Archive for the 'Investment Visa' Category

Executive Action for Entrepreneurs- Almost A Startup Visa

There will be several measures for immigrant entrepreneurs and details will emerge soon.  However, this is a significant development – this is a new program using the parole authority.   Entrepreneurs will be allowed into the US under the ‘significant public benefit’ parole authority to the following types of people who would otherwise not qualify for national interest waiver:

1. inventors

2. researchers

3. founders of startups

who have raised funding from substantial U.S. investor financing or otherwise hold the promise of innovation and job creation through the development of new technologies or the pursuit of cutting­ edge research. This would be  a temporary way of allowing people to enter the US and pursue the research and development of their business.

There will be a precondition that they have threshold income or resources to financially maintain themselves so as not to become a public charge.

This is a great addition and will help some startups but it is not a visa.  Congress needs to act to create a new visa category for Startups.

More to come soon.

**Copyright 2014 by Watson Immigration Law. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

Immigration Executive Action for Businesses, Entrepreneurs and Students

The Department of Homeland Security released a series of memos.  I am copying links to the relevant ones for high-skilled immigration, entrepreneurs and students.

http://www.dhs.gov/sites/default/files/publications/14_1120_memo_business_actions.pdf

My comments to follow soon.

 

 

What to expect from the executive action annoucement

I have it on good authority that these are  some of the things we can expect:

Illegal immigration:

1. Deferred action to parents of US citizens and green card holders who have lived in the US for at least 5 years.

2. Expanding the DACA program to no-age limit and who have been in the US since January 1st 2010.

To be implemented in Spring 2015.

Legal immigration:

1. Expand student visa options.

2. A new program for entrepreneurs who have investment and created jobs.

3. Portability of employment-based work visas.

4. H4 EADs for those who have an approved green card application (don’t think they changed anything from the rules that were released earlier this year).

No recapture of unused visas that I was so hoping for.

I will update this list in due course.

 

Tahmina on CNN Money re. immigration executive action

Find Tahmina on CNN Money today discussing immigration executive action that will be announced tonight.  Here is a link to the story.

cnnmoney nov.20

Immigrant Entrepreneurs Must be Included in Immigration Executive Action

Not a day goes by in the US that an immigrant entrepreneur’s contributions are not making a deep  and lasting impact.  Watch the below video from the Partnership for a New American Economy to see how immigrant inventors’ inventions are used in your daily life.  At this unique juncture with imminent executive action announcements, where we have no hope of Congress passing immigration reform and thus a Startup Visa, we need entrepreneurs to be included in the executive action.  How can the President include them? Here are 4 ideas:

1. Eliminate the employer-employee Neufeld Memo that requires self-employed H1b applicants to show someone else controls their work.

2. Ease the interpretation of E-2 visas regarding ‘substantial investment’.  Startup founders do not have a lot of money but have rich minds and valuable intellectual property.

3. While TN visas are generally not allowed to have self-employment, the written law does not actually prevent it. Yet, any ownership interest will get a sure denial within seconds of presenting at the border. There needs to be guidance on this. Many Canadians could actually come to the US and start their companies if ownership interests are not treated as a death knell to the application.

4. Extend OPT periods so that students working on their startups have more time to develop their products, start and establish their businesses.  Self-employment is allowed in OPT and can be a great way for the President to keep the talent we are losing to the rest of the world.

EB5 Processing Time as of November 10, 2014

USCIS updated the processing times for EB5 petitions:

Form Title Classification or Basis for Filing: Processing

Timeframe:
I-526 Immigrant Petition By Alien Entrepreneur For use by an entrepreneur who wishes to immigrate to the United States 14.3 Month(s)
I-829 Petition by Entrepreneur to Remove Conditions Removal of lawful permanent resident conditions (immigrant investors) 6.8 Month(s)
I924 – Application For Regional Center Under the Immigrant Investor Pilot Program 8.5 Month(s)

EB5 Visas- Unavailable for China

Copied from AILA:

Practice Alert: China EB-5 “Unavailable” for Remainder of FY2014: What Does This Mean?
On Saturday, August 23, 2014, at the AILA EB-5 Conference in Chicago, Charles Oppenheim,
Chief of the Department of State Immigrant Visa Control and Reporting Division, announced
that effective immediately, the EB-5 preference category had become “unavailable” for Chinese
applicants. This practice alert provides additional information and discusses some of the
practical implications of the announcement.
 It is important to note that a China EB-5 cut-off date has not been established and the
Visa Bulletin for September 2014 (which states that China EB-5 is still “Current”) has not
been amended. Therefore, this is not a visa retrogression.

 “Unavailable” simply means that for the first time since the EB-5 program was created
almost 25 years ago, the maximum number of EB-5 immigrant visas which are available
for Chinese applicants for fiscal Year 2014 has been reached, while sufficient numbers
for all other countries remain to ensure compliance within the annual Fiscal Year 2014
allocation.
 A new allocation of about 10,000 visas will be available on October 1, 2014, which is the
first day of Fiscal Year 2015. As a result, there will be virtually no impact on most China
EB-5 visa applicants who complete processing within the next 6 to 8 months.
 Visas have already been allocated for individuals with EB-5 visa interviews at the U.S.
consulates in August and September 2014 so interviews will proceed as scheduled and
visa may be issued to qualified applicants. A technical exception to this involves
applicants with August or September “comeback” interviews (a “comeback” interview is
scheduled for individuals who failed to prove themselves as documentarily qualified at
an earlier interview). If approvable, they will have to wait until at least October 1 to
obtain a visa.
 Immigrant visas will continue to be valid for 6 months from the date of issuance.
Applicants should be sure to enter the U.S. before the expiration date of their immigrant
visas, as requests for replacement visas to accommodate travel to the U.S. outside of
that 6-month period may not be possible.
 USCIS does not request immigrant visa numbers from the Department of State for I-485
adjustment of status applications until the time of adjudication. If visa numbers are

unavailable at the time of review, USCIS will hold the application in abeyance pending
availability of visa numbers.
 USCIS processing of EB-5 adjustment of status applications will proceed. However,
issuance of immigrant visas to China EB-5 applicants will be authorized effective October
1, 2014, when the new Fiscal Year 2015 allocation is available.
 Applicants chargeable to China who are also cross-chargeable to another foreign state
(e.g., Hong Kong, Macau, Canada, France, etc.) based on marriage or other claim1
may
request that they be cross-charged in an effort to receive a visa in August or September,
but this is not assured as the annual allocation for all foreign states is almost depleted.
 The Visa Bulletin has not been amended (i.e., visa numbers are still listed as “available”),
so eligible China EB-5 applicants may continue to file for adjustment of status in August
and September 2014.
 Though other employment and family visa categories already have waiting lines, this
announcement is significant because this is the first time the EB-5 category has reached
the annual limit. The State Department appears to be providing a warning that the China
EB-5 category will become oversubscribed and require the establishment of a cut-off
date, possibly as early as May 2015, near the end of the third quarter of Fiscal Year
2015.
 The announcement is also significant because it provides clear evidence that EB-5
demand, which has increased 700% since 2007, will certainly result in the establishment
of a China cut-off date in Fiscal Year 2015.
 It is impossible to determine what the “date gap” will be when a cut-off is announced,
most likely in May 2015. There are estimates that the wait time will be approximately 2
years. Since most I-526 petitions are presently taking 15 to 16 months (Requests for
Evidence are commonplace), an additional wait of about 6 months does not yet appear
to be unduly worrisome. The concern is that once a cut-off date for China EB-5 is
established, the Department of State may have to retrogress that date, depending on
the number of petitions approved, and the cut-off date may not move forward every
month. With over 10,000 petitions currently pending with USCIS and about 3,000 filed in
the last quarter ending June 30, 2014, this wait time is likely to increase.
 Consequences may include age-out of derivatives, and complex issues regarding the
timing of job creation, the requirement for which is currently set artificially at 30
months from approval of the I-526 petition (at the I-526 stage), and 36 months from the
time of acquisition of conditional permanent residence (at the I-829 stage).

 

Tahmina Mentioned in CNNMoney

CNNhomepage pic

Image courtesy of CNNMoney

Thank you to CNN and Reporter Sara O’Brian for reporting on an issue that I care so deeply about and mentioning my work. My regular readers will know how strongly I feel about these issues.

The article highlights the frustration that I and many of my colleagues face helping startups get visas. Hope this will shed light on the problem, particularly at a time when the White House is hoping to find immigration solutions for entrepreneurs through executive action.

If you are a startup hopeful, or someone invested in the startup community, your voice is important. Make an appointment with your local House/Senate Representative and explain why this is important to you.  Everyone needs to speak up for things to change. Enjoy the article!

Here is a link to the article. 

CNN Discusses the Startup Visa

cnnmoney article stillToday, CNNMoney reported on one of our favorite subjects, the Startup Visa. Reporter Sara O”Brian discusses specific examples of talented people moving to Canada to launch their startups since they were unable to do so in the US due to immigration obstacles. We are honored that the article provides a link to this blog.  Thank you CNNMoney for covering this important issue and raising awareness.  Here is a link to the article. 

We Need Better Immigration Policies for Startups and Entrepreneurs

 We Need Better Immigration Policies for Startups and Entrepreneurs

- Tahmina Watson

“USCIS intends to revoke your H-1B visa because we have discovered you are a co-founder.” Yes. That is indeed what my client learned one morning.  USCIS learned during the renewal process of my client’s previously approved H-1B case that he was an original co-founder.  While my client never intended to hide it, the information was not specifically mentioned in the initial filing.  After a series of requests for further evidence, the final request was regarding the relationship between my client and his company.

My client, a co-founder of his company – who has garnered much praise in the tech industry, employs seven full-time American workers, and has helped create several indirect jobs by virtue of those who use and sell his product – was facing imminent departure from the U.S. His business, business partner, employees, and clients all were also put into limbo as a result.

Why? Don’t we want companies to start here? Well, currently, U.S. immigration law does not have a specific visa category for Startup founders, and the available visa options are far from ideal.  A very strict policy was laid down in a memo on January 8, 2010 by Donald Neufeld, Associate Director of Service Center Operations of USCIS. That memo made some drastic changes in the way H-1B cases would be adjudicated and put immense restrictions on the employer-employee relationship, causing adverse effects to petitions by founders.

To successfully apply for an H-1B as a co-founder, one must categorically prove that the company controls the founder’s employment.  To prove such control, the USCIS expects an onerous amount of corporate documentation, including articles of incorporation, board meeting minutes, shareholder agreements, stock ledgers, etc.

It was my privilege to help my client win this case.  As a team, we brainstormed the type of documentation he would be able to provide.  We decided to send many internal, otherwise confidential, documentation to demonstrate he was always given direction in his work and he was not the one making decisions.  We submitted emails, client contracts, employee information, payroll evidence, references and much more.  It was a challenging request to say the least.

Startups by their nature operate lean and mean.  Startup founders/entrepreneurs are known to work around the clock to ensure their products are successful.  In the efforts to have a successful company, they have employees to supervise and clients to keep happy.  Instead of using all his energy to build the business, my client was anxious and worried about providing enough of the right kind of information to respond to a challenging and burdensome request.  I am sure that during this intense period, my client suffered loss both emotionally and financially.

Lessening the efficiency of a person while they’re trying to get a business off the ground makes no sense. One should not have to defend oneself for being a founder of a company; it should be a matter of pride.  Luckily we were able to successfully demonstrate that his employment was controlled by the company.  Many founders are not so lucky and end up cut off from the start up they helped create by our irrational immigration laws.

We cannot have rhetoric from our government that calls for entrepreneurs and the need to keep high-skilled workers in the U.S., while that same government acts against implementing that ideology.

In the absence of a Startup Visa, I suggest that two changes are made to existing policy with immediate effect.  Firstly, eliminate the use of the Neufeld Memo, at least for founders and co-founders of startups utilizing H-1B visas.  Founders need to operate their businesses.  Often they will have many roles in addition to their primary H-1B job description.  For example, as a business owner, I am not only a lawyer, but a human resources manager, marketing manager, bookkeeper, supervisor and countless others.  To have my company control my job would impede my success.

Secondly, allow the use of cash substitutes such as stock valuation, convertible notes, and other such regularly used methods instead of cash wages.  Startups generally cannot afford high wages, particularly in the early stages.  They need the opportunity to get their companies to the stage where funding can be obtained from investors.  While the policy argument against cash substitutes may be fear of the entrepreneur becoming a public charge, USCIS should impose policy to prevent that and revoke someone’s visa if he or she resorts to public assistance.  Entrepreneurs are resourceful people who do not want handouts from the system.  Give them the chance to start their companies, contribute to the economy, and create jobs for American workers.  After all, America is a nation of immigrants.

**Copyright 2014 by Watson Immigration Law. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.


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