Immigration Visa Attorney Blog

A recent CBS report focuses on the small Alabama town of Thomasville. Thomasville could lose out on a multi-million dollar foreign plant and the corresponding jobs it would create because of the state's new immigration law.

A representative of the Chinese company told Thomasville's mayor he thinks Alabama "shot itself in the foot" in terms of foreign investment:

Wednesday the United States Citizenship and Immigration Services announced that the H-1B visa cap number for FY 2012 has been reached.

The final receipt date for cap-subject H-1B petitions was Nov. 22, meaning new applications will not be considered. The USCIS said only petitions physically received by that date will be evaluated; postmark dates do not impact the process.

H-1B's regular cap number of 65,000 was the number reached Tuesday. The 20,000 cap master's exemption was attained in October.

The Nov. 22 date represents an almost two-month difference from FY2011. The regular cap for the previous fiscal year was reached on Jan. 26.

The USCIS' release stated that the following non-cap petitions are still being accepted:

-to extend the amount of time a current H-1B worker may remain in the U.S.;
-to change the terms of employment for current H-1B workers;
-to allow current H-1B workers to change employers; and
-to allow current H-1B workers to work concurrently in a second H-1B position.

An immigration case that has been featured prominently in the news over the past week highlights some of the issues currently plaguing our system. This should help illustrate for our readers here in Ohio just how damaged the investor visa program is at this point.

ABC World News last week reported on the story of 22-year old Israeli national Amit Aharoni. Aharoni, a graduate of Stanford Business School, was able to land more than $1.65 million in capital to launch an online company that helped customers book cruises

Aharoni's company, CruiseWise.com, already employed nine Americans and was mentioned by Business Insider as one of the country's hottest startups. Aharoni said his hope was that CruiseWise could create hundred of jobs in the San Francisco area.

Continue reading "Columbus, OH Attorney: A disturbing visa case gets national attention" »

Earlier this month the "Council on Jobs and Competitiveness" - a group the president charged with looking at ways to stimulate the economy - officially released its suggestions. The council is comprised of a number of business experts, including GE head Jeffrey Immelt and high-ranking executives at Facebook and AOL.

The approximately 50-page report touches on a number of areas, one being the oft-debated and highly contentious issue of immigration reform.

The council suggests that the United States needs to do a better job keeping the world's most talented immigrant entrepreneurs within its borders so the next Google or Intel is not created elsewhere. The report asks the question: "Will the next generation of great companies be started in China and South Korea - or will existing barriers to entry be modified so foreign-born entrepreneurs can create those companies in California and South Carolina?"

Continue reading "Columbus, Ohio immigration attorney questions whether Obama's job council on the right track " »

In recent weeks our office has been getting a number of inquiries into the EB-5 program. We thought this would be a good opportunity to review some recent information related to the program.

As many of you are aware, EB-5 is an immigration investor visa program that was created as part of the Immigration Act of 1990. It grants lawful permanent residence to foreign nationals who invest $1 million into a U.S. business that either creates or preserves ten American jobs.

There are other components to EB-5, such as a $500,000 category for investment into so-called Regional Centers, Targeted Employment Area (TEA) areas where unemployment is at least 150 percent the national average, or in rural areas. In recent years much of the EB-5 visas have been centered around the real estate industry, but the visas impact other industries such as clean technology and finance.

Continue reading "EB-5: The Latest" »

We've discussed the EB-5 visa in this blog on a number of occasions. Since we've recently been receiving calls in our Columbus and Troy, Michigan offices about the investor program we thought it made sense to revisit it again.

First, a refresher about EB-5 for those not familiar with the program: The EB-5 investor visa is an immigration preference, meaning those who qualify are eligible to stay in the United States permanently.

The EB-5 is available to those who invest at last $1 million in a U.S. business that employs at least ten citizens or otherwise authorized workers. The investment amount comes down to $500,000 if the investment is made in a "targeted employment area," which refers to certain economically depressed regions.

Another component of EB-5 is the Regional Center Pilot Program. This is a more hands-off option, allowing the investor to contribute to a center already dedicated to the promotion of economic growth and job creation. The same financial commitment is present, but the requirements in terms of job creation are not in play.

In recent years a bill has been making its way through Congress that would introduce a branch from the EB-5 program. The "Startup Visa Act"
is a law introduced with bipartisan support that would create a new EB-6 category.

Continue reading "Could an off-shoot to EB-5 be on the way?" »

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."

Continue reading "Will the USCIS Job Growth Visa Initiative Make a Difference? " »

With the national dialogue on immigration so focused on economic protectionism -- keeping out foreign workers and preventing economic opportunities from being shipped overseas -- many people forget about immigration law and policy that encourages new foreign investment into the United States. The Department of Homeland Security (DHS), through the United States Citizenship and Immigration Services (USCIS), facilitates investment of capital and resources in the United States through nonimmigrant visas and immigration preferences available to individuals who are prepared to make a significant investment here.

Sam Shihab & Associates supports DHS and USCIS in encouraging people from all over the world to invest their time and money in the United States, especially here in Central Ohio. Our community appreciates foreign investment and immigration as well as the social diversity that come with it--especially as we slowly recover from the recession.

There are three primary ways in which U.S. immigration law encourages investment in the United States: The E Visa, The L Visa and the EB-5 Immigration Preference. Here's a quick rundown of each.

E Visa -- E Visas are nonimmigrant visas available to owners and key employees of businesses that engage in significant and substantial investment in the United States. In order to be eligible for an E visa the business must also be owned by citizens of a country that have signed special trade treaties with the United States. For a list of countries that have signed such treaties, see HERE.

E-1 visas are available to businesses from treaty countries that engage in significant and substantial amounts of trade with the United States. Trade is considered significant when more than 50% of the company's trade is between the United States and its home country. Trade is substantial when there is large volume and steady flow of it; a single transaction, no matter how large or time consuming will not create eligibility for an E-Visa.

Continue reading "Columbus, OH Attorney Overview: Investment Visas" »

Given the current economic climate, much of the national conversation is about ways to add additional capital and create job opportunities. Central Ohio is one of many communities in need of such economic stimulus. Which is why taking a look at this particular visa seems particularly relevant.

EB-5 is an employment-based preference category that was created by the Immigration Act of 1990. It is a green card issued to foreign nationals who invest capital in "a new commercial enterprise" which the U.S. government feels will help its economy and create at least ten full-time jobs.

The EB-5 classification is not for everyone. The minimum investment needed to qualify is $1 million, or $500,000 if the investment is directed towards a "targeted employment area."

Along with the job creation listed above, the visa holder must be a hands-on part of the venture if they wish to invest in a new business enterprise. At minimum they must be a member of a board or one of the company's corporate officers. There is a category for troubled business, those which have incurred a significant net loss for the last 1-2 years. This category requires no new job creation, only the preservation of the current employees for at least two years.

For most foreign nationals the million dollar price tag may be a bit steep, making the "targeted" option a better one. The U.S. Citizenship and Immigration Services (USCIS) defines the targeted areas as "a rural area or an area that has experienced high unemployment of at least 150 percent of the national average." With the average national rate sitting near 9 percent, that would mean areas with at least 13.5 percent unemployment.

If an investor would like a more hand's-off investment they may want to look into the EB-5's Regional Center Pilot Program. The same financial commitment is involved, but the investor need only contribute to a regional center connected to promoting "economic growth, improved regional productivity, job creation, and increased domestic capital investment."

Continue reading "Columbus, OH Attorney Overview: The EB-5 Category" »

A new identification card has been unveiled by the United States Citizenship and Immigration Services (USCIS). It's too early to say conclusively what the card will mean for those who choose to take advantage, but we wanted to make Ohio residents are aware of the government's new system.

In a Feb. 11 memo the USCIS announced that it was combining employment and travel authorization on a single card for those who have completed a Form I-485 (Application to Register Permanent Residence or Adjust Status). In the announcement the USCIS stated the card "looks similar to the current Employment Authorization Document (EAD) but will include text that reads: 'Serves as I-512 Advance Parole.'"

The USCIS says the card will allow the holder to travel abroad without impacting the adjustment application. They will be expected to present the card at their port-of-entry to request parole.

But the memo does say that "the decision to parole the (card holder) is made at the port-of-entry." Some immigration attorneys are therefore concerned the card will cause some to travel abroad and find themselves unable to return to the U.S. They advise any immigrant who initially entered the country illegally to wait for his or her green card to arrive.

Continue reading "Columbus Ohio Immigration attorney on new USCIS Card" »

In a letter this month to Senate Judiciary Chairman Patrick Leahy, United States Citizenship and Immigration Services director Alejandro Mayorkas said that the EB-5 Regional Center Program may rely on jobs "indirectly created outside its geographic boundaries."

Continue reading " Investor Immigration Attorney on Job Creation - Update. " »

For Canadian professionals who qualify, the L visa combines the faster processing of the TN visa with the path to permanent residency provided by the H-1B. As with the TN visa, a Canadian professional can apply for an L visa at a U.S. port of entry. This makes the application process faster than applying for other nonimmigrant employment classifications, such as the H-1B, that must be processed through a USCIS Service Center. Moreover, Canadian professionals working in a managerial or executive capacity do not usually need a labor certification to begin the green card process, which can also significantly expedite the permanent resident process. These benefits make the L visa an attractive option for Canadian professionals, especially those seeking permanent residence in the United States.

The L visa is available for intracompany transferees in either specialized knowledge positions or executive or managerial positions. The intracompany transferee must have worked abroad with a parent, affiliate, subsidiary, or branch of the U.S. employer for one continuous year out of the preceding three years. Interestingly, time spent by the Canadian professional in the United States in lawful status for business or pleasure will not interrupt the continuity of employment abroad; however, such periods will not be counted towards the accrual of one year employment abroad. To qualify as a specialized knowledge individual, the Canadian professional must have special knowledge or expertise regarding their employer's product, service, research, equipment, techniques, management, processes or procedures. A specialized knowledge employee is eligible to hold L status for a maximum of 5 years.

Continue reading "Work Visa Options For Canadian Professionals: L Visas" »

Department of Homeland security is stepping up enforcement nationwide. We see stepped-up enforcement in Columbus, Ohio and throughout Michigan as in many parts of the US. By now, many have likely heard the news surrounding the February 10, 2010 federal grand jury indictment of Opas Sinprasong. The E visa holder and restaurant owner is charged with 10 counts of wire fraud, 40 counts of failure to pay employee federal payroll taxes, 5 counts of false swearing in an immigration matter and 4 counts of harboring illegal aliens. Last Wednesday, a $1 million bond was set for Opas Sinprasong. The specific allegations against Mr. Sinprasong include keeping the passports of his foreign national employees to ensure they would not leave the U.S., requiring his employees to work up to 32 hours of overtime per week without proper compensation, and requiring his foreign national employees to pay him illegal and exorbitant visa preparation fees. The highly publicized story of Opas Sinprasong's flagrant immigration and tax violations, unfortunately, draws attention to a small minority of individuals that abuse the system and overshadows the vast majority of law-abiding foreign nationals.

What many have likely not heard about is the behind-the-scenes story of how Mr. Sinprasong was brought to justice through the efforts of an anonymous employee, a Colorado University student and the Immigrant Legal Center. The anonymous employee worked at one of Mr. Sinprasong's restaurants and was brave enough to notify El Centro Humanitario (The Humanitarian Center for Day Laborers) in Denver when he noticed Mr. Sinprasong's foreign national employees were working around the clock. A Colorado University student, Diego Pena, who was volunteering at El Centro Humanitario encouraged the anonymous employee to share his concerns with the Immigrant Legal Center. The Immigrant Legal Center was then able to compile information and gather evidence for local law enforcement.

If not for the combined efforts of the individuals and organizations noted above, Mr. Sinprasong would still be mistreating his foreign national employees. Just as it is important to uncover and prosecute immigration violators, it is also vitally important to prevent vulnerable foreign nationals from being taken advantage of by foreign or U.S. employers. The anonymous employee who reported Mr. Sinprasong should be an inspiration to us all to be more cognizant of foreign nationals being exploited and to immediately report any such suspicions to the proper authorities.

The purpose of this blog is to give you a simplified overview of the E visa program. The E visa route is often overlooked when evaluating options of bringing adult family members with an ability to invest funds in the US. Since the E visa normally is not approved for those with pending family immigrant petitions, it may be advisable in some situations to consult with an attorney before rushing and filing certain family petitions with substantial backlog.

E visa comes in two varieties: the E-1 Treaty Trader and the E-2 Treaty Investor. To qualify for any type of E visa, the investor or trader must be a national of a country that maintains a treaty of Friendship, Commerce and Navigation or a Bilateral Investment Treaty with the United States. The U.S. Department of State keeps a list of the qualifying countries and two of the most notoriously backlogged countries, Mexico and the Philippines, are currently on the list. Though the E visa is not typically considered a path to permanent residence, E visa holders can apply for an indefinite number of visa renewals. Notably, despite the significant amounts of trade and investment between the United States and China, Chinese nationals are not eligible for an E visa. This is due to the fact that there is no formal treaty between the United States and China recognizing the trading and investment relationship.

The E-1 visa is available for foreign nationals of treaty countries whose intent in the United States is to carry on substantial trade between the United States and the treaty country. Moreover, the E-2 visa is available for foreign nationals of treaty countries whose intent in the United States is to develop and direct the operations of an enterprise, in which they have invested, or are in the process of investing, a substantial amount of capital. Both the amount of trade and investment must be "substantial," however; the definition of substantial does not provide clear guidance for E applicants. Specifically, the definition of substantial trade is "a sizable and continuing volume," whereas a substantial investment is one that is sufficient to ensure the successful operation of the enterprise.

As there is no statutory threshold for the amount of trade or investment that qualifies as substantial, it may be difficult to ascertain whether an applicant clearly qualifies without the help of an experienced immigration attorney. It is highly recommended that E applicants consult with an experienced immigration attorney regarding their application prior to submission. An experienced attorney should be able to advise on the likelihood of success and help develop the business concept in a fashion that meets E visa regulations and policies Regardless of the vague qualification standards, one advantage of the E visa is the fact that the U.S. Consulate or Embassy can usually process applications quickly and the applicant can receive a decision within weeks or months.

The EB-5 preference category was created to encourage foreign nationals to invest in either a new commercial enterprise in the U.S. or an already existing U.S. business that is struggling. Now, more than ever, the EB-5 preference category is especially beneficial to both the United States and foreign national investors alike. With the ever present and continually growing immigrant visa backlogs, the EB-5 preference category is one way to circumvent the uncertainty and delays associated with traditional employment-based immigration. Moreover, the U.S. economy, and particularly small business, desperately needs outside investment to help maintain and create jobs for U.S. workers.

The threshold investment to qualify for the EB-5 preference category is quite steep: at least $1,000,000 or, if investing in a "targeted employment area," at least $500,000. Although the $1,000,000 investment is likely out of reach for most foreign nationals, the $500,000 investment in a targeted employment area is more attainable. If a foreign national has the ability to make such an investment, they should not discount the EB-5 preference category as a viable option. A targeted employment area is defined by the United States Citizenship and Immigration Services (USCIS) as "a rural area or an area that has experienced high unemployment of at least 150 percent of the national average." Considering the national unemployment rate is currently averaging 10%, a targeted area of employment would be a rural area or an area with at least 15% unemployment.

Depending on whether the foreign national invests in a new enterprise or a troubled business will dictate whether they need to remain involved with the business. If the foreign investor does not want any commitment beyond making their investment, they should consider investing in an existing U.S. business that is struggling. A troubled U.S. business for EB-5 investment purposes is one which has been in existence for at least 2 years and has incurred a net loss of approximately 20% of the business' net worth in the preceding 1 to 2 years. If the foreign national investor would like to invest in a new business venture, they must remain involved with the enterprise and manage the day-to-day operations to help ensure its continued success. While an investment in a troubled business need only preserve a certain number of jobs, an investment in a new enterprise must create at least 10 additional full-time jobs for U.S. workers.

If a foreign national has the means to make the size of investment required by the EB-5 preference category, they should seriously consider it. Not only would it help them and their family members obtain green cards much faster, but it would also help to bolster the U.S. economy and create or preserve many vital jobs for U.S. workers.