Business Leaders Rally Support for Immigration Reform

2013 was an important year for business immigration reform efforts. With milestones such as the founding of FWD.us, a pro-immigration political advocacy group created by a collection of Silicon Valley giants, and the letter signed by more than 100 business leaders to House Speaker Boehner and Representative Nancy Pelosi calling on them to take “a long overdue step toward aligning our nation’s immigration policies with its work force needs”,[1] it seemed the business community’s momentum was likely to result in an immigration overhaul by year’s end. The latest attempt to raise public awareness on the issue of immigration reform came from a “DREAMer Hackathon” which took place in Silicon Valley late November.[2] This event consisted of a group of twenty immigrants coding for 24 hours straight at LinkedIn’s headquarters, a publicity stunt backed by FWD.us.[3] During this “hackathon”, the DREAMers worked on creating a new app that could help pro-immigration reform forces share their stories and contact members of Congress, along with one that will help high-profile people share their support for immigration reform on social media.[4] Over the past year, many prominent business leaders have also spoken out in favor of reforming employment immigration policy. Muhtar Kent, chairman and … Continued

Should You Use the TN Visa as an Alternative to H-1B?

In 1994, the North American Free Trade Agreement created the TN visa category, a visa specifically designed for Canadian and Mexican professional workers who wish to come to the U.S. for employment. Although initially underused, the amount of TN admissions increased drastically when Congress expanded the validity period of TN visas from one year to three in 2008.[1],[2] As a result of this increase, the number of TN admissions has been almost twice the amount of H-1B admissions for the past few years. Last year alone, over 700,000 individuals were admitted in TN status compared to 473,015 in H-1B status.[3] These figures appear to indicate that for U.S. employers seeking to hire Canadian or Mexican nationals, the TN visa is a great alternative to using the H-1B visa category. There are certainly numerous benefits to using the TN visa; it has a much faster processing time than other visa categories and requires significantly lower application fees. Further, unlike other employer-sponsored visas, there is no annual limitation on the number of TN visas available, and the sponsoring employer need not prove there are no American workers available for the position. So what’s the catch? Unlike the H-1B visa category, a TN … Continued

The L-1 Visa Program: Economy-Booster or Opportunity for Fraud?

Congress has noted that nonimmigrant visas, such as the L-1, have enhanced trade and accommodated the useful movement of people and products.[1] However, opponents of the L-1 visa program feel that L-1 visas have a negative affect on the U.S. economy and American workforce. These opponents allege that the L-1 visa program drives down salaries, reduces employment opportunities for domestic technology workers, and allows unscrupulous petitioners to exploit the foreign beneficiaries.[2] Still others have expressed concern that employers may use the L-1 visa program, which has no numerical limit, as a way to avoid the H-1B program requirements.[3] Allegations of widespread misuse of the L-1 program lead Senator Charles Grassley to request that the Department of Homeland Security (DHS) Office of Inspector General examine the potential for fraud or abuse in the L-1 visa program.[4] In response, the Office of the Inspector General observed DHS personnel and Department of State consular officials process L-1 petitions and visas, and interviewed 71 managers and staff in DHS and the Department of State.[5] Were the skeptics about the L-1 visa program correct in their suspicions? Well, yes and no. When it comes to using the L-1 visa program to avoid more stringent H-1B … Continued

Expanding the Annual Cap for H-1B Visas

H-1B visas allow sponsoring employers to hire skilled foreign nationals on a temporary basis. These positions have a tendency to arise within the tech industry; in 2012, 70% of requests by employers for H-1B workers were for computer-related occupations.[1] For years, large tech companies have asked Congress to increase the H-1B visa cap, saying they can’t find enough skilled workers in the U.S. to fill their positions. When it comes to H-1B visas, the demand for H-1B visas has often been greater than the government’s supply. This year, U.S. Citizenship and Immigration Services (USCIS) reached the statutory H-1B cap of 65,000 for fiscal year (FY) 2014 within the first week of the filing period, which ended on April 5, 2013.[2] Overall, USCIS received approximately 124,000 H-1B petitions during the filing period, including petitions filed for the advanced degree exemption.[3] Each time USCIS reaches the annual cap, a computer-generated random selection process is used to select a sufficient number of petitions needed to meet the 65,000 allocated for the general category and 20,000 for the advanced degree exemption category. For those unlucky petitions not randomly selected, USCIS rejects and returns the petition with filing fees. This process has been frustrating for … Continued

Choosing a Regional Center: Strategies to Avoid Fraud

While the EB-5 Immigrant Investor Program provides foreign investors with an excellent opportunity to gain permanent residency in the United States, it is important for potential investors to exercise caution and seek external advice when choosing which regional center project to entrust with their hard-earned investment funds.   Over the past year there have been instances of fraudulent regional center projects, such as Texas-based “USA Now LLC”, which raised at least $5 million from investors by falsely promising that their money would be invested as part of the EB-5 Program, then diverting investor funds to other undisclosed businesses and for personal use.[1] As a result of such cases, the U.S. Securities and Exchange Commission (SEC) and U.S. Citizenship and Immigration Services (USCIS) recently issued a joint Investor Alert warning foreign investors about the existence of fraudulent scams that advertise misleading regional center projects.[2]   Although such abuses of the EB-5 program are rare, foreign investors and their advisors should take certain precautions in analyzing the viability of potential regional center projects. In the above-mentioned Investor Alert, the SEC and USCIS provided the following guidance for evaluating potential regional center projects:   Confirm that the regional center has been designated by USCIS; … Continued

EB-5 Strategies: Direct Investment Or Regional Center Project?

The EB-5 visa program provides foreign investors with a potential pathway to permanent residence in the United States in exchange for their investment in a new or troubled commercial enterprise. Once investors have made up their minds regarding whether to invest in the U.S., they are faced with another important choice: should I invest in a regional center project, or invest my funds directly?   Originally, the regional center model of investment was enacted to encourage immigrant investment in a range of business and economic development opportunities within designated regional centers.[1]  While the regional center model may have been designed to help generate economic growth in rural areas and areas of high unemployment, it also offers many potential benefits to foreign investors who seek to gain U.S. residency through a passive form of investment.   The decision to seek EB-5 approval through investing in a regional center depends on the goals and present obligations of each individual investor. For those who currently maintain commercial ventures in their home countries and have business and personal obligations to attend to, investing through a regional center may be a more convenient option. As a limited partner, the foreign investor will be free to … Continued

Immigration Reform a Priority. What should you do?

The morning after the partial government shutdown came to a close, President Obama made an announcement. His message was that he wanted to get America’s elected representatives back to “accomplishing things.” One of those “things” was to get Congress back on the task of passing comprehensive immigration reform. Shortly after the 2012 election, immigration reform carried political urgency on both sides of the aisle. Now, in October of 2013 Congress and the President, once again, are pushing for a bill that addresses the status of over 12 million undocumented people in the United States. Earlier this month, House Democrats introduced their own version of a comprehensive immigration reform bill. House Republicans have their own, albeit piecemealed, ideas of what immigration reform should look like. The simple fact is that immigration reform is back at the forefront of the minds of our legislators. Long negotiations and compromise lay ahead. The final law could change dramatically as these varying opinions and interests mold a bill for the President’s final signature. What should you do when it comes to immigration? Many people find themselves on the proverbial fence. People in unlawful status are wondering if they should pursue current immigration remedies or ‘sit … Continued

Deferred Action for Childhood Arrivals (DACA) — Do Not Pass On this Opportunity!

On June 15, 2012, President Obama implemented Deferred Action for Childhood Arrivals (DACA), which allows undocumented students and recent graduates the opportunity to work, obtain a driver’s license, build credit, and pursue a college career. Essentially, this presidential exercise of power has given many young adults who would otherwise have no choice but to face the fate of their parents as “illegal immigrants,” an opportunity at life. The criteria for eligible DACA applicants is relatively simple: (1) the applicant was under the age of 31 as of June 15, 2012; (2) came to the U.S. prior to reaching their 16th birthday; (3) continuously resided in the United States since June 15, 2007 and up to the present time; (4) was physically present in the U.S. on June 15, 2012 and at the time the application is submitted; (5) entered without inspection before June 15, 2012, or had lawful status that expired as of June 15, 2012; (6) is currently in school, has graduated or obtained a certificate of completion from high school, including a GED certificate, or is honorably discharged from the Coast Guard or Armed Forces; and (7) has not been convicted of a felony, significant misdemeanor, three or … Continued

Yes! You Can Get a Green Card!

Admittedly, the day is so long coming that it is perhaps difficult to believe that it could happen almost overnight. But that is the result. And it is here to stay! Same-sex couples across the United States and the world are now enjoying federal benefits. One of the most significant of which is the benefit of petitioning for your same-sex spouse to get legal status in the United States. As an immigration attorney, I get emails almost every day from people in same-sex relationships and marriages that are still in disbelief. They don’t think that it could possibly be true. Maybe they think it is too good to be true. Others think it is a trick or a trap. While some still believe that this is something that will only stand for a short time before the U.S. government reverses its course. But my answer is always the same, “YES, you [or your spouse] can get a green card!” With the overturn of the Defense of Marriage Act, known colloquially as DOMA, same-sex couples are permanently entitled to identical treatment under the law as opposite-sex couples. There is no turning back. The Supreme Court has ruled that it is unconstitutional … Continued

Immigration Benefits for DACA Recipients who Travel on Advance Parole

Recent changes in immigration law may allow Deferred Action for Childhood Arrivals (DACA) recipients to obtain lawful permanent residence in the United States by using advance parole to adjust their status. The Department of Homeland Security (DHS) has the discretionary authority to parole an individual into the United States on certain humanitarian or public benefit bases.  Advance parole offers an individual who is in the United States advance authorization to enter the country after temporary travel abroad for humanitarian, educational, or employment reasons. On June 15, 2012, the Secretary of DHS announced that certain individuals, who entered the United States before turning 16 and who meet certain guidelines, may pursue Deferred Action for Childhood Arrivals (DACA).[1]  One of DACA’s benefits is that its recipient is authorized to apply for advance parole.  When such a recipient is granted advance parole, travels abroad, and then returns to the United States, she is considered an “applicant for admission” when she is “paroled” into the United States within the meaning of Immigration and Nationality Act § 245(a).  Moreover, in April 2012, the Board of Immigration Appeals held that leaving the United States on advance parole did not effectuate a “departure” for the purposes of … Continued