Watson Immigration Law Blog

Other countries are ‘cashing in’ on the foreign entrepreneurs

tahminawatson — Fri, 27 Jan 2012 05:53:13 +0000

While the US seems to be thinking about how to get foreign entrepreneurs here, other countries are already implementing measures. I hope we are not too far behind. The below article was published on the website Start Up Smart. Below is a copy of the text for each reference. In case it is misunderstood, I want clarify though that the Start Up Act 2011 is NOT LAW yet, the bill is pending in Congress.

Ireland the latest nation to cast net for foreign entrepreneurs

By Michelle Hammond
Friday, 27 January 2012

Ireland is the latest nation to appeal to foreign entrepreneurs to do business in the region, in a desperate bid to boost employment, following similar initiatives in the United States and Britain.

Two programs – the Immigrant Investor Program and the Start-up Entrepreneur Program – will be formally launched in March by Minister for Justice Alan Shatter.

The first program will require applicants to invest between 400,000 and two million euros, depending on the level and duration of financial commitment.

The second program aims to foster new enterprises, for which the applicant will have to have financial backing of no less than 70,000 euros.

Approved participants and their immediate family will be allowed to enter Ireland on multi-entry visas and remain there for two years. The visas will be renewable.

Applications for both programs will be considered by an evaluation committee, consisting of relevant state agencies and government departments.

“Their objective is to encourage entrepreneurs into Ireland; people with innovative schemes that will create jobs and have the possibility of expansion in the future,” Shatter told Irish radio program Morning Ireland.

“These are programs of a similar nature to programs that exist in a variety of other countries.”

Both the US and Britain have introduced programs designed to entice foreign entrepreneurs to relocate.

In March last year, US Senators John Kerry and Richard Lugar, along with Senator Mark Udall, reintroduced legislation designed to help immigrant entrepreneurs secure visas to the US.

The Startup Visa of 2011 would allow an immigrant entrepreneur to receive a two-year visa if he or she can show that a qualified US investor is willing to invest in their start-up venture.

Meanwhile, the UK government has launched Go UK, a business plan competition designed to boost investment in the region, open to Australian firms with an interest in expansion to the UK.

Successful applicants receive return airfares to London, where they have access to potential business partners, client contacts, business networks and services.

Shatter is confident his country’s programs will be successful.

“We believe that it can attract people into Ireland – who would not otherwise invest here – to the benefit of our overall economy, with great potential for job creation,” Shatter said.

“The distinct difference between the two schemes is that one scheme – the entrepreneur start-up scheme – would allow an individual… to establish residence in Ireland, initially for two years.”

“They would ultimately be allowed to stay here for up to five years… and they’d be entitled to bring their family with them.”

According to Shatter, the Immigrant Investor Program presents a “broad range” of possibilities.

“For example, an individual who is willing to invest a minimum of two million euros in a low-interest immigrant investor bond,” he said.

“[They] would be allowed to reside in Ireland [but] the investment would have to be for a minimum of five years.”

“Alternatively, there’d be an opportunity to invest a minimum of one million euros of venture capital funding into an Irish business, either an existing business or… new businesses.”

entrepreneur-friendly immigration

tahminawatson — Thu, 26 Jan 2012 17:12:44 +0000

The below article is published by Fierce Homeland Security which reports on the US Chambers of Commerce calling for immigration options for immigrant entrepreneurs, a subject I feel very strongly about. - Tahmina

U.S. Chamber of Commerce argues for entrepreneur-friendly immigration practices

January 25, 2012 — 6:28pm ET | By Zach Rausnitz

The government should create special visas and for potential entrepreneurs and adjust its bureaucracy to ease the immigration process for those who might start businesses or fill skilled labor positions in the United States, says a Jan. 22 report (.pdf) from the U.S. Chamber of Commerce and the Immigration Policy Center.

A new visa category for immigrant entrepreneurs would help the United States compete for people around the world who can start businesses, produce innovations and create jobs for U.S. workers, the report says. Current law typically only permits foreign nationals to remain in the United States if they are employed by an existing company or can invest $500,000 or more, it adds.

There should also be a visa status for students and others who are already lawfully in the United States that grants them a conditional status and time to create and develop a business, says the report.

The report also calls for an “entrepreneur-friendly culture” among those at the Homeland Security Department who adjudicate immigrant applications. To do so, staff should be trained in how 21st century businesses, especially start-ups, operate. DHS should also engage entrepreneurs and new businesses to get feedback on their circumstances and DHS’s process.

The report points out that, according to Census data from 2010 and 2011, 5.1 percent of naturalized citizens were employed in their own incorporated businesses, compared with 3.7 percent of native-born citizens. In Massachusetts, immigrants founded 61 percent of the state’s new businesses in 2008, even though they make up only 14 percent of the state’s population.

Many of those businesses are small businesses like restaurants, food stores and real estate firms, which immigrants often start in low-rent neighborhoods that the businesses help revive. But these entrepreneurs often lack education credentials, in contrast to high-profile immigrant entrepreneurs in science and technology, so DHS should establish visa categories that cater to their circumstances, the report adds.

For more:
- download the report (.pdf)

Obama on Immigration at the State of the Union speech 2012

tahminawatson — Wed, 25 Jan 2012 17:00:57 +0000

President Obama addressed immigration issues at the State of the Union Speech on January 24, 2012. He called for Comprehensive Immigration Reform but recognized that in an election year, it could be a challenge to bring about. So, he said as an immediate step, the Dream Act and Start Up Act (my interpretation) should be passed immediately. Watson Immigration Law welcomes President Obama’s calls for immigration changes and hopes that 2012 will see some much needed improvements for entrepreneurs as well as people who will benefit from the Dream Act. Watch this space!

Here are some excerpts from his speech that relate to immigration:

“I also hear from many business leaders who want to hire in the United
States but can’t find workers with the right skills. Growing
industries in science and technology have twice as many openings as we
have workers who can do the job. Think about that – openings at a
time when millions of Americans are looking for work.” and

“Let’s also remember that hundreds of thousands of talented, hardworking students in this country face another challenge: The fact that they aren’t yet American citizens. Many were brought here as small children, are American through and through, yet they live every day with the threat of deportation. Others came more recently, to study business and science and engineering, but as soon as they get their degree, we send them home to invent new products and create new jobs somewhere else.That doesn’t make sense.

I believe as strongly as ever that we should take on illegal immigration. That’s why my Administration has put more boots on the border than ever before. That’s why there are fewer illegal crossings than when I took office.

The opponents of action are out of excuses. We should be working on comprehensive immigration reform right now. But if election-year politics keeps Congress from acting on a comprehensive plan, let’s at least agree to stop expelling responsible young people who want to staff our labs, start new businesses, and defend this country. Send me a law that gives them the chance to earn their citizenship. I will sign it right away.”

Update on EB5 stakeholder meeting by USCIS on January 23, 2012.

tahminawatson — Mon, 23 Jan 2012 20:55:06 +0000

On January 23, 2012, the USCIS held a stakeholder meeting. A few issues to note are as follows:

The USCIS will defer to State agencies for Targeted Employment Area designation.
2364 applications have been filed already in the first quarter of FY 2012.
As the number of applications has increased, staffing levels have been increased at USCIS to support demand. In summer of 2010, there was only one team to adjudicate these petitions. At present, there are four teams as well as a supervisor and in-house economist.
About 85% of all EB5 visas are processed through consular processing.
It was mentioned that should the demand for EB5 visas exceed the quota, it is likely that cases will have Priority Dates in accordance with dates of filing. Thereafter, visa availability will be updated in monthly visa bulletins (our regular readers will know about our monthly visa bulletin updates, so we will be sure to include this information if and when it becomes necessary).

It was an interesting and helpful meeting. No mention was made of whether Congress will extend the EB5 program beyond 2012 and no mention was made of premium processing.

February 2012 visa bulletin commentary- retrogression warning

tahminawatson — Wed, 11 Jan 2012 05:55:04 +0000

In my previous February 2012 visa bulletin commentary post, I focused on the usual commentary but didn’t highlight the Department of State’s forecast for visa availability in the coming months. Copied below is the text from the February 2012 visa bulletin. It is important to note that EB2 for China and India have a possibility of retrogression later this year. Please see below. At least we saw a whole year’s advancement in EB2 for India this month. That is outstanding and we hope that many of our readers will benefit from it.

D. VISA AVAILABILITY IN THE COMING MONTHS

FAMILY-sponsored categories (monthly)

Worldwide dates:
F1: three to five weeks
F2A: one to two months
F2B: three to four weeks
F3: one to three weeks
F4: up to one month

EMPLOYMENT-based categories (monthly)

Employment First: Current

Employment Second:

China and India: Reports from U.S. Citizenship and Immigration Services (USCIS) indicate that the rate of new filings for adjustment of status in recent months has been extremely low. This fact has required the continued rapid forward movement of the cut-off date, in an attempt to generate demand and maximize number use under the annual limit. Once the level of new filings or USCIS processing increases significantly, it will be necessary to slow or stop the movement of the cut-off. Readers are once again advised that an eventual need to retrogress the cut-off date is also a distinct possibility.

Employment Third:

Worldwide: up to one month
China: up to one month
India: up to two weeks
Mexico: up to one month
Philippines: up to one month

Employment Fourth: Current

Employment Fifth: Current

Please be advised that the above ranges are only estimates for what could happen during each of the next few months based on current applicant demand patterns. The determination of the actual monthly cut-off dates is subject to fluctuations in applicant demand which can occur at any time. Those categories with a “Current” projection will remain so for the foreseeable future.

The International Bar Association 5th Biannual Global Immigration Conference- a brief summary

tahminawatson — Wed, 11 Jan 2012 05:16:18 +0000

This post is rather late but better late than never! (This is a follow up to a previous post)

The International Bar Association held its 5^th biannual Global Immigration Conference in London, UK from September 21^st to 23^rd2011. The conference kicked off with a fabulous boat cruise on the River Thames, giving the opportunity for lawyers from all around the world to mingle informally. I was happy to see several members of the American Immigration Lawyers Association, including the current president of AILA.
On September 22ⁿ^d, the conference, held at the Chancery Court Hotel in central London, formally began with a keynote speech from the UK Home Office Minister Damien Green. Mr. Green outlined the new policies that came into effect recently and provided explanations for why such drastic measures have been taken. This included a background explanation of why student visas in particular were being restricted as well as those schools that sponsor students. The US consul general, Canadian consul general and other such executive dignitaries were on the opening panel who also addressed the audience.

Over the next two days, various topics were discussed at the conference. England appears to be going through some adverse immigration changes in general. (3 weeks later, we saw those announcements). The trend does seem that most countries are having tougher times with immigration. The one exception appears to be Canada. Canada is embracing immigrants, businesses and investments to help boost the country. There was a moment where everyone was feeling rather envious of Canadian immigration laws.

As an immigration attorney with a practice in investment visas, it was interesting to hear how various countries are treating investments visas. Despite all the restrictive measures UK is taking on immigration, investment visas are the one area in which they are trying to make it more appealing to foreign investors.

The conference was an enjoyable and extremely educational event. It was interesting to learn how the global recession has indeed affected immigration on a global level. It was eye opening to learn that immigration issues faced by us in the United States are similar to what other countries are facing. For example, the H1b IT consultant employer-employee difficulties we have been facing in the US were emerging as a problem in the UK. It was striking to learn that US immigration laws have been copied to some extent in other countries.

I would like to thank the organizers of the event at the International Bar Association for holding such a fun and educational conference.

February 2012 visa bulletin commentary

tahminawatson — Fri, 06 Jan 2012 22:12:40 +0000

The February 2012 visa bulletin was released today. Here’s the pertinent information most of my readers are looking for:

For all countries except India, China, Philippines, and Mexico: F2A preference has advanced 48 days to priority date (PD) 8 June 2009 and F2B preference has advanced 38 days to 15 October 2003; F4 moves forward 25 days 8 September 2000; EB2 remains current and EB3 advances 21 days to 22 February 2006.

For India only: F2A advances 48 days to PD 8 June 2009 and F2B advances 38 days to 15 October 2003; F4 advances 25 days 8 September 2000; EB2 advances 365 days (a whole year, wow!) to 1 January 2010 and EB3 advances 7 days to 15 August 2002.

Many people were worried about retrogression in February 2012, it appears that fear is avoided for the time being. Great news for India EB2 for advancing 1 year.

If you have any questions, please feel free to drop me a note. In the meantime, as soon as the March 2012 visa bulletin is released, we will be posting updates.

February 2012 Visa Bulletin released!

tahminawatson — Fri, 06 Jan 2012 21:50:13 +0000

The long awaited February 2012 visa bulletin was released today. Our usual commentary will follow shortly. Stay tuned!

USCIS Announces Its Intent to Implement Stateside Processing of Unlawful Presence Waivers

tahminawatson — Fri, 06 Jan 2012 20:18:16 +0000

Copied from AILA

Advance copy of the USCIS notice of intent to consider regulatory changes that would allow certain immediate relatives to request unlawful presence waivers under section 212(1)(9)(B)(v) of the INA, prior to departing the U.S. for consular processing of their immigrant visa application.

The notice will be published in the Federal Register on 1/9/12.

Also, here is a great article from the NY Times explaining what this means. Essentially, the spouse/child/parent of a US citizen who entered the US illegally, now can receive a waiver from within the US before interviewing at the embassy. Up until this announcement, one would have to wait several months outside the US for the embassy to make a decision on the case. This is an incredible change in policy that will help keep families together while processing continues.

USCIS to Propose Changing the Process for Certain Waivers

tahminawatson — Fri, 06 Jan 2012 19:00:00 +0000

The USCIS made the below announcement today (text copied from USCIS), which is really BIG news. However, it is not clear when the new procedure will go into effect. We will post updated news when it becomes available.

Introduction

On Jan. 6, 2012, U.S. Citizenship and Immigration Services (USCIS) posted a notice of intent in the Federal Register outlining its plan to reduce the time that U.S. citizens are separated from their spouses and children under certain circumstances while those family members go through the process of becoming legal immigrants to the United States. Currently, spouses and sons and daughters of U.S. citizens who have accrued a certain period of unlawful presence in the United States, and have to leave the country as part of the legal immigration process, are barred from returning to their families for as long as 3 or 10 years. They can receive a waiver to allow them to return to their families by showing that their U.S. citizen family member would face extreme hardship as a result of the separation. This proposal would streamline the processing of these individuals’ waiver applications based on unlawful presence; USCIS proposes to process their waiver applications in the United States before any American family faces separation. The process would only apply to immigrants who are eligible for a visa.

Under the proposed process, the spouses and children of U.S. citizens who are eligible for a visa to immigrate legally to the United States, but who need a waiver of inadmissibility for unlawful presence in order to obtain that visa expeditiously, would apply for a provisional waiver before leaving the United States to have their immigrant visa application processed at a U.S. embassy or consulate abroad (as they must pursuant to law). The notice limits the streamlined process to those individuals who are inadmissible based solely on having accrued a period of unlawful presence and – pursuant to statutory requirements – who can demonstrate extreme hardship to their U.S. citizen relative. All individuals affected by this streamlined process would need to meet all legal requirements for admission to the United States, including the requirement that they process their visa application at a U.S. consulate abroad.

With the change outlined in the notice, individuals who currently qualify for a waiver of inadmissibility under the existing eligibility standards, and who can demonstrate that separation from their U.S. citizen spouse or parent would cause extreme hardship to that relative, would be allowed to apply for a waiver while still in the U.S.

By allowing these individuals to apply for waivers in the U.S. and making a provisional determination of waiver eligibility before the individuals must depart the country for visa processing, USCIS would provide a more predictable and transparent process and improved processing times, minimizing the separation of U.S. citizens from their families. The change would also streamline the process for both USCIS and the Department of State (DOS) when handling requests for these waivers. As a result, this change would encourage individuals who may be eligible for a waiver of inadmissibility to seek lawful readmission to the United States by limiting the amount of time they would need to spend away from their U.S. citizen spouse or parent.

Following publication of this notice, USCIS will undertake further analysis and collaborate with the Department of State to develop the streamlined process in greater detail. USCIS plans to publish a notice of proposed rulemaking in the coming months that will provide additional details and allow the opportunity for public comment. A final rule will then be published to implement the streamlined process. The rule will not modify the underlying standard for assessing whether denial of the waiver would result in extreme hardship to the U.S. citizen spouse or parent of such individuals. It would modify only the process by which these applications may be filed and accepted by USCIS for processing.

Questions and Answers

Q. Why is USCIS proposing the change?

A. This proposed change will reduce the time that U.S. citizens are separated from their spouses and children under certain circumstances while those family members are going through the process of obtaining visas to become legal immigrants to the United States. Under current policy, individuals who wish to apply for a waiver of inadmissibility for unlawful presence must leave the U.S. and apply for a waiver at a U.S. consular office outside the United States. This process can be lengthy and discourages individuals who may be eligible for this waiver from applying, which delays their ability to lawfully reenter the U.S. The proposed change would reduce the amount of time that U.S. citizens would be separated from their spouses and children while the process to obtain a visa to immigrate takes place. This reflects the Administration’s strong commitment to efficiency in the administration of immigration law and facilitation of legal immigration.

Q. How is the proposed process different from the current process?

A.Currently, U.S. citizens who petition for their spouses and children to become legal immigrants to the United States must petition for a visa, and in some circumstances, if the spouse or child has accrued more than 180 days of unlawful presence in the U.S., that spouse or child must also petition for a waiver of a ground of inadmissibility in order to have his or her visa application processed. The proposed process does not change the requirements for obtaining a visa or the standards for obtaining a waiver. Nor does it change the requirement that the spouse or child of a U.S. citizen ultimately depart the United States to have his or her visa application processed at a consulate abroad. The only change contemplated by this proposal is that the spouse or child would be able to apply for a waiver with USCIS in the U.S. and receive a provisional decision on that waiver before departing the U.S. for consular processing of their immigrant visa applications. Currently, applicants can only file for a waiver after having been determined inadmissible by the U.S. consular officer and must wait abroad for a decision, which significantly adds to the processing time for their case. The proposal limits the extent to which the process forces the lengthy separation of families.

Q. When will this streamlined process be implemented?

A. The process will be implemented only after USCIS issues a final rule. In the coming months, USCIS plans to publish a notice of proposed rulemaking and will consider the comments received as part of that process before publishing a final rule. The current process will remain in place until a final rule goes into effect. No one should file an application with USCIS based on this proposed change in process. Any applications filed with USCIS based on this notice will be rejected and the application package returned to the applicant, including any fees until the final rule is issued and the change becomes effective.

Q. Who would be eligible for a provisional waiver?

A.Spouses and children of a U.S. citizen (1) who are seeking lawful permanent residence through an immigrant visa, (2) who are found inadmissible based on unlawful presence in the United States for more than 180 days, and (3) who meet the existing extreme hardship standard. Children under the age of 18 do not accrue unlawful presence and, as a result, are not required to obtain a waiver.

Q. Why is this proposed streamlined process limited to the spouses and children of U.S. citizens?

A.The policy objective of this proposed process change is to alleviate extreme hardship suffered by U.S. citizens. USCIS has thus identified immediate relatives of U.S. citizens as the class of aliens to consider for this procedural change. In addition, their immigrant visas, which are not subject to annual limitations, are always immediately available. The focus on U.S. citizens and their immediate relatives is consistent with Congress’ prioritization in the immigration laws of family unification. This proposal meets the goals of both improving efficiency and reducing the length of time that American families are unnecessarily separated.

Q. How would the proposed process affect existing standards related to unlawful presence and the extreme hardship standard?

A.It would not. The proposed process retains all of the legal standards and policies related to unlawful presence determinations and establishing extreme hardship. It would simply provide for the processing of these waivers in the United States instead of abroad.

Q. Will individuals who recieve the waiver be able to adjust their status without leaving the United States?

A. No. The visa process itself is not changing. Individuals who receive a provisional wavier would still be required to depart the United States to apply for their immigrant visa.

Q. Is everyone who has accrued more than 180 days of unlawful presence subject to a three- or 10-year bar from entering the U.S.?

A.Yes; however, some aliens do not accrue unlawful presence if they fall into certain categories. For example, children under the age of 18 do not accrue unlawful presence for any period of time before their 18th birthday. Similarly, under current law, certain victims of crime and aliens with pending asylum applications do not accrue unlawful presence while their application is pending.

Q. If an individual already filed a Form I-601 from outside the U.S., would the proposed process affect him or her?

A.No. It would only affect individuals who have not yet filed a Form I-601 and who will file a waiver request after a final rule is published.

Q. Would USCIS collect biometrics as part of the streamlined process?

A.Yes. It is contemplated that applicants in the United States would be scheduled for biometrics collection at a USCIS Application Support Center.

Q. Why does USCIS refer to the waiver as “provisional?”

A.In the proposed process, USCIS would grant the provisional waiver before the applicant departs the U.S. for consular processing of their immigrant visa applications. The provisional waiver, however, would not take effect until the individual departs from the United States and triggers the covered ground of inadmissibility. Moreover, the provisional waiver covers only the unlawful presence grounds of inadmissibility. If the consular officer finds during the immigrant visa interview that the individual is subject to another ground of inadmissibility, the individual would need to file another waiver application with USCIS.

Q. What would happen at the consular interview?

A.If DOS found the individual otherwise eligible for the immigrant visa, the consular officer would then issue the visa, allowing the individual to immigrate to the U.S.

Q. What would happen to individuals who are not eligible to file a waiver under the proposed process?

A.They would continue to follow current agency processes for filing waiver requests after a determination of inadmissibility is made by a U.S. consular officer overseas.

Q. What would happen to individuals who are denied waivers under the proposed process?

A.They would be subject to USCIS guidance and law enforcement priorities for issuing Notices to Appear (NTA). For example, convicted criminals, public safety threats, and those suspected of fraud will receive NTAs.