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The H-1B Visa Explained

Comprehensive Immigration Reform could include a doubling of H-1B visas. The H-1B visa numbers for the year 2013 remain the same. Our previous blogs have discussed this and the Washington Post reported the same earlier last week,

This post will discuss the H-1B visas and their significance to the US economy.

What is the H-1B visa?

The H-1B visa provides temporary status to live and work in the United States. It is the employer, not the worker, that files the application and, if successful, the H-1B visa is tied to that sponsoring employer. If the H-1B worker quits, is laid off, or otherwise loses the connection to the sponsoring employer, the worker must find a new H-1B sponsoring employer, change to a different visa or get a green card, or leave the United States. The H-1B visa holder must, at the least, have a bachelor’s degree and must work in a “specialty occupation, ”defined as an occupation requiring at least a Bachelor’s Degree.

Are there deadlines and other restrictions with the H-1B visa?

Yes, there is a 65,000 quota cap on the number of H1B visas with a special exemption for 20,000 people with a master’s degree or higher from an American university (i.e, a total of 85,000). The quota traditionally fills up quickly soon after applications open – last year, applications were accepted starting April 2, 2012 and were closed on June 11, 2012. This year, applications open on April 1, 2013 with expectations to close as soon as April 5. Family members do not count against the visa quota.

Are there any fees for filing an H-1B application?

Yes. The fees from this year range from $1,575 to $4,325, with an additional $1,225 for premium processing. Most of the fees are covered by employers, but in some instances it is appropriate for the employee to pay some part of the fee. The fee does not include attorney fees, travel costs, etc.

Can an H-1B visa holder eventually get a green card?

Yes, but indirectly. H-1B visa holders may adjust status to get legal permanent residence through either a qualifying relative or an employer. This is how most temporary visa holders adjust their status.

When are H-1B visa holders not subject to the annual cap H-1B visa holders who spent more than one year outside of U.S. and did not use up their entire six-year term can choose to be re-admitted for the “remainder” of initial six-year period without being subject to the H-1B visa cap of 85,000. In addition, H-1B employees of hospitals, research and educational institutes, and non-profit organizations are exempt from the annual cap. This means that these employers can petition for an H-1B visa for their employees any time of the year.

Furthermore, family members of H-1B visa holders that come under the H-4 status will not count against the six-year maximum period if the family member chooses to pursue an H-1B visa of their own.

Why are H-1B visas so important?

H-1B Visas are one of the key ways technology companies, from start-ups to Google, hire international talent. Although the H-1B visa can be used for a variety of occupations and not just tech jobs, the fact that Google, Facebook, and Microsoft are backing this reform shows how important the issue is for the technology sector. However, as the H-1B visa requires a bachelor’s degree or higher and a position in a “specialty occupation,” H-1B visa reform could impact a large variety of industries.

If you would like to discuss your H-1B visa case or have any questions about the process, feel free to contact our office and an expert immigration attorney will assist you!

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The Problems with Current Entrepreneurial Visa Options

Stanford University hosted an event as part of their Entrepreneurship Week on Sunday, March 3 that was packed with 200 students looking for ways to get visas and green cards in order to jumpstart their ventures. As an immigration expert, Ms. Khandelwal shared her knowledge on the dos and don’ts of visas, and lamented the fact that H1-B visa holders, which some of the attendees were, cannot start up their own companies. “It does not allow you to work for anybody else,” including your own business, she stated.

However, with the talk of legislation such as the Startup Visa Act 3.0, which we’ve previously blogged about, that may soon change. In the meantime, temporary visa holders and other noncitizens looking to get into the United States have other means of starting up an American business. The H1-B, E-1, E-2, and L-1 visas are all nonimmigrant visas options, but only allows a person to stay in the United States for a particular purpose for a limited period of time. The only immigrant visa with an entrepreneurial option is the EB-5 visa, which provides the “green card” that leads to a path to citizenship directly.

Despite what may seem like many options, these visas are often subject to cumbersome and prohibitive requirements. Most notably, there is only a single visa – the EB-5 visa – that allows for a “green card” directly. The nonimmigrant visas (H1-B, E-1, E-2, and L-1) only allow for temporary residence and must be tied to the specific purpose the visa was approved upon. This is hardly the way to reward entrepreneurial immigrants who contribute heavily to the American economy, create jobs, and spur innovation.

Furthermore, the EB-5 option may be cost prohibitive and is limited in number. Currently, the bare minimum investment threshold is $500,000 USD, which is quite a hefty sum and difficult to accumulate for those looking to immigrate quickly. Furthermore, the large majority of these projects are done through pooled investments with Regional Centers, and involve a variety of different construction projects, meaning it could take years before a person can immigrate into the United States. The large majority of these visas also came from Chinese applicants, and most recently China nearly hit their visa cap under the Regional Center pilot program.

The nonimmigrant visas are seemingly flexible, but there are still many issues. On top of the fact that they do not directly provide for a path to citizenship, each nonimmigrant visa ties the noncitizen to a specific position or purpose. For example, the L-1 intracompany visa is only available to managers, executives, and “key knowledge” employees that are coming to the United States to work at an American subsidiary, affiliate, or branch office. The E-1 or E-2 Treaty Visa beneficiaries must be nationals of an exclusive list of countries; Most notably, major countries like India are missing from this list. And even with the more flexible approach adopted by USCIS in 2011 for H1-B visa holders looking to start their own business, they must still demonstrate that their employment is under the control of preferred shareholders, other investors, or a board of directors that have the power to hire, fire, pay, supervise or otherwise control the H1-B visa holder.

Because of these issues, a successful case requires the expertise of an experienced attorney that can navigate the intricacies of immigration law and understands the realities of start-up businesses. Contact Ms. Sweta Khandelwal if you have exploring these entrepreneurial visa options or have any other immigration questions.

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USCIS has announced a new I-9 Employment Eligibility Form, found here. This form is required for all employers when hiring in the United States, and this new form can be used immediately; employers who fail to use this new Form may be subject to penalties as enforced by Immigration and Customs Enforcement. The previous version of the form can be used until May 7, 2013.

The new I-9 Form’s revisions are more technical in nature, more to reduce errors and provide clearer instructions for both employees and employers. The M-274 Handbook for Employers, the guide for completing I-9 Forms, is in the process of being updated. In the meantime, employers should follow the instructions provided along with the new I-9 Form.

Employers using an electronic I-9 system should take the 60-day grace period to ensure their systems are compliant with the new I-9 Form.

The timeframes for completing and retaining the new I-9 Form are the same as the old Form. This means:

  1. Section 1 of the Form I-9 must be completed and signed by the employee after he or she has accepted the job offer on the first day of work for pay or before the first day of work for pay.
  2. Section 2 of the I-9 Form must be completed and signed by the employer within three (3) business days of the employee’s first day of work for pay.
  3. Section 3 of the I-9 Form, if required, must be completed by an employer if the employee’s employment authorization has expired. Re-verification must occur on or before the employee’s work authorization expiration date. An employer can choose to complete Section 3 when 1) an employee changes his or her name; or 2) an employee is rehired within three years of the date that Form I-9 was originally completed.
  4. Just as with the old Form, employers must retain the new Forms for three years from date of hire or one year from date of termination – whichever is longer.

If you need assistance with the new form or with updating your electronic I-9 compliance systems, contact our office with all of your questions!

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The Startup Act of 3.0 – a Path to Citizenship for Entrepreneurial Immigrants

In the midst of all of the CIR, yet another piece of legislation has entered the fray. The Startup Act of 3.0 is finally getting some traction in Congress, with its recent introduction in the House of Representatives and Senate.

Introduced by a group of legislators led by Senator Jerry Moran (R-Kan.), the Act would allow for 75,000 individuals who are already in the United States on either H-1B visas or F-1 student visas to gain a path to citizenship. To do this, they would have to invest at least $100,000 and start a business that employs at least two full-time employees. The entrepreneurs would have then three more years to get to at least five employees and then receive permanent legal permanent residence (a “green card”).

“The Kauffman Foundation shows data that nearly all net new jobs created over the last 3 decades – nearly 40 million jobs – were created by these high-growth entrepreneurial businesses,” Senator Moran says. “In fact, 40% of Fortune 500 companies were started by first- or second-generation immigrants. The businesses high-skilled immigrants create are the source of jobs for Americans, the source of innovation and economic growth.”

The Act also benefits STEM (Science, Technology, Engineering, and Math) Masters and PhD students who are on visas to conditionally receive a green card if they remain in their fields for at least five years. Afterwards, they could get permanent green card status.

This bill has been introduced twice before, once in 2010 and once in 2011. With the recent buzz about CIR this year, hopefully this Act will do better than its two predecessors.

A path to citizenship for entrepreneurs already exists through the EB-5 category. However, the investment threshold can be prohibitive for most start-ups. Most H1-B and F-1 student visa holders do not have the $1,000,000 or $500,000 needed to immediately invest and gain green cards through the EB-5 program, especially when typically it only takes $20,000 to $30,000 to build a high tech business. Furthermore, there must be at least 10 jobs created for each EB-5 investment.

Our office is enthusiastic about the Startup Act 3.0. H1-B and F-1 visa holders contribute enormously to the American economy, through their minds, technical skills, and entrepreneurial spirit. It is only fair to offer them a chance to stay in the United States and further contribute to our economy while also creating jobs for local communities.

Contact us if you have any questions about this article or about your own immigration situation!

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