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As you probably know, Congress allocates 65,000 H-1B visas every fiscal year plus an additional 20,000 visas for beneficiaries who received a U.S. master’s degree or higher. The window for petitioners/employer to file an H-1B petition this fiscal year is April 1, 2016 and, assuming that the number of applications exceeds the quota, USCIS will stop accepting any petitions filed five days after April 1st. Given that the quota has been exceeded by an increasingly large number over the past several years, it is almost a guarantee that this year’s H-1B quota will be met within the first few days of April 1st. Assuming that your petition was one of the lucky ones selected in the draw, and assuming your petition is actually approved by USCIS, the earliest the beneficiary will be able to start working in H-1B status is October 1, 2016.

What to do to prepare for an H-1B filing?

You can do several things in advance to ensure a timely H-1B submission on April 1st:

• The employer and employee should have a discussion about sponsorship and the proposed position (i.e., title, duties, salary, etc.)
• The employee should obtain a copy of their diploma, transcript, or letter confirming completion of courses towards the degree
• Ask your lawyer how to have the employer’s FEIN verified in advance
• If the employee is currently on OPT, check to see if he or she is covered under the “Cap Gap”

Filing an H-1B petition on April 1st does not guarantee that your application will make the lottery. While logic would dictate that USCIS accepts cases in the order they were received, that is not the case. In fact, if the quota is met within five days, the USCIS will do a random draw of all applications received and only select 65,000 + 20,000 (master’s cap) for further processing. So if your petition was the first one submitted, it could still not be selected in the lottery while the last petition submitted on the last day is selected.

To learn more about the H-1B visa lottery process, feel free to contact us at (310) 591-8200.

To buy or to start a business – that is the question. The E-2 treaty investor visa allows citizens of certain treaty countries to obtain a visa if they buy or start an active commercial business. One question that many prospective applicants face is whether they should buy an existing business or to start a new business.

To qualify for an E-2 visa, the following general conditions must be met:

Active commercial enterprise: This means that the business must be offering a good or service, such as a nail salon or a coffee shop. It cannot be a passive investment such as investing in real estate.

Substantial investment: The regulations do not indicate a specific investment amount, though it must be substantial. Depending on the type of business, it could be as little as $50,000 – with most investments averaging at least $100,000.

At risk: The investment must be at risk. If purchasing a business, this means that the applicant must have already purchased the business or at least put the purchase price funds in escrow subject to approval of the E-2 visa.

Ownership: The applicant must own at least 50% of the U.S. Enterprise and run its day-to-day operations.

Buying an existing business versus starting a new business

Obviously, the decision to buy an existing business or to start a new one is a personal one. Some applicants prefer the turnkey aspect of buying an existing business. Presumably, it comes with a built-in clientele, furniture, equipment, inventory and even staff. Other applicants want to start their own business from the ground up – they have a vision and it can only be executed by building it from scratch.

One of the biggest advantages to buying an existing business from an E-2 visa standpoint is that the investment amount can be easily calculated and identified – namely, the purchase price of the business. If Mary buys a coffee shop in San Francisco for $150,000, the E-2 investment is $150,000. Throw in additional costs associated with the purchase, such as legal fees, insurance, etc., and you can increase that investment amount.

Another advantage to buying an existing business is the ability to put the purchase price in escrow contingent on approval of the E-2 visa. For example, Mary offers to buy a coffee shop for $150,000 contingent on approval of an E-2 visa. The seller agrees and the parties open an escrow account. Mary can place the $150,000 in the escrow account with instructions that the funds be wired to the seller once the E-2 visa is approved. This arrangement is acceptable and meets the “at risk” requirement under the E-2 regulations.

On the other side of the coin, starting a new business for E-2 purposes can require a lot more logistical planning and consideration. Unlike buying a business, there is no way to have a lump sum purchase amount that can be placed in escrow contingent on approval of an E-2 visa. If Mary wants to open her own coffee shop, she has to lease commercial space, buy equipment and fixtures, computers, insurance, tenant improvements, etc. before she can apply for the E-2 visa. The “at risk” requirement means that she cannot just earmark and put aside $150,000 in her bank account with a ‘promise’ to start the business after she gets a visa.

This leads to the “chicken and egg” effect: How can Mary get an E-2 visa before she invests the money? But why would Mary invest the money before she is assured of an E-2 visa? The answer really boils down to “Are you willing to take that risk?” Some people are certain that the amount they invest and the type of business they plan to start will no doubt meet the E-2 criteria and are willing to take that chance. A lot of my clients have done this and their E-2 visas were approved. Others are more concerned about investing tens of thousands of dollars that they cannot recoup before getting an E-2 visa. In these situations, the applicants usually look at buying an E-2 business instead.

Conclusion

The E-2 visa gives applicants a choice to buy an existing business or to start a new one. Applicants should evaluate all options – including their personal goals and vision. First and foremost, the applicant should ask whether the business they envision is one which requires starting from scratch. Remember, E-2 visas have been approved for both new businesses and existing ones. Just because starting a new business is logistically more complicated doesn’t mean you should rule it out.

Maximilian Law Inc. has prepared countless E-2 visa applications with a very high rate of approval. Please feel free to contact us if you are looking to buy or start a U.S. business.

Congratulations! You’re one of the lucky ones who were selected in the H-1B visa lottery and you’ve started working for your employer. Being the hard-working person that you are, you start wondering “Can I take a second, part-time job while I’m on my H-1B visa?” The answer is “yes” but with a few caveats – let’s explore:

An H-1B beneficiary is permitted to take a second job so long as she maintains H-1B status with the primary H-1B employer. The concurrent job can be part-time – in fact, it would be best if the second job is part-time since two full-time H-1B jobs may raise red flags with the USCIS. The employee can start working for the second employer once the H-1B petition is filed even before a decision is made by the USCIS.

The concurrent job also does not have to be in the same occupational category as the first occupation. The key is that the concurrent H-1B is still a specialized occupation requiring at least a bachelor’s degree and that the beneficiary possesses that degree. If the second position is in an occupation that does not require a bachelor’s degree or if it requires a bachelor’s degree that the beneficiary does not possess, then the H-1B will not be approved.

Example

Grace has a bachelor’s degree in Finance from NYU and is working full-time as a Financial Analyst in H-1B status with Employer A. Employer B is a startup company and wants Grace to work part-time as a Budget Analyst. Employer B can file an H-1B petition seeking to have Grace work part-time concurrently while still maintaining her employment with Employer A. If the position was for an office manager, the H-1B would not be approved because the position does not require a bachelor’s degree. Similar, if the position was for a software designer, the H-1B would not be approved because Grace’s degree is unrelated to the occupation.

Contact the law firm of Maximilian Law Inc. if you have any questions regarding U.S. immigration.

An H-1B Transfer is Not Exactly a Transfer

The beauty of getting an H-1B visa is that it allows you to work for a U.S. employer in a specialized occupation for up to six years. An initial petition can be approved for up to three years and an extension can be granted for another three years. After six years, the employee must leave the United States for at least one year before she is allowed to get a new H-1B visa – at which time she would be entitled to another six years. There are instances where an employee can work in H-1B status beyond six years – most notably if the employer has filed a Labor Certification or I-140 petition 365 days before before the six years are up.

If an employee working in H-1B status is offered a job by another U.S. employer, the new employer can “transfer” the H-1B over. The word “transfer” is a bit of a misnomer because the new employer is not really transferring the H-1B visa over. Instead, the new employer has to file a brand new H-1B petition from scratch and, if approved, the employee will change from the old employer to the new employer – thus “transferring” his H-1B visa to the new one.

A lot of employers and employees think that, since they already have an H-1B visa, the process is simpler or “guaranteed.” Nothing could be further from the truth. The new employer must still demonstrate all the requirements for an H-1B visa. Specifically, the employer must be offering a job in a specialized occupation – meaning that the occupation is one in which a bachelor’s degree or higher is a common minimum requirement. The employer must also pay the employee the prevailing wage. It should be noted that the occupation does not have to be the same as the previous one.

Example:

Alice received an MBA from Stanford University and is working for Company A in H-1B status as a Financial Analyst. Company B has offered her a job as an Operations Research Analyst and Alice is inclined to take the offer because it pays more. Company B can file an H-1B petition on behalf of Alice. Once the petition is approved, Alice should give notice to Company A that she is leaving and she can then start working for Company B.

Note that Alice can start working for Company B as soon as the H-1B petition is filed but before a decision is made. She can also continue working for Company A at the same time. Some people choose to leave Company A and start working for Company B as soon as the H-1B petition is filed. While it is a personal decision, the employee should exercise caution before leaving Company A when a decision has not been made on Company B’s petition. The last thing the employee would want is to lose the position at Company A and then Company B’s petition is denied.

Maximilian Law Inc. is a U.S. immigration law firm with extensive experience in H-1B visa applications.

When applying for adjustment of status, all foreign nationals must undergo a medical examination with an approved civil surgeon to determine that he or she is not inadmissible to the United States on public health grounds. For details on what constitutes inadmissibility on health-related grounds, click here. Inadmissibility grounds can include: substance abuse, communicable diseases or mental disorders.

First, the applicant should find a USCIS-approved doctor nearby. The doctor will exam the applicant and perform a series of tests. The doctor may want to see the applicant’s vaccination records to determine whether he or she is up to date or whether booster shots or vaccinations are required. In some instances, applicants may be able to request a waiver of the vaccination requirement if it goes against his or her moral or religious beliefs. Approval of the waiver is discretionary.

Medical exam results are valid for one year from the date of issuance. They can be submitted with the adjustment of status application or at the final green card interview. While most people submit the exam results with the initial application for adjustment of status, there is a risk that the medical exam expires by the final interview. In this case, you may need to get another exam done prior to attending the final USCIS interview.