Last month the United States Citizenship and Immigration Services (USCIS) director Alejandro Mayorkas and Secretary of Homeland Security Janet Napolitano unveiled changes to policy and operation the federal government hopes will increase foreign investments and help spur job creation. The moves have been praised in many circles as step in the right direction.
Although the government still hasn't addressed lingering issues with the current system it's worth making note of what to expect with these changes. It's very possible our friends in the Ohio and Michigan area could be impacted.
Though no law has been changed, a few significant differences will come in the operation of three categories -- H-1B, EB-5 and EB-2.
With H-1B, USCIS has updated its FAQs with the clarification that a "beneficiary who is the sole owner of the petitioning company may establish a valid employer-employee relationship for the purposes of qualifying for an H-1B visa."
The basic idea here is that under the previous interpretation of H-1B workers could start a company, but not work for it themselves. With this change H-1B visa holders can work for their new company as long as they are full time and are treated like an employee - under the control of a board, for example.
The EB-5 Immigrant Investor Program gets a few of its rough edges smoothed out with this change. A major hurdle with EB-5 is the delays associated with application. The announcement is that "enhancements" proposed in May to dramatically shorten the wait process are being fully installed.
Through use of an increase in availability for parts of the application process, new intake teams with a background in economic analysis and dedicated "Decision Boards," USCIS hopes to turn what can be a 6-12 month timeline something taking a matter of weeks.
The change with EB-2 - a permanent residence visa designed for those with advanced degrees or exceptional ability - is a redefinition of what qualifies for "National Interest Waiver" in the FAQs. While in most cases EB-2 visas require a certification from the Department of Labor, that criteria can be waived if the petitioner is able to demonstrate their value to the country's national interests.
On the surface this sounds like a good start to addressing some obvious problems with the system. However we're skeptical as to what it means in a practical sense for employees, employers and investors.
The H-1B change will be particularly interesting to watch, given that it is already difficult to establish the employee/employer relationship under recent USCIS attitude. How tough will it be to show proof when the applicant is self-employed? In addition there is a long list of practical considerations that need to be addressed. For example, can they apply for green card through the PERM labor Certification? Under current DOL guidelines, this is impossible.
While we welcome the effort, it remains to be seen whether this will be anything more than a political move.
