Visas

USCIS Extends (and Expands) Premium Processing Ban

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By David S. Rugendorf

The USCIS announced today that it is extending its ban on premium processing on certain H-1B petitions. Premium Processing allows an employer to seek an adjudication of a visa petition within 15 days upon payment of an additional filing fee, currently $1,225 (increasing to $1,410 on October 1, 2018). Employers should review their current and upcoming H-1B visa needs to determine how the ban will impact their matters, so they can plan accordingly.

To be specific, USCIS estimated earlier this year it would reinstate Premium Processing for H-1B cap cases in September 2018 (in roughly two weeks from now). The suspension of Premium Processing for Fiscal Year 2019 H-1B Cap Petitions is now expected to be extended through at least February 19, 2019. USCIS expects this suspension will help reduce the processing time for H-1Bs by allowing it to process long-pending petitions. In addition, USCIS states that the temporary suspension will allow them to be more responsive to petitions with time-sensitive start dates, as well as to prioritize adjudication of H-1B extension of status cases that are nearing their 240-day work authorization limit dates. (more…)

My H-1B Was Rejected In The Lottery! What Now?

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By Benjamin Lau and John E. Exner IV

You did everything right. You got into the best school, you got the necessary work experience, you found an employer willing to sponsor you for an H-1B visa, and you filed on April 1. However, despite all your work, your case was not selected as part of this year’s H-1B lottery. Through forces beyond your control, you are now back to square one, wondering whether you must now leave the United States.

But wait! There may still be an alternative visa option available to you within the alphabet soup of U.S. work visas. So, before throwing in the towel and packing your bags, you may want to consider the list of alternative U.S. work visa categories below. One of these alternative visas may offer you the best chance for future employment in the United States – and while the list is not conclusive, it represents the most likely options for you to secure U.S. work authorization. (more…)

The Only Thing Certain is Uncertainty

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By Frida P. Glucoft and David S. Rugendorf 

Workplace immigration law has been the focal point of increased anxiety and uncertainty because of various changes proposed by Executive Order. Discussions have heated up considerably in the offices of human resources professionals and personnel managers, in the break room, around the water cooler, as well as in the news media and on social media. Because the changes have not come in the form of formal regulatory changes through legislation, which require a prescribed notice and comment period (though those may soon be on the way), changes in enforcement priorities and how existing laws are interpreted create an unclear path about who will be impacted and when the new Executive Order priorities will be instituted.

What are these new priorities? At present they are best explained in Executive Order 13788. (more…)

Visas for the U.S.: What Are Your Options?

By Ariel Weindling

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This post is for the many French people who ask me on a regular basis about the U.S. visas that are available to them.

Several visa categories exist.  This post will focus on the most commonly used in the case of French nationals: the E2 (for investors); the L1 (intracompany transfer); and the O1 (extraordinary ability).  The H1B is also widely used but it will be the subject of a stand-alone post in the not too distant future.

  1. The E-2 Visa: The E-2 visa is available to foreign nationals who are looking to invest a substantial sum of money into a business in the United States – either a new business or the purchase of an existing U.S. business. Although the law does not mention a minimum amount, in our experience, the minimum investment generally ranges between $120,000 and $150,000, but it can be more or less depending on the nature of the business.  Additionally, that money must be spent on the business, and not merely sit dormant in a U.S. bank account.  If the investment is made into an existing business then it would need to be substantial in comparison to the current value of the business.  The visa can be approved for up to 5 years at a time, and extended in 5 year increments, so long as the business remains operational.  There is no limitation on the number of times it can be extended.  Note that primary focus of the E-2 is the creation of U.S. jobs, so it is usually critical that the applicant provide proof of U.S. jobs creation or a business plan that shows the creation of U.S. jobs in the near future.
  2. The L-1A “New Office” Visa: The L-1A visa is an “intracompany transferee” visa that is available to foreign nationals who work in managerial or executive occupations, and are transferring from a foreign company to a U.S. parent, branch, or subsidiary. The visa includes newly formed U.S. offices and businesses, provided that the newly formed U.S. office is established as a subsidiary, affiliate, or parent of a foreign company, and that the foreign company will continue operations abroad.  This visa is attractive when the foreign investment into the U.S. business is made through a foreign company, as opposed to a foreign individual investor, as it may allow multiple employees from the foreign company to be transferred to the U.S. office.  The L-1A visa requires proof that the foreign national transferee has worked for at least one full year for the company abroad before entering the U.S., and that the U.S. office has sufficient financial or operational resources to conduct business in the U.S.  The foreign business must also remain operational after the individual transferee begins work in the United States.  An individual is allowed seven (7) years maximum stay on an L-1A, although there are exceptions for individuals who use the visa infrequently and only occasionally.
  3. The O-1 Visa:  The O-1 visa is reserved for individuals of “Extraordinary Ability” in the arts, sciences, and business.  To obtain an O-1 visa, a U.S. company must petition for the individual to come to the United States to perform a service that is related to his or her area of extraordinary ability.  We also need to establish that the individual is an individual of extraordinary ability in his or her field.  The visa can be approved for up to three (3) years at a time, and extended in increments of up to three (3) years.  There is no limitation on the number of times it can be extended, but documenting ongoing success and industry contributions with each extension is crucial.

Immigration Tips for Startups

By John E. Exner IV

10 tips to prepare for the most frequent immigration scenarios faced by startups:

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  1. If the company will be owned, in-whole or in-part by a foreign investor, immigration planning should start as early as possible – even before the company is established. There are visas available to foreign entrepreneurs who are investing a significant amount of money into a new U.S. business. This visa application process should be handled in concert with the creation of the business.
  2. If the U.S. business will have a foreign office (parent, subsidiary, or affiliate) the managers, executives, and essential personnel from the foreign office(s) may be able to travel to the United States on multinational transferee visas.
  3. If the U.S. business is recruiting from local U.S. universities and colleges, many of these candidates may be foreign nationals on U.S. student visas. These individuals may be eligible for at least one year of employment authorization in the U.S. following graduation. (more…)