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H-1B and the New CIR Bill

It’s been about two weeks since the Gang of Eight’s “The Border Security, Economic Opportunity and Immigration Modernization Act of 2013” was presented before the Senate. . In this article, we will explore the specific provisions that affect H-1B visas. It’s important to note that these provisions are not yet law and the bill may change by the time it lands on President Obama’s desk for signing, if it makes it there at all.

The CIR bill will immediately raise the H-1B visa cap from its current cap of 65,000 to 110,000. The 20,000 visa numbers set-aside for advanced degree holders will be increased to 25,000, but now all 25,000 of these visa numbers will only be available to advanced degree graduates in science, technology, engineering, or math. The bill will also increase the cap over time to a maximum limit of 180,000 H-1B visas based on a formula that uses the number of H-1B petitions that were filed the previous year. In any case, the increase or decrease will not be more than 10,000 per year. H-1B workers will also be given a 60 day time period to change jobs, which allow H1-B workers who have lost their jobs enough time to look for another H-1B position.

There will also be several enforcement mechanisms designed to increase H-1B visa holders’ wages and scrutinize H-1B dependent companies. There will be a new Department of Labor website where jobs must be advertised for 130 days to US workers. There will be increased scrutiny for the wages paid to H-1B workers. There will be additional fees ranging from $5,000 to $10,000, for companies that have 50 or more employees, of which 30% – 50% are H-1B workers,.

Reactions to the changes in H-1B visa laws have been both positive and negative. The government of India has reacted negatively, calling an increased wage requirement on Indian firms “discriminatory” and creating a competitive disadvantage when compared to US companies. There was also talk of India being prepared to take international action against the bill, citing violations of global trade laws. Tech companies have been cautiously receptive to the changes to the H-1B visa.

Our firm believes that the bill is a generally positive change to the H-1B visa system as well as to the immigration system comprehensively. It is not perfect, and each side has both gained and lost something. We are hoping that changes to the bill, if any, will only be positive in nature and will hopefully address the many shortcomings of the H-1B visa process. If you would like to discuss the H-1B visa, CIR, or any of your other immigration issues, contact our office today.

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Gang of Eight’s New CIR Bill

On Tuesday, April 16, the Gang of Eight, comprised of four Democratic and four Republican members of Congress, introduced an eight hundred page Comprehensive Immigration Reform (“CIR”) Bill. This bill has just been reviewed by the Senate Judiciary Committee today on April 22, and given the reactions by the media, politicians, and interest groups, this bill may experience both opposition, as well as support, before reaching the President’s desk to be passed into law. Now that almost a week has passed since the bill’s introduction, our office has had a chance to analyze some of the reactions.


Notably, pro-immigration public interest groups, like Asian Law Caucus, acknowledged the progress the bill made but also criticized the bill’s flaws and shortcomings. Specifically, Asian Law Caucus criticized the ten year long wait undocumented immigrants to obtain a green card as being too long. They also criticized the “2011 cut-off date”; only undocumented immigrants who arrived before 2011 are eligible before embarking on their path to citizenship.

Politicians from both campuses also weighed in their criticisms. The left finds the bill overly punitive in its fines and wait times. Democrats also find the lack of federal benefits for formerly undocumented immigrants as a concern.

Politicians from the Republican camp find the bill too much of an amnesty measure. There are also concerns that this bill will open the floodgates to illegal immigration that could negatively impact American wages.


The Bill has been supported despite the criticisms. The American Immigration Lawyers Association has called the bill a “good start” and “an intelligent architecture on which we can build a modern, commonsense immigration system for our country.” The Washington Post also had an editorial on how the bill is “worthy of support,” citing all of the positive steps towards helping undocumented and low wage immigrants while also noting the deal being the result of many compromises.


The bill itself is massive and not perfect. There is both opposition and support for this bill from all parts of the political spectrum. It is easy to imagine that the bill that was introduced last Tuesday may not be the same bill that President Obama signs into law, should it make it that far. Our office will stay up to date on these CIR developments, and you should contact us if you have any questions about the proposed changes to the immigration system or for any of your immigration questions.

Stay tuned for upcoming articles on the CIR bill, including the creation of new visas, changes to the H1-B system, and other immigration overhauls.

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H-1B Visa Extensions

While the H-1B quota for the fiscal year 2014 is over, it is significant to note that those foreign nationals already in the US on H-1B visas are exempt from the annual quota. Therefore, USCIS will continue to adjudicate H-1B visas so far as they relate to extension and transfers.

The H-1B visa is initially valid for three years. However, an additional three year extension can be obtained. After this six year period, further extensions can be obtained in certain circumstances.

It’s important to note that the six year period of stay includes time spent in the US on both H-1B and L-1 visas. After completing 6 years of stay in the US, a person cannot be readmitted in the US on a H-1B visa until he or she has remained outside the United States for at least one year. Brief trips to the United States on a visitor visa during this period of one year are permitted. The regulations are not clear as to whether the foreign national must complete the period of one year at the time he or she is applying for a new H-1B or at the time he/she enters the US on H-1B. The process of filing the H-1B paperwork is complex and it is imperative that one retains a competent attorney.

A foreign national with an approved H-1B petition is entitled to remain in the US on the H-1B for the full period of 6 years.

In some situations, the H-1B visa can be extended beyond 6 years. These exceptions are based on either 1) per-country limitations; or 2) long-pending labor certification application or immigrant visa petition. The per country limitations involve situations where the H-1B visa holder is otherwise eligible for a EB-1, EB-2, or EB-3 immigrant visa (a “green card”), but cannot receive one because of the per-country quota limitations. In practice, this exception is applicable to EB-2 and EB-3 preference categories. This exception allow the H-1B visa to be extended in three year increments. The second exception is the long-pending labor certification or immigrant petition exception, and it is for H-1B visa beneficiaries who have filed either a labor certification or employment-based immigrant visa petition by the end of the H-1B worker’s fifth year. The extension in the second case is in increments of one year. The extensions are permitted for as much time as needed for a final adjudication on the labor certification application or employment-based petition.

If these rules surrounding H-1B extensions seem complex, they definitely are and require a trained attorney to guide a H-1B visa holder through the process. We are also hoping that rational minds prevail and Comprehensive Immigration Reform will remove some of these complex hurdles for hard-working H1-B visa holders. Contact our office if you have any questions regarding the H-1B visa extension process or any other of your immigration issues.

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H1-B Visa Cap Reached, Possible Lottery

Just as we and many other sites have predicted, the H1-B visa hit its cap on Friday, April 5th, just a mere four days since the opening date on April 1st.

Even before this year’s H1-B visa application season opened, there was talk of a possible lottery. USCIS, the government branch in charge of handling a large proportion of visa petitions, has done a lottery for H1-B visas in the past – most notably in 2008 when the H1-B visa cap was reached on the very first day. This year’s lottery involves a computer-generated random selection process, starting first with the advanced degree petitions. USCIS announced today (Monday April 8th) that it received approximately 124,000 H-1B petitions during the filing period, including petitions filed for the advanced degree exemption.

The speed at which the H1-B visa cap was exhausted bolsters our blog posts and other media outlets’ reports on the need for Comprehensive Immigration Reform. In particular, there has been numerous pushes to raise the H1-B visa cap to allow foreign talent to work for the benefit of American companies and spur productivity. John Feinblatt, Chief Policy Advisor to New York City Mayor Michael Bloomberg and Chairman of the Partnership for a New American Economy, reflected similar sentiments when he stated, “The fact that our supply of H-1B visas was exhausted so quickly is not only emblematic of our broken immigration system – it represents yet another missed opportunity to attract the world’s best and brightest to our shores.”

As we’ve stated before, some H1-B related Comprehensive Immigration Reform proposals include allowing H1-B visa holders to get green cards by investing $100,000 to start a business and hire two full-time employees. The proposed Immigration Innovation Act 3.0 will also almost double the current visa cap from 65,000 to 115,000 and allow for unlimited H1-B visas for those who have a Master’s Degree from a United States University.

If you have any questions about the H1-B visa or any of your immigration issues, contact our office!

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Entrepreneurial Visa Options

The H1-B Entrepreneur

It is very much possible to hold a managerial position of a company you helped establish with a H1-B visa. On August 2, 2011, Secretary of Homeland Security Janet Napolitano and USCIS announced many immigration initiatives designed to boost the economy. The most notable one included a policy shift to allow a H1-B visa holder to have a majority or even 100% stake in his or her own company, including as a sole employee, as long as he or she can demonstrate that the company has the right to control the entrepreneur’s employment. Some examples include preferred shareholders or a separate Board of Directors that control the terms and conditions of the entrepreneur’s employment.

E-1 Treaty Trader and E-2 Treat Investor

Both the E-1 Treaty Trader and E-2 Treaty Investor applicant must be a national of one of the qualifying treaty countries, found here on the Department of State’s website. Noticeably, major countries such as India do not make it onto this list. Both visas have no limit on their issuance, are valid for two years and can be extended in two-year increments indefinitely. Both the E-1 Treaty Trader and E-2 Treaty Investor must be employed in a supervisory or executive role or have specialized skills are essential to the efficient operation of the business.

For an E-1 Treaty Investor, both the applicant and the trading firm must be of the same nationality of a qualifying treaty county (for a full list, see below). The company must be at least 50% owned by nationals of the treaty company. The international trade must be a sizable and continuing volume of trade between the countries and more than 50% of the total volume of the company’s international trade must be between the two countries. The applicant him/herself must be employed in a supervisory or executive capacity or possess highly specialized skills essential to the efficient operation of the company. “Ordinary” skilled or unskilled workers do not qualify.

For an E-2 Treaty Investor, the investment must be sufficient to ensure the successful operation of the enterprise, and “at risk,” meaning that there is a risk of loss (i.e. not a guaranteed loan). The investment must be in a functioning, real enterprise and do more than just provide passive income to the investor. E-1 Treaty Trader, the E-2 Treaty Investor

L-1 Intra-Company Transferee

The L-1 visa is a nonimmigrant visa that allows for established foreign companies to send managers, executives, and “key knowledge” employees to work in American branches, subsidiaries, or affiliates. The L-1 visa is split into two types: the L-1A visa for managers or executives, and L-1B visa for employees with “key knowledge” of the business’s products or processes. For both types of L-1 visas, they must be employed on a full-time basis. Conveniently, there is no numerical cap on L-1 visa issuances. It is possible to eventually petition for an immigrant visa (i.e. a green card) under either the EB-1 Multinational Manager and Executives option or the one of the EB-2 options, depending on the circumstances.

O-1 Individuals with Extraordinary Ability or Achievement

Individuals with extraordinary talents in the sciences, arts, education, business, or athletics may have the ability to continue in those fields while residing in the United States. While the eligibility criteria appears daunting – USCIS describes it as “a level of expertise indicating that the person is one of the small percentage who has risen to the very top of the field of endeavor.” , many entrepreneurs are successfully using the O visa to work for their own start-up companies. An entrepreneur could demonstrate that 1) there are published articles about their business/skill in major media; 2) a high salary evidenced by contracts; and 3) employment in a critical or essential capacity for organizations with distinguished reputations. The full list is on the same page linked immediately above. O Visa beneficiaries can stay for 3 years initially and then must apply for one year extensions after.

EB-5 Immigrant Investor

The EB-5 immigrant visa is the only option that provides a “green card” directly. Applicants can choose to directly invest in a business or pool their funds through a Regional Center; a Regional Center is a specially designated investment vehicle company that’s meant to manage and pool EB-5 funds. Some examples of popular investment projects include commercial and residential real estate, hotel development, and green energy production. Although the investment minimum requirement can vary from $500,000 to $1,000,000, the basic requirement is that each investment must create 10 full-time jobs in 2 years from the full infusion of the EB-5 investment.


Although these may seem like there are many different options for someone to start up their own business, as we noted in our last post there are many hurdles and issues that require an experienced business immigration attorney. These issues include basic financial milestones such as coordinating with professional consultants, drafting a business plan, incorporating your company, and of course navigating through the confusing immigration system’s own requirements. Contact our office to learn more and for assistance in starting up your own venture!

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