education only and cannot be used to evaluate work experience); (c) the results of college-level equivalency examinations or special credit programs; (c) certification or registration from a nationally recognized professional association for the specialty that is known to grant certification or registration to persons in the occupational specialty. See 8 C.F.R. 214.2 (h)(4)(iii)(D).
While the law states that one of the ways to show equivalency is an independent determination of USCIS that a baccalaureate level of knowledge has been achieved through work experience or a combination of work experience and education (that falls short of a bachelor’s degree or is a bachelor’s degree in an unrelated field), the author of this article does not find it prudent to rely on USCIS to determine equivalency as USCIS is reluctant to grant its own equivalency determination in absence of proof for one of the other methods.
Practically speaking, we have found that among all the methods available the most widely used way to show equivalency is to obtain an evaluation by a college official authorized to grant credit for training and work experience, also known as experiential credits.
A number of universities nowadays have formal programs for granting college level credit for work experience that employ professors on staff in charge of evaluating candidates’ work experience to determine equivalency to a U.S. bachelor’s degree in a specialty occupation. Our office has had quite a lot of experience dealing with the professors in a variety of fields who evaluate the H-1B beneficiary’s credentials to determine equivalency to a U.S. bachelor’s degree in a particular field.
The evaluators use the USCIS-established “three-for-one” rule to determine equivalency. Under this rule, three years of specialized work experience can be substituted for each year of college-level education that the beneficiary lacks. Thus, if you do not have any college-level education, then you will need to show 12 years of relevant work experience.
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