28 Jun 2018

Supreme Court upholds travel ban

The Supreme Court upheld President Donald Trump’s travel ban Tuesday, ruling 5-4 that a proclamation Trump issued last September to impose new travel restrictions was constitutional and within the president’s statutory authority.

“The Proclamation is expressly premised on legitimate purposes: preventing entry of nationals who cannot be adequately vetted and inducing other nations to improve their practices,” Chief Justice John Roberts wrote.

The ban, the 3rd version put forth by the White House after earlier versions were struck down by lower courts, has been enforced since December, following the Court’s decision to allow the administration to implement it while challenges played out in the courts. It applies to nationals of Iran, Libya, North Korea, Somalia, Syria, Venezuela and Yemen, with restrictions specific to each country. Chad was initially included, but was removed in April.

This version of the ban was issued in September after two earlier versions of the ban were deemed unconstitutional by lower courts. The current version was crafted more carefully than earlier versions. Roberts quoted some of the anti-Muslim statements made by the president in his opinion, but upheld the ban saying the proclamation was facially neutral in regard to religion, and was supported by a national security claim that he stated reflects “the results of a worldwide review process undertaken by multiple Cabinet officials and their agencies.”

Justice Sotomayor wrote the dissenting opinion, which states, in part, “Based on the evidence in the record, a reasonable observer would conclude that the Proclamation was motivated by anti-Muslim animus,” She went on to state  “That alone suffices to show that plaintiffs are likely to succeed on the merits of their Establishment Clause claim.”

The Court’s ruling means that the existing travel restrictions will remain in effect unless the administration changes or lifts the ban. The Court remanded the case to a federal court in Hawaii for further proceedings consistent with the opinion issued today, which will likely result in the dismissal of the case. Citizens of the names countries have already faced many months of difficulties while being separated from their family members in the U.S.

We will continue to monitor this and provide updates as soon as they are available. Please do not hesitate to contact us should you need any assistance in this regard.

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14 May 2018

USCIS Changing Policy on Accruing Unlawful Presence for Students and Other Visa Categories

U.S. Citizenship and Immigration Services (USCIS) has recently posted a policy memorandum indicating that they want to change how the agency will calculate unlawful presence for students and exchange visitors in F, J, and M non-immigrant status, including F-2, J-2, or M-2 dependents, who fail to maintain their status in the United States.

This is another policy position that was unveiled citing the Government’s attempt to meet the President’s Executive Order to enforce Immigration laws is intended to go into effect on August 09, 2018.

The proposed rule, if it passes, will dramatically change the laws for people on F, J or M Visas. For instance, a student present on F-1 visa may be in violation of their status, but not accrue unlawful presence if they fail to maintain a full course load; work illegally, or even if employed on OPT are employed in an area outside of their chosen field of study.

By contrast, the new rule essentially makes violation of status force a student to automatically accrue unlawful presence! If passed, the policy would make individuals in F, J, and M status who failed to maintain their status before Aug. 9, 2018, start accruing unlawful presence on that date based on that failure, unless they had already started accruing unlawful presence, on the earliest of any of the following:

  • The day after DHS denied the request for an immigration benefit, if DHS made a formal finding that the individual violated his or her non-immigrant status while adjudicating a request for another immigration benefit;
  • The day after their I-94 expired; or
  • The day after an immigration judge or in certain cases, the Board of Immigration Appeals (BIA), ordered them excluded, deported, or removed (whether or not the decision is appealed).

Individuals in F, J, or M status who fail to maintain their status on or after Aug. 9, 2018, will start accruing unlawful presence on the earliest of any of the following:

  • The day after they no longer pursue the course of study or the authorized activity, or the day after they engage in an unauthorized activity;
  • The day after completing the course of study or program, including any authorized practical training plus any authorized grace period;
  • The day after the I-94 expires; or
  • The day after an immigration judge, or in certain cases, the BIA, orders them excluded, deported, or removed (whether or not the decision is appealed).

Individuals who have accrued more than 180 days of unlawful presence during a single stay, and then depart, may be subject to 3-year or 10-year bars to admission, depending on how much unlawful presence they accrued before they departed the United States.

The 3 and 10 year bars were created as a part of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996.Incorporated into section 212(a)(9)(B) of the Immigration and Nationality Act (INA), the statute imposes re-entry bars on immigrants who accrue “unlawful presence” in the United States, leave the country, and want to re-enter lawfully.

Individuals who accrue more than 180 days, but less than one year, of unlawful presence are barred from being re-admitted or re-entering the United States for 3 years; those who accrue more than one year of unlawful presence are barred for 10 years.

Those subject to the three-year, 10-year, or permanent unlawful presence bars to admission are generally not eligible to apply for a visa, admission, or adjustment of status to permanent residence unless they are eligible for a waiver of inadmissibility or another form of relief.

Urgent Call to Action: USCIS is accepting comments on the policy memorandum. The 30-day public comment period has begun and closes on June 11, 2018. For complete information on the comment process, visit the Policy Memoranda for Comment page. Please send in your comments before June 11, 2018.

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16 Apr 2018

Alternatives to H-1B Visa

USCIS has released the numbers for Master’s as well as Regular cap subject petitions that they received for Fiscal Year 2019.

USCIS conducted the lottery system on April 06, 2018. The random computer generated number is the system that has been used every year for the past few years to determine the fates of those lucky few talented, educated individuals who will be able to pursue careers in the U.S.

For FY 2019 H-1B cap filing season, the service had 65,000 visas available under the standard cap (i.e individuals with a Bachelor’s degree) and 25,000 advanced cap (i.e. individuals with a Master’s degree earned from an accredited American institution of higher learning) The service received a total of 190,098 petitions!

Whilst this is a decline from the total number of applications received last year, it is nevertheless a disheartening outcome for applicants and employers alike. Individuals with Bachelor’s degrees or higher who want to work in the US and to contribute to their chosen fields ought to be given permission to do so.

Although there have been bills and a call to increase the cap to allow for more visas, there are no indications that these changes will be forthcoming anytime soon.

Employers and employees alike can look to the following options as alternatives to the H-1B.

EB-5: Increasingly an option for Foreign students as well as those already in the US but stuck in seemingly endless Green Card (I-140) backlogs, the EB-5 program allows an applicant and her family (spouse and child/ren under 21) to obtain Lawful Permanent Residence (“Green Card”) based on an investment of either $500,000 or $1Million.

O-1 or P-1 Extraordinary Ability Visas

O-1 and P-1 visas are generally reserved for individuals who have extraordinary ability in the sciences, arts (including the television and motion picture industry), education, business, or athletics.  By definition, not many individuals qualify for one or both of these visa types, but where possible, an application for O-1 and/or P-1 should be prepared in lieu of H-1B.   In addition to being able to obtain work authorization pursuant to these visa types, an O-1 and/or P-1 approval may establish the basis for the subsequent application for an EB-1 category permanent residency.

TN for Canadian and Mexican Professional Workers

An option available to certain Canadian and Mexican nationals in certain occupations is the TN visa classification.   It is available to citizens of Canada and Mexico who would be employed in the U.S. in one of the designated occupations. The TN visa is not subject to a cap and can be obtained either by applying at the border (for Canadians) or by filing a petition with USCIS.

L-1 Intracompany Transferee

The L-1 visa type allows multinational companies who have presence abroad to transfer their employees from their overseas offices to their U.S. office (or to establish a new U.S. office).  This visa type is a good option for foreign employers seeking to establish or boost their U.S. presence and for foreign nationals currently employed abroad.   Foreign nationals who are currently in the U.S. generally will not qualify for L-1 visa.  An added benefit to the L-1 visa is that family members are entitled to a work authorization pursuant to L-2 status.

We have assisted many US employers who were not successful in the H-1B cap lottery but were able to send their employee(s) abroad on an assignment for one year and then bring them back to the US on L-1 visa.   For US employers who have international presence and for whom it is possible to send a candidate on an assignment, abroad, the L-1 visa option is a good alternative.

E-1/E-2: The E-1/E-2 visa is available for executives, supervisors, and essential employees of E-1/E- 2 employers. This visa is available to foreign nationals entering the U.S. solely to carry on substantial trade or develop and direct the operations of an enterprise in which he or she has invested (or the foreign parent company has invested in) or is actively in the process of investing a substantial amount. Once the E-1/E-2 company has been established, key employees from the treaty country can also enter under these visas. Those key executives, supervisors, and essential employees must have the same nationality as the treaty employer.

J-1 or H-3 Trainee Visas: Employers may also consider participating in J-1 trainee programs. A J-1 trainee is eligible to work for a U.S. employer and be compensated for training purposes as long as the terms of the training program are approved through a J-1 program sponsor. Most J-1 trainee programs can be granted up to 18 months. The trainee must be sponsored by a USIA-approved Exchange Visitor Program.

Another training visa that employers have increasingly relied on in recent years is the H-3 trainee visa. The H-3 nonimmigrant trainee visa is available for individuals who are coming temporarily to the U.S. for the purpose of receiving training in any field of endeavor. The H-3 trainee visa is only available if the following requirements are met: the proposed training is not available in the foreign national’s home country; the trainee will not be placed in a position which is in the normal operation of the business and in which citizens and resident workers are regularly employed; the trainee cannot engage in productive employment unless such employment is incidental and necessary to the training; and the training will benefit the trainee in pursuing a career outside the United States. The H-3 visa is limited to two years. If the H-3 trainee has been in the US for two years, they are not permitted to then change status to an H or L visa category, until they have left the United States for 6 months.

Please do not hesitate to contact us should you have any questions, or need assistance in determining whether any of these options would be best suited to your needs.

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20 Feb 2018

Common Challenges Faced by EB-5 Investors Currently Residing in the Middle East & North Africa (MENA) Region

Whilst the popularity of the EB-5 Visa, propelled by desire for better education, business prospects, or a desire for long term US residency has led to a sharp spike in applications from the MENA region, there are recurrent issues that some investors from the region face. These are issues commonly seen by those attorneys with experience in working with investors from the region, but may easily be missed or go unsolved by others not as familiar.

Foreign Exchange Management Act (FEMA) and the Reserve Bank of India: FEMA is act of the Indian Parliament that controls all financial transactions flowing into and from India. The Reserve Bank of India (RBI) which controls all banking and financial transactions within India, have implemented the Liberalized Remittance Scheme (LRS) which dictates remittances leaving India by both Indian Residents as well as Indian nationals that are Non Resident Indian (NRI)/Person of Indian Origin (PIO)

Per an announcement of June 01, 2015, Resident individuals are allowed to remit up to $250,000 per financial year (1 April – 31 March) for any permitted current or capital account transactions or a combination of both. A Non-Resident Indian or a Person of Indian Origin, is allowed to remit an amount of $1 Million in any given financial year.

While a NRI/PIO may not have issues transferring the required capital ($500,000 for Regional Center Investment or $1Million for Direct Investment) an Investor who is considered to be a Resident of India must be very careful about how the money is transferred out of India. RBI does allow for an amount greater than $250,000 to be transferred, but this requires special permission and documentation of the need for a larger amount to be transferred.

Whilst United States Citizenship & Immigration Services (USCIS) had previously turned a blind eye to Chinese investors using several family and friends to transfer sums to reach the capital requirement, increasingly, they seem to be taking a harder look at such practices. It is imperative that Investors work with counsel that are qualified and familiar with structuring such transfers so as not to run afoul of the FEMA regulations, and also not raise any red flags for USCIS officers.

While India, like much of the Middle East also has a system of unregulated brokers who will transfer funds via the hawala system, these transactions are best avoided for India as hawala is not permitted. USCIS has repeatedly stated their official position, that any act deemed unlawful in the country where it occurred, will be deemed to be an unlawful act by USCIS; therefore, any Indian investor wanting to remit funds via hawala risks having their application denied.

Office of Foreign Asset Control (OFAC) Licenses for Iranian and Syrian Clients

Iranian Investors: While the U.S. does have sanctions against the Government of Iran, Iranian investors are the largest number of EB-5 investors from the Middle East. Prior to October 2012, Iranian Investors were required to secure a specific license from the Office of Foreign Asset Control (OFAC) allowing them to invest their money through the EB-5 program that is no longer a requirement.

An Executive Order issued in October 2012 authorized OFAC to issue general licenses to Iranians wishing to invest their money in the United States through the EB-5 program. Whilst the general license allows investors to save time, one must still be cognizant of the requirements one must fulfill in order to be approved for the license.

Syrian Investors: Syrian investors must first secure a Specific license from OFAC before they can invest via the EB-5 program

Transfer of Funds via Hawala: Unlike hawala dealers in India, many jurisdictions in the MENA region have a hawala system that is licensed and the use of an alternative remittance system is regulated. For purposes of EB-5 Investment, USCIS requires that the Investor be able to fully documents the source of funds as well as the path of those funds from the origin country to the U.S.

Alternate money transfer facilities such as Hawala that are common in the Middle East, are acceptable, but must be handled with extreme caution. USCIS will need to see an unbroken chain of control over the funds from the time it was sent to the time received; therefore, the regular “Honour System” of no receipts and no records will not work for USCIS. An Investor who elects to remit money via hawala, must have receipts and proof of transfer from the sending entity and receiving entity for each segment of the transaction chain.

 

Documenting Income in Trade Free Zones: USCIS requires that the investor be able to show that the funds used for the investment were earned through lawful means. One way of achieving this is via tax returns; however, USCIS is also aware of Trade Free Zones and will accept alternate financial documents in lieu of tax returns.

This may be an added burden for investors in Free Trade Zones, but in order to document the lawful source of funds, investors must be willing to provide alternative financial documents such as independently audited financial statements for 5 years will suffice

 

“Extreme Vetting” in the Trump Era: Immigration, and Immigrants in general, have been the focus of much of the wrath and vitriol emanating from the White House. The policies of the administration have been put into effect at both, the Department of State (DOS) that exercises control over the Consulates and Embassies as well as the USCIS.

The U.S. Department of State (“DOS”) on May 06, 2017, issued notice in the Federal Register that it proposes to carry out President Trump’s goal of “extreme vetting” by requesting information from a subset of visa applicants (both immigrant and non-immigrant) worldwide “in order to more rigorously evaluate applicants for terrorism or other national security-related visa ineligibilities.”  The additional personal information desired to be collected includes:

 

  • Travel history during the last fifteen years, including source of funding for travel;
  • Address history during the last fifteen years;
  • Employment history during the last fifteen years;
  • All passport numbers and country of issuance held by the applicant;
  • Names and dates of birth for all siblings;
  • Name and dates of birth for all children;
  • Names and dates of birth for all current and former spouses, or civil or domestic partners;
  • Social media platforms and identifiers, also known as handles, used during the last five years; and
  • Phone numbers and email addresses used during the last five years.

 

This additional information is to be collected via a new form DS-5535 to be completed by “certain, selected applicants”

 

Questions?

Please contact Kripa Upadhyay at kripa@orbitlawpllc.com

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24 Oct 2017

New Roadblocks for Extension of Non Immigrant Visas

USCIS released a new policy yesterday, October 23, 2017 that rescinds prior USCIS policy of giving deference to an earlier examiner’s findings in adjudications of Non-Immigrant Visa applications. You can read the release here: https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2017/2017-10-23Rescission-of-Deference-PM6020151.pdf

Per the new policy, USCIS officers are no longer required to give deference to earlier decisions made by their colleagues i.e. ANY and ALL applications for “simple” renewals of visa classes such as extension of H-1B, L-1A, L-1B or O-1 are now subject to the whims and fancy of the officer that happens to be adjudicating the present application for renewal.

Per this new policy, an Individual with an approved I-140 and seeking an 8th extension of an H-1B visa without change to job location or employer, which would otherwise constitute a “simple extension” is no longer guaranteed that extension. The adjudicating officer may, if she/he chooses, treat the extension request as a “new” request and issue onerous Request for Evidence, or even deny the extension.

This has far reaching consequences for those stuck in ever expanding I-140 lines, especially Citizens of India and China. The I-140 is of little use if the applicant is unable to renew the H-1B that would allow him/her to remain in the US and work whilst waiting for a “Green Card” to become available.

The new policy also affects employers. Immigration officers historically have given deference to the decisions made by other officers. They choose to rescind prior removals if there is a finding of fraud or material change int he application, but this new policy open the door for an officer to rescind a previously approved H if the officer, subjectively, believes that the applicant does not qualify for any number of reasons.

If you or your employees are in the process of needing to apply for extensions, please consult with and work closely with your Immigration Counsel. We strongly advice, under the present circumstances, that employers/applicants and their counsel, treat and prepare every application as a new application.

This is but one new policy in what seems like a never ending slew of bad policy decisions that, in the long run, will only serve to diminish US interests and lead to a brain drain away from the United States.

As always, please free to reach out to me should you have any questions or concerns.

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06 Sep 2017

Phase out of DACA and What this means for DREAMers and Employers

The Trump Administration announced on September 5, 2017, that it is terminating DACA. The program named Deferred Action for Childhood Arrivals (DACA), administered by the Department of Homeland Security (DHS), has permitted people who were brought to the United States as children to remain here and receive employment authorization once they prove that they meet the minimum requirements for the program.

Requirements to be eligible for DACA include:

  • Entered the United States  to the United States before reaching their 16th birthday;
  • Were under the age of 31 as of June 15, 2012;
  • Have continuously resided in the United States since June 15, 2007, up to the present time and did not depart the United States on or after August 15, 2012 without DHS authorization;
  • Are currently in school, have graduated, or obtained a certificate of completion from high school, have obtained a General Educational Development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
  • Have not been convicted of a felony, a significant misdemeanor, or three or more misdemeanors, and do not pose a threat to national security or public safety.

Being approved for DACA did not grant any legal status upon the applicant or his/her family. It merely “Deferred” the Government’s right to initiate Deportation/Removal proceedings against anyone covered by the program.

Phase Out of DACA

Pursuant to the decision announced by Attorney General Jeff Sessions, the Government has officially ended DACA, but enforcement has been delayed for six months.

  • As of September 05, 2017, the Government will not accept any new DACA applications;
  • DREAMers with current Employment Authorization Document (EAD) that expires between today and March 08, 2017 MUST file to renew their DACA status before the end September 2017 (official deadline is Thursday, October 05, 2017, but we advice that you not leave this to the last minute)
  • DREAMers with currently valid EAD that expires after March 08, 2017 are not eligible to renew their status any longer

What This Means for DREAMers

  • If you have an EAD that expired between today and March 08, 2017, please make sure to renew your DACA before the end of September 2017.
  • Do not leave the United States under any circumstances as there is no guarantee that you will be able to return, even if you have received advance parole.
  • Do not loose hope! There are several bills pending in Congress and it is possible that a law legalizing/codifying DACA regulations will come into effect before March 2018

What This Means for Employers

Basically, employers may not terminate a DACA employee from employment solely on the expectation of future ineligibility to work. DREAMers with currently valid Employment Authorization are legally able to continue with their employment.

  • Current DACA recipients, as well as those eligible to apply by October 5, 2017, will be permitted to retain both the period of deferred action and, for DACA extensions, their EAD cards until they expire, unless terminated or revoked.
  • DACA beneficiaries must possess both a valid EAD as well as a Government issued Social Security Card
  • USCIS will process new DACA EAD applications received before September 5, 2017, but any employees who intend to file for DACA for the 1st time are no longer eligible to apply.
  • DACA and EAD renewal applications that were properly filed prior to September 5, 2017 will continue to be processed. Current processing time for final adjudication is an average of 4 months.
  • USCIS will process two-year DACA EAD renewal applications received by October 5, 2017 for individuals whose current DACA EAD expires between September 5, 2017 and March 5, 2018.

As always, employers and DREAMers are encouraged to call us or contact us should you have any questions about this phase out.

 

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06 Jun 2017

Employers: Be Prepared for Increased Audits from Department of Labor

Department of Labor has today announced their intention to conduct sweeping audits against employers who hire foreign national employees on H-1B and other visa types, see here: https://www.dol.gov/newsroom/releases/opa/opa20170606

Please make sure that all of you have:

1. Public Access Folders for ALL current H-1B employees

2. Properly completed and maintained form I-9 for each employee irrespective of whether or not they are US Citizens/“Green card” holders.

3. Are in compliance with your State’s Wage and Labor laws

I-9 penalties were raised significantly in 2016; consequently, the current cost of having errors on Form I-9 or not being complaint are as follows:

Form I-9 Paperwork Violations:
Previous fine per Form I-9 violation: $110 to $1,100
Fine effective August 1, 2016 per Form I-9 Violation: $216 to $2,126
Unlawful Employment of Unauthorized Workers:
First Offense
Previous fine, per worker: $375 to $3,200
Fine effective August 1,2016 per worker: $539 to $4,313
Second Offense
Previous fine per worker: $3,200 to $6,500
Fine effective August 1, 2016, per worker:$4,313 to $10,781
Subsequent Offenses
Previous fine, per worker: $4,300 to $16,000
Fine effective August 1, 2016, per worker: $6,469 to $21,563
Unfair Immigration-Related Practices
First Order
Previous fine, per worker: $375 to $3,200
Fine effective August 1, 2016, per worker: $445 to $3,563 (however repeat offenders could face a new maximum penalty of $21,563 per worker.)
These fines also increase per subsequent order and frequent offenders may face a maximum fine of $17,816 per worker.

Unfair Immigration-Related Practices – Document Abuse
Previous fine, per individual:$100 to $1,100
Fine effective August 1, 2016, per individual: $110 to $1,100

I strongly recommend that in this heightened audit environment that all employers conduct internal I-9 audits. I realize that this may be more money than some of you are able to/ want to spend, but the costs of not being in compliance are excessive. I strongly urge you to please consider this as a safety mechanism to ensure you are compliant. Please call us if you have questions regarding timelines and costs of an internal audit. We would be happy to work with you.

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19 May 2017

Starting a Business by an H-1B Visa Holder

Increasingly, we find that we are answering questions from  entrepreneurial souls who want to start their own businesses to market their great ideas but are hobbled in their goals due to the severe restrictions placed on certain visa classes by USCIS.

The short answer to is it possible for an H-1B visa holder to own his/her own business is that this is a scenario best avoided as there are severe risks to non compliance with the visa status.

H-1B Overview:

Under normal circumstances, the broad H-1B requirements are:

  • A job offer for a specialty position (requiring a bachelor’s degree or higher) from a qualified U.S. employer.
  • A bachelor’s degree or higher that is relevant to the position.

The biggest challenge for self owned enterprises is meeting the requirement that there be an employer-employee relationship. This relationship is coined “the conventional master-servant relationship as understood by common-law agency doctrine”. In order to establish this relationship, the employer must prove their right to control the employee.

The right of control can be broken down into several conditions:

  • Does the petitioning employer supervise the employee’s work?
  • Can the employer control the daily tasks of the employee?
  • Does the employer give the employee the equipment needed to complete his or her tasks?
  • Does the employer have the power to hire, pay, and fire the employee?
  • Is the employee claimed for taxes?
  • Are there any benefits provided by the employer such as insurance or bonuses?
  • Can the employer control exactly how the work is done?

These conditions must also continue as long as the employee is under H-1B status for that particular employer. The USCIS has made it a point to say that no one factor will be decisive, but rather that each will be weighed for or against the decision.

Is a self employed H-1B possible?

US Citizenship and Immigration Services (USCIS) in January 2010, issued a memorandum https://www.uscis.gov/news/questions-answers-uscis-issues-guidance-memorandum-establishing-employee-employer-relationship-h-1b-petitions

This memo clarified the regulations surrounding entrepreneurship stating that an H-1B holder can start a business and also work for it, provided that:

  • A board of directors, CEO, or similar entity has the power to hire, pay, and fire the beneficiary. Therefore, the nonimmigrant will be treated like an employee despite having ownership.
  • The H1B holder is not the sole proprietor of the company
  • The position in question must be bona fide, meaning that the company cannot have been started for the purpose of securing an H-1B visa.
  • The position must still require a relevant bachelor’s degree or higher.
  • The company should have a business plan that includes the purpose of hiring qualified American workers. This is because the 2010 memorandum was created so that more U.S. workers could find employment.

In order to be successful as an owner/employee, it is essential to have a board of directors with complete, unfettered control to hire, supervise, set compensation, and terminate the owner. No, you cannot create a board of family and friends who are effectively “dummy directors” in that their only role is to essentially rubber stamp and go along with all of your plans. This MUST be a truly functioning board with complete autonomy to do their job in the best interest of the entity. USCIS looks upon such petitions with extreme suspicion, and will investigate such applications.

Can I, as an H-1B holder, start my own separate company?

Restrictions on Entity Type:

As a Non-US Resident, the only type of entity that you can incorporate in the US, is a C Corporation. While it is possible for H-1B visa holders to start an entity as a C corporation

Restrictions on your activities for the entity:

As an H-1B visa holder you cannot run or work for the company if your H-1B is through a different employer. You can only be a passive investor i.e. invest the money, and then refrain from making any business decisions. As the owner/investor, you can appoint a director or CEO to run your business, but you yourself, cannot be involved in any day-to-day operations or perform any task(s) that would constitute work.

How We Can Help:

Because the issue of whether or not an H-1B holder can start a business is fraught with strict regulations that could seriously impact your status or petition if broken, seeking the counsel of an experienced immigration attorney is an absolute must, as the consequences of making a mistake in these situations can be very high.

Our lawyers specialize in providing foreign professionals and entrepreneurs with the guidance they need to secure and maintain H-1B status as well as many other non-immigrant visa situations. Please do not hesitate to contact us should you have any questions.

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12 Apr 2017

Alert to Frequent Fliers: Customs & Border Protection (CBP) needs to borrow your electronic devices and data!

Although this may seem unfathomable to most in the U.S, the Customs and Border Protection (CBP) has begun a routine process of inspecting electronic devices of ALL incoming passengers. Yes that also includes US Citizens and Lawful Permanent Residents.

The “inspection” of electronic devices includes cell phone, I-pads, computers and any other electronic device where information can be stored. Yes, some officers have also asked for passwords for Social Media Accounts, and if you, like thousands others, have Facebook, LinkedIn, Instagram etc on your I-pad, computer or smart phones, those apps are also subject to examination.

If CBP selects your device to be inspected, they have the right to retain the appliance/instrument for several days (i.e you will NOT be walking out of the airport or land border with your phone/computer/tablet!) CBP will instead issue you a form (6051-D) that details what item(s) are being detained, who at CBP will be your point of contact, and the contact information (including telephone number) you provide to facilitate the return of your property within a reasonable time upon completion of the examination.

It is important to note that CBP may keep your electronic device for a period of time that differs from a few hours upto 5days; or they may never return it to you, but instead seize it if the device contains evidence of a crime, contraband or other prohibited or restricted items or information – then you will be notified of the seizure as well as your options to contest it through the local CBP Fines, Penalties, and Forfeitures Office.

CBP has asserted that the right to inspect electronic devices, also gives them the right to copy materials/information stored on any/all of the devices they retain. T right to copy extends to information that is normally classified Personal or Business Confidential Information and also to information normally protected by the Trade Secrets Act.

How is this legal?

The Fourth Amendment to the United States Constitution protects us against unreasonable government searches and seizures. This generally requires the government to show a court probable cause that a crime has been committed and get a warrant before it can search a location or item in which you have a reasonable expectation of privacy.

Searches at places where people enter or leave the United States may be considered “reasonable” simply because they happen at the border or an international airport, and the 4th amendment technically does not apply at Ports of Entry; including land, sea and air ports.

This area is primed for lawsuits, and we expect that Privacy advocates will push for a narrowing of the “border exemption” doctrine to a more narrow framework, but till that happens, CBP has vast authority to demand passwords; inspect your digital data, and keep a copy of documents and materials that would otherwise be protected.

Can I refuse to Cooperate?

Passengers do have the right to deny CBP authority to keep the device, but that, for US Citizens and Lawful Permanent Resident passengers returning to the US, could mean sitting in Secondary Inspections for upto 10 hours or more. CBP cannot deny a US Citizen the right to return to their country, but they can detain you at the airport for several hours.

Non U.S. Citizens have even fewer rights, and may be denied entry and expeditiously removed from the airport for refusing to comply.

Precautions you can Take

For those of you with access to an in house Tech Department, take their advice on what would be best for you and your business. Frequent travelers have resorted to having a “travel device” that they, by design, store minimum data on.

Make regular backups of your electronic devices which ensures that your important information stays available to you if your computer is ever taken from you, lost, or destroyed. (If you don’t have access to your computer, you’ll still have access to your data.)

Encrypting the information on the computer, which ensures that your information stays confidential from other people whom you don’t authorize to access it. (If you lose control of your computer, other people won’t have access to your data.)

For more information on CBP policies pertaining to the above, you can and should review their page https://www.cbp.gov/sites/default/files/documents/inspection-electronic-devices-tearsheet.pdf

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07 Feb 2017

Employer’s Guide to H-1B Visa Filing in Uncertain Times

The recent spurt of Executive Orders and speculations that the current Administration plans to severely curtail the availability of H-1B visas even further than has been the case in the last few years has caused much consternation and fear in many employers and hopeful employees. The source of much of this speculation and forecasting is an allegedly leaked Executive Order on H-1B and L-1, and two competing bills currently making their way through the House.

It is crucial that employers and employees sift fact from fiction as each prepare to head into H-1B season for Fiscal year 2018. The law as it currently stands:

H-1B “cap subject” applications can be filed with USCIS on April 01, 2017. This year, much like last year, we expect USCIS to receive enough applications that a lottery will be necessary to select the lucky few that will be able to proceed with their H-1B applications. The H-1B “Cap” refers to the annual numerical limitation set by Congress on the number of workers authorized to be admitted on an H-1B-type visa or authorized to change status if already in the United States.

Under the Immigrant Act of 1990 (IMMACT), Congress imposed an annual cap of 65,000 H-1B visas for each fiscal year (Undergraduate degree) plus an additional number of 20,000 H-1B visas for those with a US Masters degree. The total number of cap subject H-1B visas available in any fiscal year is 85,000.

This number has NOT increased for Fiscal year 2018; therefore, employers who want to file H-1B visas for employees would be best served by making sure that they and the respective employee is ready with all requisite documents, and that the H-1B application is filed with USCIS on April 01, 2016. The cap is expected to be reached within the first three days.

H-1B Plan of Action for Employers:

  • All employers should have identified candidates and potential employees by the end of February at the latest
  • Labor Condition Applications (LCA) must be filed and certified before the H-1B can be submitted. Please note that it takes, on average 5 working days for an LCA to be certified. If you are new employer, allow a minimum of at least 10 days for the LCA to be certified.
  • ALL H-1B applications MUST be mailed to USCIS on March 31, 2017 in order for them to arrive at USCIS on April 01, 2017 i.e. the first day that USCIS will accept H-1B applications for FY 2018.

*Please see advice regarding actions for TN/OPT workers below

Proposed Amendments to H-1B Visa that are pending in Congress

“High Skilled Integrity and Fairness Act of 2017” (H.R. 670)

Introduced by Rep. Zoe Lofgren, this bill aims to do the following:

  • Eliminate Per Country Cap for Employment based Visas so that there is no backlog for people of particular national origin as has been the case for Nationals of India and China
  • Increases Minimum Wage: Re-sets the dependent wage exemption level from $60,000 to $130,000 or higher (Dependent employer is defined as a company with minimum of 50 employees where at least 25 are on H or L status)
  • Allows for Transparency to benefit the Employee: Employers must provide the employee with a copy of their immigration paperwork within three years of the date on which the petition was filed with the Government, AND provides for prohibiting liquidated damages for H-1B employees who cease employment prior to a date agreed to by the employee and the employer
  • Reforms the Prevailing Wage System to effectively eliminate the lowest wage (Level 1 wage) and increases wages in the remaining two levels
  • Allows for Market Based H-1B Visa Allocation: Prioritizes allocation of H-1B visas based on wages as follows:
    •  Employers paying prevailing wage level 3 at 200% of prevailing wage, then 150% of prevailing wage (including cash bonuses and similar compensation);
    •  Employers paying level 2 at 200% of prevailing wage, then 150% of prevailing wage (including cash bonuses and similar compensation);
    • Employers paying level 1 at 200% of prevailing wage, then 150% of prevailing wage (including cash bonuses and similar compensation);
  • Change of job location to require higher wage: Requires that if employers have beneficiaries work 30 days or more in an area of employment other than the one indicated at the time of filing, they must pay the prevailing wage of the area of employment with the highest prevailing wage at the same wage level indicated at filing.
  • Reservation of Visas for StartUp Employers: The bill sets aside 20% of the total available H-1B visas for small and start-up employers. Employers MUST sign an attestation that any beneficiary filing under this subsection will not be required to work at a third party location for  more than 30 days
  • Removes the need for Amended H-1B Petitions: Streamlines H-1B filing requirements and reduces administrative costs by clarifying that an amended petition need not be filed with USCIS upon an employee worksite change, if the petitioner has already secured a valid, certified Labor Condition Application for the new place of employment.
  • Enforcement Authority: Allows USCIS to pass on information to the Department of Labor to initiate investigations against the employer for violations of H-1B regulations

Protect and Grow American Jobs (H.R.170)

Introduced by Rep. Darrell Issa and co-sponsored by Rep. Scott Peters, this bill is aimed at tightening, but not closing, a loophole that the sponsors believe large H-1B firms have benefited from. Key aspects of this bill include:

  • Preference for American Workers: Any company paying H-1B workers less than $100,000 would have to show that they attempted to, but could not Americans for the same job
  • The bill would also increase minimum wage payable to H-1B workers to at least $100,000
  • It eliminates the Master’s Cap
  • It applies to all employers with a workforce of at least 50 full time employees where at least 15% are on H or L visas.

The Leaked Executive Order

Executive Order on Protecting American Jobs and Workers by Strengthening the Integrity of Foreign Worker Visa Programs

Disclaimer: There is no confirmation or indication that this “leaked” order even originated in the White House, but it has been reported on by several news sources. As of today, no bills or orders resembling this document has been signed.

Impact on H-1B Workers:

The (unconfirmed and unsigned) draft version of this executive order would not have a direct impact on the H1B program, but it would pave the way for changes to come in the future. Although lacking in specifics, the order instructs the Secretary of Homeland Security to:

  • “in consultation with the Secretaries of State and Labor … restore the integrity of employment-based non-immigrant worker programs and better protect U.S. and foreign workers affected by those programs”
  • “consider ways to make the process for allocating H1B visas more efficient and ensure that beneficiaries of the program are the best and the brightest”
  • “… provide recommendations for making U.S. immigration policy better serve the national interest; and to recommend changes to the immigrations [sic] laws to move towards a merit-based system”

As stated above, specifics are lacking, and the instructions are all relatively vague. The order serves to direct the Department of Homeland Security (DHS) to examine potential changes to be made in the future. It calls for the Secretary of Labor to issue a report on “… the actual or potential injury to U.S. workers caused … by work performed by non-immigrant workers in the H1B, L-1, and B-1 visa categories.” There is the potential for future changes to the program based on these reports, but the exact nature and extent of those changes remains to be seen.

Impact on L-1 Workers:

The leaked version specifically direct Department of Homeland Security to expand site visits targeting place of employment for L-1 employees. It also requires the Secretary of Labor to:

  1. provide within 18 months a report to the President describing the “extent of any injury to U.S. workers caused by the employment in the United States of foreign workers admitted under non-immigrant visa programs or by the receipt of services from such foreign workers by American employers; and
  2.  provide within 9 months a report on the “actual or potential injury to U.S. workers caused, directly or indirectly, by work performed by non-immigrant workers in the H-lB, L-1, and B-1 visa categories.”

Given the above and the general state of uncertainty, what should employers do:

  1. BE PREPARED FOR INCREASED ENFORCEMENT: Employers should not only anticipate increased workplace audits and document inspections from Immigration and Customs Enforcement (ICE), but may also see the return of higher profile and heavily punitive actions such as workplace raids and worker detention. These high profile actions may also be highly publicized in efforts to make an example of businesses and workers that thwart the new administration’s vigilance.
  2. I-9 COMPLIANCE/E-VERIFY IS IMPERATIVE: Currently use of the federal Employment Eligibility Verification (E-Verify) system is only required for certain federal contractors and in a patchwork of states. About half the states have some form of law that addresses E-Verify, but these laws differ as to the employers to which they apply. Some states require all employers to participate, some only public employers, some public employers and contractors, some only contractors, etc.We are likely to see legislation making the use of E-Verify mandatory for all employers—or at least employers of a certain size—nationwide. Though previous attempts to make E-Verify mandatory have failed, these efforts have been part of broader, comprehensive immigration reform bills. Pursuit of mandatory E-Verify in a stand-alone legislative measure may be more successful.

    E-Verify is free to use. Employers who wish to learn more about the I-9 or E-Verify, or who wish to conduct an audit to ensure you are in compliance before Homeland Security Investigations (HSI) comes knocking are encouraged to call us at (206) 623-3352. We will sit with you and train you to properly complete Form I-9 and help you  create a system to properly maintenance and purging or old I-9 records

  3. COMPLIANCE IS KEY: I-9 and E-Verify are not the only compliance requirements for employers. ALL employers with H-1B employees, must also make sure to have a Public Access File (PAF) per employee on hand. If you do not know what a PAF is, or how to create one, call us now!
  4. PLAN AHEAD: Employers with any employees on TN, H-4(EAD) or STEM OPT should plan ahead. It is likely that the current administration will re-negotiate NAFTA in such a way that TN visas may well be placed in immediate jeopardy. To avoid loosing any employees you currently have that may be on TN status, it is best to include these employees in your plans for H-1B filings for Fiscal year 2018. The same advice applies to all employees currently working on H-4 EAD’s and OPT’s which may be terminated at a moment’s notice.
  1. STAY UPDATED ON CHANGES TO EMPLOYMENT BASED VISAS: A close working relationship with Immigration counsel, whether in-house or outside counsel is key at this time. We are witnessing sea changes in Immigration Law enacted with very little or no advance notice. Your ability to make sense of the changing landscape with minimal loss to your business and the people that support you and your work will depend on your relationship with trusted advisors that are able to guide and support you.
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