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

On August 29, 2016, Provisional Waiver Process Will Include Additional Applicants

Until now, only immediate relatives of U.S. citizens were eligible to seek such provisional waivers before departing the United States for the processing of their immigrant visas. Those eligible for the provisional waiver process under the 2013 rule are only a subset of those eligible for the waiver under the statute.  This regulation expands eligibility for the process to all individuals who are statutorily eligible for the waiver.

The rule that goes into effect on Aug. 29, 2016, expands eligibility for the provisional waiver process to all individuals who are statutorily eligible for the waiver of the unlawful presence ground of inadmissibility.

To qualify for a provisional waiver, applicants must establish that their U.S. citizen or lawful permanent resident spouses or parents would experience “extreme hardship” if the applicants are not allowed to return to the United States.

The new modifications include:

  1.  Clarifying that all individuals seeking provisional waivers, including those in removal proceedings before the Executive Office for Immigration Review (EOIR), must file applications for provisional waivers with USCIS.
  2. Allowing individuals to apply for provisional waivers even if USCIS has a reason to believe that they may be subject to other grounds of inadmissibility.
  3. Eliminating the proposed temporal limitations that would have restricted eligibility for provisional waivers based on DOS visa interview scheduling.
  4. Allowing individuals with final orders of removal, exclusion, or deportation to be eligible for provisional waivers provided that they have already applied for, and USCIS has approved, an Application for Permission to Reapply for Admission into the United States After Deportation or Removal, Form I–212.
  5.  Clarifying that DHS must have actually reinstated a removal, deportation, or exclusion order in order for an individual who has returned to the United States unlawfully after removal to be ineligible for a provisional waiver on that basis

 

The New STEM-OPT Extension Rule: What You Need To Know

As of May 10th, 2016, a new 24-month optional practical training (OPT) extension for F-1 students with science, technology, engineering and mathematics (STEM) degrees will go in effect. This rule replaces the previous 17-month STEM extension.  The new rule includes certain reporting requirements for students, schools and employers.  OPT extension rules will be in place.

Below is important information you should know about the changes to the STEM OPT rule:

  • Prior SEVP-accredited STEM degree supports the extension even if the immediately preceding degree is not in a STEM field
  • Employers and Foreign Nationals are required to complete a training plan and provide regular status updates to the Designated Student Official (DSO) at the University for the I-983 form
  • USCIS may conduct site visits to verify employment
  • The extension permits 60 more days of unemployment during the 2-year extension period, which supplements 90 days of unemployment permitted during the first year
  • Students whose unemployment exceeds 150 days violate their status. It is the responsibility of the student to report any unemployment to the DSO who will update SEVIS.  Failure to report unemployment will result in automatic termination of SEVIS after 90 days

Not everyone will qualify for the new extension, however if your extension is approved as of May 10th, 2016:

  • EAD card remains valid so long as unexpired
  • Can apply for additional 7-month extension requirement during the application time period of May 10th – August 8, 2016
  • Student must have at least 150 calendar days remaining on EAD as of USCIS receipt date (Students with EAD’s expiring 10/6/2016 are automatically ineligible)
  • Student must meet the I-983 Mentoring and Training Plan requirements

If you have a pending extension request prior to May 10th, 2016:

  • Expect RFE to establish that the new rule’s guidelines are met
  • USCIS will request a new I-20 with 24-month endorsement
  • Form I-983 will need to be completed by both the employer and student, DSO will keep this and update the SEVIS system
  • Expired OPT-EAD’s are auto-extended for 180 days if the extension is pending and was filed prior to the EAD expiration date
  • It is important not to withdraw a pending stem extension request and file a new one to meet the 24-month guideline — this will cause the extension to be denied

In addition to the changes in the extension requirements, there are also material changes that require F-1 students to communicate to their DSO.  These changes include:

  • Change in EIN resulting from employer’s corporate restructuring
  • Nontrivial reduction in compensation from the amount previously submitted in the training plan (which is not tied to hours worked)
  • Any significant decrease in hours per week on STEM training
  • Any decrease in hours below the minimum 20 hours per week threshold

USCIS has a fantastic online resource detailing the new rule on their STEM OPT HUB:  https://studyinthestates.dhs.gov/stem-opt-hub

For an assessment of your eligibility under the new OPT-STEM extension rule or related questions, contact our office at 312-857-5402.

 

 

 

H-1B/STEM Information

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 proportion 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 Employment Authorization Documents

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.

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.