Visa Lawyer Blog

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As you gear up for a chance to win one of the 65,000 coveted H-1B visas that will be up for grabs beginning April 1, 2017 through April 7, 2017, we bring you our top frequently asked questions—H-1B edition—to help you make the most of your H-1B filing. As always, to determine whether you qualify for an H-1B visa, please contact our office to schedule a free first time consultation.

When will USCIS begin to accept H-1B petitions for fiscal year 2018?

USCIS will begin to accept petitions for fiscal year 2018 beginning on April 1, 2017 and from then on will continue to accept H-1B petitions during the first five business days through April 7, 2017 until USCIS has received more than enough petitions necessary to fill the regular cap. An H-1B petition may be filed no more than six months before the employment start date requested for the beneficiary.

How long is the H-1B visa valid for?

The H-1B visa is issued for a three-year period that can be extended for an additional three years. Spouses of H-1B workers may live and work in the United States on an H-4 visa, for as long as the H-1B worker remains in lawful H-1B status.

What happens after USCIS receives the necessary petitions to meet the regular cap?

Once USCIS has received more than enough petitions necessary to meet the regular cap, USCIS will conduct a computer-generated lottery to select the petitions needed to meet the cap.  When the cap has been reached, USCIS will make an announcement (usually made on April 7th) indicating that the cap has been reached and that they will proceed with the selection process to fill the 65,000 cap by a randomized lottery system.

Last H-1B season, USCIS announced that the cap was reached within the first 5 business days of the H-1B filing period.

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It is our pleasure to announce that USCIS has now published the Final International Entrepreneur Rule in the federal register. The final rule is estimated to benefit approximately 2,940 foreign entrepreneurs on an annual basis beginning July 17, 2017. The rule will make it easier for eligible start-up entrepreneurs to obtain temporary permission to enter the United States for a period of 30 months, or 2.5 years, through a process known as “parole,” for the purpose of starting or scaling their start-up business enterprise in the United States. The foreign entrepreneur’s stay may be extended for an additional 30 months to allow the entrepreneur to continue to oversee and grow their start-up company in the United States. The decision about whether to “parole” a foreign entrepreneur under this rule will be a discretionary determination made by the Secretary of Homeland Security on a case-by-case basis (INA Section 212(d)(5), 8 U.S.C. 1182(d)(5)).

The goal of this final rule is to encourage foreign entrepreneurs to create and develop start-up companies with high potential for success in the United States, and enhance economic growth through increased capital spending and job creation.  Under this rule “parole” will be granted to eligible entrepreneurs who can demonstrate that their company’s business operations are of significant public benefit to the United States by providing evidence of substantial and demonstrated potential for rapid business growth and job creation. Such demonstrated potential for rapid growth and job creation may be evidenced by: (1) significant capital investment from U.S. investors with established records of successful investments or (2) attainment of significant awards or grants from certain Federal, State, or local government entities.

The final rule will allow up to three entrepreneurs to seek “parole” per-start up entity, as well as their spouses and children. Entrepreneurs who qualify for “parole” may only work for their start-up business entity in the United States. Their spouses in turn will be eligible to apply for employment authorization once in the United States.

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The H-1B visa is one of the most coveted visas in the United States for several reasons. One of the biggest perks of the H-1B visa is that it is granted for a period of three years, and can be extended for an additional three years. Recipients of the H-1B visa can also bring their dependents to live with them in the United States on an H-4 visa. The H-1B visa is also a popular option because it gives workers the flexibility of accepting and entering new employment, made possible by the portability provision of the H-1B program (8 U.S.C. § 1184(n)). The portability provision allows an H-1B worker to change jobs without having to risk falling “out of status.” Recently, USCIS also improved its portability provision with the passage of a new law that will give H-1B workers who have been laid off a 60-day grace period to transfer to a new employer. But perhaps the greatest upside to the H-1B visa however, is that it is one of the few visas that allows a nonimmigrant to apply for permanent residency as a beneficiary of an immigrant visa petition, without the immigrant petition having any negative affect on their H-1B status. This privilege is recognized in the law and is known as “dual intent.” Foreign nationals holding a “dual intent” visa such as an H-1B visa are allowed to file a green card petition, while continuing employment under the terms of their visa, and may also travel on their visa without seeking permission from USCIS.

In this sense, the H-1B visa is one of the few visas that opens a direct path to permanent residency. Other popular employment visas such as the E-2 treaty investor visa do not create a direct path to permanent residency and are not considered “dual intent” visas.

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As many of you know the H-1B visa lottery for fiscal year 2018 is fast approaching. As usual, the competition will be fierce, as hundreds of thousands of highly skilled professionals prepare to file their H-1B visa petitions beginning April 1st through the April 7th deadline. While filing by April 1st (the first day that applications are accepted) certainly gives applicants greater peace of mind, filing before the April 7th deadline does not necessarily increase an individual’s chances of being selected in the lottery. Throughout the years, our office has seen the selection of many petitions that were filed on or close to the April 7th deadline.  With that being said, we expect the competition this year to be even more intense, that is why we want to give you our top tips about what you should be doing NOW to prepare for H-1B season and increase your chances for success.

First some statistics on fiscal year 2017:

  • For fiscal year 2017, USCIS received over 236,000 H-1B petitions, which included petitions counting toward the general cap and advanced degree exemption; approximately 3,000 more petitions when compared to H-1B petitions received for fiscal year 2016. This trend is likely to continue, giving you all the more reason to prepare for the H-1B season early on.
  • For fiscal year 2017, the H-1B cap was reached within the first 5 business days of the H-1B filing period (April 1 to April 7). We expect this trend to continue as in previous years. During fiscal year 2017, USCIS received more than 20,000 petitions for the advanced degree exemption. This number will undoubtedly increase for fiscal year 2018.
  • For fiscal year 2017, USCIS conducted the randomized computer-generated lottery on April 9, 2016 beginning the selection process for the 20,000 available visas counting toward the advanced degree exemption first. Then, unselected advanced degree petitions were given a second chance of being selected by being placed in the lottery toward the general 65,000 cap.  Individuals holding an advanced degree from the United States thus have two shots at being selected for the lottery.

Chances of selection

The chances of being selected in the lottery for fiscal year 2017 ran at roughly 65% for foreign workers holding a U.S. advanced degree, and roughly 35% for foreign workers holding a bachelor’s degree or equivalent. Compare this to the chances of being selected in the lottery during fiscal year 2016 which ran at 60% for U.S. advanced degree holders, and 30% for bachelor’s degree holders or the equivalent. We expect the percentage of selection to continue to increase for U.S. advanced degree holders and foreign workers holding bachelor’s degree or equivalent, by roughly 5% according to recent statistics. This of course will depend on the demand for the H-1B visa for fiscal year 2018.

Office Stats

For fiscal year 2017, 35%  of H-1B cap-subject petitions that were filed by our office were selected in the H-1B randomized lottery that took place early April 2016. 13% of those petitions were filed with premium processing, while 22% were filed with regular processing. In total our office filed 55 H-1B Petitions: 15 advanced degree petitions and 40 bachelor’s cap or equivalent petitions. Of these, 46 were filed with regular processing and 15 with premium processing. The majority of these petitions were filed with the California Service Center. Of selected petitions for fiscal year 2017, the top specialty occupations included: Applications Developer, Market Research Analyst, and Software Engineer.

H-1B Overview

As in previous years H-1B petitions for fiscal year 2018 will begin to be accepted by USCIS on April 1, 2017 up until April 7, 2017. Foreign workers in specialty occupations and their employers will compete for one of the coveted 65,000 H-1B visas available each fiscal year. The H-1B visa program is limited to a 65,000 congressionally mandated visa cap. Foreign workers holding a U.S. Master’s degree or higher are exempt from the 65,000 cap, however only the first 20,000 advanced degree petitions received by USCIS will qualify for the cap exemption. In addition, certain foreign workers such as foreign workers who have been offered employment under U.S. Chile or U.S. Singapore free trade agreements, and foreign workers in the Commonwealth of the Northern Mariana Islands (CNMI) and Guam are exempt from the cap, according to the Consolidated Natural Resource Act of 2008 (CNRA). Advanced degree petitions received after the 20,000 spots have been allocated will count toward the regular cap along with foreign workers holding bachelor’s degrees (or equivalent including work experience in lieu of formal education). USCIS will receive more than the 65,000 petitions for the H-1B visa program during the first five business days that the application period is open, from April 1st to April 7th. When the cap has been reached, USCIS will make an announcement, in recent years this announcement has been made on April 7th and begin the selection process to fill the 65,000 cap through a randomized lottery system. Petitions that are not selected will be rejected along with their filing fees. Duplicate H-1B petitioners during the same fiscal year, are not allowed, and may be subject to sanctions. Employers may not file an H-1B petition on behalf of an employee more than 6 months before the employee’s intended start date. Once an H-1B visa worker has been selected and approved, the foreign worker may begin employment on October 1st of that fiscal  year. The H-1B visa is issued for a three-year period that can be extended for an additional three years.

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On December 27, 2016 in Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016) the USCIS Administrative Appeals Office (AAO) handed down a groundbreaking decision which has changed the analytical framework for determining eligibility of national interest waivers. This new decision will affect foreign nationals who are pursuing a green card based on employment in the EB-2 category, and who are eligible for a “national interest waiver.”

The national interest waiver is a discretionary waiver of the job offer and labor certification requirement made possible by subparagraph (A) of section 203(b)(2) of the Immigration and Nationality Act. This section of the INA states that the Secretary may, when it deems it to be in the national interest of the United States, “waive the requirements of subparagraph (A) that an alien’s services in the sciences, arts, professions, or business be sought by an employer in the United States.”  In addition to meeting a three-prong test of eligibility, to obtain a national interest waiver, the foreign national must be a member of a profession holding advanced degrees or their equivalent or prove that “because of their exceptional ability in the sciences, arts, or business they will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States.”

Without this discretionary waiver, EB-2 applications must be accompanied by a labor certification and their employer must go through the process of advertising the position to prove to immigration that there are no other applicants who are qualified, willing, and able to fill the position that the foreign national is expected to fill. Employers must also meet prevailing wage requirements as established by law. Establishing the national interest waiver in other words made it easier for qualifying foreign nationals in the EB-2 category to skip the job offer and labor certification requirement, streamlining their path to permanent residency.

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On December 12, 2016, the Department of State published the Annual Numerical Limits for both family and employment-based visa preference categories for Fiscal Year 2017.

Family preference and employment immigrant categories are subject to numerical limitations and are divided by preference systems on the Visa Bulletin and become current based on the immigrant’s priority date. The Visa Bulletin estimates immigrant visa availability for prospective immigrants. Applicants who fall under family preference or employment categories must wait in line until an immigrant visa becomes available to them, for applicants to proceed with their immigrant visa application. Once the immigrant’s priority date becomes current per the Visa Bulletin, the applicant can proceed with their immigrant visa application. A priority date is generally the date when your relative or employer properly filed the immigrant visa petition on your behalf with USCIS. The Visa Bulletin exists due to numerical immigrant visa limitations for family-sponsored and employment-based preference categories established by the Immigration and Nationality Act (INA). Family-sponsored preference categories are limited to a minimum of 226,000 visas per year, while employment-based preference categories are limited to a minimum of 140,000 visas per year. The Visa Bulletin is a useful tool for aliens to determine when a visa will become available to them so that they may apply for permanent residence.

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By the end of this month the EB-5 Immigrant Investor Visa Program will be up for renewal before Congress. The EB-5 program was first established by Congress in 1990 in an effort to increase the amount of foreign capital investment in the United States, and to create new jobs for Americans. In 1992 Congress expanded the program and created the Immigrant Investor Visa Program as we know it today, which allows foreign investors to invest in an EB-5 Regional Center project. A regional center is an authorized organization, entity, or agency that is designated by USCIS to sponsor capital investment projects within a specific geographic area including areas of high-unemployment or rural areas.  Section 203(b)(5) of the Immigration and Nationality Act, 8 U.S.C. Section 1153(b)(5) limits the number of immigrant visas that may be issued to EB-5 investors to 10,000 immigrant visas per fiscal year, provided the qualified investor is seeking permanent resident status on the basis of the creation of a new commercial enterprise. Half of these visas are allocated to EB-5 investors participating in a regional center pilot program. The required investment amount in a new commercial enterprise is $1,000,000 or $500,000 if the investment is being made in a targeted employment area experiencing a high unemployment rate of 150% relative to the national average, or a designated rural area as established by the Office of Management and Budget (OMB).

Despite its promise to increase economic growth, the EB-5 Immigrant Investor Program has been the subject of much criticism due to an increase in fraud on behalf of investors and regional centers, as well as the continued use of unlawful funds. This month, the United States Government Accountability Office (GAO) published a report that will be reviewed by Congress and USCIS, in consideration of new measures that may be implemented by Congress as part of the program’s renewal process. The report outlines the inherent weaknesses of the EB-5 program and areas of concern.

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Today August 26, 2016 we bring entrepreneurs around the world exciting news regarding a new measure USCIS plans to implement designed to benefit entrepreneurs of startup companies. USCIS has announced a new proposal that will make it easier for certain foreign entrepreneurs to receive temporary permission to enter the United States, also known as ‘parole,’ for the purpose of starting or scaling their start-up business enterprise in the United States.

The rule has been referred to as the ‘International Entrepreneur Rule’ which will give the Department of Homeland Security (DHS) the authority to expand discretionary statutory parole status to eligible entrepreneurs of startup companies, who can demonstrate that the startup enterprise they are interested in creating, has a substantial potential to yield rapid growth, and job creation in the United States.

Under this new rule, DHS would be able to grant parole on a case-by-case basis to eligible entrepreneurs of startup companies who can demonstrate the following:

  • At least a 15 percent ownership interest in the startup enterprise in question;
  • That they take on an active and central role in the startup enterprise’s operations;
  • That the startup enterprise has been formed in the United States within the past three years; and
  • That the startup enterprise has proven to yield a substantial and demonstrated potential for rapid business growth and job creation as evidenced by:
  1. Having received a significant investment of capital of at least $345,000 from certain qualified U.S. investors that have a proven track record of success i.e. showing established records of successful investments;
  2. Having received significant awards or grants of at least $100,000 from federal, state, or local government entities; or
  3. By partially satisfying one or both of the above criteria, in addition to presenting other reliable and compelling evidence to show the startup entity’s substantial potential for rapid growth and job creation in the United States;

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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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