BREAKING IMMIGRATION NEWS: President Trump Issues New “Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak”

DHP Immigration News Alert

On June 22, 2020, President Trump issued a new presidential proclamation (“PP 6/22/2020”) that extends Presidential Proclamation 10014 (“PP10014”) from April 22, 2020. This new proclamation stops foreign nationals from entering the U.S. on certain employment-based nonimmigrant visas and extends the ban already in place from “PP10014.” President Trump explained in the new proclamation that the entry of these nonimmigrant workers “presents a significant threat to employment opportunities for Americans affected by the extraordinary economic disruptions caused by the COVID-19 outbreak.”

When Does the Order Take Effect?

The new proclamation takes effect on June 24, 2020 at 12:01 AM ET. It will remain in effect until December 31, 2020 and may be extended as necessary. Within 30 days of the effective date of this proclamation and every 60 days thereafter while this proclamation is in effect, the Secretary of Homeland Security, in consultation with the Secretaries of State and Labor, will reevaluate and recommend any necessary modifications.

Extension of Presidential Proclamation 10014 from April 22, 2020

Presidential Proclamation 10014 of April 22, 2020, suspended the entry of certain immigrants into the U.S., subject to certain exceptions, until June 21, 2020. The new proclamation of June 22, 2020 extends the restrictions of “PP10014” until at least December 31, 2020.

Expanded Restrictions

According to PP 6/22/2020, aliens are suspended from entering the U.S. starting on June 24, 2020 if both of the following conditions apply:

  1. First, aliens who are seeking to enter the U.S. on one of the following visas:
    • H-1B or H-2B visa, and any alien accompanying H-1B or H-2B visa holder in H-4 visa;
    • J visa, to the extent the alien is participating in an intern, trainee, teacher, camp counselor, au pair, or summer work travel program, and any alien accompanying a J visa holder; and
    • L visa, and any alien accompanying an L visa holder in L-2 visa.
  2. Aliens who meet Criteria #1 above and who are:
    • Physically outside of the U.S. on the effective date of this proclamation (June 24, 2020);
    • Do not have a nonimmigrant visa that is valid on the effective date of this proclamation; and
    • Do not have an official travel document other than a visa (such as a transportation letter, an appropriate boarding foil, or an advance parole document) that is valid on the effective date of this proclamation or issued on any date thereafter that permits them to travel to the U.S. and seek entry or admission.

Exemptions

The proclamation does NOT apply to the following foreign nationals:

  • Any lawful permanent resident of the United States;
  • Any alien who is the spouse or child of a United States citizen;
  • Any alien seeking to enter the United States to provide temporary labor or services essential to the United States food supply chain; and
  • Any alien whose entry would be in the national interest as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.

Standards for Exemption Under “U.S. National Interest”

The new proclamation clarifies and defines the national interest exemption to cover aliens who:

  • Are critical to the defense, law enforcement, diplomacy, or national security of the U.S.;
  • Are involved with the provision of medical care to individuals who have contracted COVID-19 and are currently hospitalized;
  • Are involved with the provision of medical research at U.S. facilities to help the U.S. combat COVID-19;
  • Are necessary to facilitate the immediate and continued economic recovery of the U.S.; or
  • Are children who would, as a result of this proclamation or “PP10014,” age out of eligibility for a visa.

How Will This Proclamation Be Enforced?

U.S. Consulates around the world have discretion to determine whether an individual has established his/her eligibility for an exception under this proclamation.

What if I am already in the U.S. with an H, L, or J visa?

Individuals who are already in the U.S. with an H, L, or J visa and need to change or extend their status are not included in the ban and are still able to file their petition with USCIS (U.S. Citizenship and Immigration Service).

What if I was recently issued an H, L, or J visa through consular processing?

Individuals who have already obtained a nonimmigrant visa, including an H, L, or J visa, through consular processing that is valid on the effective date of this proclamation, are not subject to this ban and may travel with a visa.

What if I recently received an H or L visa petition approval from USCIS and was in the process of obtaining a visa through consular processing?

Individuals whose initial H or L visa petition have recently been approved by USCIS, and were waiting for the U.S. Consulates to resume visa services, are not able to enter the U.S. now due to this new proclamation (unless they are covered by one of the exemptions mentioned above). This individuals must wait until at least December 31, 2020 before they can apply for their visas.

In case the validity of the I-797 approval notice expires in the meantime, a new petition will have to be filed with USCIS before the individual is able to apply for a new H or L visa through consular processing after this proclamation expires on December 31, 2020.

What if my new H-1B petition was recently approved with the effective start date of employment on October 1, 2020, and I am currently outside the U.S. without a valid H-1B visa or alternative travel document?

Unfortunately, individuals who are currently outside of the U.S. without a valid H-1B visa or other alternative travel document (i.e. F-1/OPT that is still valid), are not able to enter the U.S. now due to “PP 6/22/2020,” unless they are covered under the exemptions (such as food supply chain, national interest workers, Corona virus-related healthcare workers, etc.) These individuals must now wait until at least December 31, 2020 before they can apply for their H-1B visas through consular processing.

Can other nonimmigrant and/or immigrant visa categories be potentially impacted by this proclamation?

The new proclamation directs the Secretary of Labor, in consultation with the Secretary of Homeland Security, to consider new regulations or other appropriate actions to ensure that the foreign nationals who have been admitted or are seeking admission, on an EB-2 or EB-3 immigrant visa or H-1B nonimmigrant visa, do not place U.S. workers at a disadvantage in the U.S. work force. Although it is unclear as to what additional measures or restrictions may be implemented, there might be some additional actions taken by the government agencies to ensure that EB-2, EB-3 and H-1B workers do not limit working opportunities for other U.S. workers.

Other non-immigrant visa categories, such as E-1, E-2, E-3, F-1 (OPT/STEM OPT), O-1, R-1, TN and other employment-based and family-based immigrant visa categories are not impacted by these proclamations and can travel with their valid visas, subject to normal travel restrictions from COVID-19.

Ideas to Consider from David Hirson & Partners, LLP

  • In light of this proclamation, all visa holders, including H, L and J visas holders, should avoid leaving the U.S. for the time being, even with their valid visas, and consider extending or changing status in the U.S. if necessary.
  • If you must travel outside of the U.S., it is imperative that you consult with your immigration attorney and ensure that your visa is still valid before leaving the U.S.
  • Employers should be aware that these presidential proclamations only impact individuals who do not yet hold nonimmigrant visas or other alternative travel documents. In case an employee is directly impacted by these proclamations and is not able to enter the U.S. to work for the U.S. company as initially planned, the company with different overseas offices may consider hiring the foreign employee in a foreign country, until the foreign employee is able to obtain his/her visa.
  • L-1A executives/managers, who are directly impacted by this proclamation, should prepare an effective action plan to remotely manage and oversee U.S. business operations until the proclamation ends.
  • Individuals, who are not impacted by this ban, should remember that they may encounter more difficult questions from U.S. consular officers and should be prepared to explain and prove that they are not affected by this proclamation. Aliens should always consult with a competent immigration attorney before making any travel plans, regardless of whether they are directly impacted by the proclamation or not.
  • In case you think you are qualified for one or more of the exemptions described in the proclamation and want to consult with a professional immigration attorney, please contact David Hirson & Partners, LLP to further discuss your case.

Entrepreneur Visa Guide: Comparing the Top Startup Visas

The United States offers a few visa options for entrepreneurs who either want to start a business in the United States or who want to invest in U.S. workers. Each visa has its requirements, benefits, and drawbacks. 

Our guide will discuss the different types of startup visas for business owners and go over the eligibility requirements. We will compare the best visas for immigrant entrepreneurs, including;

  1. EB-Visas
  2. H-1B Visa
  3. E-2 Treaty Investor Visa
  4. L-1 Visa
  5. O-Visas

Immigrants Play a Central Role in the US Economy

According to one study, for every 100,000 immigrants, 520 became entrepreneurs in a given month. In 2016, for example, immigrants made up nearly 30% of all new entrepreneurs.  

Immigrants are not only overrepresented in the labor force relative to their share of the population, but they also start businesses in the US at a higher rate than people born in the United States. 

Immigrant entrepreneurs also create job opportunities for other people. 

As of January 1, 2015, immigrants founded nearly 51% of US startups worth $1 billion or more. Each of those startups employed an average of 760 people. 

The immigration attorneys at David Hirson & Partners, LLP (DHP) can help foreign entrepreneurs and their business/corporate sponsors with planning, preparing, and filing the complete immigration package with the U.S. Citizenship & Immigration Services (USCIS). 

What Startup Visas Are Available in the USA?

Generally, there are two types of visas available for immigrants who want to start businesses in the United States. 

One path leads to permanent residency (“green card”), while the other is considered a “non-immigrant” visa (visitor, study, or work permit).

Permanent Resident Visas vs. Non-Immigrant Visas

A permanent resident visa or “immigrant visa” is intended to allow the individual to live and work in the U.S. indefinitely. 

A non-immigrant visa does not grant the option to become a permanent resident in the U.S. The individual must qualify under one of the green card categories and file a separate application. Non-immigrant visas are utilized most often for individuals who are in the U.S. for temporary reasons, such as:

  • Tourism
  • Business
  • Temporary work
  • Studying
  • Medical treatment

Although they are not permanent, non-immigrant visas can still enable an immigrant to live and work in the U.S. for several years.

Our team at DHP can help you decide which type of visa makes sense for your immigration goals.

The Best Startup Visas for Entrepreneurs

Generally, these visas are what we would recommend for individuals or company owners seeking to start a business in the U.S.

Comparing EB-Visas

EB-1 Visas: Employment-Based Immigration, First Preference

The EB visa is for individuals who want to work permanently in the US. EB visas are available to certain individuals based on their job skills. 

Only roughly 140,000 immigrant visas are available in this category every year. 

EB visas have five “levels,” each with a different order of preference. EB-1 visas are given first preference. 

EB-1 applies specifically to individuals with:

  • Extraordinary ability in the sciences, arts, education, business, or athletics through national or international acclaim – No offer of employment required.
  • Outstanding professors and researchers – Must be pursuing tenure or tenure track at a university or other institute of higher education.
  • Multinational manager or executive (This is the immigrant version of the L-1 Intracompany Transfer visa.)

Each type of EB-1 visa qualification has its unique requirements as well. 

EB-2 Visas: Employment-Based Immigration, Second Preference

Second-preference immigrants will receive higher priority compared to other employment-based applicants, except EB-1 applicants. Having higher priority means that you are more likely to get into the roughly 140,000 spots available for EB visas. 

EB-2 visas specifically apply to those who meet at least one of the following qualifications. 

  • The job involved must require an advanced degree or equivalent in education and experience.
  • You have exceptional ability in sciences, arts, or business.
  • You are requesting that the labor certification (“PERM”), that would otherwise be required, to be waived because it would be in the best interest of the United States to permit you to live and work in the country.

Other qualifications include things like showing you have at least ten years of full-time experience in your occupation and that you are licensed to practice in your chosen profession. Your unique circumstances will dictate what type of evidence you need to provide for an EB-2 visa application.

Family of EB-2 visa holders can also be admitted to the US under an E-21 or E-22 visa. For this visa, “family” includes your spouse and any unmarried children under the age of 21. 

EB-5 Visas: Employment-Based Immigration, Fifth Preference

The other EB visas operate very similarly to the first two, with each preference having fewer qualifications and requirements. The last EB visa is EB-5. It is more focused on people who want to invest in the United States rather than simply gain employment. 

In general, it permits an investor, their spouse, and unmarried children under the age of 21 to get an EB-5 visa if certain conditions are met, including:

  • Meeting a minimum investment amount that varies based on where the business will operate.
  • Creating or preserving at least ten full-time jobs for qualifying workers.

Recent EB-5 Changes

The EB-5 program changed as a result of the U.S. government’s regulatory changes to the program that went into effect as of November 21, 2019. Specifically, the minimum investment amount was increased to $1.8 million (and $900,000 for investments located in targeted employment areas) and changing how targeted employment areas are defined.

DHP is highly experienced in preparing and successfully filing EB-visas. Contact us to learn more about how we can help.

H-1B Visas: Specialty Occupations

An H-1B non-immigrant visa may be available to those who perform services in a “specialty occupation.” They may also work with the Department of Defense cooperative research and development, or they could be a fashion model who has distinguished merit or ability. 

The “specialty occupation” qualification is the most common reason that this particular visa is used, but it is not a common visa. The H-1B visa is highly selective.

“Specialty occupation” is not defined in terms of a particular industry. Instead, it is based on whether the worker has a bachelor’s degree or equivalent, and whether that particular job would require this precise expertise. 

The employer files this visa application on behalf of the individual, but it must go through a specific job offering process for US workers before getting the required Labor Condition Application (“LCA”). 

Additionally, the employer must offer the worker the job ahead of time to qualify for the visa. Learn more about the highly-specific requirements of an H-1B visa, or contact our business immigration attorneys for help.

E-2 Visa: Treaty Investors

A treaty investor is a foreign national of a country with which the United States holds a treaty of commerce and navigation. This individual must have also invested a minimum amount of money in a business venture in the US.

Certain employees of this particular company may also qualify for an E-2 visa. The USCIS maintains a running list of countries that have this type of treaty with the United States. 

Although EB visas are similar, the key differences between an EB-5 visa and an E-2 visa include:

  • The E-2 visa requires a lower minimum investment, no fixed minimum number of employees, has country-specific requirements, and requires a reasonable return on investment within a reasonable time to qualify for the visa. 
  • On the other hand, an EB-5 visa has no country-specific restrictions and its rules apply to applicants from all countries. 

As an E-2 treaty investor, holding the nationality of a treaty country, you must own at least 50% of the enterprise or possession of operational control by managing or meeting specific employment qualifications. The investment may not be “marginal” and must be “substantial” as defined in the Foreign Affairs Manual (“FAM”) and U.S. statute and regulations. Learn more about our E-2 visa services.

L-1 Visa: Intracompany Transferees

L-1 visas come in two varieties: L-1A and L-1B. 

L-1A is specifically for executives and managers, while L-1B is for those who possess specialized knowledge but do not necessarily serve in a management role. 

This visa allows a US employer to transfer a worker who meets specific qualifications from a company outside of the US to a related business at a location in the United States. 

It also allows companies to send an executive from another country to the U.S., to establish or manage a branch, affiliate, or subsidiary of the foreign company.

The O-1 Visa: Individuals with Extraordinary Ability or Achievement

The O-series visas are for those who have extraordinary abilities, usually signified by “national or international acclaim.” 

The individual must also prove they are living in the US on a temporary basis to work in their area of extraordinary ability. 

The O-series visas only apply to the following categories of work: 

  • Education
  • Sciences
  • Business
  • Athletics
  • Arts
  • Motion picture or television industry

More About O-Visas

O-2 visas are available to those who will accompany someone who qualifies for an O-1 visa. This person must be an “integral part” or “essential” to the O-1 visa holder’s work. 

O-3 visas are available to spouses and children of those who have O-1 visas. The EB-1 green card category has similar requirements but a higher standard.

Choosing the Best Startup Visa Option 

Every company has different needs, and your visa needs tied to a corporate sponsor will depend on many factors. Perhaps the most important consideration is what you and the company want to accomplish. Are you or your company more interested in bringing workers to the U.S. from another country? Are you looking to make a substantial investment in the United States? Do you want to expand your existing company to the U.S.?

Ready for the Next Steps?

The immigration attorneys at David Hirson and Partners, LLP can help you review all of your options as an entrepreneur or business owner, looking for startup and existing business visa pathways to the United States. Contact us today to get started.

Record high H-1B denials could cause hole in workplace

Over 20% of H-1B Visas Denied in 2019

In the fiscal year (FY) 2019, 116,031 new or initial H-1B petitions were submitted to the United States Citizenship and Immigration Services (USCIS). Of those petitions, 27,707 were denied – meaning just under one-quarter of all H-1B applications were denied in 2019. 

When compared to levels in 2015, the rates of denials have risen exponentially.

Comparing 2019 H-1B Denial Rates to 2015

Fiscal year 2015 is often used for comparison because it is one of the lowest denial rates in the past five years, and marks the last year before President Trump was sworn into office.

In FY 2015, the denial rate was only 6% in the first quarter. By comparison, the denial rate in the first quarter of FY 2019 was 32%. According to some experts, these numbers make it “clear to attorneys [that] USCIS has acted without proper legal authority in restricting H-1B visas.”

Part of the change is attributed to President Trump’s 2017 executive order, which has been dubbed the “Buy American and Hire American” order. The executive order encouraged and required agencies to look for ways to create higher wages, employment rates, and economic growth within the United States, without looking to other countries to employ workers or create products. In FY 2017, the denial rates rose from 10% to 13%, and in FY 2018, they increased again to 24%.

For example, U.S. immigration practitioners have seen H-1B petitions that would have normally been approved in past years are now denied under USCIS’ current practice of using narrower interpretations of what constitutes a “specialty occupation.”

The Impact of High Denial Rates

With denial rates at record high levels, various industries, including technology sectors, have felt a serious impact on their employment and operations. In India, for example, the four largest software service exporters have seen roughly half of all of their work visas denied in the past year. These companies, including Tata Consultancy Services, Infosys, HCL Technologies, and Wipro will have to look elsewhere for avenues to secure visas for their workers.

Traditionally, Indian nationals made up for roughly 70 percent of all H-1B visas issued. Additionally, Indian nationals also account for almost 93 percent of all Employment Authorization Documents issued to H-4 visas, as spouses of H-1B beneficiaries. It is unclear whether those numbers have changed since their last reported date in 2017, but they could very well be significantly altered in the near future.

The National Foundation for American Policy (NFAP) noted: “If the goal of the Trump administration is to make it much more difficult for well-educated foreign nationals to work in America in technical fields, then USCIS is accomplishing that goal.” 

However, the impact of this new policy could create serious holes in the American workforce. NFAP stated: “Whether the actions of USCIS are serving the best interests of the United States is a question that will remain open for debate.”

Get Help From an H-1B Visa Lawyer

Because of increased scrutiny, it is even more important that employers follow the application process very closely. David Hirson & Partners, LLP, can help with that process, increasing your company’s chance of getting an H-1B petition approved. 

Contact our team today for more information or to schedule an appointment to discuss your options. 

Tel: +1-949-383-5358                Web: www.Hirson.com               Email: info@hirson.com

This blog post is general information and is not legal advice.

Preparing for the upcoming FY2021 H-1B Cap Season

Preparing for the Upcoming FY2021 H-1B Cap Season

As of April 1, 2020, the yearly slots available for the H-1B employment visa for specialty occupations will become available. These visas are exclusively for “specialty occupations,” and the available allotment is expected to be much lower than demand, as has been the trend for many years.

Because of the high demand for H-1B visas, employers are encouraged to identify employees or prospective employees who may need an H-1B visa now, to get started on the application process. 

Having everything ready will help get your application submitted as soon as an H-1B applicant is selected from this year’s new H-1B registration-lottery system and the application submission window opens to submit required paperwork.

Who Qualifies for an H-1B Visa?

When assessing company needs, employers may consider the following types of employees as good candidates for H-1B visas as long as the potential new employee is qualified to work in a specialty occupation:

1. F-1 visa students with degrees that are required to work in a specialty occupation

2. L-1 employees experiencing long green card delays

3. Former J-1 trainees who you would like to retain on a more permanent basis

Keep in mind that H-1B visas are specifically for “graduate-level” workers (meaning a U.S. bachelor’s degree or higher or the foreign equivalent) in specialty occupations. These occupations require expertise that is not necessary for other types of jobs. 

(Note: Certain foreign workers who are working with the U.S. Department of Defense may qualify to apply for H-1B2 visas while individuals who are international fashion models of prominence may apply for H-1B3 visas.)

Typical H-1B fields include:

  • Technology
  • Finance
  • Accounting
  • Science 
  • Medicine
  • Engineering 
  • Architecture

Starting the process now will put you in a good position to apply when the flood gates open at the end of March.  

H-1B Caps in FY2021: What to Expect

Keep in mind that anyone who does not get a slot in the current lottery will have to wait to apply for available spaces next year. 

The United States Citizenship and Immigration Services (USCIS) has implemented its new registration system this year, which will affect H-1B visas obtained in FY2021. 

Under this new system, there is no need to submit a full application before the lottery. Instead, employers will only need to submit a simple online registration for each employee.

This year’s initial registration period will be from March 1 through March 20, 2020.

Once the submissions reach 85,000, the USCIS will conduct a computer-generated lottery to select registrants. If an employee is selected, the employer must submit a complete H-1B application within the next 90 days.

Preparing for FY2021 H-1B Registration

The new H-1B registration system requires employers to electronically register in order to be able to submit a registration for the H-1B visa in FY2021. 

The employer must also pay the new $10 registration fee for each H-1B beneficiary employee that is registered. The registration period is set to open March 1, and employers should create a game plan with a licensed immigration attorney so that everything will be ready at the appropriate time.

Get Help with an H-1B Visa Application

To learn more about what you should do to get electronically registered and prepare for H-1B registration this March, give our team a call now to schedule a consultation. 

David Hirson & Partners, LLP, can walk you through all of the steps you need to get ready for submitting your H1-B registration today. 

Tel: +1-949-383-5358                Web: www.Hirson.com               Email: info@hirson.com

This blog post is general information and is not legal advice.

H-1B Visa Program: Upcoming Deadline and Info You Need to Know

One of the most desirable visa programs, and the one perhaps most familiar to both foreigners and U.S. citizens, is the H-1B visa. This is often referred to as the “work visa” because it is utilized by those brought into the U.S. as employees for companies in specialty fields. In order to come into the U.S. under an H-1B visa, the applicant must have been offered a position in a qualifying occupation. The specialty job offered must require at least a U.S. bachelor’s degree (or equivalent). The offered wage must be at the prevailing wage for that occupation in its given location. Our immigration attorneys can assist you by advising on obtaining the prevailing wage rate as well as evaluating the offered position to see if it qualifies as a specialty occupation.

 

These occupations are primarily in technical and professional employment fields, such as information technology, finance, banking, teaching, engineering, and business. The applicant must show that they have the appropriate credentials for such a position as well as employer sponsorship. There are many hoops to jump through in order to obtain approval, and the paperwork can be technical. There is also a yearly deadline for applications. This year, the H-1B visa petition must be submitted no later than March 31, 2018 in order to arrive at U.S. Citizenship and Immigration Services’ offices on April 2, 2018, the first day of H-1B petitions being accepted.

 

Each year the number of applications approved through the H-1B visa program is capped, although there is some flexibility. For instance, this year the cap is 65,000, however, certain applicants can also apply for one of the additional 20,000 application spots that are only available to international students who have graduated from a U.S. school with an master’s degree or higher. In addition, the H-1B cap does not apply to certain applicants sponsored by non-profit organizations, institutions of higher education, and government research organizations.

 

Business immigration programs are a valuable way for the U.S. to get skilled workers while qualified foreigners obtain a legal way to live in the U.S. The H-1B visa program is especially desirable because it also offers a path to permanent residency, and the applicants are allowed to have a “dual intent.” This “dual intent” means that an applicant will not be screened for and denied a visa if they exhibit an intent to stay in the U.S. and become a permanent resident. They may also bring their family (spouse and unmarried children under age 21). In contrast, non- “dual intent” visas may not allow applicants to come into the U.S. for a temporary period of time and then decide that they want to stay permanently.

 

David Hirson & Partners, LLP, is an experienced business immigration law firm assisting clients in obtaining a wide variety of visas, including the H-1B visa. Contact us today for help with your application process.

 

 

Telephone: (949) 383-5358      Email: info@hirson.com      Website: www.hirson.com