EB-5 Regional Center List Grows; 2 New FL Projects

[NOTE: USCIS HAS UPDATED THIS LIST AS OF DECEMBER 2008. PLEASE SEE OUR LATEST ARTICLE HERE]

The Immigrant Investor (EB-5) Pilot Program is designed to encourage foreign investment by providing a vehicle for investment in the form of an economic unit called a “Regional Center.” The Regional Centers are private or public entities that have received government approval to participate in the program. They enable the amassing and pooling of capital for targeted investment in designated regions in the United States.

FAQs: I Was Underpaid As An H-1B, But Am Now Outside the U.S.; Can I Still Sue?

If you were underpaid as an H-1B, and are now outside the U.S., below are some frequently asked questions and answers.

 —–

 #1: Can I bring a legal claim in the U.S. against my former employer, when I no longer live in the U.S.?

Probably yes.  There are cases in several areas of U.S. law where non-citizens are allowed to pursue legal action against a U.S. citizen or U.S. entity (e.g. their former U.S. employer).  As a non-citizen, you probably have “standing” to bring a U.S. legal claim when that claim is based on events that occurred while you were working in H-1B status.

#2: It has been several years since I left my underpaying H-1B employer and left the U.S.- is it too late to file a legal claim?  What are the deadlines?

If your wages were underpaid sometime within the last four (4) years, you still have time to consider taking legal action against your former employer.

There are several deadlines that may apply to your situation, ranging from one (1) to four (4) years or possibly longer.

The Department of Labor (DOL) has a one (1)- year deadline for filing a complaint for being paid under the prevailing wage.

Even when the DOL deadline has passed, there are other laws that may apply to your situation that have longer deadlines.  For example, State wage laws often have two (2)- year or three (3)- year deadlines.  Some State and Federal fraud laws have longer deadlines-one important federal fraud law that applies to underpaid H-1B wages has a deadline of four (4) years.  Some applicable laws’ deadlines may be even longer.

#3: What makes a legal claim “good” or worth pursuing?

These are the most important factors that are likely to make a legal claim “good:” 

* Your deadline hasn’t passed. 

That is, at least some of your underpaid wages occurred within the last four (4) years. 

* The amount of your underpaid wages is significant, i.e. tens of thousands of U.S. dollars or more.

If you were only underpaid a few weeks’ wages, then a legal action is probably not worthwhile for you to pursue.

If you lost a significant amount of wages, tens of thousands of dollars or more, then there is more you would stand to gain from a legal action.

Also, the greater the amount of lost wages, the more likely it is that an attorney would represent you on a contingency basis instead of requiring fees in advance.  (Under a contingency arrangement, you do not have to pay your attorney out-of-pocket legal fees. Fees are only paid by the employer if you obtain a settlement or legal award. For more information on this subject, please see Question #7 below). 

* You have LCA and paystub documentation proving you were underpaid. 

It will help your legal claim a great deal if you have copies of: (1) your Labor Certification Application (LCA) or other documents that prove what your prevailing wage was; and (2) paystubs or other documents that prove your H-1B employer paid you less than the prevailing wage. 

If you do not have these documents, you can still pursue your claim. Having these documents, however, makes a claim easier to prove and pursue. 

#4 Will I have to file a legal complaint for my matter, or is it possible I can reach an agreement (settlement) with the employer without having to pursue a lawsuit? 

Often, an H-1B worker will be able to reach a settlement with the employer without having to file a legal complaint.  It is often in the employer’s best interests to reach a settlement rather than face the costs and risks of litigation.  Employers often stand to lose a lot of money- if they lose a judgment, they may have to pay for your unpaid wages, pay additional penalty monies, and pay their own attorney fees and legal expenses.  Thus, it is often in the employer’s best financial interest to reach a reasonable settlement with its former H-1B worker, before a legal complaint is filed. 

If a legal complaint is filed, it is still possible that a settlement can be reached in the earlier stages of litigation, before the parties have spent a significant amount of money on litigation. 

#5 If I pursued my unpaid wages from my former H-1B employer, would I have to travel to the U.S.? 

Chances are you would not have to travel to the U.S.  As mentioned above, there is a good chance you can reach a settlement with your employer before filing a legal complaint.  If a legal complaint is not filed, there is no requirement that you travel. 

If you cannot reach a settlement with the employer and you decide to file a legal complaint, then after the complaint is filed you could be required to travel to the U.S.  As part of litigation, there are two potential occasions you may have to travel: You could be required to attend a deposition in the U.S., and you could be required to testify at trial.  However, many cases in litigation are resolved before these occasions (a deposition or a trial) arise.  In addition, if a deposition is necessary, it is possible the court will permit a video deposition so that you do not need to travel to the United States. 

The bottom line is this: (1) the chances are good you could settle your unpaid wage matter without having to travel to the U.S.; (2) if you don’t settle your matter before litigation, you have a choice of filing a complaint (and possibly commit yourself to traveling) or not filing a complaint; and (3) if you file a complaint, your legal case may still be resolved without you having to travel to the U.S. 

#6 If I have to travel to the United States for litigation, do I need a visa? 

What if you do wind up filing a legal complaint and you do reach the point you are required to travel to the U.S. and attend a deposition or trial?  Would you be legally-allowed to travel to the U.S.? 

Visa regulations specifically allow foreign nationals to come to the United States on a tourist/business visa for litigation purposes. Therefore, if you are eligible for the Visa Waiver Program, you may enter the United States under that program and stay up to 3 months. Otherwise, you will need to obtain a regular tourist visa from the U.S. consulate in your country if you do not already have one. 

If you are subject to a bar to re-entry because you significantly overstayed your last visa, engaged in unauthorized work, or are otherwise inadmissible to the United States, you may qualify for a non-immigrant visa waiver of inadmissibility. If these circumstances apply to you, you should consult with an attorney to discuss your options. 

#7 If I hire an attorney to help pursue my unpaid wages from my former H-1B employer, how much would that cost me? 

If you retained an attorney for your matter (the attorney must be someone licensed in the U.S.), there are several types of fee arrangements, some of which don’t require you to pay anything unless you win. 

Some U.S. attorneys will represent H-1B workers with unpaid wages on a “contingency” basis. 

If the attorney will work on contingency, that means you do not have to pay the attorney anything out of your pocket.  The attorney is only paid if you settle or win your case.  When you win your case, the H-1B employer will pay a percentage of your settlement or judgment (traditionally 33 1/3%) to your attorney for legal fees. 

There are other types of legal fee arrangements where you do have to pay out of pocket legal fees.  For example, many attorneys charge hourly legal fees, usually ranging between $150/hour to $300/hour (rates may be higher or lower depending on the locale and other factors).  This hourly type of fee arrangement will require that you pay out-of-pocket money to your attorney, and you will get a regular bill from the attorney.   

An hourly fee arrangement is ethical and common, and it could turn out to be a better financial deal for you in the long run than a contingency arrangement.  However, the disadvantage of hourly fees is that these hours can add up quickly and become very expensive for you.  In a short time (a matter of a few weeks or months), you could be charged thousands of dollars in hourly fees.  If you pay hourly fees for long-term litigation, you could easily incur tens of thousands of dollars in hourly fees. 

If you retain an attorney on an hourly basis, you should ask that attorney for a detailed budget and estimates of what you can expect to pay throughout the litigation process. 

As you can see, one important issue to consider when you hire an attorney is whether that attorney will have a contingency fee arrangement or a different arrangement that requires you to pay out-of-pocket legal fees (like hourly billing). 

Another important factor to consider when hiring an attorney is whether that attorney is experienced in dealing with H-1B wage issues, immigration issues, and employment disputes and litigation. 

There is a blog post here (Important Questions to Ask When Hiring an Attorney), which details many important factors to consider when retaining an attorney. 

In addition, for more information about issues to consider if you are an H-1B worker and are not being paid your prevailing wage, please visit this article: Employee Tip: If You’re an H-1B Worker Beign Underpaid Wages, Consider These Things.

This post was jointly authored by Employee Rights Attorney Michael Brown of the law firm of Peterson, Berk & Cross, and Immigration Attorney Vonda K. Vandaveer of the law firm V.K. Vandaveer, P.L.L.C.  Attorney Brown authors the blog Employee Rights WI. For more information about H-1B rights, please see our other blog H-1B Legal Rights at www.h1blegalrights.com.

DISCLAIMER: The information in this article is NOT legal advice, nor does it establish an attorney-client relationship between you and the attorneys or law firms above. Legal advice often varies between situations. If you want legal advice for your specific circumstances, you must consult with an attorney.

USCIS List of EB-5 Regional Centers; 2 New Centers in CA Approved

[NOTE: THE REGIONAL CENTER LIST HAS BEEN UPDATED. PLEASE SEE THE REVISED LIST HERE: EB-5 Regional Center List Grows; 2 New FL Projects]

The Immigrant Investor (EB-5) Pilot Program is designed to encourage foreign investment by providing a vehicle for investment in the form of an economic unit called a “Regional Center.” The Regional Centers are private or public entities that have received government approval to participate in the program. They enable the amassing and pooling of capital for targeted investment in designated regions in the United States.

New H-1B Cap Gap Rule May Not Help Those Who Need It Most

The new H-1B cap gap bridge is revealing a crack that may cause it to collapse.

The new regulation requires H-1B applications be marked “change of status” to benefit from the automatic Optional Practical Training (OPT) cap gap extension.

This requirement poses a critical problem for cap gap sufferers because they would not have been eligible to change status. Instead, those whose status would have expired before the Oct. 1 employment start date would have had to leave the country to obtain their visa, thus they would have not checked the “change of status” box.

In other words, the regulation has made itself inapplicable to the very group it is intended to protect.

AILA has called this irony to the attention of USCIS and is awaiting guidance.

We will post any update as soon as it is announced.

 

H-1B Cap Hit; Application Lottery to Commence

USCIS announced the H-1B regular and advanced degree exemption caps for FY 2009 have been met, meaning applications will be drawn in a lottery for processing.

USCIS will use a computer-generated random selection process for all cap-subject petitions received, beginning with the 20,000 advanced degree exemption petitions first.

Once that category is hit, the excess advanced degree petitions will be added to the regular H-1B petitions for random selection for processing.

If your petition is not selected in the lottery for processing before the 65,000 visa limit is reached, USCIS will reject it and return the filing fee.

More information is available on the USCIS website. 

New OPT Rule Effective Today, April 8, 2008

The interim final rule regarding the extension of optional practical training (OPT) for certain foreign national students was published in today’s Federal Register, meaning the rule is now in effect.

The final rule will be issued after the Department of Homeland Security reviews public comments, which must be submitted by June 9, 2008.

The rule extends OPT for two categories of students. The first is for pending H-1B applicants who are caught in the cap gap caused by the limited annual availability of visas. Those applicants with a start date of Oct. 1, 2008, when the new H-1B visas become available, but whose OPT period will expire before Oct. 1, 2008 will receive an automatic extension of their OPT to cover them through Oct. 1, 2008, assuming the H-1B application is approved.

If the application is denied, the student has 60 days to leave the country from the date of notification of the denial.

The second category of students to benefit from the new rule are those who hold degrees in science, technology, engineering and mathematics and whose employers are enrolled in the controversial E-Verify program. OPT for these students is being extended from 12 months to 29 months, a 17-month increase.

The published rule in the Federal Register is available here: http://edocket.access.gpo.gov/2008/pdf/E8-7427.pdf

For more information about this new rule, please see our earlier article OPT Extension to Benefit H-1B applicants and STEM students. 

L-1 Visa Transfert Interne

Le visa non immigrant L est un visa qui permet aux employés d’entreprises multinationales d’être transférés à une filiale basée aux Etats-Unis et cela pour y travailler temporairement. Ce visa est destiné aux employés occupant des postes de gestionnaires ou d’administrateurs (L-1A) ou aux employés hautement qualifiés (L-1B). Le tributaire du visa L-1 est appelé «transfert interne».

Les rapports entre l’entreprise américaine et l’entreprise étrangère justifiant l’accès au visa L-1 :  Afin de bénéficier du visa L-1, l’éventuel employé doit avoir été employé à l’étranger avec une filiale, une maison mère, une succursale ou annexe de l’entreprise américaine faisant la requête. Le contrôle établi entre les deux entreprises constitue l’élément à la justification du rapport, signifiant que soit l’entreprise américaine ou l’entreprise étrangère exerce le contrôle sur l’autre. Une copropriété à 50/50 remplira les conditions d’admissibilités.

What “Business” Can You Do on a B Tourist Visa or Visa Waiver?

While foreign nationals cannot live and work in the United States on a visitor visa (B-1 or B-2) or under the visa waiver program, certain business activities are allowed. As a general matter, the B-1 business visitor visa or visa waiver permits the following activities:

Visitors traveling to the United States to engage in commercial transactions, negotiations, consultations, conferences, etc.

Business that may be conducted on a regular tourist visa or under the visa waiver program include:

A. Engaging in commercial transactions that do not involve gainful employment in the United States (such as a merchant who takes orders for goods manufactured abroad);

B. Negotiating contracts;

C. Consulting with business associates;

D. Litigating;

E. Participating in scientific, educational, professional or business conventions, conferences, or seminars; or

F. Undertaking independent research.

The following specific business activities are permitted if you are entering the U.S. with a regular visitor visa or under the visa waiver program, according to the Department of State Foreign Affairs Manual and other sources as identified below:

1. Members of Board of Directors of a U.S. Corporation

A visitor who is a member of the board of directors of a U.S. corporation seeking to enter the United States to attend a meeting of the board or to perform other functions resulting from membership on the board.

2. Investor Seeking Investment in the United States

A visitor seeking investment in the United States, including an investment that would qualify him or her for status as an E-2 investor. Such a visitor is precluded from performing productive labor or from actively participating in the management of the business prior to being granted E-2 status.

3. Prospective Intracompany Transferee

A visitor coming to open or be employed in a new branch, subsidiary, or affiliate of the foreign employer, if the visitor will become eligible for status as an L-1 (intracompany transferee) upon securing proof of acquisition of physical premises (See CBP manual);

4. Commercial or Industrial Workers

A visitor coming to the United States to install, service, or repair commercial or industrial equipment or machinery purchased from a company outside the United States or to train U.S. workers to perform such services. In such cases, however, the contract of sale must specifically require the seller to provide such services or training and the visa applicant must possess specialized knowledge essential to the seller’s contractual obligation to perform the services or training and must receive no remuneration from a U.S. source.

These provisions do not apply to a visitor seeking to perform building or construction work, whether on-site or in-plant except for an alien who is applying as a B-1 for the purpose of supervising or training other workers engaged in building or construction work, but not actually performing any such building or construction work)

5. Business or Other Professional or Vocational Activities

A visitor who is coming to the United States merely and exclusively to observe the conduct of business or other professional or vocational activity may be classified B-1, provided the visitor is paying for his or her own expenses.

Visitors, however, such as students, who seek to gain practical experience through on-the-job training or clerkships must qualify for an H (skilled worker), L (intracompany transferee)  or J (exchange visitor) visa as appropriate.

6. Employees of Foreign Exhibitors

Employees of foreign exhibitors at international fairs or expositions who are not foreign government representatives ordinarily are classified B-1.

7. B-1 in Lieu of H-3 for Trainees

Visitors already employed abroad, who are coming to undertake training and who are classifiable as H-3 trainees may instead enter on a B-1 if the visitor demonstrates that:

A. The proposed training is not available in the visitor’s own country;

B. The visitor will not be placed in a job which is in the normal operation of the business and in which U.S. citizens and resident workers are regularly employed;

C. The visitor will not engage in productive employment unless such employment is incidental and necessary to the training; and

D.  The training will benefit the visitor in pursuing a career outside the United States;

E. The visitor will continue to receive a salary from the foreign employer and will receive no salary or other remuneration from a U.S. source other than an expense allowance or other reimbursement for expenses (including room and board) incidental to the temporary stay.

8. B-1 in Lieu of H-1B

There are cases in which visitors may be performing services in the U.S., such as assisting briefly on a highly technical project, but who do so under a B-1 instead of an H-1B.

As a preliminary matter, consular officers will require that the work to be done in the United States should be at the H-1B level (i.e. a specialty occupation normally requiring a bachelor’s degree) and the visiting employee should have a bachelor’s degree relevant to the services to be provided. (See e.g. U.S. Consulate in Chennai)

The critical criteria, though, for being eligible for the B-1 in lieu of the H-1B is that the visiting employee must not receive any salary or other remuneration from a U.S. source, other than an expense allowance or other reimbursement for expenses incidental to the visitor’s temporary stay. The remuneration or source of income for services performed in the United States must be provided by a foreign source. In other words, by the business entity located abroad.

Where a U.S. business entity has a separate business enterprise abroad, the salary paid by such foreign entity shall not be considered as coming from a “U.S. source,” according to the Department of State.

Thus, in order for an employer to be considered a “foreign firm” the entity must have an office abroad and its payroll must be disbursed abroad. The visiting employee must be employed by the foreign firm, the employing entity must pay the employee’s salary, and the source of the employee’s salary must be abroad.

*Please note the above list is not comprehensive. Other business-related activities may be allowed. Also, the list does not include the additional activities permitted under NAFTA to Canadian and Mexican citizen visitors.

Les Visas De Commerces et d’Investissements

Le visa non immigrant E est attribué aux citoyens de certains pays avec lesquels les États-Unis ont ratifié un traité de commerce ou autres accords. Il existe deux type de visa E. E-1 visa de commerçant connut sous le nom de «Treaty Trader» et E-2 visa d’investisseur connut sous le nom de «Investor Visa».

E-1 Treaty Trader Visa

Conditions requises :

Le visa E-1 «Treaty Trader» permet aux citoyens des pays membres du traité de venir aux États-Unis pour procéder à d’importants échanges commerciaux, y compris des échanges de services ou de technologie, et cela principalement entre les États-Unis et le pays membre du traité. Les conditions d’éligibilités sont :

1) Le demandeur doit être citoyen d’un pays membre du traité;

2) La compagnie s’installant aux Etats-Unis doit être de la même nationalité que le pays membre du traité;

3) Le commerce international doit être “substantiel” c’est-à-dire qu’il faut qu’il y ait un volume continu et important de transactions;

4) Les transactions doivent se faire principalement entre les Etats-Unis et le pays membre du traité (50% du commerce international réaliser doit être entre les Etats-Unis et le pays du demandeur du visa E-1);

5) Commerce signifie l’échange international de marchandises, de services et de technologie. Le titre de commerce des articles doit être transmis d’un partenaire commercial à l’autre;

6) Le ressortissant étranger doit occuper un poste en tant que superviseur ou cadre, ou posséder des compétences hautement spécialisées indispensables au bon fonctionnement de l’entreprise. Les employés n’ayant pas qualifications spécifiques ne seront pas éligible.

E-2 Treaty Investor Visa  

Conditions requises :

Le visa d’investisseur E-2 permet aux citoyens des pays membre du traité de venir aux Etats-Unis pour développer et diriger les opérations d’une entreprise dans laquelle l’investisseur a investi ou est sur le point d’investir d’important fonds. Les conditions d’éligibilités sont :

1) L’investisseur, soit une personne ou au nom d’une entreprise, doit être citoyen d’un pays membre du traité;

2) L’investissement doit être substantiel. Il n’y a pas d’exigence minimale fixée, mais une petite entreprise avec des fonds minimes ne réussira pas. L’investissement doit être conséquent pour assurer le bon fonctionnement de l’entreprise. Le pourcentage d’investissement d’une compagnie à bas revenus doit être plus élevé que le pourcentage d’investissement d’une entreprise à hauts revenus;

3) L’investissement doit provenir d’une entreprise existante. Tout investissement spéculatif ou latent ne sont pas éligible. Avoir des fonds libres et non engagés ou bien avoir des titres ne constitue pas un investissement.  De même que l’acquisition d’un bien immobilier dans l’attente d’une éventuelle plus value. Aussi, l’investissement doit être d’une entreprise commerciale, de ce fait les organismes à but non lucratif ne sont pas éligibles;

4) L’investissement doit être fructueux et ne doit pas uniquement servir à subvenir aux besoins de l’investisseur et sa famille, ou bien il doit avoir un impact économique significatif aux Etats-Unis;

5) L’investisseur doit avoir le contrôle des fonds et l’investissement doit être à risque. Les prêts avec actifs en garanties ne sont pas autorisés;

6) L’investisseur doit venir aux Etats-Unis pour développer et diriger l’entreprise. Si il n’est pas le principal investisseur, il doit être employé dans un poste de superviseur, cadre supérieure ou en tant qu’employé à compétences hautement spécialisées. Les employés n’ayant pas qualifications spécifiques ne seront pas éligible.

Demande de Visa : Le ressortissant étranger peut faire sa demande directement auprès du consulat des Etats-Unis dans son pays de résidence sans avoir au préalable une autorisation d’U.S.C.I.S.
Le ressortissant étranger peut également faire un changement de statut aux Etats-Unis, mais si il est appelé à voyager en dehors des États-Unis, il devra refaire sa demande de visa E auprès du consulat américain. Cette démarche peut entraîner un refus de visa et nuire au bon fonctionnement de son entreprise américaine.

Les documents requis pour la constitution de dossier peuvent être nombreux afin de répondre aux critères d’éligibilité au visa. Par exemple, les documents sur les activités de l’entreprise aux Etats-Unis devraient inclure, entre autres, un plan d’affaires, les preuves d’actifs et ou de l’investissement, les documents de constitution de la compagnie, photos des installations, et une description de la position ainsi que l’expérience du candidat.

Membres de la famille : Les membres de la famille (conjoint et enfants de moins de 21 ans) du commerçant ou de l’investisseur obtiendront le même type de visa que le titulaire principal, quelque soit leur nationalité. Les conjoints peuvent demander un permis de travail après l’obtention du statut du visa E.

Délai : les visas E-1 et E-2 sont initialement d’une durée deux ans, et peuvent être prolongé jusqu’à deux ans à la foi tant que le statut du visa E est maintenu.

Quotas : Il n’y a pas de quota pour les visas E-1 et E-2.

Liste des Pays traité : Pour obtenir la liste des pays membre du traité, visitez le Site web du Département d’État.

Renseignements supplémentaire : consulter également les renseignements relatifs au visa de travail L-1 et au visa d’investisseur immigrant EB-5 pour d’autres possibilités d’affaires.

India Hits Limit for EB-2 Visas for FY 2008

India has hit its annual limit for second-preference, employment-based immigrant visas (EB-2), meaning no more are available effective immediately, according to the February 2008 Department of State Visa Bulletin.

The category will remain unavailable for the remainder of fiscal year 2008, which ends Sept. 30, 2008. New numbers should be released Oct. 1, 2008.

Second-preference employment visas are those for members of the professions holding advanced degrees or persons of exceptional ability, including National Interest Waiver cases.

During the last couple of months, this category for India had been retrogressing due to heavy demand, signaling it would soon be oversubscribed. Between the November and December bulletins, the cut-off date moved from April 1, 2004 to Jan. 1, 2002, then in January it moved back to Jan. 1, 2000.

Updated List of Regional Centers for EB-5 Immigrant Investor Pilot Program as of October 2007

PUBLISHER’S NOTE: SEE OUR UPDATED LIST AS OF MAY 2008 HERE USCIS LIST OF APPROVED REGIONAL CENTERS; 2 NEW CENTERS IN CA APPROVED.  

The Immigrant Investor (EB-5) Pilot Program is designed to encourage foreign investment by providing a vehicle for investment in the form of an economic unit called a “Regional Center.” The Regional Centers are private or public entities that have received government approval to participate in the program. They enable the amassing and pooling of capital for targeted investment in designated regions in the United States.

For the Investor, these Regional Centers are attractive because they allow for a less restrictive job creation requirement. Instead of having to prove direct job creation, the investor may show indirect job creation through such methods as economic and statistic forecasting tools.

Please note that this pilot program expires in November 2008 unless reinstated

In November 2007, USCIS released to AILA the following list of “active” regional centers as of October 2007.

Regional Centers that may have been approved, but were not designated as “active” by USCIS are not included in this list.

As the status of these Regional Centers as participants in the Pilot Program can change, before investing any money, verify the center is still approved and active in the Pilot Program.

For more information on the EB-5 Immigrant Investor visa see our other article EB – 5 Permanent Residency through Investment.

In alphabetical order by state, the Regional Centers deemed “active” as of March 2007 include:

EB-2: Advanced Degrees or Exceptional Abilities

Overview: The second-preference, employment-based immigrant visa is available to the following two subcategories of foreign nationals: 1) members of the professions holding an advanced degree or its equivalent or 2) foreign nationals who possess exceptional abilities in the sciences, arts, or business.

Once an approved labor certification is obtained through PERM or a foreign national qualifies for the streamlined labor certification process under Schedule A II, a foreign national can then file for an immigrant visa with USCIS.  (The PERM labor certification process is described in our other article PERM Labor Certification for Immigrant Work Visas and the Schedule A II process is described in Avoiding Labor Certification: Schedule A II Occupations – Exceptional Ability.)

Professionals holding an advanced degree or its equivalent

Eligibility criteria: To be eligible for this category, the foreign national must be working in certain fields deemed “professions” and must hold an advanced degree or its equivalent.

What types of jobs are considered “professions”?

The term “profession” includes, but is not limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academies, or seminaries. 8 CFR 101(a)(32). USCIS also considers professions to include any other occupation for which a U.S. baccalaureate degree or its foreign equivalent is the minimum requirement for entry into the occupation.

What is considered an advanced degree or its equivalent?

An advanced degree means any United States academic or professional degree or a foreign equivalent degree above that of baccalaureate. A U.S. baccalaureate degree or a foreign equivalent degree followed by at least five years of progressive experience in the specialty is considered the equivalent of a master’s degree. If a doctoral degree is customarily required by the specialty, the foreign national must have a U.S. doctorate or a foreign equivalent degree.

Supporting documentation required: To establish the foreign national holds an advanced degree, he or she will need to submit an official academic record showing that the foreign national has a United States advanced degree or a foreign equivalent degree.

To establish degree equivalency, the foreign national must submit an official academic record showing that the foreign national has a United States baccalaureate degree or a foreign equivalent degree, and letters from current or former employer(s) showing at least five years of progressive post-baccalaureate experience in the specialty.

Foreign nationals with “exceptional ability” in the sciences, arts, or business

Eligibility criteria: To be eligible for this category the foreign national must possess an “exceptional ability” in the sciences, arts or business and be offered a job in his area of specialty.

What is considered “exceptional ability.”

The 8 CFR 204.5(k)(2) defines “exceptional ability” as a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business. The USCIS “exceptional ability” standard is different from that of DOL; it is actually a slightly lower standard. Thus, if a foreign national meets the DOL standard for exceptional ability he or she should also be able to meet the USCIS standard.

Supporting documentation: To establish “exceptional ability” the foreign national must submit supporting documentation for at least three of the following:

(A) An official academic record showing that the foreign national has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability;

(B) Evidence in the form of letter(s) from current or former employer(s) showing that the foreign national has at least ten years of full-time experience in the occupation for which he or she is being sought;

(C) A license to practice the profession or certification for a particular profession or occupation;

(D) Evidence that the foreign national has commanded a salary, or other renumeration for services, which demonstrates exceptional ability;

(E) Evidence of membership in professional associations; or

(F) Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.

If the above standards do not apply to the foreign national’s occupation, other comparable evidence of eligibility is also acceptable.

Application requirements: For either subcategory, the employer must file the labor certification (Form ETA 9089) and Form I-140 along with the requisite supporting documentation with USCIS. If the I-140 is approved, the foreign national can they apply for permanent residency (green card).

Employer requirement: The employer must establish it has the ability to pay the wage offered to the foreign national. Evidence of this ability can be in the form of copies of annual reports, federal tax returns, or audited financial statements. If the U.S. employer has 100 or more workers, USCIS may accept a statement from the company’s financial officer which establishes the ability to pay the proffered wage. In some cases, additional evidence, such as profit/loss statements, bank account records, or personnel records, may be submitted or requested by USCIS.

Quotas: There are worldwide and country-wide quotas. Whether a country is backlogged is shown on the monthly State Department visa bulletin. Visa availability and cut-off dates can change monthly, moving backwards or forwards. The countries that traditionally have been vulnerable to backlogs in the employment-based categories are China and India.

PERM Labor Certification for Immigrant Work Visas

What is labor certification?

Certain employment-based immigrant visas require approval from two different agencies: the Department of Labor (DOL) and USCIS. The approval required from the DOL is the first step and is known as labor certification.

To obtain labor certification from DOL, the employer must establish no Americans are qualified for and want the particular job and the employment of a foreign national will not adversely affect the wages and working conditions of similarly employed US workers. The process for doing so is known as PERM, which stands for Permanent Electronic Review Management.

(Please note: The PERM labor certification process for EB-2 and EB-3 categories is not necessary if the foreign national possesses an “exceptional ability” in the sciences, arts or performing arts, known as Schedule A II occupations. See our related article Avoiding Labor Certification: Schedule A II Occupations – Exceptional Ability)

What are the requirements of PERM

PERM describes the recruitment procedures an employer must follow in order to obtain a labor certification from the DOL. The PERM procedures vary somewhat depending on whether the job is a professional or non-professional job. Also, special procedures exist for sheepherders, college or university teachers and professors, and Schedule A occupations.

This article will only address requirements for professional and non-professional jobs.

General job requirements: The position offered must be full-time, permanent (as opposed to seasonal or temporary) and it must be a bona fide job opening available to U.S. workers. The employer must pay at minimum the prevailing wage for that type of position in the region of intended employment.

The job requirements must conform to what is normally required for the occupation in the United States. It may not be tailored to the desired foreign worker’s qualifications and it cannot be unduly restrictive, such as requiring foreign language capability, unless these restrictive requirements can be established to arise out of business necessity.

Recruitment steps: PERM requires the employer to follow a series of recruitment steps, the details of which differ depending on if the job is a professional or non-professional occupation.

Professional Occupations

20 CFR 656.3 defines a professional occupation as “an occupation for which the attainment of a bachelor’s or higher degree is a usual education requirement.” Work experience may be accepted in lieu of a degree, however, provided certain PERM recruiting and application procedures are followed. Generally, the law requires that if the employer is willing to accept work experience in lieu of a baccalaureate or higher degree, such work experience must be attainable in the U.S. labor market and must be stated on the application form. If the employer is willing to accept an equivalent foreign degree, it must be clearly stated on Form ETA 9089, the Application for Permanent Employment Certification form.

In addition, alternative recruiting procedures exist for college and university teachers, which is outside the scope of this article.

Types of advertising: There are several forms of advertising and recruitment an employer must conduct as part of the labor certification process, including:

• Mandatory advertising:  There are two forms of mandatory advertising: The position must be advertised 1) via a job order placed with the state and 2) in two print advertisements (i.e. Sunday newspaper and a professional journal).  This advertising must be conducted at least 30 days, but no more than 180 days, before the filing of the application.

• Additional recruitment steps: The employer must do at least three of the 10 recruiting steps named in the list below. Only one of these additional steps may consist solely of activity that took place within 30 days of the filing of the labor certification application. None of the steps may have taken place more than 180 days prior to filing the application.

1. Job fairs.

2. Employer’s Web site.

3. Job search Web site other than the employer’s.

4. On-campus recruiting.

5. Trade or professional organizations.

6. Private employment firms.

7. Employee referral program with incentives.

8. Campus placement offices.

9. Local and ethnic newspapers.

10. Radio and television advertisements.

Non-Professional Occupations

For a non-professional job, the employer must at a minimum, place a job order with the state and advertise in two different Sunday editions of a general circulation newspaper. The steps must be conducted at least 30 days but no more that 180 days before the filing of the application.

No other recruitment steps are required.

Labor Certification Employee Notice Requirement: The employer must give notice of the intent to file a labor certification application in connection with the available position to the employees’ bargaining representative. If no such representative exists, the employer must inform its employees by posting a notice in a conspicuous place at the job site for 10 days. This posting must take place between 30 and 180 days of filing the labor certification application. The notice must also be published on any in-house media.

 

Post-advertising requirements: After advertising, the employer must interview all qualified candidates who responded to the advertisements. For all candidates not selected, the employer must document the reason. The employer must prepare a recruitment report for submission to the DOL describing the recruitment steps taken and the outcome.

Employers must keep in mind that a U.S. worker is considered qualified for the job if the worker can acquire the skills necessary to perform the job duties during a reasonable period of on-the-job training. In other words, an employer cannot reject a U.S. worker because he lacks the necessary skills if that worker can acquire the skills through on-the-job training.

The employer must maintain documentation of the recruitment and be prepared to submit this documentation in the event of an audit or in response to a request from the DOL prior to rendering a final determination.

Application Process: Once the recruitment phase is finished the employer will fill out DOL Form ETA 9089, Application for Permanent Employment Certification and file it electronically with the DOL. Paper submissions are also accepted. When an approved labor certification is received, the employer may then file the I-140 immigrant visa petition. Upon receiving an approved I-140, the foreign national can then apply for an immigrant visa at his home consulate. If the foreign national is already in the U.S. he can apply for permanent residency based on the approved I-140.

Avoiding Labor Certification: Schedule A II Occupations – Exceptional Ability

Obtaining an immigrant visa for a foreign national in the employer-sponsored second-preference (EB-2) or third-preference (EB-3) categories generally is a two-step process requiring both Department of Labor (DOL) and USCIS approval. The first step is obtaining an approved labor certification from DOL. The second step is obtaining an approved immigrant petition from USCIS.

(More information on this process as it relates to specific types of employment can be found in our other articles under the category of Work Visas – Immigrant. )

There are certain jobs, however, that enjoy a streamlined processing of the first step, labor certification, because DOL has already pre-determined that insufficient American workers exist to fill them. These jobs are known as Schedule A occupations and can be found at 20 CFR 656.5. This article focuses on Group II of Schedule A, those with “exceptional ability.”

Specifically, the streamlined process avoids the time-consuming recruitment formalities of PERM for those foreign nationals who can demonstrate an “exceptional ability” in either: 1) Sciences or Arts or 2) Performing Arts. For both categories, the key issue is international recognition. A person who has received national, but not international recognition, does not meet the “exceptional ability” standard.

Sciences or Arts

This group includes foreign nationals who have an exceptional ability in the sciences or arts, including college and university teachers, who have been practicing their science or art during the year prior to application and who intend to practice the same science or art in the United States.

For purposes of this group, 20 CFR 656.5(b)(1) defines the term “science or art” as any field of knowledge and/or skill with respect to which colleges and universities commonly offer specialized courses leading to a degree in the knowledge and/or skill.

A foreign national need not have studied at a college or university in order to qualify for the Group II occupation. Instead, sufficient experience can be used to establish the applicant meets the “exceptional ability” criteria.

How to Prove “Exceptional Ability” for the Sciences and Arts?

To prove a foreign national has the requisite “exceptional ability,” the employer must file documentary evidence showing 1) the widespread acclaim and international recognition accorded the foreign national by recognized experts in the foreign national’s field; 2) documentation showing the foreign national’s work in that field during the past year did, and the foreign national’s intended work in the United States will, require exceptional ability; and 3) documentation about the foreign national from at least two of seven identified categories involving receipt of prizes, published or authored articles and other prestigious honors.

1. The widespread acclaim and international recognition accorded the foreign national by recognized experts.

This criterion may be met by submitting reference letters from a diverse group of recognized experts in the field of the foreign national’s “exceptional ability.” The letters should discuss both the foreign national’s accomplishments and where those accomplishments have been recognized. In other words, the recognition must be international in scope, meaning that the letter writers should come from different parts of the world, not just one country, or the letters should refer to the foreign national’s accomplishments in various countries.

2. The foreign national’s work in the field during the past year did, and the foreign national’s intended work in the United States will, require exceptional ability.

This criterion involves proving three points: 1) the foreign national has at least one year of experience; 2) the foreign national’s work during the past year required exceptional ability; and 3) the future work in the U.S. will require exceptional ability.

To establish the first point, the experience must have been gained during the year prior to application. In other words, if an applicant worked for a year, then took a year off, and now wants to apply under this program, he will not be eligible. He must return to work again for a year before applying.

For the second and third points, the foreign national should submit letters from recognized experts explaining how the past and future work can only be performed by someone with the “exceptional ability” such as the foreign national. In addition, the foreign national’s employer(s), past and future, should also submit letters confirming the past and future positions require someone with exceptional skills.

3. Confirmation the foreign national has fulfilled at least two of the following seven categories:

• Documentation of the foreign national’s receipt of internationally recognized prizes or awards for excellence in the field for which certification is sought;

• Documentation of the foreign national’s membership in international associations, in the field for which certification is sought, which require outstanding achievement of their members, as judged by recognized international experts in their disciplines or fields;

• Published material in professional publications about the foreign national, about the foreign national’s work in the field for which certification is sought, which shall include the title, date, and author of such published material;

• Evidence of the foreign national’s participation on a panel, or individually, as a judge of the work of others in the same or in an allied field of specialization to that for which certification is sought;

• Evidence of the foreign national’s original scientific or scholarly research contributions of major significance in the field for which certification is sought;

• Evidence of the foreign national’s authorship of published scientific or scholarly articles in the field for which certification is sought, in international professional journals or professional journals with an international circulation;

• Evidence of the display of the foreign national’s work, in the field for which certification is sought, at artistic exhibitions in more than one country.

Performing Arts

This group includes foreign nationals of exceptional ability in the performing arts whose work during the past 12 months did require, and whose intended work in the United States will require, exceptional ability.

How to Prove “Exceptional Ability” in the Performing Arts

To prove a foreign national has the requisite “exceptional ability,” the employer must file documentary evidence showing: 1) the foreign national’s work during the past year did, and the foreign national’s work will, require exceptional ability; and 2) must submit documentation to show this exceptional ability. The DOL provides a list of suggested documentation, as follows, but does not specify how many of the categories must be addressed. The more evidence submitted, however, the greater the chance of success. The evidence requested by DOL includes:

• Documentation attesting to the current widespread acclaim and international recognition accorded to the foreign national, and receipt of internationally recognized prizes or awards for excellence;

• Published material by or about the foreign national, such as critical reviews or articles in major newspapers, periodicals, and/or trade journals (the title, date, and author of such material shall be indicated);

• Documentary evidence of earnings commensurate with the claimed level of ability;

• Playbills and star billings;

• Documents attesting to the outstanding reputation of theaters, concert halls, night clubs, and other establishments in which the foreign national has appeared or is scheduled to appear; and/or

• Documents attesting to the outstanding reputation of theaters or repertory companies, ballet troupes, orchestras, or other organizations in which or with which the foreign national has performed during the past year in a leading or starring capacity.

Other General Requirements: Prior to submission of the application, the employer is required to post notice of the intended labor certification filing at the place of the foreign national’s employment for 10 days. It also must be posted in any in-house media normally used to recruit for similar positions.

The foreign national’s pay must be equal to or more than the state workforce agency’s prevailing wage determination.

Application Process: The employer must fill out and sign the labor certification form (Form ETA 9089) and submit it in duplicate to USCIS along with the I-140 and all supporting documentation. Whether the foreign national should apply for EB-2 or EB-3 will depend on the foreign national’s qualifications and other considerations such as visa availability.

New Rule Simplifies (somewhat) Re-Entry to U.S. for Travelling H-1’s and L’s

Starting today, Nov. 1, H-1 and L non-immigrant visa holders and their dependents who have pending I-485 permanent residency applications and travel abroad no longer need to present the application receipt notice to re-enter the U.S., according to a new rule issued by DHS. 

The new rule applies to visa holders in the following categories: H-1B (specialty occupations), H-1C (nurses in disadvantaged areas), L-1A (intracompany transferee -managers, executives), L-1B (intracompany transferee – specialized knowledge) and their dependents. The notice amending rule 8 CFR 245.2(a)(4)(ii)(C) was printed in today’s Federal Register.

Previously, H-1 and L non-immigrant visa holders who had pending permanent residency applications and traveled outside of the U.S. had to present the original receipt notice at the border to avoid having their applications deemed abandoned. (Generally, applications for adjustment of status under INA 245 are considered abandoned when the applicant leaves the United States unless certain procedures are followed before the trip.)

This requirement presented hardships to those visa holders who needed to travel and had not yet received a receipt notice due to USCIS’ lengthy processing times. These visa holders either had to cancel their trip or risk having their application denied, thereby forcing them to spend more money and time to re-apply.

DHS determined the document was an unnecessary burden to the visa holder because the information is already available in the government’s database.

The visa holder must still establish he or she remains eligible for H or L status, is returning to resume employment with the same, previously authorized employer, and holds a valid visa, if required.

The rule change does not apply to those in removal, exclusion or deportation proceedings.

Revised Contact Info for EB-5 Investor Visa Pilot Program Participant The Redevelopment Agency of the City of Vernon Regional Center

We have received a comment from a representative of the Redevelopment Agency of the City of Vernon Regional Center, one of the particpants in the EB-5 Investor Visa Pilot Program, correcting the contact information. The information has been updated on our site’s Regional Center List and is as follows:

 The Redevelopment Agency of the City of Vernon Regional Center

Address: Vernon City Hall, 4305 Santa Fe Avenue, Vernon, CA 90058

Phone/Fax: (323) 583-8811, (626) 336-3408/ (626) 330-5818

LIST OF REGIONAL CENTERS FOR EB-5 IMMIGRANT INVESTOR PILOT PROGRAM

NOTE: This list is from May 2007. See our updated list of active regional centers as of October 2007 here.  

The Immigrant Investor (EB-5) Pilot Program is designed to encourage foreign investment by providing a vehicle for investment in the form of an economic unit called a “Regional Center.” The Regional Centers are private or public entities that have received government approval to participate in the program. They enable the amassing and pooling of capital for targeted investment in designated regions in the United States.

For the Investor, these Regional Centers are attractive because they allow for a less restrictive job creation requirement. Instead of having to prove direct job creation, the investor may show indirect job creation through such methods as economic and statistic forecasting tools.

Please note that this pilot program expires in November 2008 unless reinstated

In May 2007, USCIS released to AILA the following list of regional centers that were “active” as of March 30, 2007. In addition, since the release of that list, two new centers have been approved: the Alabama Center for Foreign Investment Regional Center and the Southwest Biofuels Regional Center (see details below).

Regional Centers that may have been approved, but were not designated as “active” by USCIS are not included in this list.

As the status of these Regional Centers as participants in the Pilot Program can change, before investing any money, verify the center is still approved and active in the Pilot Program.

For more information on the EB-5 Immigrant Investor visa see our other article EB – 5 Permanent Residency through Investment.

In alphabetical order by state, the Regional Centers deemed “active” as of March 2007 include:

EB – 5 Permanent Residency through Investment

Overview

Permanent residency (green card) is available to foreign nationals who are investing in a new commercial enterprise that will benefit the U.S. economy and create needed employment opportunities within the United States.

General Requirements

Where must the money be invested?

The foreign national Investor must be investing in a “new commercial enterprise.”  The regulations consider any one of the following activities to constitute a “new commercial enterprise:”

• creating a new business;

• investing in a business that was established after Nov. 29, 1990;

• purchasing a business that was established prior to Nov. 29, 1990 and simultaneously or subsequently restructuring or reorganizing the business such that a new commercial enterprise results; or

• investing in a business that was established prior to Nov. 29, 1990 and expanding it by 40 percent of the pre-investment number of employees or net worth.

How much money?

To qualify, the Investor must invest at least:

• $1 million anywhere in the United States; or

• $500,000 in an area where 1) the unemployment rate exceeds the national average unemployment rate by 150% as designated by the State or 2) a rural area. A rural area is an area outside of a metropolitan statistical area (MSA) or an area outside of a city or town having a population of 20,000 or more. MSAs are designated by the Office of Management and Budget.

Also, the money must come from a “lawful source of funds,” which means the Investor should have extensive documentation how he or she obtained the money, whether it be earnings, a gift from family, the sale of property, etc.

How many jobs?

The rationale behind providing for this type of immigration is to improve the U.S. economy. As such, the criteria for establishing whether an investment will qualify focuses on job creation. In general, the regulations state that if the Investor is starting a new business, or buying at existing business, at least 10 new full-time positions must be created. In the case, however, of an Investor who is expanding an existing business where a 40 percent increase in employees or net worth must be shown, if the net worth requirement cannot be met, then the Investor mush show a 40 percent increase in employees, meaning potentially more than 10 jobs must be created.

If investing in a “troubled business,” instead of hiring 10 people, the employment criteria can be met by maintaining the number of existing employees at no less than the pre-investment level for a period of at least two years. A “troubled business” is one that has been in existence for at least two years and that has lost 20 percent of its net worth over the past 12 to 24 months.

What is the Investor’s role in the enterprise?

The regulations state the Investor must have more than a passive role in the business. The Investor must be active, either through the exercise of day-to-day managerial control or through policy formulation. The regulations state that serving on the board of directors, as a corporate officer, or as a limited partner meet this criteria.

It should be noted that the Investor is not required to live in the area where the money is being invested.

Other eligibility criteria

The new enterprise must “benefit” the U.S. economy. This fact generally can be established by showing the entity provides goods or services to the U.S. market. If, however, the entity is a consulting firm exclusively serving clients overseas, that activity may not be sufficient to support a petition.

 

Special Pilot Program/Regional Centers

The Immigrant Investor Pilot Program is designed to encourage foreign investment by providing a vehicle for investment in the form of an economic unit called a “Regional Center.” The Regional Centers are private or public entities that have received government approval to participate in the program. They enable the amassing and pooling of capital for targeted investment in designated regions in the United States.

For the Investor, these Regional Centers are attractive because they allow for a less restrictive job creation requirement. Instead of having to prove direct job creation, the investor may show indirect job creation through such methods as economic and statistic forecasting tools.

Please note that this pilot program expires in November 2008 unless reinstated.

For a list of active Regional Centers, please see our other article on this blog listing the Regional Centers for the EB-5 Immigrant Investor Pilot Program.

Family Members

Dependent family members (spouse and children under age 21) may be included in the Investor’s immigration petition.

Application Process

File Form I-526, Immigrant Petition by Alien Entrepreneur. The Form I-526 must be filed with supporting documentation which clearly demonstrates that the individual’s investment meets all requirements. This documentation will need to be extensive to establish all the program requirements.

If the Investor is already in the United States, once the Form I-526 is approved, Form I-485, Application to Register Permanent Residence or Adjust Status must then be filed to obtain conditional permanent residence status.

If outside the United States, upon receiving the approved I-526 petition, the Investor must schedule an appointment with the U.S. embassy and apply for an immigrant visa.

Removing Conditions

In order to become a lawful permanent resident, eligible Investors must file a Form I-829, Petition by Entrepreneur to Remove Conditions. Form I-829 must be filed within 90 days before the second anniversary of the Investor’s admission to the United States as a conditional resident. Failure to file this petition will result in automatic termination of status and initiation of removal proceedings.

Quotas

There are 10,000 investor visas available annually. Of these, 5,000 are set aside for those who apply under the Pilot Program involving the government-designated Regional Centers. To date, the quotas have never been exceeded.

L-1 Intracompany Transferee

The L-1 visa is a non-immigrant visa for employees of multinational companies who are being transferred to work temporarily in the U.S. at an affiliate company in either a managerial or executive capacity (L-1A) or a specialized knowledge capacity (L-1B). The L-1 foreign national is called an “intracompany transferee.”

E-1 Treaty Trader; E-2 Treaty Investor

The E non-immigrant status is available to citizens of certain countries with whom the United States has a treaty or other agreements. There are two types of E status. E-1 is known as the treaty trader visa and E-2 is the investor visa.