Visa Lawyer Blog

Articles Posted in L-1 Visa

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If you are a foreign entrepreneur, you have probably discovered that the United States immigration system is very limited in that there are very few visa options available to entrepreneurs that do not tie down the entrepreneur to a foreign employer, as is the case for the L and H visas. To make matters worse, if your ultimate goal is to obtain a green card to live and work in the United States permanently, you must work for an American employer willing to sponsor your adjustment of status. Although there are few exceptions, the main avenue through which entrepreneurs can gain permanent residence is either through family-sponsorship or employment-based sponsorship.

To obtain permanent residence through an employer you must either a) be a professional employed by a U.S. employer willing to sponsor your green card b) demonstrate extraordinary ability in your industry (science, arts, education, business, or athletics, c) work in a management or executive position abroad requiring international transfer to the United States or d) qualify as an EB-5 investor. In either of these cases, the U.S. employer must submit the I-140 Immigrant Petition for Alien Worker for you, before you can apply for permanent residence. If your ultimate goal is not to obtain a green card, then you have more options available to you.

We decided to write about this topic because we have found that many entrepreneurs that visit our office are not well-informed on other visa types that put them on a more direct path to permanent residence. Often times the topic of conversation leads to the E-2 Treaty trader visa, by far the most discussed visa type among entrepreneurs. Few entrepreneurs however have heard about the L-1 visa classification, that may in some ways be more beneficial to foreign entrepreneurs wishing to live and work in the United States permanently. Below we discuss both visa types and the advantages and disadvantages of both visas.

The E-2 visa, the most talked about visa:

Without a doubt, the most popular visa option entrepreneurs ask about is the E-2 visa. Many entrepreneurs however do not know that the E-2 visa is not available to everyone, and it is not a path to permanent residence. The E-2 visa is a non-immigrant treaty investor visa that is only available to foreign nationals from specific treaty countries. The E-2 visa allows foreign nationals to carry out investment and trade activities, after making a substantial investment in a U.S. business that the foreign national will control and direct. E-2 visa investors can either purchase an existing U.S. business or start a new business.

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A recent working paper published by Harvard economist, William R. Kerr, and Wellesley economist, Sari Pekkala Kerr, is making waves on the subject of immigrant entrepreneurship. The study asks: just how important are foreign-born entrepreneurs to our economy? Are their contributions truly significant?

The study’s abstract reads as follows:

We examine immigrant entrepreneurship and the survival and growth of immigrant-founded businesses over time relative to native-founded companies. Our work quantifies immigrant contributions to new firm creation in a wide variety of fields and using multiple definitions. While significant research effort has gone into understanding the economic impact of immigration into the United States, comprehensive data for quantifying immigrant entrepreneurship are difficult to assemble. We combine several restricted-access U.S. Census Bureau data sets to create a unique longitudinal data platform that covers 1992-2008 and many states. We describe differences in the types of businesses initially formed by immigrants and their medium-term growth patterns. We also consider the relationship of these outcomes to the immigrants’ age at arrival to the United States.

The study is important because it forces members of Congress to conduct a cost-benefit analysis, in order to determine whether or not it is beneficial for the United States to create more opportunities for highly-skilled entrepreneurs and professionals. Regrettably, the immigration debate has largely centered around illegal immigration to the United States, ignoring calls to create more flexibility for highly-skilled immigrants and immigrant entrepreneurs. As it stands today, immigrant entrepreneurs can only obtain a green card via sponsorship from a United States employer. The majority of entrepreneurs are forced to remain in the United States on a temporary ‘dual intent’ nonimmigrant visa, until a U.S. employer agrees to sponsor their green card. Visa options are very limited for highly-skilled immigrants. Even for the most brilliant of entrepreneurs, this process requires time and patience. Our current immigration laws are doing us a disservice since they are keeping out some of the most talented entrepreneurs in the world. Immigrant entrepreneurs are increasingly important because the number of businesses and American jobs they create is on the rise.

Here are some of the study’s findings:

  • As of 2008, at least one in four entrepreneurs among start-up companies are foreign-born. Similarly, at least one in four employees among new firms are foreign-born
  • 37% of new firms had at least one immigrant entrepreneur working for the company
  • At least 1 in 3 start-up firms were founded by an immigrant entrepreneur, with an increasing rate from 1995-2008
  • The share of immigrants among all employees working for start-up companies is on the rise
  • Immigrant employees in low-tech positions comprise about 22.2% of start-up companies, while 21.2% of immigrants work in high-tech positions in start-up companies
  • Among new start-ups backed by venture capitalists, 60% had at least one immigrant entrepreneur
  • Immigrant employees working for a start-up company backed by venture capitalists have higher mean average quarterly earnings

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Before filing your green card application, it is important for you to carefully consider several important factors that may limit your ability to obtain employment in the United States and restrict your international travel. If you will be filing your green card application in the near future, you need to be prepared to remain in the United States for a period of at least 90 days, from the date of filing of your green card application. Applicants must also be aware that they will not receive authorization to work in the United States until this 90-day period has passed. Limited exceptions exist which may allow an applicant to expedite the adjudication process of the employment and travel authorization applications which we will discuss below.

Why the 90-day restriction period?

As part of the green card application, the applicant may file the I-765 Application for Employment Authorization and the I-131 Application for Travel Document at no additional cost. The I-765 and I-131 applications result in the issuance of a one-year temporary employment and international travel authorization card (EAD), while the green card application is being adjudicated by USCIS. It takes on average 90 days for the EAD card to be issued, from the date of filing of the green card application. This ultimately means that once you apply for permanent residence, you will not be able to seek employment or travel outside of the country until the EAD card is issued to you within 90 days. Once the green card application has been filed with USCIS, the applicant is restricted from any international travel. If the applicant travels without authorization, USCIS will consider the applicant’s green card application ‘abandoned.’ An applicant may only travel internationally if they have received a re-entry permit issued by USCIS known as an ‘advance parole’ document. The ‘advance parole’ notice will appear on the front of the EAD card itself signifying that the applicant is authorized to travel internationally using the card.  The ability to re-enter the United States after returning from temporary foreign travel is ‘discretionary.’ This means that even if you have been issued an EAD card that allows you to travel, it will ultimately be up to the customs official to admit you into the United States.

Consider the alternatives

Before applying for your green card you should carefully consider whether these travel and employment restrictions will have a significant impact on your lifestyle. If the travel restrictions are concerning to you, it may be a more beneficial option for you to apply for an immigrant visa from a U.S. Consulate abroad. There are no travel restrictions for applicants who apply for immigration benefits from abroad. Likewise, if you are concerned that you will not receive employment authorization immediately, it may be worth considering applying for a dual intent work visa first to cover any gaps in employment. There are limited work visa categories that allow for dual intent, or the intent to have a temporary visa status at the same time as having the intent to remain permanently in the United States. If this is the case, you should consult with an attorney to discuss your options.

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Throughout the next few months, USCIS will begin the process of returning H-1B petitions that were not selected in the H-1B lottery for fiscal year 2017. Each package will contain the respective H-1B petition along with a rejection notice specifying that the petition was not selected in the lottery. If you would like a copy of your rejection notice, please contact your employer or the attorney that filed your petition with USCIS. If you were not selected in the H-1B lottery for fiscal year 2017, there are a few visa options you may want to consider applying for. As always you can visit our website to read about the various different visa types that may be available to you. To discuss your options moving forward, please contact us for a consultation. Do not despair. Many applicants that were not selected in the H-1B lottery in previous years, have been chosen in subsequent years.

Long Term Options for Employment

Employment-Based Green Card

Typically, the employment-based green card application is the most permanent long term option for employment. The drawback is that obtaining an employment-based green card is a very long process that will require you to maintain another nonimmigrant status, while your green card application is pending. For more information on employment-based green cards please click here.

Family-Based Green Card (Adjustment of Status within the United States)

If you are the spouse, parent or child of a U.S. citizen, you may be eligible for family-based permanent residency. The green card application includes the application for employment authorization, which is granted within 3 months of filing. Employment authorization allows the applicant to work while their application is in process. Please be aware that the 3-month time frame for employment authorization is only for applicants applying for adjustment of status from within the United States. For more information about this process please click here.

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On May 04, 2016 the Department of Homeland Security published a proposed rule in the Federal Register, announcing that filing fees for many USCIS petitions and applications are expected to increase for U.S. employers and foreign nationals. The proposed regulation stipulates that filing fees may be adjusted for certain immigration and naturalization benefit requests by USCIS. The increase in filing fees was considered after USCIS conducted a comprehensive review of its fees and found that the current fees do not cover the cost of services provided by USCIS. According to USCIS, in an effort to fully recover costs and maintain adequate services, “an adjustment to the fee schedule will be necessary”. According to the regulation, fees for most employment-based petitions and applications would be raised by an average of 21%, though other types of petitions may experience a higher increase in filing fees.

According to DHS, the higher fees will more accurately reflect the current cost of processing immigration applications and petition. A portion of the increased fees would provide additional funding for refugee and citizenship programs as well as system support for interagency immigration status verification databases.  The increase in filing fees will not take effect until the federal government approves the regulation, which is expected to take several months following the close of the 60-day comment period on July 5, 2016.

According to the new fee schedule under consideration, employment-based petitions would be the most impacted by the increase in filing fees. The filing fee for Form I-129, Petition for a Nonimmigrant Worker, would increase by 42% to a fee of $460, from the current rate of $325.  Similarly, the filing fee for Form I-140, Immigrant Petition for Alien Worker, would increase by 21% to a fee of $700, from the current rate of $580. The complete fee schedule under consideration has been provided below for your reference.

The EB-5 Immigrant Investor Visa Program is expected to be the most heavily affected by the new fee schedule. The filing fee for Form I-924, Application for Regional Center Under the Immigrant Investor Pilot Program, would increase by a rate of 186% requiring Regional Centers seeking designation under the program to pay a filing fee of $17,795 instead of the current rate of $6,230. In addition, Regional Centers would be required to pay a $3,035 annual fee to certify their continued eligibility for the designation. Currently, there is no fee in place for annual certification. The filing fee for the I-526 Immigrant Petition by Alien Entrepreneur, an application associated with the EB-5 visa program, would also increase to a rate of $3,675, a 145% increase up from the current rate of $1,500. The filing fee for an investor’s petition to remove conditions on residence would remain unchanged under these new regulations.

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Beginning December 18, 2015, H-1B and L-1 filing fees will increase for H-1B/L-1 dependent employers, employing 50 or more employees, with more than 50% of those employees in H-1B or L nonimmigrant status. This increase in fees comes with the passage of the Consolidated Appropriations Act, 2016 recently signed into law by President Obama, to be enforced until September 30, 2025. The new fee will apply to initial and change of employment H-1B and L petitions filed on or after December 18, 2015. The additional fee will be $4,000 for H-1B petitions and $4,500 for L petitions. USCIS will be revising Form I-129 and I-129S to reflect the new law and the additional fee. Petitioner’s are advised to accurately complete Item Numbers 1d. and 1d1. of Section 1 of the H-1B Data Collection Supplement and Item Numbers 4a. and 4b. of the L Supplement. Failure to complete this information accurately and include the appropriate fee where necessary may result in the rejection of your petition beginning February 11, 2016. CIS reserves the right to issue a request for evidence to determine if the additional fee will apply. In these cases, the original filing date will be maintained as the date of receipt of the petition.

Other fees that may be included in the H-1B petition are as follows:

  • I-129 processing fee $325;
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mayaFor this month’s staff spotlight, we invite you to learn more about Paralegal, Maya Elkain.

Ms. Elkain began her journey with the Law Offices of Jacob J. Sapochnick in 2014 as an intern. She quickly learned the ins and outs of employment based immigration law and was offered a position. Today, she assists attorneys with the preparation of H-1B applications, E-2 investor visas, L-1A visas, O visas, National Interest waivers, provisional waivers of unlawful presence, and much more. Ms. Elkain specializes in employment-based immigration and investor petitions. With her assistance, our law office has been able to receive affirmative decisions in numerous cases.

“The best part of my job is having the opportunity to make a difference and actually help our clients succeed in their immigration process. It is the most rewarding feeling.”

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On Thursday, December 31, 2015 the Department of Homeland Security published a new proposed rule affecting highly skilled immigrant and non-immigrant workers alike. The proposed rule, introduced in last week’s federal register, aims to improve the ability of American employers to hire and retain highly skilled workers waiting to receive their employment-based lawful permanent residence in the visa bulletin backlogs. Additionally, the proposed rule aims to enhance opportunities for such workers allowing them to be more easily promoted, to accept lateral positions with their current employers, change employers, and pursue other employment. While the proposed rule is not groundbreaking, it does address important challenges employers and their highly skilled workers have faced as the law stands today and makes recommendations for such relief. The proposed rule will be open for comment until February 29, 2016.

You may remember that on November 20, 2014 the President highlighted, as part of his executive actions on immigration, that the employment-based immigration system needed to be amended to modernize, improve, and clarify immigrant and nonimmigrant visa programs in order to create more jobs, foster innovation at home, retain a highly skilled workforce that would allow the United States to compete with other countries, and to stimulate the American economy overall.  In order to modernize the employment based immigration system, USCIS would be required to work with the Department of State to modernize and simplify the immigrant visa allocation process. Part of this process would require the Department of State to make reasoned projections of employment-based immigrant visa availability on the visa bulletin, that could be relied upon by employers and their highly skilled workers.

Presently, immigrant workers from India and China are experiencing extraordinary delays in the employment-based queue for permanent residence, while other highly skilled workers are forced to wait over a five-year period to receive company sponsorship and lawful permanent residence. Furthermore, such workers are forced to remain on temporary employment-sponsored visas in the United States while waiting for an immigrant visa to become available to them. This puts the immigrant worker in a predicament giving the employer the upper hand, while restricting the employee from seeking advancement and discouraging new employment, since this would require the employer to file a new petition and incur the expensive fees required for filing. Highly skilled works facing extortionate delays in the visa backlogs have experienced hindered employer/employee career advancement and job mobility. The new rules will provide limited relief in this area.

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By Yingfei Zhou, Esq. 

Last week, attorneys Yingfei Zhou, Esq. and Marie Puertollano, Esq. from our office attended the 28th AILA California Chapter Conference on Immigration Law held in San Diego, California. Together, they brought our audiences the latest updates on various issues discussed at the government open forums.

  1. USCIS I-797C Receipt Notices or I-797B Approval Notices without I-94 attached are not accepted by DMV as Proof of Legal Residence
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On Monday the Senate will be voting on a short-term spending bill introduced by Senate Appropriations Committee Chairman Thad Cochran. If passed, the bill will temporarily fund the government through December 11th of this year. If the bill is not passed, the country will face a government shutdown beginning on October 1, 2015. The temporary funding bill called a continuing appropriations resolution will be required to keep government agencies afloat for the remainder of the year. Congressional Republicans and Democrats have been at odds with one another since the Planned Parenthood scandal was brought to light. The non-profit organization’s involvement in the practice of procuring tissues from aborted fetuses for the purpose of medical research has been deeply contested by Republicans, who believe Planned Parenthood should no longer receive federal funding. Due to this impasse, no resolution bill has yet been agreed upon.

Repercussions on Immigration: LCA’s and PERM applications

A government shutdown would mean that various government agencies may not be operating at full capacity. Due to this we urge our clients to file urgent Labor Condition Applications or PERM applications prior to October 1, 2015. While the shutdown will have an effect on the economy, families, and business throughout the country, entities not affected by the government shutdown include USCIS, the military, airport security, FBI, Border Patrol, Social Security, Medicare, Medicaid, Food Stamps, among others.

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