The Visa Bulletin released by the Department of State for February 2012 shows another huge jump forward for retrogressed EB-2 (Employment-Based second preference) cases. Visas are now available for cases filed on or before January 1, 2010 for Indian and Chinese Nationals. This represents a one year leap forward as compared to the January 2012 visa bulletin.
The National Foundation for American Policy (NFAP), a non-profit, non-partisan public policy research organization focused on trade, immigration and related issues, recently published a report on immigrant entrepreneurs. The report noted that in recent years, start-up businesses, those in their first three years of operation, have contributed the most to job growth in the U.S. In fact, older firms (6-10 years of operation), created only one-tenths of the number of jobs created by the start-ups. And recent studies have shown that “immigrants were more than twice as likely to start businesses each month in 2010 than were native born.”
Notwithstanding the fact that, without start-ups, there would be almost no job growth in the U.S. economy, and the fact that immigrants are so much more likely to start a business, U.S. immigration law makes it very difficult for foreign entrepreneurs to stay in the U.S. One option, an E visa, requires a minimum investment of $500,000 in an existing business (the average investment for a start-up is $31,000). Another option, an H-1B visa, is almost impossible for an entrepreneur to get.
Recently, a number of new bills have been introduced that would establish entrepreneur visas. These bills would place less emphasis on the amount of capital a foreign national invests and more on the talent the new business owner brings to the undertaking.
In the recently published U.S. Department of State Visa Bulletin for January 2012, the EB-2 priority dates for India and China have moved
significantly to January 01, 2009 from March 15, 2008 in the December 2011Visa Bulletin. Meanwhile, the EB-2 numbers for other countries remained current, along with EB-1.
On September 22, 2011, Representative Chaffetz (R-UT) introduced H.R. 3012, or The Fairness for High-Skilled Immigrants Act. The act would eliminate the employment-based per-country caps entirely. This would constitute a significant improvement over the current situation. The per-country caps have resulted in lengthy delays in finally getting employment-based green cards (up to 9 years in some cases). On November 29, 2011, the House passed H.R. 3012. It now goes to the Senate for consideration.
USCIS announced today that it has received a sufficient number of H-1B petitions to reach the statutory cap of 65,000 for fiscal year (FY) 2012. USCIS is notifying the public that yesterday, Nov. 22, 2011, was the final receipt date for new H-1B specialty occupation petitions requesting an employment start date in FY 2012.
The U.S. has a long history of welcoming highly skilled workers. Last week, Sect Napolitano outlined a new policy intended to make it easier for highly skilled immigrants to start and grow companies and create jobs. The policy includes clarifying that immigrant entrepreneurs may obtain an EB-2 immigrant visa and may qualify for a National Interest Waiver, expanding Premium Processing services, and clarifying that a sole employee-entrepreneur can establish a valid employer-employee relationship for H-1B purposes.
Every foreign national in the United States, whether in nonimmigrant or immigrant status (green card), has a legal obligation to update his/her address with USCIS each and every time that s/he moves. In the case of nonimmigrants with pending petitions, failure to update an address could result in CIS sending a Request For Further Evidence to the wrong address. Failing to respond to a Request for Further Evidence, in turn, could lead to the denial of the benefit. If a green card holder fails to update his/her address, s/he may be questioned about the omission at a naturalization interview.
J-1 visas permit exchange visitors, such as Research Scholars, Physician Scientists/Trainees, and Professors, to come to the U.S. in nonimmigrant status. Many J-1 visas, however, come at a high price, i.e., the holders are subject to the two year home residency requirement (Section 212(e) of the INA). This means that the international Scholar, Scientist, Professor, etc., is not permitted to change to H-1B status or lawful permanent residence until s/he has returned to the home country for a two year period.
Most individuals are subject to the two year home residency rule for one of the following reasons: 1) S/he is on the “skills list” maintained by the DOS, meaning that s/he is engaged in a field that is designated by the home government as being in short supply in that country, 2) the exchange visit was financed, directly or indirectly, by the U.S. or a foreign country’s government, or (3) the exchange visitor has come to the U. S. to participate in a residency or fellowship program.
Fortunately, there are several ways to apply for a waiver of the home residency rule.
One way to obtain a waiver is to invoke the sponsorship of an interested government agency (“IGA”). If, for example, a scientist is involved in research that is critical to NASA, then NASA, as the IGA, could request a waiver.
Another way is to apply for the waiver based upon a “no objection” statement by the home government. This involves the preparation and submission of a statement (along with supporting documents) that the foreign government does not object to the individual staying in the U.S. even though s/he previously agreed to leave for two years.
A third way to obtain a waiver is to prove that an “exceptional hardship” will be suffered by a U.S. citizen spouse or child if the applicant is forced to leave the U.S. For example, where a foreign national has a U.S. citizen child who requires medical treatment that is available in the U.S., but not the home country, the foreign national may be eligible for a hardship waiver.
For the past several years, Iranian students in F and J status were only able to get single-entry visas. As of May 20, 2011, qualified Iranian applicants for non-sensitive, non-technical fields of study and research will be eligible to receive two year, multiple entry visas. This will make travel significantly easier for Iranian students.
A BALCA decision handed down earlier this week finally answered a long standing question regarding PERM and the recruitment standard to be used for college and university professors. In a normal PERM case (not involving a university teaching position), the employer must demonstrate that it recruited for the position and could not find “minimally qualified” U.S. workers. Under a Special Handling case (applicable to college and university professors), the recruitment requirements are different and the applicable standard is different. The employer only needs to show there are no US workers who are at least equally qualified with the alien.
However, Special Handling applications must be made within 18 months after the selection is made. After 18 months, a college or university must use the normal PERM recruitment procedures. The unanswered question has been: Can a college or university that has used the normal recruitment procedures avail itself of the Special Handling “at least at least equally qualified with the alien” standard?
This week’s BALCA decision put an end to the uncertainty. On April 18, 2011, BALCA held that in cases involving a college or university teaching position, the employer may select the alien over less qualified U.S. workers regardless of whether the employer uses the basic recruitment process or the Special Handling recruitment process.