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Foreign investors and entrepreneurs have had limited options when starting a new business in the United States. For the most part, the E-2 treaty trader visa and the EB-5 investor green card were the only two options. Both of these require an entrepreneur to invest a substantial amount of capital, as well as to demonstrate job creation.

However, in 2011, USCIS Director Alejandro Mayorkas announced a series of new initiatives that, among others, adds another avenue for foreign investors and entrepreneurs to obtain a work visa in the United States. While the initiative is new, the vehicle is not. Namely, entrepreneurs who start a new business in the United States may now qualify for an H-1B visa.

The H-1B is a temporary work visa designed for employees in a “specialty occupation.” Traditionally, the H-1B requires a U.S. employer to petition a foreign employee for the visa. If approved, the employee may work for the employer in that specialty occupation for up to six years. A key requirement in the H-1B visa is that the employer has a right to control the employee. This includes the ability to hire and to fire the employee. Thus, the requirements for an H-1B visa fly directly in the face of an entrepreneur trying to start a business in the United States. Generally, the entrepreneur is the owner and employer. As such, the entrepreneur cannot act as an employee and is unable to control him or herself.

Faced with criticism and a desire to increase job growth in the United States, the USCIS clarified the H-1B requirements in order to allow certain foreign entrepreneurs to qualify. Thus, foreign entrepreneurs who start their own businesses in the United States may now self-petition for an H-1B visa as long as their business entity is structured in such a manner that an employer-employee relationship exists between the employer and the entrepreneur. When the entrepreneur is an owner, he/she may qualify as a beneficiary of an H-1B if the company’s corporate governance, such as board of directors, is structured in a manner that allows a board to exercise control over the entrepreneur – including the right to fire the entrepreneur.

There are certainly benefits for an entrepreneur to seek an H-1B visa. The entrepreneur does not have to invest the high amount of capital that he/she would for an E-2 or EB-5, which can be anywhere from $250,000.00 to $1 million. Furthermore, unlike the E-2 visa, the H-1B is a path to citizenship. On the other hand, the H-1B visa requires that the entrepreneur be paid the prevailing wage – which could be difficult for a start-up company.

Entrepreneurs may also consider self-sponsorship of a green card under the EB-2 National Interest Waiver (NIW) category. The EB-2 category generally applies to employers sponsoring employees with advanced degrees. However, the USCIS clarified that a foreign entrepreneur may self-sponsor for a green card under this category if he/she can show that the business would benefit the national interest of the United States.

Cedric M. Shen / Maximilian Law Inc / 310 591 8200 / www.maxlawinc.com

On June 15, 2012, the Secretary of Homeland Security Janet Napolitano announced that certain young people who were brought to the United States as young children, do not present a risk to national security or public safety, and meet several key criteria will be considered for relief from removal from the country or from entering into removal proceedings. Those who demonstrate that they meet the criteria will be eligible to receive deferred action for a period of two years, subject to renewal, and will be eligible to apply for work authorization.
In order to be eligible for deferred action, individuals must:

Have entered the United States prior to the age of sixteen;
Have continuously resided in the United States for at least the past five years, and are currently in the United States;
Currently be in school; have graduated from high school; have obtained a GED certificate; or have been honorably discharged from service in the Coast Guard or the U.S. Armed Forces;
Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety;
Be thirty (30) years old or younger.

It should be noted that individuals eligible for deferred action are not eligible for lawful status (permanent residency or citizenship). Further, it does not absolve individuals of any previous or subsequent periods of unlawful presence. It also does not provide dependents or immediate relatives with work authorization or deferred action.

All eligible applicants will be required to undergo a background check and biometrics. Applicants will also have to provide documentation to prove that he/she meets the eligibility requirements. Documentation can include financial records, medical records, school records, employment records or military records.

The Quick and Dirty on U.S. H-1B Work Visas

Just about every employer, HR professional or recruiter has heard of the H-1B visa, which allows foreign nationals to work in the United States. But what exactly is this visa all about? Does anybody qualify? Are there restrictions on the types of jobs? This article will give you the “quick and dirty” on H-1B visas specifically tailored for HR professionals and employers.

What is the criteria for an H-1B visa?

The H-1B allows foreign nationals to work for US employers in a “specialty occupation,” such as lawyers, doctors, physical therapists, graphic designers, account managers, etc. Approval of an H-1B visa requires meeting certain criteria: 1) a bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the position being offered; 2) the degree requirement for the position being offered is common to the industry, or the job is so complex or unique that it can be performed only by an individual with a degree; 3) the employer normally requires a degree or its equivalent for the position being offered; and 4) the nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s degree or higher (i.e. Master’s, MBA, J.D., PhD., etc.)

How many visas are issued each year?

65,000 H-1B work visas are issued every fiscal year. Congress has allotted an additional 20,000 visas for employees with a master’s degree or higher. The fiscal year begins on October 1st and the USCIS begins accepting applications on April 1st. Prior to the 2008 recession, the 85,000 cap was reached within the first month. Since then, it has taken much longer – up to nine months – for the cap to be reached. However, the US economy has been showing signs of improvement and it is expected that US employers will start hiring more foreign workers this year.

What are a US employer’s obligations towards an H-1B employee?

First of all, it is important to note that an employer does not owe any additional obligations towards an H-1B employee with respect to “at-will” employment. In other words, an employer still has the right to dismiss an H-1B employee without cause (while obviously refraining from discrimination based on race, gender, etc.).

That being said, employers do have some obligations that are imperative to abide by in order to ensure H-1B compliance. First, employers must pay the H-1B employee the prevailing wage as determined by the Department of Labor. Simply stated, the employer must pay the employee equal to, or more than, the salary/wages that similarly situated employees in the same profession and geographic region are paid. The employer must maintain this wage information in a public examination file at the place of employment throughout the validity of the H-1B. U.S. employers must also attest that the employment of H-1B employees will not adversely affect the working conditions (work schedules, vacation policies, etc.) of U.S. workers similarly employed, and H-1B employees will be offered benefits on the same basis as U.S. workers similarly employed.

Conclusion

The H-1B process may seem complicated to employers who have not had to deal with hiring a foreign national. However, it is one of the most popular and sought after visas because it allows U.S. employers to hire highly skilled workers. Moreover, the employer’s obligations are not so prohibitively imposing that it would preclude the hiring of a foreign national whose skills may otherwise be hard to come by.

Cedric M. Shen – Attorney at Law; www.maxlawinc.com

On August 17, 2011, the USCIS issued a policy memorandum allowing a “household member” of a principal non-immigrant to extend or to change status to a visitor/B-2 visa.
“In some circumstances, elderly parents, cohabitating nonimmigrant partners, and other household members of principal nonimmigrants may be ineligible for derivative status. For purposes of this memorandum, a “household member” of a principal nonimmigrant is an alien who regularly resides in the same dwelling as the principal nonimmigrant and with whom the principal nonimmigrant maintains the type of relationship and care as one normally would expect between nuclear family members. There are also circumstances when it may be inconvenient or impossible for spouses or children of principal nonimmigrant aliens to apply for the proper derivative status. These aliens may seek B-2 visas, or change their status to B-2, to allow them to reside with the principal nonimmigrant visa holder who is in the United States in another status (H-1B, F-1, etc.) . . . . [The Department of State] directs consular officers to notate the B-2 visa with the principal nonimmigrant’s visa type and duration, and to advise the B-2 visa holder to seek admission for one year at the point of entry if the B-2 visa holder plans to stay in the United States more than 6 months. Applicants may also seek extensions in six month increments from the Department of Homeland Security (DHS) for the duration of the principal alien’s nonimmigrant status.”
This is welcome news for family members, such as spouses or children, of a principal non-immigrant visa cannot obtain derivative status through the principal non-immigrant’s visa. This memorandum clarifies that the USCIS is not changing the eligibility requirements for change of status to B-2, or an extension of B-2 status. The B visa is generally limited to temporary visitors to the United States for up to six months, or for foreigners coming to the US to conduct business, to attend meetings, or to negotiate contracts, etc. However, the memorandum clarifies that changes or extensions are appropriate when other eligibility requirements are met.
“When evaluating an application for change to or extension of B-2 status based on cohabitation, the cohabitating partner’s relationship to the nonimmigrant principal alien in another status will be considered a favorable factor in allowing the household member to obtain or remain eligible for B-2 classification. When considering a change of status and/or multiple extensions for the cohabitating partner or other household member, the finite nature of the stay, rather than the duration of the stay or number of extensions sought, is controlling with respect to nonimmigrant intent. For example, the visit should be considered temporary even if the status may be extended several times over several years in order to match an extended course of study undertaken by the principal alien. However, while the I-539 (B-2) application must be adjudicated on its own merits, a finding that the principal nonimmigrant lacks nonimmigrant intent is a negative factor in the exercise of discretion.”

I’ve previously written about family-based green cards and immediate relatives. Namely, a US citizen parent may sponsor a non-citizen child under the age of 21 for a green card. But what about step children? With divorce and re-marriages becoming more and more common, it’s only natural to expect situations in which a US citizen parent wants to sponsor a step-child under the age of 21. The good news is that this is possible, with a caveat. The general rule is that a step-parent may sponsor a step-child for a green card if the marriage creating the parent-child relationship took place before the child turned eighteen. This means that the petitioner/step-parent has to have married his or her second spouse prior to the beneficiary’s 18th birthday. If the petitioner/step-parent marries after the beneficiary’s 18th birthday, but before the 21st birthday, then the beneficiary is not eligible for “immediate relative” status even though he/she would have been but for the step-parent relationship.