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USCIS Proposes Rule to Welcome International Entrepreneurs

 

Relaxing while on the computer
Exciting developments for Foreign National Entrepreneurs

Great news coming from Washington, D.C. last week!

Proposed Rule: U.S. Citizenship and Immigration Services (USCIS) is proposing a new rule, which would allow certain international entrepreneurs to be considered for parole (temporary permission to be in the United States) so that they may start or scale their businesses here in the United States.

Public Policy Behind the Rule: “America’s economy has long benefitted from the contributions of immigrant entrepreneurs, from Main Street to Silicon Valley,” said USCIS Director León Rodríguez. “This proposed rule, when finalized, will help our economy grow by expanding immigration options for foreign entrepreneurs who meet certain criteria for creating jobs, attracting investment and generating revenue in the U.S.”

Eligibility: The proposed rule would allow the Department of Homeland Security (DHS) to use its existing discretionary statutory parole authority for entrepreneurs of startup entities whose stay in the United States would provide a significant public benefit through the substantial and demonstrated potential for rapid business growth and job creation.  Under this proposed rule, DHS may parole, on a case-by-case basis, eligible entrepreneurs of startup enterprises that:

  • Have a significant ownership interest in the startup (at least 15 percent) and have an active and central role to its operations;
  • Whose startup was formed in the United States within the past three years; and
  • Whose startup has substantial and demonstrated potential for rapid business growth and job creation, as evidenced by:
    • Receiving significant investment of capital (at least $345,000.00) from certain qualified U.S. investors with established records of successful investments;
    • Receiving significant awards or grants (at least $100,000.00) from certain federal, state or local government entities; or
    • Partially satisfying one or both of the above criteria in addition to other reliable and compelling evidence of the startup entity’s substantial potential for rapid growth and job creation.

Parole Duration: Under the proposed rule, entrepreneurs may be granted an initial stay of up to two years to oversee and grow their startup entity in the United States.  A subsequent request for re-parole (for up to three additional years) would be considered only if the entrepreneur and the startup entity continue to provide a significant public benefit as evidenced by substantial increases in capital investment, revenue or job creation.

Please note that the proposed rule does not take effect with the publication of the notice of proposed rulemaking.  It will take effect on the date indicated in the final rule when a final rule is published in the Federal Register.

HBM Law Offices will follow the development of this exciting rule closely and inform our community with new updates as they become available.

Source: USCIS.gov

STEM OPT EXTENSION IN JEOPARDY

Since 2008, the DHS has permitted F-1 students whose study was in a STEM field and whose employer is an E-verify participant to have an additional 17-month period of Optional Practical Training (OPT). On August 12, 2015 the U.S. District Court of Columbia ruled that DHS did not follow the correct procedures when they created the STEM OPT regulation extension.

The judge was in agreement with a tech worker’s union that there should have been a notice for the extension regulation and comment period as required by the Administrative Procedure Act (APA) prior to the extension regulation taking immediate effect. The judge ruled that effective February 12, 2016, certain F-1 students will not be allowed longer than the standard period of work authorization after they complete their degree.

The judge stayed the order for 6 moths because she recognized the serious disruption that would result from the immediate implementation of her finding during which time DHS can comply with the notice and comment requirements of the APA. Litigation surrounds this regulation and HBM Law Offices will be following this development closely.

3-year EAD DACA Update

Due to a lawsuit, USCIS is required to collect 3-year work permits issued or mailed AFTER February 16, 2015:

  • You should have received a letter or will be receiving a letter from USCIS asking you to return it IMMEDIATELY before July 30, 2015.
  • They have already sent the letters, and are now calling people, even scheduling home visits this week and next to collect the cards.
  • You should receive a 2-year work permit in the mail to replace the 3-year card, but if you received a 3-year work permit mailed by USCIS AFTER February 16, 2015, even if it was issued before that date, and you do not return it before July 30th, you could lose your DACA status and work permit entirely!
  • So please give the card back to USCIS by mailing it in the postage-paid envelope provided in your letter, or by giving it to the USCIS representative who comes to pick it up.
  • If you are unsure whether you must return your work permit, please call USCIS at 1-800-375-5283 and select Option 8

USCIS is taking unusual steps to retrieve these 3-year work permits; if you are confused about what to do, talk to your lawyer.  If you do not have a lawyer, you can find one at http://ailalawyer.org or http://immigrationlawhelp.org or by visiting AILA’s website for more information.

En Espanol: Debido a una demanda, el USCIS es que se requiere para recoger los permisos de trabajo de 3 años emitidos o por correo DESPUÉS 16 de febrero 2015:

  • Usted debe haber recibido una carta o va a recibir una carta del USCIS le pide que devuelva inmediatamente antes de 30 de julio 2015.
  • Ya han enviado las cartas, y ahora están llamando a la gente, incluso la programación de visitas a domicilio esta semana y la próxima para recoger las cartas.
  • Usted debe recibir un permiso de trabajo de 2 años en el correo para reemplazar la tarjeta de 3 años, pero si usted recibió un permiso de trabajo de 3 años enviada por el USCIS DESPUÉS 16 de febrero 2015, incluso si se emitió antes de esa fecha, y usted no regresa antes de 30 de julio, usted podría perder su estatus DACA y permiso de trabajo en su totalidad!
  • Así que por favor, dar la tarjeta de nuevo a USCIS por correo en el sobre con franqueo pagado que se incluye en su carta, o dándole al representante del USCIS que viene a recogerlo.
  • Si no está seguro si debe devolver su permiso de trabajo, por favor llame al USCIS al 1-800-375-5283 y seleccione la opción 8

USCIS está tomando medidas inusuales para recuperar estos permisos de trabajo de 3 años; si usted está confundido acerca de lo que debe hacer, hable con su abogado. Si usted no tiene un abogado, usted puede encontrar uno en http://ailalawyer.org o http://immigrationlawhelp.org o visitando el sitio web de AILA para más información.

Foreign Students & H-1B

According to the Institute of International Education, some 886,052 foreign students were enrolled in U.S. schools during the 2013-14 school year — more than the number of foreign students enrolled in any other country in the world. In addition to being a pool of potential innovators, scientists, businessmen, etc., foreign students are of great economic importance to the U.S. In 2013 alone, foreign students contributed some $27 billion to the U.S. economy. However, inflexible and outdated laws may be prompting many of these students to leave the U.S. soon after graduation and take their valuable skills elsewhere.

Currently, student (F-1) visas allow foreign students to remain in the U.S. for just 12 months after graduation. For students who have studied in STEM (science, technology, engineering, math) fields this is extended to a total of 29 months after graduation; this may be why a disproportionately high amount of foreign students study in STEM and business compared to U.S. students overall. Once this period is over, students must leave the U.S. within 60 days. Many students apply for H-1B (temporary work visas), but the chances of obtaining an H-1B visa is quite low. Since 2005, the number of H-1B visas available has been capped at 85,000 per year, which is woefully inadequate considering that some 233,000 H-1B applications were submitted this year.

Recently, executive actions by President Obama have proposed to make some important changes. This includes allowing more degrees into the STEM category (which would allow more foreign students to remain in the U.S. for a longer period of time after graduation), extending the maximum time allowed on Optional Practical Training (OPT) programs that many students pursue after graduation, allowing individuals on H-1B visas to change jobs or get promoted with fewer restrictions, and providing more options for outstanding foreign investors, researchers, and founders of businesses to establish themselves in the United States. One change proposed by President Obama has already been implemented, namely the new regulations (effective since May 26 of this year) allowing spouses of H-1B visas to apply for employment authorization. These are positive steps in the right direction, but there remains much to be done in order to ensure that skilled and talented foreign students are given effective incentives and opportunities to remain in the U.S. after completing their education.

H-4 & EAD

On May 26 of this year, new regulation allowing certain H-4 visa holders to obtain an employment authorization document (EAD) came into effect. Some of the key points to keep in mind are the following:

  • H-4 EADs are not limited by deadlines or number. Any number of filings can be made at any time. As long as you are eligible, you may renew your benefits.
  • In order to file for the H-4 EAD, you must hold H-4 status, and you must be in the United States. H-4 status is only held while a person is in the United States.
  • If you have applied for a change to H-4 status, but do not yet hold that status, avoid traveling outside the U.S. If you travel abroad while a change of status is pending, your EAD will be denied. If you must travel outside the U.S., you can refile an EAD application after returning to the U.S.
  • The H-4 EAD grants unrestricted employment authorization to the holder. You can work full-time, part-time, or on-and-off for any employer. You can also be self-employed, start your own business, and hire other individuals (as long as they are authorized to work in the U.S.).
  • An EAD only grants employment authorization NOT travel authorization. Unless you are a Canadian citizen, you need an H-4 visa stamp issued by a U.S. consulate abroad in order to come back to the U.S. with H-4 status.
  • You may file an H-4 EAD application at the same time as an application to change or extend H-4 status. You may also file the primary applicant’s H-1B extension at the same time as applications to change or extend H-4 status, as well as EAD applications.
  • If you are awaiting decision on a previously filed application for change or extension of status (I-539 form), it is better to wait for the decision on the I-539 form before filing the EAD application. This is because the USCIS cannot guarantee that they will be able to match the EAD application with the pending I-539 form.

To learn whether you qualify for a H-4 EAD or have questions about the H-4 Change of Status and H-4 EAD contact our office at 312-857-5402 for prompt assistance.

DAPA Updates & Notario Fraud

In USCIS’s January 26, 2015 DAPA update one of the main issues discussed was to be wary of notario fraud (“notarios” or “immigration consultations” are people who do not have the authority to practice law).  Noatarios misguide immigrants to take advantage of their situations, promising them unrealistic benefits under DAPA (e.g. “we will make sure you get a green card) and charging vulnerable immigrants fees for their baseless advise .

The most up to date DAPA information from USCIS is as follows:

1) At this time, USCIS is not accepting DAPA applications (do not believe anyone who says otherwise)

2) A new form I-821P will be used to apply for DAPA (the form has not been released yet)

3) USCIS Director has said that paying back taxes will not disqualify immigrants’ eligibility under DAPA.  Please make sure not to fall for tax scheme by notaries and/or tax advisors who try to persuade immigrants that not paying taxes will disqualify their eligibility under DAPA.  Taxes will need to be paid prospectively, meaning that DAPA recipients will be obligated to pay taxes once they receive their Employment Authorization Card under DAPA.

4) USCIS will release FAQs very close to registration window planned for May 2015 that will provide clarity on the following:

  • The scope of parent-child relationship
  • The lack of permanency associated with the DAPA program
  • Whether advance parole (permission to travel in/out of the US) will be part of the program
  • Whether the use of false or fraudulent social security number in I-9 forms will impact eligibility
  • Clarity around expedited removal orders
  • Challenges of documentary evidence

As the DAPA program unfolds, we will proactively keep our readers informed.  Please note that this communication does not constitute or form an attorney-client relationship. Our firm will begin taking clients when USCIS opens the DAPA program.

We look forward to helping our community of immigrants take advantage of the DAPA program.  To learn more, please contact our firm.

President Obama’s Immigration Plan

Opinion Piece: President Obama’s Immigration Plan by Chey Vargas

“We are and always will be a nation of immigrants.” –President Barack Obama

The United States of America is founded from immigrants.  Just like our Founding Fathers, we all have ancestors and heritage that goes back to before America was even created or founded. So none of us can say that we are not immigrants or children of immigrants to this country.

Many immigrants today have come the United States of America for a better life, for their family, for work, to escape religious persecution and unrest in the respective countries, and most importantly, to be free and equal.  That is what our ancestors came here for, the American Dream.

On Thursday, November 20, President Obama expressed in his speech that he wants to implement three actions as part of his immigration plan:

  1. Build on Progress at the Border
  2. Make it easier and faster for high-skilled immigrants to stay in the United States
  3. Enforce resources on felons and deportations, not families: Deportations are up 80% and the President believes it is best to prioritize who should leave and who should stay.  Those who have committed felonies and major crimes, should be placed on higher priority to be deported than those who are here for their families and trying to make an honest living.

President Obama spoke at length about the new “Deferred Action for Parents” program that will allow undocumented parents of US citizens or Legal Permanent Residents to make amends in exchange for deferred action.

According to the President, it is not realistic to deport everyone.  Working, attending religious venues, having a family, owning your own home, is all part of the American way of life. Per President Obama’s plan, there are some stipulations that undocumented immigrants must follow in order to be granted the right and privilege to temporary live in the United States:

  • The undocumented immigrant must have US citizen or legal permanent resident children
  • The undocumented immigrant must have been in the United States for at least 5 years or more
  • The foreign national must be current in their payment of taxes, including back taxes
  • This program does not grant citizenship or legal permanent residency

This plan will give the US citizen and legal permanent resident children of undocumented immigrants a better future and provides that felons and certain other classes of undocumented immigrants with criminal backgrounds will be deported above families.

President Obama stressed in his speech that, “This country needs a common and higher purpose.”  Meaning that the United States should be a unified front and strive to create equality for all people who are trying to make an honest living no matter where they came from.  He used Astrid Silva as an example.  Astrid was brought to America at the age of 4.  She learned English by reading newspapers and watching the educational shows on PBS.  Her father worked in landscaping and her mother cleaned homes.  Because she had an illegal status (being the child of undocumented foreign nationals), her parents did not want her to apply to college when she was older.  Due to her status, when her grandmother died, she could not travel back to her home country for the funeral.  She is now working on earning her third college degree as a result of her parents bringing her to the United States to make a better life.

President Obama spoke to the human spirit when he stated “We were strangers once, too.”  If we all sit back and think about that statement, it is very true.  Early Americans came to this country as complete and total strangers.  The Native Americans were already here, and the immigrants who were coming to this country were confused, scared, and just wanted a better life in the land they heard so much about.  Again, it was about freedom and equality, being able to live their life in a way so as they were not persecuted for their beliefs and opinions.

Retrogression of EB-2 Visas for Indian Nationals

Charlie Oppenheim, Chief of Visa Reporting and Control Division for the Department of State, has issued his thoughts/predictions on EB-2 retrogression for Indian nationals and forward movement for preference categories.

Due to high upgrades from EB-3 to EB-2 category and high demand for EB-2 visas, the EB-2 category for Indian nationals will retrogress in November 2014 to February 15, 2005 priority date.  EB-2 India clients are urged to file their Adjustment of Status applications before the end of October 2014.

Unfortunately for EB-2 India clients, there is no forward movement predicted for the forseeable future. However, for family-based preference categories, there will be modest forward movement of possibly a few weeks to two months per month.

See November 2014 Visa Bulletin