Blog

A lot of people looking to secure U.S. work visas like the H-1B wonder who pays the fees: the employer or the prospective employee? Generally speaking, the employer must pay for the attorney fees and government filing fees associated with the H-1B petition and Labor Condition Application. This includes the fee associated with submitting Form I-129 ($325); the Fraud Prevention & Detection Fee ($500); and the ACWIA fee ($750 or $1,500 if over 25 employees). Premium processing is available for H-1B petitions at an additional filing fee of $1,225. Whether the employer or the employee pays this fee is debatable. However, a safe argument can be made that the employee/beneficiary can be responsible for this fee since it is optional. The employer is also responsible for paying for the reasonable cost of return transportation if the employee is terminated prior to the end of the H-1B status unless he/she voluntarily resigned.

What costs can the beneficiary/employee pay in association with an H-1B petition? In addition to the premium processing fee, the beneficiary can also pay for costs associated with translations, academic evaluations, and visa issuance fees at the U.S. consulate. The beneficiary/employee may also pay for the legal and filing fees associated with any dependent visas for spouses and children (i.e., H-4 visa).

With graduation season just around the corner, it’s time to look at visa options for graduating international students. If you are in the United States on an F-1 or M-1 visa from a SEVIS school, you should be eligible for Optional Practical Training (OPT). OPT allows F-1 or M-1 graduates to work in the United States with an open work permit for up to 12 months. Students in STEM subjects (science, technology, engineering, math) may be eligible for an additional 17 months of OPT if the extension is applied prior to the expiration of the initial OPT. To qualify, the student must seek work directly related to his/her field of study. For example, a graduate with a bachelor’s degree in graphic design should seek employment in the graphic design field while on OPT. Graduating students may apply for OPT as early as 90 days before graduation, and up to 60 days afterwards.

Cap Gap

Those who are currently on OPT, and whose employers have filed an H-1B petition on their behalf, can bridge the gap between the end of OPT and the start of H-1B under the ‘cap gap.’ For example, if Annie’s OPT expires on July 15th but her employer filed an H-1B petition on her behalf of April 1st and it was approved, her OPT will automatically extend until October 1st, at which point her status automatically changes from OPT to H-1B. This is a good way for those on OPT to ensure that there is no interruption in their employment if the employer is sponsoring them for an H-1B. With the H-1B cap being reached quickly over the past two years, those who are on OPT in STEM subjects should apply for the STEM extension in order to ensure two bites at the H-1B apple in the event that they are not selected the first year that their employer files a petition.

A Guideline for Foreign Entrepreneurs Who Are Starting Businesses in the United States

With the economy showing signs of recovery, many foreign entrepreneurs are looking for ways to start a business in the United States. To start a business, foreign entrepreneurs need to be authorized to work in the U.S. – which requires securing the appropriate type of visa. This article will discuss the E-1 treaty trader visa; E-2 treaty investor visa, H-1B visa, L-1 visa and the EB-5 green card.

E-1 Treaty Trader Visa

The E-1 treaty trader visa allows citizens of a country with a treaty with the United States (http://travel.state.gov/content/visas/english/fees/treaty.html) to work for a commercial enterprise in the United States, which has at least 50% ownership of that of the citizen. For example, a citizen of Japan may enter as an E-1 treaty trader to perform work for a Japanese trading company in Los Angeles, which is at least owned 50% by Japan. The worker must be entering as a supervisor, executive, essential employee or someone with specialized skills. Furthermore, the enterprise must be engaged in substantial international trade – of which more than 50% of the trade is between the U.S. and the treaty country.

E-2 Treaty Investor Visa

This is one of the most common visas for foreign entrepreneurs. The E-2 treaty investor visa allows citizens of a country with a treaty with the United States (http://travel.state.gov/content/visas/english/fees/treaty.html) to start or purchase a new or existing business in the U.S. The business must be an active commercial enterprise and the investor must own at least 50%. The investor must also irrevocably invest a substantial amount of money into the business and be able to direct and develop the day-to-day operations. The E-2 investor can also hire executives, managers or essential employees to assist in the business so long as they are the same citizenship as the principal investor.

H-1B Visa

The H-1B is traditionally a work visa that allows U.S. employers to hire foreign employees for specialized occupations. The employer-employee relationship requirement generally prevented foreign entrepreneurs from utilizing this visa until the USCIS clarified that it may apply in situations where the employee also owns the company.

Specifically, an owner of a U.S. company may qualify as an H-1B employee if it can be demonstrated that the company/employer has the right to control the owner/employee’s employment. This can be done by giving the right to hire/fire the owner in someone else’s hands, or structuring the board of governors in a particular way. The owner/employee must also meet the general requirements of an H-1B visa (for example, the position must be specialized in that it requires at least a bachelor’s degree, and that the owner possesses that degree).

L-1 Visa

The L-1 visa allows foreign executives, managers and specialized knowledge employees transfer to a U.S. division, satellite office, affiliate office or subsidiary, so long as she has been employed by the foreign company for at least one out of the past three years. The L-1 visa also allows a foreign executive, manager or specialized knowledge employee to set up a new office in the United States. The ‘new office’ visa is valid for one year.

EB-5 Green Card

A foreign investor may be eligible for permanent residency if she invests at least $1 million into a commercial enterprise and hires ten U.S. workers. In rural or high unemployment areas, the investment amount is only $500,000 and showing the ability to create ten indirect jobs.

Conclusion

Foreign entrepreneurs looking to start a U.S. business have several options. However, they should carefully evaluate all of the visas to see which one is the most appropriate. Please feel free to call or email Cedric M. Shen for an initial consultation about your entrepreneurial visa options.

Every year, Congress allots 65,000 H-1B work visas for U.S. Employers to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields, such as scientists, engineers, or computer programmers. This is known as the “regular cap.”

Some of these petitions are exempt from the regular cap under the advanced degree exemption, which provides a visa to the first 20,000 petitions filed for a beneficiary who has obtained a U.S. master’s degree or higher.

The USCIS begins accepting applications on April 1st for every upcoming fiscal year, which begins on October 1st. The 2013 fiscal year began on April 2, 2012 and nobody expected the cap to begin filling up at this pace. As of May 18, 2012 – less than 1.5 months after the USCIS began accepting petitions – 42,000 petitions were submitted under the regular cap, accounting for 65% of the cap. Furthermore, 16,000 petitions were received under the master’s cap, accounting for 80% of this exemption reached.

So what happens once the 20,000 master’s cap is reached? Does the USCIS only accept petitions for beneficiaries with bachelor’s degrees? The answer is no. Unless otherwise exempt from the cap, petitions filed under the master’s cap after the 20,000 visa cap is reached will be counted against the regular cap. In other words, all cap-subject petitions will fall under the regular cap, whether the beneficiary has a master’s degree or not. What this will mean is that once the master’s cap is reached, the USCIS will begin receiving petitions under the regular cap at an even faster pace. It is widely expected that all 85,000 H-1B visas will be accounted for by July – the fastest since the Great Recession began in 2008.

For employers looking to file an H-1B petition, it is strongly recommended that you start the process as soon as possible. Given that the average petition takes at least 2-3 weeks to prepare, the cap may very well be reached by the time it is submitted.

Hawaii will join fourteen other U.S. states to legalize same sex marriage beginning on December 2, 2013.  The following states now permit same sex marriage: California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Rhode Island, Vermont, Washington, Minnesota, and the District of Columbia.

Click to learn more about how a U.S. citizen can sponsor a same sex spouse for a green card.

Cedric M. Shen is a U.S. immigration attorney and Canadian immigration consultant. He is the founding attorney at Maximilian Law Inc., a U.S. & Canadian immigration law firm with offices in Los Angeles and Vancouver.
—
www.maxlawinc.com
(888) 228-4525