H1B For Entrepreneurs

The United States has a long, rich history of welcoming innovative entrepreneurs and skilled workers into our country. August 2, 2011, USCIS outlined series of new policy, operational, and outreach efforts that will help fuel the nation’s economy and stimulate investment by making it easier for high-skill immigrants to start and grow companies and create jobs in the United States.

As part of the Administration’s comprehensive effort to attract and retain high-skill entrepreneurs, USCIS clarified that immigrant entrepreneurs may obtain an employment-based second preference (EB-2)  immigrant visa if they satisfy the existing requirements, and also may qualify for a National Interest Waiver under the EB-2 immigrant visa category if they can demonstrate that their business endeavors will be in the interest of the United States; They also clarified when a sole employee-entrepreneur can establish a valid employer-employee relationship for the purposes of qualifying for an H-1B non-immigrant visa;

As far as what factors does USCIS consider when evaluating the employer-employee relationship, USCIS will evaluate whether the petitioner has the “right to control” the beneficiary’s employment, such as when, where and how the beneficiary performs the job.  No one factor is decisive and adjudicators will review the totality of the circumstances when making a determination as to whether the employer-employee relationship exists.

EB1: Extraordinary Ability

You may be eligible for an employment-based, first-preference visa if you have an extraordinary ability, are an outstanding professor or researcher, or are a multinational executive or manager. Each occupational category has certain requirements that must be met. We talk about extraordinary ability category in this blog only. 

The alien has extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation, may petition for green card without an employer. 

USCIS and INS have consistently recognized that Congress intended to set a very high standard for individuals seeking immigrant classifications as aliens of extraordinary ability.  Qualification under this classification is reserved for the small percentage of individuals at the very top of their fields of endeavor.

The regulation provides that a petition for an alien of extraordinary ability must be 

accompanied by initial evidence that the alien has achieved the requisite acclaim and recognition in the alien’s field of expertise.  Such evidence must be either a one-time achievement (that is, a major, internationally recognized award) or at least three out of the ten other types of evidence listed in the regulation (e.g., scholarly articles, high salary, commercial successes).

In adjudicating the petition, USCIS officers are required to evaluate the evidence submitted by the petitioner to determine, by a preponderance of the evidence, which evidence objectively meets the parameters of the regulatory description applicable to that type of evidence (referred to as “regulatory criteria”). USCIS officers are then required to  evaluate the evidence together when considering the petition in its entirety for the final merits determination regarding the required high level of expertise for the immigrant classification.
  

This firm offers initial consultation to evaluate your situation to determine whether EB1 based on extraordinary ability is the best immigration strategy for you and whether you have other options, such as NIW. You are encouraged to work with experienced immigration lawyers like us to obtain green card through self-petitioning. 

National Interest Waiver

National Interest Waiver is a waiver based on national interest. But waiver of what? We have the answers as follows: 

Generally speaking, immigrant visa shall be made available to qualified immigrants if the employer obtain labor certification from department of labor. Yet, the Attorney General may, when he deems it to be in the national interest, waive the requirement. 

Neither the statute nor Service regulations define the term “national interest.”  Supplementary information to Service regulations implementing the Immigration Act of 1990 (IMMACT), published at 56 Fed. Reg. 60897, 60900 (November 29, 1991), states: “The Service believes it appropriate to leave the application of this test as flexible as possible, The burden will rest with the alien to establish that exemption from, or waiver of, the job offer will be in the national interest. Each case is to be judged on its own merits.”

RFEs reveal that an alien seeking immigrant classification as an alien of exceptional ability or as a member of the professions holding an advanced degree cannot meet the threshold for a national interest waiver of the job offer requirement simply by establishing a certain level of training or education which could be articulated on an application for a labor certification; General arguments regarding the importance of a given field of endeavor, or the urgency of an issue facing the United States, cannot by themselves establish that an individual alien benefits the national interest by virtue of engaging in the field or seeking an as yet undiscovered solution to the problematic issue; A shortage of qualified workers in a given field, regardless of the nature of the occupation, does not constitute grounds for a national interest waiver. Given that the labor certification process was designed to address the issue of worker shortages, a shortage of qualified workers is an argument for obtaining rather than waiving a labor certification.

Because of the complexity and high standards involved with an NIW petition, we strongly recommend that you to seek assistance from experienced NIW immigration attorneys, which is the key to your success, especially under current immigration conditions.

H1B

H1B is the most popular non-immigrant visa aliens in US seek after. It leads to green card in a few years as described below. 

If an individual can find a job that requires Bachelor’s or higher degree, and this individual holds a bachelor’s degree or its equivalent, the prospect employer may petition H1B for the prospect employee. The prospect employer must agree to pay the individual prevailing wage (higher salary than average for similar position. Amount varies with the position)

In addition, as an approach to “Encouraging Entrepreneurs and High Skilled Workers to Bolster the U.S. Economy and Spur Job Growth”,  USCIS clarifies in one of its recent memo that  a sole employee-entrepreneur can be qualified for H-1B non-immigrant visa as long as it can establish a valid employer-employee relationship.

With this being said, an individual may obtain H1B through open up a new company in US. Even if the company is only one man show. The individual may pay himself prevailing wage and withhold taxes as he is the only employee. H1B will be valid for 3 years and can be extended to another 3 years. An individual could be in US holding H1B for 6 years in total.

Divorce During Immigration Process

Thanks to fast-food style online dating, many cross-border marriages end in a hurry as how they start. Many aliens are devastated when their marriage hit the rock. Can they continue to stay in US?

The answer is, as usual, depends. 

If divorce happens shortly after conditioned green card is granted, generally speaking,  divorce terminates conditioned green card. However, depends on circumstances, the alien could obtain a waiver of termination. 

If divorce takes effect after the alien obtains permanent residence unconditionally,  the only effect divorce may have on the alien is that it may delay the alien in obtaining citizenship. If a permanent resident is married to a U.S. citizen, he has a three year residency requirement for U.S. citizenship if the marriage is still in effect at the time of exam, if not, he will then have to wait until he has been a permanent resident for five years before he is eligible to apply for U.S. citizenship.

What if the divorce happens before AOS is filed? Aliens who can prove as battered spouse may self-petition. Battered spouses are those who are abused verbally and physically in marriage. Proving such is not an easy work. A lawyer’s professional assistance is strongly recommended. 

Life After OPT

We may all know that we could get OPT from International student advisors to work. We all know OPT expires in 9 months. Then what are your options after OPT expires?

If you can find a job, H1B is most popular work visa for students, J1 is an option too if H1B not available (must meet requirements). Certain nationalities such as Canadian and Mexican may obtain TN, E3 for certain nationalities. You may be eligible for O1 visa if you are O1 if you are “extraordinary”. L1 visa is for intracompany transferee. 

Who can sponsor you H1B visa? Basically, an employer may sponsor you provided it agrees to pay prevailing wage, pay costs of reasonable return trip home if terminated prior to H1B end date and to notify USCIS of early termination of H1B worker. The profitability of the employer is not considered. 

It is not well known that, as an approach to “Encouraging Entrepreneurs and High Skilled Workers to Bolster the U.S. Economy and Spur Job Growth”,  USCIS clarifies in one of its recent memo that  a sole employee-entrepreneur can be qualified for H-1B non-immigrant visa as long as it can establish a valid employer-employee relationship. Therefore, if a business could be established after graduation, Life after OPT can be pointed to H1B.

If an oversea company is willing to hire you and you worked for them for one year before you come, you may be eligible for L visa. If you are from certain countries, you may be eligible for E1/E2 visa. 

For evaluation of your options, please contact Linda Liang & Associates for an appointment. 

Business Hiring Illegal Immigrants Need to Read Along

PALM SPRINGS, Calif. - U.S. Immigration and Customs Enforcement (ICE) agents executed a
federal search warrant at a local baking company here today, arresting a current and former
company supervisor on criminal charges and 51 other workers on administrative immigration
violations.

The arrests and the execution of the search warrant at the Palm Springs Baking Company on
Montalvo Way are part of an ongoing probe by ICE that began in 2006 after ICE received a tip
that the business was allegedly hiring illegal alien workers.

The two individuals facing federal prosecution are charged in a criminal complaint with one count
of continuing to employ an unauthorized alien. Margarita Avilez Hernandez, 52, who currently
works as a supervisor for the Palm Springs Baking Company, was taken into custody by ICE
agents at the bakery this morning. Alicia Ramirez, 36, who formerly worked as a supervisor for
the business, was arrested this afternoon. Both women are expected to make their initial
appearance in federal court in Riverside, Calif., later today. The maximum penalty for the
misdemeanor charge is six months in prison and a $3,000 fine for each unauthorized alien.

According to the affidavit filed in support of the criminal arrest warrants, local law enforcement
alerted ICE in 2006 that the Palm Springs Baking Company allegedly guaranteed employment to
illegal aliens in exchange for a payment of approximately $3,000 for each worker. During the
ensuing investigation, ICE agents submitted the names and Social Security numbers of more than
130 of the company's employees for verification and were advised that more than 100 of those
numbers were invalid or did not match the accompanying name.

What does Prosecutorial Discretion mean to undocumented immigrants?

Rumor has it that Pres. Obama passed a new law that will allow all illegal immigrants to stay in this country as long as they do not have a criminal record.  Many clients and friends call to ask for confirmation.

Let’s start with a few corrections of this statement.  1) Pres. Obama is unable to unilaterally pass a new law, only Congress is able to make laws. 

So what really happened is that Pres. Obama, has decided to make use of an existing law, whereby the agency charged with enforcing immigration laws, can use Prosecutorial Discretion. What is Prosecutorial Discretion?  It is to say ICE may prioritize their focus in deportation proceeding. Specifically, they would decide to remove those with criminal record first and give you less attention.

What does that mean to you? If you are in removal proceeding and prosecutorial discretion occurs, the proceeding might be terminated, which only means you are not to be removed in the near future. However, this does not grant work permit, nor legal immigration status. If you are not in removal proceeding, you can’t apply for prosecutorial discretion.

In sum, what has been spitted out is just a memo President Obama send out regarding implementing existing law. I don’t see big hope for undocumented immigrants.

What Is a Reasonable Fear of Persecution?

An individual will be found to have a reasonable fear of persecution if he or she credibly establishes that there is a reasonable possibility he or she would be persecuted in the future on account of race, religion, nationality, membership in a particular social group, or political opinion. The legal standard is the same standard used to establish a well-founded fear of persecution in the asylum context.


In contrast to an asylum adjudication, a finding of reasonable fear of persecution cannot be based on past persecution alone, in the absence of a reasonable possibility of future persecution. A reasonable fear of persecution may be found only if there is a reasonable possibility the applicant will be persecuted in the future, regardless of the severity of the past persecution. This is because withholding of removal is accorded only to provide protection against future persecution and may not be granted without a likelihood of future persecution. However, a finding of past persecution raises the presumption that the applicant’s fear of future persecution is reasonable.

你能申请政治庇护吗？

政治庇护要求一个人能証明他在他的居住国因为种族，信仰，国籍，社会团体或政治观点而受到或及其有可能受到迫害。 这种关于可能性的推断要有理有据

How Is an Individual Found to Have a Credible Fear of Persecution?

An individual will be found to have a credible fear of persecution if he or she establishes that there is a “significant possibility” that he or she could establish that he or she has been persecuted or has a well-founded fear of persecution or harm on account of his or her race, religion, nationality, membership in a particular social group, or political opinion if returned to his or her country.

Do Not Be a Victim of Immigration Fraud

“Notarios,” Visa Consultants, and Immigration Consultants Are NOT Attorneys ––
They CANNOT Represent You in Immigration Court
If you need help with your immigration case, watch out for persons who pretend to be immigration attorneys or accredited representatives. They can take your money, involve you in immigration fraud, and get you deported or arrested. To protect yourself from immigration fraud, the Executive Office for Immigration Review (EOIR) wants you to know:

Only licensed attorneys, “accredited representatives,” and other qualified representatives can represent you in immigration court, can provide legal services, and can give legal advice. 

EOIR’s Immigration Court Practice Manual, Chapter 2, explains who can represent you. You can ask to see the manual at the immigration court’s filing window, or find it on the Internet at www.usdoj.gov/eoir.
“Notarios,” visa consultants, and immigration consultants cannot represent you in immigration court,cannot provide legal services, and cannot give legal advice. Be careful!

• DO NOT sign applications or other papers that are blank. 
• DO NOT sign applications or other papers that you do not understand. 
• DO NOT sign applications or other papers that have false information. 
• DO NOT pay money without getting a receipt, and be careful when people ask you to pay a lot of money for immigration help. 
• DO get copies of all applications or other papers prepared or filed for you. 
• DO check that an attorney or “accredited representative” can represent you in immigration court. (See Immigration Court Practice Manual, Chapter 2.) 
• DO report complaints about “notarios,” visa consultants, and immigration consultants to your state Bar Association and/or your state Office of Attorney General. 

–– EOIR ––