How Unexpected Changes In The H-2B Visa Process Affect Seasonal Workers

A number of U.S.-based businesses are now hoping that they will have enough seasonal employees to stay open through the summer of 2018.

Why the worry? Because of an unexpected change in the way H-2B visas are being issued to temporary foreign workers.

You are likely going to be impacted by the change if you own a business that hires seasonal foreign employees – or even if you vacation or dine out during the summer.

Early in March, U.S. Citizenship and Immigration Services (USCIS) announced that due to an unexpected surge in the number of H-2B visa applications, and also due to processing delays at the Department of Labor (DOL), H-2B visas are now being handled differently.

HOW ARE H-2B VISAS NOW BEING APPROVED?

USCIS is now using a lottery system to approve H-2B visa petitions instead of using the “first-come, first-served” system that USCIS had previously announced and used for H-2B visas.

Why is that change important? It means the U.S. businesses that request H-2B visas can be far less sure that they will be granted visas for the seasonal foreign workers they will need this year.

HOW ARE EMPLOYERS RESPONDING TO THE CHANGE?

Timothy McNulty is a co-owner of the Lobster Pot, a restaurant in Provincetown, Massachusetts. What he told the Cape Cod Times echoes the sentiments of scores of business owners this spring:

“They went against what they said they were going to do. They’re changing the rules as they go. We’re all in a holding pattern. The worst part about this is, here we are March 1, and we have no idea. I don’t know if I’m getting part of my staff … It was a hard slap in the face.”

HOW DO EMPLOYERS OBTAIN H-2B VISAS?

The H-2B visa program permits foreign workers from sixty-two nations to be employed temporarily in the United States so that U.S.-based employers can meet seasonal labor shortages.

The employers who seek H-2B visas must offer those jobs first to U.S. workers and must advertise those jobs before the employers can be certified by the DOL to hire foreign workers.

If certified by the DOL, employers may then apply to USCIS for the H-2B visas they need. Finally, if those visas are granted, employers must obtain final approval for the particular individuals they want to hire.

The number of available H-2B visas is capped by Congress at 66,000 per year: 33,000 for the workers who are hired from October through March and another 33,000 for the workers who are hired from April through September.

WHAT TYPES OF WORK ARE H-2B EMPLOYEES HIRED FOR?

H-2B visas are provided primarily for seasonal positions in the hospitality and food industries – housekeepers, short-order cooks, dishwashers, meatpacking workers, and similar types of positions.

2018, however, is the first year that a lottery system has been used to approve H-2B visa requests.

USCIS received requests for approximately 47,000 workers from about 2,700 employers in February. USCIS conducted the H-2B lottery for the second half of fiscal 2018 on February 28th and approved 33,000 visas.

Representative William Keating (D-Massachusetts) said that using a lottery system to approve H-2B visas reflected “ineptness at its best and arrogance at its worst.”

“Thousands of businesses across the country will not be able to fully operate without H-2B worker assistance,” the congressman said in a brief statement.

WHY HAVE H-2B VISAS BEEN SO POPULAR POLITICALLY?

The H-2B visa is not generally considered politically controversial. It has considerable support in both parties since politicians want to advance the interests of the industries in their own states.

Senator Thom Tillis (R-North Carolina) says the H-2B program “is vital for businesses that desperately need temporary help to keep their doors open and keep their American workforce employed.”

It is simply not true that U.S. businesses use the H-2B program to save money by hiring cheap labor.

Employers pay for the visa application fees, and some U.S.-based companies even reimburse an employee’s transportation costs for travel to the United States.

In Ohio and Michigan, food packing and processing are the businesses that request the most H-2B visas.

If you hire seasonal foreign workers using H-2B visas, let an experienced Michigan or Ohio immigration attorney review your situation and discuss your options and possible alternatives.

HOW CAN AN IMMIGRATION LAWYER HELP?

U.S.-based employers who seek to hire temporary foreign workers face an avalanche of complex paperwork. An attorney can help you with it.

For example, before USCIS will approve an employer’s petition for temporary workers, that employer must file a labor certification application with the Department of Labor declaring that:

1. An adequate number of qualified U.S. workers are not available for the positions.
2. Hiring H-2B employees will not negatively impact the working conditions and wages of U.S. workers in similar positions.

Especially now, U.S.-based employers must not file visa petitions without legal advice and review. A good immigration lawyer will spot and help you avoid the mistakes that can get a visa petition rejected.

If you are a U.S.-based employer and you can’t find the employees that you need locally, discuss your circumstances with an experienced Michigan or Ohio immigration attorney.

If you are a temporary foreign worker in the U.S. with questions about your visa, your employment rights, or your legal status, a good immigration lawyer can answer those questions and address your concerns.

Employers who bring H-2B workers to the U.S. must comply with all employment and immigration laws.

WHAT KIND OF LEGAL GUIDANCE DO EMPLOYERS NEED?

A multitude of regulations govern employers who hire foreign employees, so you must have the sound and knowledgeable advice of an attorney who knows immigration law comprehensively.

Immigration laws change constantly, and the current legal and political situation is frankly unpredictable, so it is imperative to have the guidance of a knowledgeable immigration lawyer who stays on top of the ongoing developments.

EB-5 Applications Are On The Rise In India

Thousands of Indians are planning to arrive in the U.S. and invest in a business or start up a new business. Why are they doing it? Why now?

The EB-5 program lets Indians and other immigrants invest in a U.S. business or development project. Investors and their immediate family members receive green cards in return.

WHO CAN OBTAIN AN EB-5 VISA?

The EB-5 visa program offers two basic investment options. Who can qualify?

1. Indians and other investors who can place at least $1 million in a U.S.-based business and create at least ten new full-time jobs can qualify for an EB-5 visa.

2. Indians and others who invest in a pre-designated “Targeted Employment Area” or “TEA” can qualify for an EB-5 visa with a minimum investment of $500,000.

A quarter of the Indians who sought EB-5 visas in 2016 chose the first option – investing at least $1 million.

That’s a far higher figure than the overall percentage of EB-5 applicants who choose that option – about five to seven percent.

HOW DOES A “TEA” INVESTMENT WORK?

To receive a TEA designation, the EB-5 investment must be made in a rural area or in an area where the unemployment rate is at least 150 percent of the national U.S. unemployment rate.

By providing permanent legal residency – a green card – to qualified Indians and others, the EB-5 visa program expands the U.S. economy by providing great investment opportunities.

EB-5 visa applications from India have tripled in just the last three years, a figure that reflects an increasing interest in the United States among Indian investors.

WHY ARE EB-5 VISA APPLICATIONS SOMETIMES REJECTED?

That interest is rising despite the rejection of about a third of the EB-5 applications originating from India – 34 percent in 2016. The three leading reasons for that high rejection rate are:

1. an inaccurate or incomplete EB-5 visa application
2. a lack of the required educational, financial, or employment records or other documents
3. choosing an investment option that does not qualify for the EB-5 visa program

EB-5 visa applicants also must prove that their investment funds were obtained legally. This requirement serves to keep criminal gains from going into legitimate U.S. investments.

HOW CAN A U.S.-BASED IMMIGRATION LAWYER HELP?

An experienced, U.S.-based Michigan or Ohio immigration attorney can help Indian investors:

1. complete an EB-5 visa application
2. identify the additional documents that will be needed
3. choose a qualified and appropriate investment option
4. prove that their investment funds were legally acquired

WHY IS INTEREST IN EB-5 VISAS INCREASING?

Some observers believe that the rising Indian interest in EB-5 visas is a consequence of the lengthy waiting lists for EB-2 and EB-3 employment-based visas.

In October 2017, the U.S. State Department reported that Indian applicants wait about nine years in the EB-2 advanced degree category and about eleven years in the the EB-3 skilled worker category.

India’s growing prosperity, combined with a rising awareness about the EB-5 program, are also cited as reasons for the recent increasing interest by Indian investors in the EB-5 visa.

WHAT SHOULD INVESTORS KNOW ABOUT THE EB-5 VISA PROGRAM?

Investors who are unfamiliar with the EB-5 visa program may welcome a brief introduction, so keep reading. The EB-5 visa category was created by the Immigration Act of 1990.

It is the only immigration category that allows Indians and other investors to enter the United States as legal permanent residents – green card holders.

In recent years, investors not only in India but around the globe have responded to the EB-5 program with rising interest.

For example, since 2008, the number of EB-5 visas being issued has more than quadrupled.

EB-5 investments surpassed $2 billion in 2014 and created over 16,000 new full-time jobs in the United States that year.

WHAT IMPACT ARE INDIANS HAVING IN THE UNITED STATES?

Indian immigrants in the U.S. have reached the top ranks at major corporations. Satya Nadella became the CEO at Microsoft in 2014; Sundar Pichai was named the CEO at Google in 2015.

In fact, the Migration Policy Institute tells us that about 90,000 immigrants from Indian now live in Silicon Valley, and most of them are employed in the tech industry.

The Indian-born population in the United States – which numbered barely 200,000 in 1980 – today exceeds 1.8 million.

At the present time, 10,000 EB-5 visas are offered each year to international investors.

HOW DOES THE EB-5 PROGRAM ENHANCE THE U.S. ECONOMY?

U.S. developers are coming to rely more frequently on EB-5 investments to finance projects that include posh new hotels, new stadiums with all the amenities, and luxury vacation resorts.

EB-5 investments have totaled more than $6.5 billion – and have created over 130,000 new jobs in the United States – in the last decade.

HOW IS THE EB-5 PROGRAM BENEFITING INTERNATIONAL INVESTORS?

Every qualified investor – from any nation – may apply for an EB-5 visa.

As the terms of the EB-5 program are met – ten new jobs must be created, for example – the investors and their immediate family members qualify for lawful permanent residence.

Acquiring an EB-5 visa and choosing just the right investment takes genuine time and effort, but scores of Indian investors are learning that the benefits of the EB-5 visa are worth that effort.

The EB-5 visa program makes the American Dream available to qualified investors.

It also provides developers and business owners in the U.S. with a vital funding option. The typical return on EB-5 investments is approximately eight percent.

However, many investors from India and elsewhere care more about acquiring green cards, a path to U.S. citizenship for themselves and their families, and university educations for their children.

TO ACQUIRE AN EB-5 VISA, WHERE DO YOU BEGIN?

Indian investors who are seeking a great investment opportunity in the U.S. should consult from the beginning with a U.S. immigration lawyer who routinely works with international investors.

The EB-5 visa program is an excellent path to permanent residence – and to eventual citizenship – in the United States.

Investors can learn more or begin the application process by consulting an experienced, U.S.-based Michigan or Ohio immigration attorney – online or by phone.

As mentioned previously, only 10,000 EB-5 visas are available each year, so many investors will have to wait two or three years and sometimes longer. And that means the time to get started is now.

To learn more, speak promptly – from anywhere in the world – with a U.S. immigration lawyer who can answer your questions and help you obtain an EB-5 investor visa.

H-1B Visa – What To Expect In 2018

Employers seeking H-1B visas in 2018 will be submitting their visa petitions at a moment when a variety of immigration changes are being proposed and considered.

As you probably know, the policy of the current White House is to tighten the loopholes in current immigration laws and to enforce those laws aggressively.

U.S.-based employers who are considering hiring foreign workers on H-1B visas should contact us immediately.

Every year, U.S. Citizenship and Immigration Services (USCIS) accepts only a limited number of petitions for new H-1B visas.

The demand for these visas has far exceeded the supply on the first available day to file (April 1) for the last several years.

So if the employer’s H-1B applications were not 100% complete, accurate, and on time, the employer (and the employees) could miss out on the opportunity to obtain an H-1B visa and then be forced to wait another year.

So right now, U.S.-based employers are deciding what their H-1B needs are, and they’re working with immigration lawyers to make sure that their H-1B applications are carefully prepared.

WHO QUALIFIES FOR H-1B VISAS?

H-1B visas are nonimmigrant work visas that allow U.S.-based employers to hire professional foreign employees in a “specialty occupation.”

The employee and the employer both must satisfy exacting criteria and qualifications before an H-1B visa will be issued.

To be eligible for an H-1B visa, foreign employees must possess at least a bachelor’s degree or its equivalent in a field that is closely linked to the offered position.

The U.S.-based employer must also have a position available that requires a bachelor’s degree in the specific field of study.

WILL H-1B VISA EXTENSIONS BE ELIMINATED?

Under current U.S. immigration law, there are limited circumstances that enable an H-1B worker to extend H-1B status beyond the initial six-year maximum.

If the process to obtain an employment-based green card for the H-1B employee has begun, an extension may be possible.

A plan to eliminate that extension has been rumored.

Such a plan would compel hundreds of thousands of predominantly Indian H-1B visa holders in a variety of highly-skilled jobs to leave the U.S.

However, according to Jonathan Withington, the chief of media relations for USCIS, such a plan is not under consideration.

Witherington explained to Newsweek, “The agency is considering a number of policy and regulatory changes to carry out the president’s ‘Buy American, Hire American’ executive order, including a thorough review of employment-based visa programs.” But he added, “USCIS is not considering a regulatory change that would force H-1B visa holders to leave the United States by changing our interpretation of … H-1B extensions beyond the 6-year limit.”

WHAT CHANGES TO THE H-1B VISA PROGRAM ARE UNDER CONSIDERATION?

At least for now, the extensions discussed above proceed as usual. Unfortunately, in the absence of new legislation, immigration authorities may make more aggressive use of their existing enforcement tools.

For example, mandatory face-to-face interviews with H-1B candidates could add another hurdle to an already lengthy process and could also give immigration authorities one more opportunity to refuse to grant the visa to particular candidates.

More H-1B candidates and their sponsoring employers are also receiving much higher volume of requests for evidence (RFEs), which can significantly delay the process and burden both the employer and employee with cumbersome document requests.

The USCIS requests for evidence usually question a U.S. employer’s need for the H-1B visa or challenge the employer’s qualifications for obtaining the visa.

Employers, through their attorneys, must then submit more evidence to prove eligibility and need.

That’s another reason why employers seeking H-1B visas should have the advice and counsel from skilled immigration attorneys from the very beginning of the H-1B visa application process.

HOW MANY REQUESTS FOR EVIDENCE ARE BEING MADE?

According to Reuters, from January 1 through August 31, 2017, USCIS issued approximately 85,000 requests for evidence to H-1B visa petitioners.

To give some perspective, this is a 45 percent increase over the same time period in 2016, while the number of actual H-1B petitions received by USCIS increased by only about 3 percent.

Visa holders and employers also cannot expect that H-1B extensions will be virtually assured, as they may have been in the past.

Employees on student visa (F-1) seeking longer term employment through the H-1B program should also know that there is a proposal under consideration that could eliminate or reduce the length of the Science/Technology/Engineering/Mathematics (STEM) Optional Practical Training (OPT) program – a program that currently can provide two additional years of employment authorization after the initial one-year post-completion period of employment authorization.

Another proposal that Congress is considering would raise the minimum annual salary for employees holding H-1B visas from $60,000 to $90,000.

Clearly, if such a proposal becomes law, it would reduce or even remove the ability of many employers to sponsor the highly-skilled employees they need.

SO WHAT CAN H-1B VISA PETITIONERS GENERALLY EXPECT THIS YEAR?

In general, U.S.-based employers, and the potential employees they seek to sponsor, can expect more frequent and longer delays throughout the H-1B visa application process.

Additional interviews, additional requests for evidence, and heightened scrutiny of every detail of the visa petition should not, in most cases, be a cause for alarm.

Of course, with only 85,000 new H-1B visas made available each year, some will miss out.

Experienced immigration attorneys can make sure that an employer’s H-1B visa petition is accurate and complete and can put an employer in the best possible position to have its application approved. With this year’s April 1 deadline quickly approaching, employers must act now.

Fortunately, for employers who are unable to obtain H-1B visas, there may be practical alternatives.

In fact, for some employers and employees, an L-1 “intracompany transfer” visa or an O-1 visa for individuals with “extraordinary abilities” may be more appropriate than an H-1B visa.

If you are a U.S.-based employer, immigration attorneys can explain your options and help you acquire the visas that your company needs to meet business goals.

Applying For Permanent Residence While On An H-1B Visa

If you are an immigrant who is here in the United States on a temporary work visa, in most cases, you may not apply for permanent residence in the U.S.

However, the H-1B temporary nonimmigrant work visa is an exception.

How do H-1B temporary employees apply for lawful permanent residence, and what is the role of the employer who originally acquired the visa?

But first, a brief explanation of the H-1B visa. U.S.-based businesses use H-1B visas to hire scientists, engineers, mathematicians, computer programmers, and other international workers with highly specialized skills and knowledge.

Every year, U.S. Citizenship and Immigration Services (USCIS) accepts H-1B visa petitions from U.S.-based employers during a short filing period that begins on April 1st.

At the present time, 85,000 H-1B visas are made available to U.S.-based employers every year, and the demand for those visas far exceeds the supply.

Of the 85,000 H-1B visas offered annually, 20,000 are reserved for immigrants who hold advanced degrees from U.S.-based institutions.

WHEN DO H-1B VISAS EXPIRE?

The remaining 65,000 H-1B visas go to employers hiring international workers who possess (at least) a bachelor’s degree or its equivalent.

The H-1B visa is good for three years and may be renewed once for a maximum of six years. H-1B visas are quite difficult – but not impossible – for employers to acquire.

In fact, scores of employers across the United States are right now determining their H-1B visa needs for the filing period which will begin on April 1, 2018.

If you are a U.S.-based employer and you need to acquire H-1B visas for international employees, you must understand that the competition among employers for these visas is intense.

There are no guarantees, but a skilled immigration attorney can help an employer avoid any misunderstandings or mistakes might keep a company from obtaining the H-1B visas it needs.

A good immigration lawyer can also help an employer complete and file the Form ETA 9089 as well as the Form I-140 – explained below – and can put an employer in the best possible position to acquire H-1B visas.

IF YOU ARE SEEKING A GREEN CARD, CAN AN IMMIGRATION LAWYER HELP?

For the international employee/visa holder, your application for an H-1B work visa permits you to indicate your intention to seek lawful permanent resident status as one of the reasons you are requesting an H-1B visa and entry into the United States.

An immigration attorney in Michigan or Ohio can guide you through the application process and help you understand the terms and conditions of a temporary H-1B work visa.

When you arrive in the United States with an H-1B visa, you may begin the process of seeking permanent residence status. What’s the first step?

Your employer must apply for Permanent Labor Certification from the Department of Labor (DOL).

After the Permanent Labor Certification application (Form ETA 9089) is submitted, the procedure usually takes from 120 to 180 days.

A labor certification from the DOL verifies that there are not enough qualified and available U.S. workers for the position that is being filled by the international employee, and it additionally confirms that hiring an international employee will not negatively impact the working conditions or wages of U.S. workers in comparable positions.

WHAT IS FORM I-140?

After approval of Form ETA 9089, the employer must file Form I-140 (“Immigrant Petition for Alien Worker”).

Form I-140 establishes that the international employee qualifies for an immigrant visa based on employment and that the U.S.-based employer has the funds and assets necessary to pay the worker the wage confirmed in the labor certification process.

Most employers will need the guidance of a qualified immigration attorney through the labor certification process.

If you are the employee, however, and the company goes out of business while the labor certification is pending, you’ll either have to leave the U.S., immediately find another employer and transfer your H-1B work visa, or apply for a tourist visa to legally remain in the United States.

If you are a U.S.-based employer or an H-1B specialized international employee with concerns or questions about permanent labor certification, let a skilled immigration lawyer help.

For example, your attorney can review or help you fill out the Form ETA 9089 to ensure your compliance with the DOL’s many permanent labor certification regulations.

WHAT IS ADJUSTMENT OF STATUS?

“Adjustment of Status” is the process of applying for permanent resident status in the United States; it’s the final step of the H-1B visa-to-lawful permanent resident process.

To apply for Adjustment of Status, the H-1B visa holder must submit Form I-485 (“Application to Register Permanent Residence or Adjust Status”).

Lawful permanent residents – “green card” holders – may live, work, and attend school in the United States and may travel abroad at will.

However, they may not vote or hold certain federal jobs, and when lawful permanent residents are convicted of crimes or otherwise abuse their status, they may be subject to deportation.

WHAT SHOULD THOSE WHO SEEK GREEN CARDS KEEP IN MIND?

If you are an international employee who is in the United States on an H-1B visa and you are ready to seek a green card, or if you are not ready but you want to learn more about lawful permanent resident status, speak personally with an immigration attorney, and take seriously these suggestions:

Don’t become a victim. No one legally sells visas, green cards, or other immigration documents. Steer clear of the con artists and always have the advice of a good immigration lawyer.

Fill out every form and document accurately and completely. Otherwise, your application could be delayed or even rejected.

A good immigration lawyer will see to its that your forms are complete and accurate and that all deadlines are met.

Make and keep copies of all immigration-related forms, documents, and other papers.

Whenever you send an immigration document through the U.S. Postal Service, send it by certified mail and ask for a return receipt that will confirm the delivery.

Whether you are the employer or the employee, a good immigration attorney will be able to answer your immigration-related questions and address your concerns.

And because acquiring an H-1B visa isn’t something that can be guaranteed, an experienced immigration lawyer also will explain your other visa options and help you obtain the visas – or the green card – that you need.

Can a Revoked Visa be Reinstated?

If you hold a U.S. visa, you should understand that your visa can be revoked or canceled at any time and for a variety of reasons.

Visa holders must adhere to the terms and conditions of the visa, and they must exit the United States when their stay expires.

If you have any questions about obtaining a visa, or if you are a visa holder with any questions about the terms and conditions of your visa, have those questions answered by an Ohio immigration attorney.

The United States issues two types of visas: A “nonimmigrant” visa is issued to those who have been approved for temporary stays in the United States as visitors, students, or employees.

An “immigrant” visa is issued to immigrants who have been approved for lawful permanent residence in the U.S.

According to CNN, in the fiscal year 2016, the United States issued more than ten million nonimmigrant visas and over 600,000 immigrant visas.

Every visa spells out the activities that are and are not permitted to the visa holder.

For example, someone who holds a B-2 tourist visa cannot work or accept employment in the United States.

That person would have to apply for a change of status and obtain a work visa – an H-1B visa, for example – in order to work or accept employment in the U.S.

WHAT HAPPENS WHEN A VISA IS REVOKED?

Visa holders who are outside of the United States should know that a consular officer is authorized to revoke both immigrant and nonimmigrant visas at any time, at his or her discretion.

A revoked visa is no longer valid for entry or reentry into the United States. It is not uncommon for a consular officer to approve a visa, and after new information emerges, to revoke that same visa.

A visa can be revoked if the visa holder is deemed inadmissible to the U.S. on security, criminal, medical, financial, or other grounds, or if the visa holder is ineligible for that particular visa category.

A visa might also be reinstated after new information emerges or after an interview with a consular officer, or the officer might simply suggest applying for a new visa.

From 2001 through 2015, approximately 122,000 U.S. visas were revoked.

Visa revocations targeting visa holders who are already in the United States are becoming more frequent.

For example, a visa may be revoked if the visa holder became involved in a criminal incident in the U.S.

A minor criminal incident – even an arrest where the charge is dropped – could potentially result in a visa revocation.

Any visa holder in the U.S. facing this kind of situation should contact an immigration lawyer for legal assistance at once.

WHAT HAPPENS WHEN A VISA IS CANCELLED?

A visa cancellation is usually less serious than a revocation, and a cancellation does not necessarily mean that the visa holder is being accused of doing anything wrong.

A visa might be canceled because of a minor paperwork mistake, for example, but that merely means that the mistake must be corrected before the visa can be approved.

A U.S. consulate or embassy will mark the visa “Cancelled Without Prejudice,” which means that the cancellation does not impair the individual’s eligibility to obtain a valid visa and enter the United States.

A visa might also be canceled, however, if any evidence emerges that the visa holder may use the visa for a purpose other than those purposes spelled out by the visa’s terms and conditions.

And a visa can be revoked if someone applies for a new visa and any evidence emerges that the old visa was misused in some way.

One leading reason why visas are revoked is “overstays,” when visa holders remain in the U.S. beyond the time allowed by the visa.

According to the Department of Homeland Security, the rate of overstays for business travelers and international tourists was only 0.9 percent in 2015, or about 416,000 out of about 45 million.

It’s vital for visa holders to know that the “expiration date” printed on a visa is not the last day that the visa holder is allowed to be in the United States.

Instead, that date indicates the last date that the visa can be used as a document for entry into the U.S.

It’s a significant difference and often the source of confusion.

A visa holder’s Form I-94 Arrival/Departure Record is where you will find the actual date when a visa holder must exit the United States.

If a visa holder remains in the United States after that date – without a pending application for a change of status or a visa extension – that individual’s visa will be automatically canceled.

IF YOUR VISA IS CANCELLED OR REVOKED, WHAT SHOULD YOU DO?

When a visa is canceled, the visa holder must leave the U.S. at once – or delay his or her plans to enter the U.S. – until that person has applied for and been approved for a new visa.

If you believe that your visa has been unjustly, unfairly, or wrongly canceled or revoked, you should challenge that decision aggressively.

In some cases, a visa revocation can result in the visa holder being barred for years – sometimes permanently – from the United States.

Even the ability of your family members to obtain visas could potentially be affected.

Individuals should speak with an immigration lawyer if they need legal advice about their visa status, their eligibility for admission to the United States, or any other matter of immigration law. Visa and eligibility matters are sometimes exceedingly complicated.

Do not hesitate to contact an experienced Ohio immigration attorney about any questions, problems, or concerns regarding your visa or your immigration status. You’ll receive sound legal guidance.

While these are serious matters, the fact is that most problems with visas can be remedied easily with an attorney’s help, and most of the people who are facing these issues will remain eligible to obtain visas and enter the United States.

Just as the government can cancel or revoke a visa, the government can reinstate a visa or issue a new visa.

If it’s necessary, a good immigration lawyer can represent you before immigration authorities, protect your legal rights, and advocate on your behalf at a legal proceeding or immigration hearing.

Lame-Duck Congress Ignores Chance For EB-5 Reforms

The EB-5 immigrant investor visa program bolsters the U.S. economy through capital investment and job creation. Each year, up to 10,000 EB-5 visas are offered to international investors who place a minimum of $500,000 into development projects or into other investments that create at least ten full-time jobs for U.S. workers. The investor and his or her qualifying family members will receive green cards after two years, provided that the ten or more jobs have been created and that all other EB-5 requirements have been met.

EB-5 visa applications nearly tripled from 2013 through 2015, but the visa’s popularity has also exposed what critics say are serious flaws with the way the EB-5 investor visa program operates. Just before leaving Washington for the holidays, the last Congress renewed the EB-5 visa program for another four-and-a-half months as part of a year-end spending bill. Despite the controversies that surround the program, no reforms were made in 2016. Senate Judiciary Committee Chairman Chuck Grassley, one of the lawmakers who believe the program needs reform, said, “After another year, we have yet another missed opportunity.”

The EB-5 program – and the several controversies associated with it – will now be inherited by a new President and a new Congress. The EB-5 program was initially established during the first Bush Administration to encourage international investors to place considerable amounts of capital into new U.S.-based business ventures. In the years since, Congress has enhanced the EB-5 program’s appeal to foreign investors in a number of ways, including a less precise definition of job creation and a lower minimum investment amount.

WHAT IS THE APPROVAL RATE FOR EB-5 APPLICATIONS?

International investors have responded with rising interest in the EB-5 program, and the approval rate for the EB-5 visa is about 90 percent. The EB-5 offers international investors a path to U.S. citizenship if they invest at least $1 million in most instances, although a half-million dollar investment is the minimum that’s required if the investment is in an economically-depressed region.

A Government Accountability Office report published in September 2016 says that the Department of Homeland Security is currently addressing several potential fraud risks in the EB-5 program. And despite the President-elect’s well-known opposition to undocumented immigration, some advocates of the EB-5 are even expecting the program to flourish under the new Trump Administration.

“His strong stance [is] against illegal immigration,” said former New York Governor George Pataki at a recent investment conference in China. “And EB-5 is a legal immigration program. He understands the need for capital, the need for investment.” The executive director of the U.S. Immigration Fund, Charles Gargano, also believes that the EB-5 program will thrive because of Mr. Trump’s own experience as an investor. “Under President-elect Trump, a developer himself, he will magnify the need for a program like this,” Gargano explained to the same conference in Shanghai in November.

HOW SOON ARE EB-5 REFORMS LIKELY TO HAPPEN?

Mr. Trump’s son-in-law, Jared Kushner, is in charge of a Jersey City complex that has purportedly leveraged $50 million in EB-5 funds as a portion of its financing. And despite broad agreement that the EB-5 visa program needs reform, drastic change isn’t likely under the new administration and new Congress, according to David North, a spokesperson at the Center for Immigration Studies. “I don’t think the program’s going to get killed,” North adds.

Advocates of the EB-5 program say that more than $11 billion in investments and more than 220,000 U.S. jobs will vanish if the EB-5 visa program is eliminated. Peter D. Joseph, the executive director of the EB-5 trade group Invest in the USA, says, “We’re working for important reforms that improve rigorous vetting of projects and investors, so that the program can continue investing in communities and providing quality American jobs.”

The previous Congress made no changes to the EB-5 program in 2015 and 2016. A number of reform proposals were offered, but in the end the program was renewed without change. For now, to obtain an EB-5 visa, a foreign investor must put at least $1 million into a new U.S. business that creates ten or more full-time U.S.-based jobs, or the investor must put at least $500,000 into a “Targeted Employment Area.” An applicant must also prove that his or her investment dollars were received legally and legitimately. This requirement helps to ensure that the EB-5 program is not dealing with money laundered by crime networks or terrorists.

WHAT ARE EB-5 REGIONAL CENTERS?

Most EB-5 international investors work with the EB-5 Regional Center Program. Regional centers are private-sector groups that pool investment funds to develop resorts, hotels, retail centers, and other major projects. From 2005 through 2013, the EB-5 investor visa program brought more than $5 billion into the United States. Foreign investors can best take advantage of the EB-5 program by working from the start with an Ohio immigration attorney who routinely helps investors dealing with immigration issues. There is an annual cap – only 10,000 EB-5 visas are offered annually – so investors should initiate the application process as early as possible.

Anyone with any questions or concerns regarding the EB-5 investment visa or any immigration matter should speak as soon as possible to an experienced U.S. immigration lawyer. If you are an international investor considering a business investment in the United States, let an experienced Ohio immigration attorney work on your behalf. You can arrange for a consultation by email or by calling from anywhere in the world. The economy is rising strong once more in the United States, and excellent investment opportunities are found in every one of the fifty states.

All qualified international investors may petition for an EB-5 visa. The EB-5 visa does not require a sponsor or a labor certification. Through the EB-5 investor visa program, the U.S. allows international investors to invest in U.S.-based businesses and to live here with their immediate families. As the conditions of the EB-5 visa are satisfied, investors and their families qualify to receive green cards. Learn more about the EB-5 visa and other options for investors by speaking with an Ohio immigration attorney. The EB-5 visa is an excellent path to lawful permanent residency in the United States for the willing and able international investor.

Who Qualifies For EB-5 Investor Visas?

International investors who are seeking a great investment opportunity should speak to an experienced U.S. immigration lawyer about the EB-5 investor visa program. International investors who are not familiar with the EB-5 immigrant investor program may appreciate a brief summary regarding what the EB-5 visa is, who qualifies, and why it’s important. The Immigration Act of 1990 creates five employment-based immigration categories. As the fifth employment-based immigration category, the immigrant investor program is designated “EB-5.”

1

Like many nations, the United States seeks international investors who can create jobs and boost the national economy. The EB-5 immigrant investor visa allows those investors to become lawful permanent residents immediately upon entering the United States. Investors applying for the EB-5 visa must invest between $500,000 and $1 million in a U.S.-based business, take an active role in the business, and create at least ten full-time jobs. Only 10,000 EB-5 visas are made available each year, so if more than 10,000 investors apply for the visa in a single year, some of them may be placed on a waiting list.

The EB-5 investor visa is one of the most difficult immigrant visas to obtain. Investors must meet not only the eligibility requirements established for all immigrants to the United States, but the investment itself must also be approved. It’s best to work from the very beginning with a U.S.-based immigration lawyer located near your investment site – a Michigan or Ohio immigration attorney, for instance.

WHY DO EB-5 VISA APPLICANTS NEED AN ATTORNEY?

If you apply to obtain an EB-5 visa on your own, and you are unsuccessful, you may damage your chances of success in the future. And because you are expected to make the investment first and then subsequently apply for the visa and green card, you could be putting your money at risk if you make an investment or apply for a visa without first seeking an immigration attorney’s advice. EB-5 green cards expire in two years. That’s the amount of time an EB-5 investment has to create the necessary ten or more full-time jobs. If it hasn’t, or if an investor fails in some other way to maintain EB-5 eligibility, the green card is canceled.

2

As long as an investor has the money to invest, and as long as the investment is in a for-profit business, the investor is not required to have any particular business training or experience. An investor who receives a green card must actually reside in the U.S. upon receiving it. The investor’s spouse and unmarried children under age 21 receive derivative green cards provided they meet all other immigration eligibility requirements.

An EB-5 investor can lose his or her visa and green card by living outside of the United States, committing a crime in the United States, or even by failing to report a change of address. A conviction for a crime or the violation of any terms of the visa makes a visa holder deportable. However, if an international investor retains a green card for five years and lives in the U.S. continuously during that time (which includes the first two years as a conditional resident), an investor can apply for naturalized U.S. citizenship.

WHAT INVESTMENTS QUALIFY FOR THE EB-5 PROGRAM?

EB-5 visas may be obtained with several types of investment. Most EB-5 applicants invest in an EB-5 “regional center,” a group that operates a business created by EB-5 investments. EB-5 regional centers are attractive because investors do not have to create their own businesses, and the minimum investment is only $500,000 rather than the $1 million minima that is otherwise required.

U.S. Citizenship and Immigration Services (USCIS) designates and approves regional centers, which are designed to meet USCIS requirements for the initial, conditional EB-5 visa. Investors must take care to select a regional center that will actually deliver on its promises to meet USCIS requirements – not all can or do. An immigration lawyer in the U.S. – a Michigan or Ohio immigration attorney, for example –  can help you make the right EB-5 investment choice.

3

Investors can also obtain an EB-5 visa by directly investing in their own businesses. The minimum requirement is a $1 million investment to create a new business in the United States or to expand or restructure an existing U.S.-based business. In certain designated rural settings and in other designated locations in the U.S. where unemployment is high, the investment minimum is $500,000.

WHAT ARE EB-5 APPLICANTS REQUIRED TO PROVE?

EB-5 investors are required to prove to USCIS that their investment money is theirs and that it was legally obtained. Investors will need to provide evidence such as pay records, tax records, and/or inheritance documents. Within two years, the business receiving the investment must create at least ten full-time jobs requiring at least 35 hours a week. Jobs held at the business by the investor or by his or her spouse or children do not count toward the ten-job requirement.

It’s also important for investors to understand that EB-5 investments require the investor’s active participation in either a management role or a decision-making role. Passive investments such as land speculation typically do not qualify for the EB-5 program. If an investor works with a regional center that is a limited partnership (most regional centers are), USCIS considers that to be sufficient participation. A direct EB-5 investment must create a new business, purchase a business that was established since November 29, 1990, or buy a business and restructure or reorganize it so that a new business entity is the result.

EB-5 is the only immigration category that allows international investors entry into the U.S. as automatic legal permanent residents. Even though the EB-5 program started slowly after the Immigration Act of 1990 became law, in recent years, international investors have expressed rising interest. In 2014, for example, EB-5 investments totaled approximately $2.6 billion and created more than 16,000 full-time jobs in the United States.

For those with the resources, the EB-5 investor visa is probably the best path to lawful permanent residency and naturalized U.S. citizenship. If you seek to become a lawful permanent U.S. resident, and if you have the ability to invest in a U.S.-based business, the EB-5 investor visa program may be right for you. Every visa and every immigration procedure takes time, so interested investors should speak with a U.S. immigration lawyer promptly to begin the process.

What are The Best Practices For U.S. Business Visa Interviews?

Several options for immigration are available for business visitors to the United States. There are five categories of “EB” visas (employment-based visas) for immigrants eligible to work in the United States as permanent residents, and employer sponsorship is sometimes required for those visas. Temporary, non-immigrant visas are also offered to those who want or need to work in the United States for a specified and brief amount of time. In most cases, healthcare workers, scholars, professionals, athletes, artists, investors, and business persons will qualify for a temporary non-immigrant visa.

1

The Visa Waiver Program allows business visitors from 38 nations to visit the United States for up to 90 days without obtaining a visa, but if you are not entering the United States under the Visa Waiver Program, you will have to be interviewed for your visa at a U.S. Embassy or Consulate. After you have applied for your visa, the National Visa Center will notify you regarding the date, time, and location of your interview.

You and any family member who is also applying for a visa to accompany you to the United States must schedule and complete a medical examination, along with any required vaccinations, before your visa interview date. Your interviewer will want to determine that you are a genuine and legitimate business visitor, that you are eligible for the visa, and that you do not intend to violate any of the terms of your visa. Be prepared to provide information during the interview regarding:

  • your company or business, its history, and its current prospects
  • your reasons and plans for visiting the United States
  • evidence of your plans, appointments, and meetings, especially letters or emails inviting you (If you plan to invest in the United States or buy U.S. products, this is in your favor.)
  • your strong ties to your home, community, family, and property, and your intention to return at the end of your authorized stay in the United States
  • your reservations and round-trip travel tickets
  • your resources to cover your expenses while traveling and staying temporarily in the United States

Be prepared and confident when you interview for a business visa. If you are even the least bit hesitant or nervous, the interviewer may think you are hiding something or being dishonest. Your interviewer will have a great deal of discretion regarding your business visa, but your interviewer will also probably have only a few brief moments to “size you up” and make a decision regarding your visa petition.

2

If you speak English, interview in English and do not ask for an interpreter. Many business people are experts in their business, but they may not know English. If you don’t, you will need to request an interpreter. However, if you can communicate in English, it is in your favor, because English is still the predominant language in the U.S. business community. Almost no one speaks English perfectly, and no one expects you to speak it perfectly, either.

Nevertheless, you should be able to communicate clearly with your interviewer regarding your age, education, experience, your relationship with the company that is sending you to the United States, your employment with them, your marital status, and details about your children. You should be ready to provide the proof for all of these matters to the extent that it is possible. It is difficult to say precisely what documents will be required from you, as every visa petitioner’s circumstances are different. Of course, any fraud or misrepresentation while petitioning or interviewing for a visa could make you permanently ineligible for a nonimmigrant visa.

Applicants should dress formally for the visa interview, but they should also dress appropriately for their professional status. Maintain eye contact with your interviewer throughout the interview. Do not show any signs of nervousness such as tapping your fingers or tapping your foot. If you are going to the United States on behalf of your company, and if you can, wear your company’s ID to the interview in a visible manner.

3

Do not wear inappropriate clothing or excessive makeup or jewelry to the visa interview. If others who work for your company have traveled to the United States on a business visa, it may be a good idea to ask them first about the kinds of questions they were asked and the documents they were asked to produce. Their situation may be comparable to yours, and your colleagues may be able to give you a clear idea of what to expect. Listed here are some of the questions you may expect to be asked:

  • Why do you wish to go to the United States?
  • When will you be traveling, and how long do you intend to remain in the U.S.?
  • How much will your visit cost, and who is paying for it?
  • What does your company do, and what is your role there?
  • Where will you go in the U.S., and whom will you meet?
  • How will this visit benefit you and/or your employer?
  • Who is going to accompany you to the U.S.?
  • Have you been to the United States before?
  • Can you prove that you will return at the end of your period of authorized stay?

After you have entered the United States on a temporary, nonimmigrant business visa, consult with an experienced immigration attorney before you do anything like starting a business, opening a bank account, investing, or purchasing life insurance. Those are all actions that indicate that someone may be planning to remain in the United States, so you will need an immigration attorney’s help and advice to avoid the suspicions of immigration authorities.

4

If you are coming to the U.S. on business, good business immigration lawyers can answer your questions, address your concerns, help you with your visa petition, and discuss your visa interview. Today, of course, you can speak to an immigration attorney by phone or email from anywhere in the world. A good immigration business immigration lawyer will also defend your rights and help you achieve your goals. Still, the only person who can prepare you for a visa interview is you. Full preparation for the visa interview is essential if you want or need to do business in the United States.

Infographic – The Wait To Come To America

Applying for permanent residence in the United States can be quite the complicated process and each year the Immigration and Nationality Act (INA) limits the number of visas available. According to our immigration attorneys, these limits currently stand at 226,000 for family-sponsored visas and 140,000 for employment-related authorizations. Also, each month, the government announces wait times for visa applications, which vary based on the type of visa sought, the number of visas available, and the applicant’s current citizenship. Additionally, the wait could be even longer if you come from countries deemed “oversubscribed,” such as the Philippines, Mexico, India, and China. For more information and legal assistance on immigration-related issues, speak with an experienced immigration lawyer.

The Wait to Come to America

Share this Image On Your Site

Where Do H-1B Visas Go?

In January 2010, the senior executives at Molina Healthcare, located in Long Beach, California, conducted a staff meeting. Dozens of people in Molina’s IT department would have to be laid off, the executives announced, because the company had done so poorly in the preceding quarter. What the laid-off employees did not suspect at the time was that on the day before the staff meeting, the U.S. Department of Labor had approved applications for forty temporary workers from India to replace them at Molina Healthcare. The laid-off workers, all U.S. citizens or lawful permanent residents, earned an average of $75,000 a year plus benefits. Their replacements would earn $50,000 a year with no benefits.

Big companies have been just as guilty of abusing temporary worker visas as smaller companies. In October 2014, 250 IT employees at Walt Disney Parks and Resorts in Florida were told that they would be laid off. Layoffs, of course, are not uncommon, but what made this layoff newsworthy was the sense that the workers had been insulted. They were told that in order to receive their severance pay, they would be obligated to train their own replacements – IT workers from India entering the United States with H-1B visas.

In response, two former Disney tech employees filed federal lawsuits against the company in January 2016, accusing Disney of conspiring to replace the workers with less costly foreign employees using H-1B visas. The lawsuits were filed in federal court in the Middle District of Florida by Leo Perrero and Dena Moore, who were among 250 Disney tech workers laid off in October 2014. The lawsuits seek class-action status.

Separately, more than twenty of the laid-off Disney workers have also filed complaints with the Equal Opportunity Employment Commission (EEOC). Those complaints remain under EEOC review. The complaints allege employment discrimination by Disney based on nationality, race and age. The incident at Disney also launched another round of contentious debates about the use – and some would charge, the abuse – of H-1B visas. For international workers with a college degree and specialized skills in the STEM fields (science, technology, engineering, and math), the H-1B is a temporary, nonimmigrant visa that is good for three years and renewable for a second three years.

Ohio immigration attorney

WHY THE CONTROVERSY?

Two competing, conflicting narratives confuse the H-1B visa debate and to some extent the entire question of immigration in the United States. One narrative tells us that immigrants are taking jobs from U.S. workers, and it emphasizes stories like the incidents at Molina and Disney. The other narrative says that attracting talented workers in science, math, engineering, and technology is essential for U.S. economic success and growth in the years ahead. Currently, Congress caps the number of available H-1B visas at 65,000 a year (and another 20,000 for post-graduate degree-holders in STEM fields). Google’s Eric Schmidt, Facebook’s Mark Zuckerberg, and Microsoft’s Bill Gates are all strong advocates of increasing the number of available H-1B visas as a means of increasing U.S. technical and commercial ingenuity and strength.

The question many are asking about H-1B visas is simply this: Do international workers in the H-1B visa program fill a genuine gap in the labor force, or is the H-1B program being abused by some U.S. corporations simply as a way to save a few dollars at the expense of U.S. workers? Even the most expert economic researchers disagree. A report by the Economic Policy Institute alleges that some U.S. companies exploit the H-1B program merely to cut their labor costs. The Brookings Institution, however, has figures showing that the international workers who hold H-1B visas are actually making more than their comparably-talented American counterparts in similar positions. The H-1B visa program was designed so that U.S. companies could fill gaps in the work force with specialized employees they cannot find in the United States, but some companies apparently try to take advantage of the H-1B program’s technicalities and loopholes.

In fact, one corporation has already been fined for engaging in visa fraud. Infosys paid the government a $34 million penalty in 2013. Exploiting the H-1B visa program to boost the corporate bottom line is something we can all understand, but that is not what H-1B visas are for, and the government is now taking measures to ensure that the program remains fair to U.S.-based workers like those laid off by Disney and Molina. A large number of workers flooding into the United States and displacing U.S.-based workers is not what Congress intended when the H-1B visa program was established, so in 2015, the Department of Labor announced that it is beefing up its enforcement efforts and will be investigating companies that may be taking unfair advantage of the H-1B visa program.

Ohio immigration attorney

WHO GETS THE VISAS?

Where do H-1B visas actually go? One-fifth of all H-1B petitions approved in 2012 went to just four companies: Cognizant Technology Solutions, Tata Consultancy Services, Infosys, and Wipro. The latter three are among India’s biggest outsourcing giants. Cognizant, based in New Jersey, emerged out of a partnership between Dun & Bradstreet and an Indian firm. Many U.S. companies – Walmart and 7-Eleven, for example – hire these outsourcing firms for their IT needs. When Molina Healthcare fired its IT staff, for example, it did not apply to the government for H-1B workers to replace them. Instead, Molina got its new employees through Cognizant. And Infosys isn’t the only outsourcing company that has been investigated and targeted for legal action. In 2013, Tata Consultancy Services paid $29 million to settle a class-action lawsuit brought by Indian workers who were being forced by the company to hand over their U.S. income tax refunds.

Of course, when the H-1B visa program was invented by Congress back in 1990, no one thought that Indian outsourcing firms would be the biggest participants and beneficiaries. Does any of this mean that a typical small or midsize U.S.-based business cannot benefit from the H-1B visa program? Not at all. Even with the annual visa cap still set at 65,000, the government is working harder now than ever to ensure that the awarding of visas is conducted fairly and that no U.S.-based employer has an advantage over any other employer in the H-1B competition. Employers across the nation are already preparing for this year’s April 1 filing date, but if you haven’t started preparing, it’s probably too late to begin for this year, although it’s never too early to start preparing for next year’s H-1B filing period. The qualifications for H-1B visas are quite strict, and as you already know, the demand far exceeds the supply for these visas.

Ohio immigration attorney

WHERE CAN EMPLOYERS FIND HELP?

If you are an employer in the United States, a good immigration lawyer can help your company meet all of the requirements for obtaining H-1B visas, provide you with precise, comprehensive information, and help you avoid the mistakes and misunderstandings that keep many employers from obtaining the H-1B visas they need. In other words, an experienced immigration attorney can put employers in the best possible position to obtain H-1B visas and can probably also help employers identify appropriate visa alternatives to the H-1B. Employers who need H-1B visas should arrange to speak at once with an experienced Ohio immigration attorney.

Work authorization through the H-1B program is strictly limited to employment offered by a sponsoring U.S.-based employer. H-1B regulations do not compel a visa holder to remain with the sponsoring employer for a specific length of time, provided that a new qualifying employer agrees to sponsor the employee for another H-1B visa. And while a handful of companies still receive quite a large number of H-1B visas, there’s nothing preventing your company from obtaining H-1B visas if the other immigration and employment requirements are met.

U.S.-based companies applying for H-1B visas must prove they are “real” companies by showing the government documents like tax returns, a tax ID number, or financial statements. An H-1B visa petition will be rejected without adequate accompanying documentation. The application may also be denied if the job that’s being offered is not a “specialty” occupation. A good immigration lawyer can tell employers exactly what will be required.

Ohio immigration attorney

U.S.-based companies that hire foreign national employees with H-1B visas should understand from the start that they will have to comply with scores of sometimes confusing immigration laws and related employment regulations. Several federal government agencies may inspect and scrutinize your records and operations to verify your compliance. Investigations of employers are routine, and those investigations may be initiated by USCIS or by the U.S. Department of Labor, U.S. Immigration and Customs Enforcement, or the U.S. State Department.

Admittedly, U.S. immigration laws are antiquated, exceedingly complicated, and sometimes just plain impossible to understand. If you are a U.S. employer who is interested in hiring temporary international workers, obtain the legal help you need right away from an experienced Ohio immigration attorney. You may not make this year’s April 1 H-1B deadline, but you can prepare for next year and learn about your other options and the alternatives to the H-1B visa. Employers, hiring managers, and international workers may speak to an experienced Ohio immigration attorney by phone or by e-mail to have your questions answered or to begin the complicated visa petition process.