On January 17, 2017, the U.S. Department of Homeland Security (DHS) published the final rule for providing parole to international entrepreneurs who are starting their own businesses in the U.S. Recall that I had published my commentary on the proposed version of the same rule, here. Of course, as someone who follows and practices immigration options for international entrepreneurs, I was excited for that rule. Then, DHS added more discretionary factors to the EB-2 self-petitions with National Interest Waiver (NIW), which would be difficult to obtain for someone who wants to start their own business soon after graduating with an undergraduate degree. Subsequently, DHS published the NEW Parole for International Entrepreneurs Rule, effective July 17, 2017.
So What?
Of course, "parole" is a temporary status, but how about using this parole to gain experience through your business, possibly gain public recognition, work for a few years (five years to be exact, which is the amount of years in your profession needed to qualify for EB-2, Advanced Degree), and eventually petition for EB-2 with NIW? Just a thought.
These legal changes in the international entrepreneurs sector are all new and immigration law practitioners, such as myself, are excited to push the envelop a little bit, see how far DHS is willing to go. I am glad that DHS at least listened to many of our comments and made the final version of this rule, published as 8 C.F.R. 212.19, much easier for international entrepreneurs to comply with.
What's Different and How Friendly to Entrepreneurs?
ONE: You may now pursue the application for parole if you had started your business within 5 years prior to the parole application date. In the proposed version, DHS only gave 3 years. Now, more time to set up your business, more able to prove funding and viability of your business.
TWO: Under the final rule, applicant must own at least 10% of the company. Under the proposed rule, you must have owned 15% of the company to apply. Now, less equity in the company is required, which means less illiquid assets will be tied up in the company, more freedom for your money.
THREE: The monetary amount of investment required from private investors has been lowered to $250,000. Under the proposed rule, the required amount was $345,000. With the final rule, DHS has lowered the amount by almost $100,000! That is a lot of money for a new entrepreneur looking for private funding. However, the government grant requirement still stands at $100,000. Most importantly though, the discretionary "alternative criteria," that the applicant's business will provide significant public benefit to the country, still stands. Public benefit could be proven through the entity's "substantial potential for rapid growth and job creation," which is of course, speculative evidence and the value that I am looking forward to add to my clients' cases.
FOUR: Initial term is 2.5 years, with re-parole of 2.5 years possible. Under the proposed rule, the initial term was 2 years, with re-parole of 3 years. Six months is not a huge difference in the grand scheme of life, but it could mean a huge difference for a small business owner, who may just need six months more for his business to begin showing growth.
IMPORTANT NOTE! I don't know if it is a coincidence that the maximum number of years allowed for parole is the same as the number of years needed to qualify for the EB-2 self-petition of someone possessing an advanced degree. However, it is exciting that it works out this way. Hopefully, about 5 years from now, my international entrepreneur clients who obtained temporary parole will be able to use EB-2 to obtain their legal permanent residence.
FIVE: An applicant for re-parole only has to possess 5% ownership interest in the entity. The proposed rule required 15% ownership interest. Now, after you obtain initial parole, you may free up your money and invest somewhere else!
If you enjoyed this information and believe that it would be beneficial to you, your friends, or your family, I am holding a seminar in Cambridge, Massachusetts on March 4 at 10am, to provide more information for international entrepreneurs. The event is free, but seating is limited, reserve your ticket here.
Tuesday, January 24, 2017
Friday, January 13, 2017
EB-2 and the NEW Entrepreneurs' Standard for National Interest Waiver
Previously, I released a blog on Five Ways that international entrepreneurs can start a business and obtain a green card. At that time, I mentioned the EB-2 and the National Interest Waiver, which had rigid standards based on NYSDOT, 22 I&N Dec. 215. Towards the end of 2016, against all the rubble and darkness the end of that year provided, a light emerged for international entrepreneurs planning to start their own businesses. In an earlier blog, I outlined in detail the new proposed rule of Parole for International Entrepreneurs, for which the final rule will be published on January 17, and effective 180 days after that. A lot is happening in the international entrepreneurs section of immigration laws, so stay tuned!
Here, the lawmakers came up with something better - modifying the standards to something where an adjudicating process is already set, but providing flexibility for entrepreneurs just like those provided for in the Parole Rule. And the best parts for this rule are (1) it gives you a shortcut to Legal Permanent Resident Status rather than just simple permission to be in the country, which would need to be renewed every few years and (2) No need to obtain government or private grants!
Background
Traditionally, before an employer can petition a foreign national to work for them in the U.S., they must prove that there is not a sufficient number of U.S. workers that are willing and able to fill the position. Alternatively, a foreign national may self-petition without a job offer if he/she can show that allowing him/her to work in the U.S. would be beneficial to the national interest, thus USCIS should grant a national interest waiver to him/her.
However, the old standard for granting the National Interest Waiver was ambiguous and unworkable. The NYSDOT case looks to whether the petitioner has shown that the area of employment sought is of (1) "substantial intrinsic merit," (2) that the benefit to the country is "national in scope," and (3) national interest would be adversely affected if the labor certification were required for the foreign national. NYSDOT, quoted in Dhanasar, 26 I&N Dec. 884 (AAO 2016).
Dhanasar: A New Case
The new case, published on December 27, 2016, Dhanasar's importance lies in that the the Department of Homeland Security has finally recognized and put into practice that local and regional endeavors could have national importance (think Amazon and Google). but unlike the civil engineer who works on highways that span all over the country in NYSDOT, technological advances would not be "national in scope," at least not initially. This decision now leaves room for local and small-businesses to argue their merit.
Dhanasar's Test
Here are the new prongs for Dhanasar's Test, which are explained more in the paragraphs that follow:
The rule's first prong focuses on the "national importance" of the foreign national's endeavor, rather than the "national in scope" requirement. This moves away from the geographic factor and towards less quantifiable, but more discretionary factors, such as the potential to provide jobs for U.S. workers or the "potential to create" "significant economic impact." Recognizing that all types of work could have national benefit, the case enumerated a wide range of industries to be considered: "business, entrepreneurism, science, technology, culture, health, or education," these all could have "substantial merit and national importance."
The second prong, that he or she is well positioned to advance the proposed endeavor, should be easily met for our international entrepreneur clients. We suspect that someone who owns their own business and manages the day to day operations would know the ins and outs of how their business functions. Thus, an entrepreneur who started his own business would, of course, be "well positioned" to advance that business and achieve success. While this prong could be easily fulfilled for an entrepreneur, how we present these facts to USCIS will still significantly affect how quickly your petition will be approved.
The third prong, that "on balance it would be beneficial for the U.S. to waive the requirements of a job offer and thus the labor certification." Here, the words "on balance" again provide for more discretion. The case mentions examples of factors, which could help the Secretary in balancing the interests of the foreign national and that of the United States. The Secretary could consider, for example, the impracticality of requiring the foreign national to secure a job offer or petitioner to get labor certification. This impracticality could be because the proposed endeavor is an unrecognized position in the country or because requiring a self-employed entrepreneur to get a job offer or a labor certification is impossible. The Secretary can also consider whether, assuming that other qualified workers are available, U.S. could still benefit from the contributions of the foreign national. The last example of a factor that the case gave is that the foreign nation's contributions is needed sufficiently urgently that they should forgo the long labor certification process, such as an invention to delay global warming for example.
However, as mentioned, these are just examples of factors. This law is fairly new, so even if these factors weigh against you, there may be new factors that the Secretary will consider if the suggestion is sufficiently compelling. This is where hiring the right attorney is extremely important. It should be quickly noted that the I-140 portability rules would also apply in this case, to allow you to stay here while your application is pending. Contact us today to learn more about this rule and to see if you qualify. We are as excited about this new rule as we are about giving you a peace of mind to stay in the U.S. and bring your ideas to reality.
Here, the lawmakers came up with something better - modifying the standards to something where an adjudicating process is already set, but providing flexibility for entrepreneurs just like those provided for in the Parole Rule. And the best parts for this rule are (1) it gives you a shortcut to Legal Permanent Resident Status rather than just simple permission to be in the country, which would need to be renewed every few years and (2) No need to obtain government or private grants!
Background
Traditionally, before an employer can petition a foreign national to work for them in the U.S., they must prove that there is not a sufficient number of U.S. workers that are willing and able to fill the position. Alternatively, a foreign national may self-petition without a job offer if he/she can show that allowing him/her to work in the U.S. would be beneficial to the national interest, thus USCIS should grant a national interest waiver to him/her.
However, the old standard for granting the National Interest Waiver was ambiguous and unworkable. The NYSDOT case looks to whether the petitioner has shown that the area of employment sought is of (1) "substantial intrinsic merit," (2) that the benefit to the country is "national in scope," and (3) national interest would be adversely affected if the labor certification were required for the foreign national. NYSDOT, quoted in Dhanasar, 26 I&N Dec. 884 (AAO 2016).
Dhanasar: A New Case
The new case, published on December 27, 2016, Dhanasar's importance lies in that the the Department of Homeland Security has finally recognized and put into practice that local and regional endeavors could have national importance (think Amazon and Google). but unlike the civil engineer who works on highways that span all over the country in NYSDOT, technological advances would not be "national in scope," at least not initially. This decision now leaves room for local and small-businesses to argue their merit.
Dhanasar's Test
Here are the new prongs for Dhanasar's Test, which are explained more in the paragraphs that follow:
- The foreign national's proposed endeavor has both substantial merit and national importance
- The foreign national is well-positioned to advance the proposed endeavor, and
- On balance, it would be beneficial to the U.S. to waive the requirements of a job offer and thus a labor certification.
The rule's first prong focuses on the "national importance" of the foreign national's endeavor, rather than the "national in scope" requirement. This moves away from the geographic factor and towards less quantifiable, but more discretionary factors, such as the potential to provide jobs for U.S. workers or the "potential to create" "significant economic impact." Recognizing that all types of work could have national benefit, the case enumerated a wide range of industries to be considered: "business, entrepreneurism, science, technology, culture, health, or education," these all could have "substantial merit and national importance."The second prong, that he or she is well positioned to advance the proposed endeavor, should be easily met for our international entrepreneur clients. We suspect that someone who owns their own business and manages the day to day operations would know the ins and outs of how their business functions. Thus, an entrepreneur who started his own business would, of course, be "well positioned" to advance that business and achieve success. While this prong could be easily fulfilled for an entrepreneur, how we present these facts to USCIS will still significantly affect how quickly your petition will be approved.
The third prong, that "on balance it would be beneficial for the U.S. to waive the requirements of a job offer and thus the labor certification." Here, the words "on balance" again provide for more discretion. The case mentions examples of factors, which could help the Secretary in balancing the interests of the foreign national and that of the United States. The Secretary could consider, for example, the impracticality of requiring the foreign national to secure a job offer or petitioner to get labor certification. This impracticality could be because the proposed endeavor is an unrecognized position in the country or because requiring a self-employed entrepreneur to get a job offer or a labor certification is impossible. The Secretary can also consider whether, assuming that other qualified workers are available, U.S. could still benefit from the contributions of the foreign national. The last example of a factor that the case gave is that the foreign nation's contributions is needed sufficiently urgently that they should forgo the long labor certification process, such as an invention to delay global warming for example.
However, as mentioned, these are just examples of factors. This law is fairly new, so even if these factors weigh against you, there may be new factors that the Secretary will consider if the suggestion is sufficiently compelling. This is where hiring the right attorney is extremely important. It should be quickly noted that the I-140 portability rules would also apply in this case, to allow you to stay here while your application is pending. Contact us today to learn more about this rule and to see if you qualify. We are as excited about this new rule as we are about giving you a peace of mind to stay in the U.S. and bring your ideas to reality.
Friday, December 23, 2016
Holiday Gifts: Our Fees Stays the Same While USCIS Fees Increase
USCIS is increasing their filing fees across the board effective December 23, 2016. We have parsed through the fee summary charts and organized the fees into those that affect the services offered by our firm. We wanted to pass this on to our potential clients to help you plan ahead and also include a little Holiday Surprise during this time of the year.
Your Holiday Gift
Employment-Based Petitions
International Entrepreneurs
Your Holiday Gift
We know that it may be overwhelming to cope with the increased fees from USCIS. That's why we want you to know that while USCIS fees may be increasing, our firm's fees will not be increasing this year. So, call us to get your case work into our firm! We can't promise the same for 2018.
Here is a summary of what is happening to USCIS fees for the services that we offer. We have categorized them into your purposes for filing the petitions, to provide you a more organized chart for your needs.
Family Petitions
For the most part, USCIS has not increased the filing fees related to family petitions by more than $200. Thankfully, they understand that it is hard enough for families to come up with the payment of these fees already.
| Form | Title | Old Fees | New Fees |
| I-129F | Petition for Alien Fiancé(e) | $340 | $535 |
| I-130 | Petition for Alien Relative | $420 | $535 |
| I-751 | Application to Remove Conditions on Residence | $505 | $595 |
| I-765 | Application for Employment Authorization | $380 | $410 |
Employment-Based Petitions
For the most part, filing fees for Employment-based petitions, similar to the Family Petitions, also have only increased a little over $100, staying manageable for employers, both large and small.
| Form | Title | Old Fees | New Fees |
| I-129 | Petition for a Nonimmigrant Worker | $325 | $460 |
| I-140 | Immigrant Petition for Alien Worker | $580 | $700 |
Adjusting/Changing/Extending Status
There is also no cause for panic if you want to simply change or extend your status. This affects those that are here on temporary visitor or student visas such as B1/B2, F1, M1, or J1. Same with Adjustment of Status to that of a Permanent Resident after the USCIS has approved your family petition (I-130) or employment petition (I-140) and your priority date is current on the visa bulletin.
| Form | Title | Old Fees | New Fees |
| I-485 | Application to Register Permanent Residence or Adjust Status | $985 | $1,140 |
| I-539 | Application to Extend/change Nonimmigrant Status | $290 | $370 |
Waivers - Higher Increases
What we are concerned about for our clients is these new fees for the waivers of inadmissibility. For those of you who are not familiar with waivers, most of these require showing a exceptional to extreme level of hardship that could be suffered by a qualifying relative if the petition is not granted. By increase these fees by almost $350, it seems that USCIS is bent on adding even more "hardship" to the applicants and their relatives who are already suffering from extreme or exceptional hardship. Sympathetic to the plight of our clients, if we have to submit a waiver for your petition in 2017, we will give you a 10% discount, around $100 in savings.
| Form | Title | Old Fees | New Fees |
| I-212 | Application for Permission to Reapply for Admission into the U.S. After Deportation or Removal | $585 | $930 |
| I-601 | Application for Waiver of Ground of Excludability | $585 | $930 |
| I-601A | Application for Provisional Unlawful Presence Waiver | $585 | $630 |
| I-612 | Application for Waiver of the Foreign Residence Requirement (Under Section 212(2) of the INA, as Amended) | $585 | $930 |
| I-690 | Application for Waiver of Grounds of Inadmissibility | $200 | $715 |
International Entrepreneurs
For your convenience, we have also included the following chart for those thinking about utilizing the EB-5 Investors Program to become a permanent resident of the country. The filing fee for the immigrant petition has more than doubled. But otherwise, the fees affecting individual investors have stayed the same, the majority of the increase comes from regional center certifications.
| Form | Title | Old Fees | New Fees |
| I-526 | Immigrant Petition by Alien Entrepreneur | $1,500 | $3,675 |
| I-829 | Petition by Entrepreneur to Remove Conditions | $3,750 | $3,750 |
| I-924 | Application for Regional Center Designation Under the Immigration Investor Program | $6,230 | $17,795 |
| I-924A | Annual Certification of Regional Center | $0 | $3,035 |
J-1 Visa: Foreign Residency Requirement, No Objection Statement (China) and Exceptional Hardship Waiver
We recently worked on a J-1 Visa case where the young lady came here from China on a J-1 Visa, married a U.S. Citizen, and is now seeking a waiver for her foreign residency requirement. The wonderful thing is that J-1 Visas are a good substitute for the overused H-1B, as long as the employer hires through a sponsoring organization. This topic is beyond the scope of this blog, but please contact us if you are interested in finding out how you can do this.
There were several issues with the Foreign Residency Requirement...
First, the DS-2019 had checked the box specifying that she was "Not subject to the foreign residence requirement." However, the advisory opinion that the prior attorney received stated that she WAS subject to the requirement, because her "field of specialization is included on the Exchange Visitor Skills List for the exchange visitor's country." Here, the moral of the story is that you can't go by the DS-2019, you should request an advisory opinion, which would help clarify the situation. However, as with all issues in law, this takes time, about 4-6 weeks at the very least.
Why was there a prior attorney?
The backstory to why the client came to us is that the prior attorney took too long to get back to them regarding this issue. With the fee increase happening on December 23, the client was getting anxious and began searching for an alternative immigration attorney. In this case, we were able to take care of it at a much lower cost and we got the petition in before the fee increase that took place on December 23rd. The fee increase would have raised the filing fee for Form I-612 (Exceptional Hardship Waiver) from $585 to $930!
Understanding the time-sensitivity of the situation, when this particular client contacted us, we got to work right away for her. We found out that we could file the No Objection Statement AND the Exceptional Hardship Waiver at the same time, to double her chances of getting her foreign residency requirement waived. To start the process, you have to fill out the DS-3035 Form from the Department of State and in the Statement of Reason, mention both reasons.
No Objection Statement
We would recommend that you request a No Objection Statement from your home country's embassy in any case, unless you are a foreign medical physician and do not qualify.
To request a No Objection Statement from China is rather complicated as you do not request it directly from the Chinese Embassy, but from a non-profit organization affiliated with the Chinese Ministry of Education, the New York Service Center for Chinese Study Fellows, Inc. For more information on how to request, after completing the DS-3035, see J-1签证豁免. This is also where you would send the Third-Party Barcode page provided with the DS-3035, along with all their requested documents.
Exceptional Hardship Waiver
Next, we had to address how the U.S. Citizen spouse could suffer exceptional hardship in the event that the J-1 spouse is forced to complete her foreign residency requirement. You have to address (1) how the U.S. Citizen spouse will suffer exceptional hardship if he leaves the country with the J-1 spouse, and (2) how the U.S. Citizen spouse will suffer exceptional hardship if the J-1 spouse leaves without him. And of course, corroborate everything you say with evidence to avoid further Requests for Evidence from USCIS!
In this case, we had a lengthy conversation talking about how the U.S. Citizen spouse's career would be disrupted, how he would be forced to leave his grandmother who suffers from Alzheimer's, how he himself suffers from a stress-caused illness that must be monitored carefully.
If all this information overwhelms you, that is why we are here, contact us at 617-871-0788 for help!
There were several issues with the Foreign Residency Requirement...
First, the DS-2019 had checked the box specifying that she was "Not subject to the foreign residence requirement." However, the advisory opinion that the prior attorney received stated that she WAS subject to the requirement, because her "field of specialization is included on the Exchange Visitor Skills List for the exchange visitor's country." Here, the moral of the story is that you can't go by the DS-2019, you should request an advisory opinion, which would help clarify the situation. However, as with all issues in law, this takes time, about 4-6 weeks at the very least.Why was there a prior attorney?
The backstory to why the client came to us is that the prior attorney took too long to get back to them regarding this issue. With the fee increase happening on December 23, the client was getting anxious and began searching for an alternative immigration attorney. In this case, we were able to take care of it at a much lower cost and we got the petition in before the fee increase that took place on December 23rd. The fee increase would have raised the filing fee for Form I-612 (Exceptional Hardship Waiver) from $585 to $930!
Understanding the time-sensitivity of the situation, when this particular client contacted us, we got to work right away for her. We found out that we could file the No Objection Statement AND the Exceptional Hardship Waiver at the same time, to double her chances of getting her foreign residency requirement waived. To start the process, you have to fill out the DS-3035 Form from the Department of State and in the Statement of Reason, mention both reasons.
No Objection Statement
We would recommend that you request a No Objection Statement from your home country's embassy in any case, unless you are a foreign medical physician and do not qualify.
To request a No Objection Statement from China is rather complicated as you do not request it directly from the Chinese Embassy, but from a non-profit organization affiliated with the Chinese Ministry of Education, the New York Service Center for Chinese Study Fellows, Inc. For more information on how to request, after completing the DS-3035, see J-1签证豁免. This is also where you would send the Third-Party Barcode page provided with the DS-3035, along with all their requested documents.
Exceptional Hardship Waiver
Next, we had to address how the U.S. Citizen spouse could suffer exceptional hardship in the event that the J-1 spouse is forced to complete her foreign residency requirement. You have to address (1) how the U.S. Citizen spouse will suffer exceptional hardship if he leaves the country with the J-1 spouse, and (2) how the U.S. Citizen spouse will suffer exceptional hardship if the J-1 spouse leaves without him. And of course, corroborate everything you say with evidence to avoid further Requests for Evidence from USCIS!
In this case, we had a lengthy conversation talking about how the U.S. Citizen spouse's career would be disrupted, how he would be forced to leave his grandmother who suffers from Alzheimer's, how he himself suffers from a stress-caused illness that must be monitored carefully.
If all this information overwhelms you, that is why we are here, contact us at 617-871-0788 for help!
Thursday, November 10, 2016
Sponsoring Your Relative as an Employee: Importance of Good Faith Efforts in PERM Recruitment
Our immigration law firm represents many small business employers, many of whom, for many legitimate reasons prefer to hire their family members to assume important functions in their businesses. On October 21, 2016, BALCA released decisions on two cases dealing with PERM labor certification and audits for hiring relatives, Tyrrell Limited on behalf of Espino, Jose Miguel Tantoco and Johnman U.S.A., Inc. d/b/a Karoke Champ, on behalf of Kida, Takuya, with opposite rulings.
Background
Most PERM employers know that hiring relatives is possible as long as there is a bona fide job opportunity and the job is made available to U.S. workers. The court considers the totality of the circumstances using the following factors outlined in the famous case of Modular Container Systems, Inc., looking at whether the employee:
Why Tyrrell Limited On Behalf of Espino, Jose Miguel Tantoco and Johnman U.S.A., Inc. d/b/a Karoke Champ, On Behalf of Kida, Takuya Were Ruled Differently
Both cases deal with hiring a family member, one hires her son while other hires his brother. When a familial relationship exists between the employer and the employee, the employer must overcome the presumption that the employee's influence and control over the job opportunity is such that the job opportunity is not bona fide (not open and available to US workers). In this case, Kida was unable to overcome that presumption while Espino could. We explore why in the paragraphs that follow.
Both employers are closely-held, family-owned companies, with high chances of audit. Both had followed the recruitment procedure correctly. The Certifying Officers had determined, in both cases, that the foreign employees had the authority to make interviewing and hiring decisions. What made BALCA determine differently?
First, in Espino, the employer had stated that the role of the Officer in Charge (OIC), the employee's position, includes taking over exigent tasks when the General Manager (GM) is unavailable.While the GM's tasks include interviewing and hiring potential employees, these would not be considered "exigent tasks" and can wait until the GM returns. As such, the OIC's tasks would not include interviewing and hiring employees. BALCA agreed.
In contrast, Kida was hired to fill three titles, head of the Management Division, head of the Finance Division, and the head of the Division of Store Development. As the head of the Management Division, Kida also oversees the Human Resources Department, which is responsible for the company's interviewing and hiring. The court held that these titles held essential functions of the company and considered the employee as "inseparable from the sponsoring employer," which was the last factor provided in Modular Container Systems, Inc.
What Ultimately Led The Employer Astray: The Inconsistencies in Kida's Petition
What became clear to me as a lawyer is the court's enumeration of the inconsistencies in Kida's petition, which, I think, ultimately led BALCA to conclude that there was no bona fide job opportunity. Here are some of the inconsistencies the court mentioned:
These cases make clear that when sponsoring your relative for a position in your company, it cannot be handled carelessly, you need an attorney to ensure consistency across all the documents and forms submitted to the Department of Labor and USCIS. Between the ETA 9089, the job postings, and the supporting documents for the I-140 petition, consistency is crucial. If you are planning to hire a relative to fill one of your company's positions, contact our law office to see how we can help ensure that the information for these documents are entered correctly!
Background
Most PERM employers know that hiring relatives is possible as long as there is a bona fide job opportunity and the job is made available to U.S. workers. The court considers the totality of the circumstances using the following factors outlined in the famous case of Modular Container Systems, Inc., looking at whether the employee:
- Is in a position to control or influence hiring decisions regarding the job for which labor certification is sought;
- Is related to the corporate directors, officers or employees;
- Was an incorporator or founder of the company;
- Is involved in the management of the company;
- Is on the board of directors;
- Is one of a small number of employees;
- Has qualifications for the job that are identical to specialized or unusual job duties and requirements stated in the application; and
- Is so inseparable from the sponsoring employer because of his or her pervasive presence and personal attributes that the employer would be unlikely to continue in operation without the alien.
Why Tyrrell Limited On Behalf of Espino, Jose Miguel Tantoco and Johnman U.S.A., Inc. d/b/a Karoke Champ, On Behalf of Kida, Takuya Were Ruled Differently
Both cases deal with hiring a family member, one hires her son while other hires his brother. When a familial relationship exists between the employer and the employee, the employer must overcome the presumption that the employee's influence and control over the job opportunity is such that the job opportunity is not bona fide (not open and available to US workers). In this case, Kida was unable to overcome that presumption while Espino could. We explore why in the paragraphs that follow.
First, in Espino, the employer had stated that the role of the Officer in Charge (OIC), the employee's position, includes taking over exigent tasks when the General Manager (GM) is unavailable.While the GM's tasks include interviewing and hiring potential employees, these would not be considered "exigent tasks" and can wait until the GM returns. As such, the OIC's tasks would not include interviewing and hiring employees. BALCA agreed.
In contrast, Kida was hired to fill three titles, head of the Management Division, head of the Finance Division, and the head of the Division of Store Development. As the head of the Management Division, Kida also oversees the Human Resources Department, which is responsible for the company's interviewing and hiring. The court held that these titles held essential functions of the company and considered the employee as "inseparable from the sponsoring employer," which was the last factor provided in Modular Container Systems, Inc.
What Ultimately Led The Employer Astray: The Inconsistencies in Kida's Petition
What became clear to me as a lawyer is the court's enumeration of the inconsistencies in Kida's petition, which, I think, ultimately led BALCA to conclude that there was no bona fide job opportunity. Here are some of the inconsistencies the court mentioned:
- In the organizational chart, one of Kida's three titles was the head of Management Division of the company, which is responsible for the actions of the Human Resources Department. However, the employer made inconsistent statements throughout the application, once claiming that the Human Resources Department was autonomous in making hiring decisions, and another time claiming that the President/CEO was the primary decision-maker.
- The organizational chart submitted with Kida's petition stated that the company had thirteen employees, while the ETA 9089 stated that the company had six employees.
- The organizational chart showed that Kida would hold multiple management titles in the company, presenting him as a key player. However, the labor certification application stated that no experience is necessary and provides for basic accounting duties. This inconsistency suggested that his actual job position was not accurately presented in the labor certification.
These cases make clear that when sponsoring your relative for a position in your company, it cannot be handled carelessly, you need an attorney to ensure consistency across all the documents and forms submitted to the Department of Labor and USCIS. Between the ETA 9089, the job postings, and the supporting documents for the I-140 petition, consistency is crucial. If you are planning to hire a relative to fill one of your company's positions, contact our law office to see how we can help ensure that the information for these documents are entered correctly!
Tuesday, September 27, 2016
Five Ways for International Entrepreneurs to Stay and Work In the U.S.: No Need to Depend on Employer Sponsorship!
With the increasing interest in the pending Parole for International Entrepreneurs Rule, entrepreneurs from other countries are unaware that even before this rule, there were many ways to start your own business and stay in the U.S. Here are some of the methods to allow those that are here on temporary visas, student visas, or other work visas to do just that:
1. OPT Allows for Self-Employment. There are no rules preventing someone pursuing OPT to also pursue self-employment. As long as the business is in the same field of study as the program which the student pursued through his F-1 visa, he would be able to work for himself. Beware of the line between what you are allowed to do while you are completing your program on F-1 and what you are allowed to do while on OPT. You cannot work while on F-1, however, you would be "working" through your OPT. As such, the question becomes whether setting up your own business would be considered "working," therefore violating the terms of your F-1 visa.
2. H-1B Petitions Require Employer-Employee Relationship, But Does Not Prevent Self-Employment. You may start a business and in turn sponsor yourself for the H-1B status. The difficult hurtle is that you will need to show that you are an employee of the company that you have started. This means that you must vest the control of your own company in a Board of Directors or, through the governing documents, show that you do not have majority ownership. Through the latter method, USCIS must understand that although you started the business, other owners comprise of the majority, have decision-making power, and have the ability to fire you or take the company from you.
You may also apply cap-exempt if you can show that your business works "directly" and "predominantly" with a non-profit organization or an university or is employed by a non-profit organization or an university. Alternatively, over the course of a couple of months, Global Entrepreneur In Residence programs have became the norm in universities all over the country. Here are some of examples of the success of this program: Babson College GEIR, UMass's Venture Development Center, and Harvard Business School's Rock Center. Entrepreneurs working with these programs are also able to start their business and apply for H-1B cap-exempt.
3. E-2 Treaty Investor Visa – If you are a citizen of one of the treaty countries, you may use this visa to enter or stay in the U.S. to start a business. This visa functions similar to the popular EB-5 except with far less regulations and less scrutiny around it. One major advantage of the E-2 visa is that it costs much less than the EB-5, there is no minimum capital investment amount required to qualify. The investor would only need as much capital as is required to start whatever business he wants.
4. Self-Petition For EB-2 (Exceptional Ability) with National Interest Waiver. If you qualify for the National Interest Waiver (NIW) under the Employment-Based Second Category, you would not need an employer to petition for you. According to Matter of New York State Department of Transportation, 22 I&N Dec. 215 (Comm’r 1998), a petition seeking NIW must show that (1) you plan on working in the U.S. in an area of substantial intrinsic merit, (2) the proposed impact of your work is national in scope, and (3) waiving the labor certification requirement would benefit the national interest.
5. Of course, the New Parole for International Entrepreneurs Rule. Our firm is keeping a close eye on this rule and will provide an update to our readers as soon the public comments period is complete. We will also be updating our practice areas to include this rule at that point. Read the reasons why we are so excited here: Five Reasons We Are Excited For The New Parole For International Entrepreneurs Rule.
Our law firm regularly advises clients on the issues mentioned above. Contact us today to see how we can help bring your ideas to reality and obtain legal permanent residence.
Thursday, September 1, 2016
Five Reasons We Are Excited For The New Parole For International Entrepreneurs Rule
We are so excited about this new rule that we cannot wait until it is published in the Federal Register to write about it. The USCIS began taking comments yesterday. We encourage our readers to submit their thoughts to USCIS, the crucial impact of this program cannot be underestimated. You can read about the proposed rule and send them your comments by using the green button in the upper right-hand corner. They will be taking comments until October 17, 2016. at which time they will begin addressing the comments. The rules will not become final until the date specified in the final rule, which will be published in the Federal Register.
This program for international entrepreneurs is similar to the EB-5 program in terms of its focus on economic growth and job creation. However, the threshold is much easier to fulfill. It focuses on provisions to startup founders, so the regulations require little resource to be granted parole. Here, we would like to provide some highlights of the program and the reasons for our excitement.
One: Low Threshold Initial Requirements
In order to be a parolee in the program, you must have formed a startup entity recently. The USCIS defines "recently" to be within the 3 years preceding the start date of the filing of the initial parole application. Additionally, you must have "lawfully done business" since the creation of the startup entity. USCIS will also analyze the startup's potential for rapid growth and job creation. While we specialize in immigration, if you have any questions regarding entity formation, we are also able to offer advice.
The second requirement is that USCIS requires the applicant to show that he/she is an entrepreneur of the startup company. This means that he or she "(1) possesses a significant (at least 15%) ownership interest in the entity and (2) has an active role in the operations and the future growth of the entity. The last requirement is that you must have received significant "investment from established U.S. investors or government funding. In order for the investment to be "significant," the capital invested must total $345,000 or more from established U.S. investors (such as venture capital firms, angel investors, or start-up accelerators). Alternatively, you must show that your startup has received government grants totaling $100,000 or more. However, these numbers are not strict requirements.
Two: Flexible Funding Requirements
According to the proposed rules, partial government grant or private funding under the dollar amount threshold is allowed if the applicant can bring additional "compelling" evidence that the entity would provide a significant public benefit to the U.S. "Public benefit" seems to hinge on whether the entity shows a substantial potential for rapid growth and job creation.
Although USCIS has not provided examples of evidentiary documents in the proposed rule, we are closely tracking the future publication of any policy guidance memorandum regarding this rule and will update the public accordingly. We presume that in order to show an entity's potential for growth and job creation, the evidence will involve economic analysis similar to the requirements to show potential for job creation in an EB-5 petition, though at a lower standard of proof.
Three: Continuation of Parole
Under the proposed rule, the initial grant of parole is for 2 years. However, USCIS will grant a continuation of parole for another 3 years if the applicant can demonstrate that the startup entity has continued to operate soundly for the last two years and will continue to operate as such into the foreseeable future. The applicant must also continue to be an entrepreneur in that they own at least 15% of the entity and has a crucial managerial and operational role in the business entity. Specifically, the applicant must be able to demonstrate that his/her entity has show signs of significant growth since the initial grant of parole and will continue to sustain rapid growth and job creation.
Four: The Rippling Effect
With parole, the entrepreneur's spouse and children will also be able to stay in the U.S. while the entrepreneur builds his/her business. Their spouse will be able to work and earn a living, so that the entrepreneur can focus his/her resources on the startup entity to grow the U.S.economy in the long term. Their children would be able to attend some of the world's best schools here in the U.S., which in turn, would provide for the most potential for keeping many generations of the best talent in the U.S.
Five: Focus on Economic Growth
Recall our post about the Start-up Visa, this program is not quite the Start-up Visa, but it is vastly similar. All the reasons I mentioned in that article, regarding stopping the brain drain, encouraging innovation, and the contributions to economic growth would of course also apply here.
Contact our law firm if you have any questions regarding this new rule. We will be keeping a close watch on its developments.
This program for international entrepreneurs is similar to the EB-5 program in terms of its focus on economic growth and job creation. However, the threshold is much easier to fulfill. It focuses on provisions to startup founders, so the regulations require little resource to be granted parole. Here, we would like to provide some highlights of the program and the reasons for our excitement.
One: Low Threshold Initial Requirements
In order to be a parolee in the program, you must have formed a startup entity recently. The USCIS defines "recently" to be within the 3 years preceding the start date of the filing of the initial parole application. Additionally, you must have "lawfully done business" since the creation of the startup entity. USCIS will also analyze the startup's potential for rapid growth and job creation. While we specialize in immigration, if you have any questions regarding entity formation, we are also able to offer advice.The second requirement is that USCIS requires the applicant to show that he/she is an entrepreneur of the startup company. This means that he or she "(1) possesses a significant (at least 15%) ownership interest in the entity and (2) has an active role in the operations and the future growth of the entity. The last requirement is that you must have received significant "investment from established U.S. investors or government funding. In order for the investment to be "significant," the capital invested must total $345,000 or more from established U.S. investors (such as venture capital firms, angel investors, or start-up accelerators). Alternatively, you must show that your startup has received government grants totaling $100,000 or more. However, these numbers are not strict requirements.
Two: Flexible Funding Requirements
According to the proposed rules, partial government grant or private funding under the dollar amount threshold is allowed if the applicant can bring additional "compelling" evidence that the entity would provide a significant public benefit to the U.S. "Public benefit" seems to hinge on whether the entity shows a substantial potential for rapid growth and job creation.
Although USCIS has not provided examples of evidentiary documents in the proposed rule, we are closely tracking the future publication of any policy guidance memorandum regarding this rule and will update the public accordingly. We presume that in order to show an entity's potential for growth and job creation, the evidence will involve economic analysis similar to the requirements to show potential for job creation in an EB-5 petition, though at a lower standard of proof.
Three: Continuation of Parole
Under the proposed rule, the initial grant of parole is for 2 years. However, USCIS will grant a continuation of parole for another 3 years if the applicant can demonstrate that the startup entity has continued to operate soundly for the last two years and will continue to operate as such into the foreseeable future. The applicant must also continue to be an entrepreneur in that they own at least 15% of the entity and has a crucial managerial and operational role in the business entity. Specifically, the applicant must be able to demonstrate that his/her entity has show signs of significant growth since the initial grant of parole and will continue to sustain rapid growth and job creation.
Four: The Rippling Effect
With parole, the entrepreneur's spouse and children will also be able to stay in the U.S. while the entrepreneur builds his/her business. Their spouse will be able to work and earn a living, so that the entrepreneur can focus his/her resources on the startup entity to grow the U.S.economy in the long term. Their children would be able to attend some of the world's best schools here in the U.S., which in turn, would provide for the most potential for keeping many generations of the best talent in the U.S.
Five: Focus on Economic Growth
Recall our post about the Start-up Visa, this program is not quite the Start-up Visa, but it is vastly similar. All the reasons I mentioned in that article, regarding stopping the brain drain, encouraging innovation, and the contributions to economic growth would of course also apply here.
Contact our law firm if you have any questions regarding this new rule. We will be keeping a close watch on its developments.
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