Category: Business Immigration

Why is Our H1-B System so Broken? How can it be fixed?

I remember the day when I could apply for my H1-B visa. It was a day after I finished law school. I applied for my Optional Practical Training (OPT), giving me one year to find a job that would sponsor me for a work visa, which would ultimately lead to my permanent residence. I write this post because we are approaching that magical April 1st date, when many dreams would be built, and so many more would be destroyed. Our H1-B system is simply broken, and it is in dire need for an overhaul.
For those of you that do not know about the program, I will give you a brief introduction. The system is built to attract professionals into our workforce. A United States employer would apply for an employee who possesses a Bachelor’s degree to stay on and work for them for six years, the maximum amount of time allowed under the program. Congress has limited the amount of visas available in any given year to 65,000 with an additional 20,000 visas available for candidates with a Master’s degree, which do not count towards the original cap. The employer would apply for a Labor Condition Application (LCA) from the Department of Labor, which should give the employer the magical salary that he should pay the candidate. The employer then submits an application to USCIS, hoping that his candidate’s application makes it in time for a coveted spot in the 65,000 available visas or in the 20,000 visas available for other candidates. In case USCIS receives more applications than available visas, there will be a lottery to select the lucky applicants whose numbers get called.
Among the several problems with this system, two are most dangerous 1) the system does not take into account the real needs of the labor force and 2) the system is so dominated by employers making it unfair to foreign employees.
As to the first problem I mention, the cap Congress has placed has not relation to reality. The fact remains that the government receives more applications than available visas shows that our labor market needs more workers than available visas. Immigration practitioners, and some in Congress, agree that the number of available visas is arbitrary. The new system should take into account our need for more STEM graduates than others. The system should give priority to H-1B applicants who have graduated with STEM degrees over those who do not. I acknowledge that is this system was in place in 2010 when I received my visa, I would not have gotten one. However, the system is more important than the needs of some people. This preference scheme would make the system more favorable to graduates that we need in our system.
The second problem is the most dangerous. The fact is that the LCA can be manipulated by employers. In my case, a holder of three graduate degrees with several years of experience for example, an employer could ask for a candidate who had just graduated from law school to suppress the salary required to abide by federal law. This would mean that a candidate that would make $84,000 a year in the Tampa Bay area as an attorney is being paid $52,000 under the current LCA scheme. This is totally unfair. One possible way to fix this problem is to require the employer to list the real qualifications of the prospective employee and not the desired qualifications used by the employer to suppress the employee’s salary. This would force the employer to pay the actual fair salary mandated by the market.
Another problem with the system is one that is related to the above discussion: the fact that the employer holds all the strings, making the employee totally dependent on his employer and forcing him or her to put up with any abuse. An H1-B employee lives under the threat of deportation every second of every day during their employment. The employer could terminate their employment and they would be forced to return to their country destroying the lives they have established in the United States. One possible solution that has been floated is to give an employee 60 days to find another job to remain in the United States, allowing him some flexibility in case of termination.
Lastly, it is time for Congress to increase the number of H1-B visas so we could compete with other countries, whose immigration processes attract these immigrants. We are simply losing bright minds in this battle for the future of the United States.
Our current system is broken. I hope that this post could be used as a blueprint for its reform.

Hatch Introduces I-Squared Act of 2015 To Help Skilled Workers

Senator Hatch introduced the ‘‘Immigration Innovation Act of 2015’’ or the ‘‘I-Squared Act of 2015’’ on the Senate today. The Act aims to get more skilled immigrants into the United States. It has three components:

1. It raises the amount of H1B visas available for skilled immigrants. The Act raises the number of visas depending on the time-frame during which the current numbers are exhausted. The Act also codifies giving H1B dependents Employment Authorization Documents (EAD). Dependents are not currently allowed to work.

2. The Act also aims to move the backlog on immigrant visa by increasing the available number of visas available for immigrant visa petitions by changing the per capita numbers for countries.

3. The Act allows immigrants to move employer more easily by allowing them to stay in status for 60 days after their employment is terminated.

The Act deals with some other things, including raising funding for STEM programs.

Visit this link to read the Act.

The I-Squared Act of 2015 tries to fix many of the persistent problems that have led to the departure of many American educated students from the United States.

USCIS Hosts Entrepreneurs in Residence Information Summit

Agency kicks off effort to ensure that immigration pathways for foreign entrepreneurs are clear and consistent, and better reflect today’s business realities

WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) Director Alejandro Mayorkas hosted an Information Summit today at the NASA Research Park in Moffett Field, Calif., to launch the USCIS Entrepreneurs in Residence (EIR) Initiative.

“Today USCIS gained invaluable insights from prominent entrepreneurs and industry leaders on immigration issues critical to our nation’s economic prosperity,” said Director Mayorkas. “The introduction of expert views from the private and public sectors will help us ensure that our policies and processes fully realize the immigration laws’ potential to grow our economy and create American jobs.”

The summit brought together more than 150 high-level representatives from the entrepreneurial community, academia and government to discuss how USCIS can realize the full potential of immigration law to foster entrepreneurship and bolster American prosperity. Through panel discussions and breakout sessions, the summit gave participants the opportunity to share their strategic thinking and business expertise with the agency.

Today’s event informs the work of the newly formed Entrepreneurs in Residence tactical team, comprised of external business experts and USCIS employees, who will work collaboratively over the next several months to ensure that immigration pathways for foreign entrepreneurs are clear and consistent, and better reflect today’s business realities. The tactical teamwill identify ways to enhance USCIS policies, practices and training across a range of existing nonimmigrant visa categories used by entrepreneurs.

Director Mayorkas joined the President’s Council on Jobs and Competitiveness in Pittsburgh in October 2011 to announce the EIR Initiative. This effort follows a series of policy, operational and outreach efforts announced last year to promote startup enterprises and spur job creation within the context of current immigration law.

As part of today’s event, Director Mayorkasconducted a naturalization ceremony and welcomed 20 candidates from the Silicon Valley area as new U.S. citizens. In addition, he recognized five of America’s immigrant entrepreneurs who are naturalized citizens—Christopher Che, President and CEO of the Che International Group; Ping Fu, President and CEOof Geomagic; Michael Moritz, Partner at Sequoia Capital; Shervin Pishevar, Managing Director of Menlo Ventures; and Vivek Wadhwa,Academic, Researcher, Writer, Entrepreneur—as Outstanding Americans by Choice.

The Outstanding American by Choiceinitiative recognizes the achievements of naturalized U.S. citizens through civic participation, professional achievement, and responsible citizenship. Recipients of this honor have demonstrated their commitment to this country and to the common civic values that unite us as Americans.

 For more information on USCIS and its programs, please visit www.uscis.gov or follow us on Twitter (@uscis), YouTube (/uscis) and the USCIS blog The Beacon.

Source: uscis business

USCIS Proposes Significant Enhancements to EB-5 Visa Processing to Help America Win the Future

released May 19, 2011

Actions Will Streamline Program Designed to Create Jobs

WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) today proposed significant enhancements to the administration of the USCIS Immigrant Investor Program, commonly referred to as the EB-5 Program—transforming the intake and review process for immigrant investors as part of the Obama administration’s continued commitment to improve the legal immigration system and meet our economic and national security needs for the 21st century.

The EB-5 Program makes 10,000 visas available annually to immigrant investors who invest in commercial enterprises that create at least 10 U.S. jobs. EB-5 investors may petition independently or as part of a USCIS-designated Regional Center.

“Congress created the EB-5 Program in 1990 to attract investors and entrepreneurs from around the globe to create jobs in America,” said USCIS Director Alejandro Mayorkas. “We are dedicated to enhancing this program to ensure that it achieves that goal to the fullest extent possible.”

USCIS is proposing three fundamental changes to the way it processes EB-5 Regional Center filings. First, USCIS proposes to accelerate its processing of applications for job-creating projects that are fully developed and ready to be implemented. USCIS will also give these EB-5 applicants and petitioners the option to request Premium Processing Service, which guarantees processing within 15 calendar days for an additional fee.

Second, USCIS proposes the creation of new specialized intake teams with expertise in economic analysis and the EB-5 Program requirements. EB-5 Regional Center applicants will be able to communicate directly with the specialized intake teams via e-mail to streamline the resolution of issues and quickly address questions or needs related to their applications.

Third, USCIS proposes to convene an expert Decision Board to render decisions regarding EB-5 Regional Center applications. The Decision Board will be composed of an economist and adjudicators and will be supported by legal counsel.

This proposal will be online until June 17, 2011, for public comment—providing stakeholders an opportunity to offer feedback on the proposed changes to the administration of the EB-5 Program.

For more information on USCIS and its programs, please visit www.uscis.gov or follow us on Twitter (@uscis), YouTube (/uscis) and the USCIS blog The Beacon.

Source: uscis business

USCIS Announces “Entrepreneurs in Residence” Initiative

Agency focuses on fully realizing the job-creating potential of current immigration law

Released Oct. 11, 2011

WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) Director Alejandro Mayorkas joined the President’s Council on Jobs and Competitiveness in Pittsburgh to announce “Entrepreneurs in Residence.”  This new innovative initiative will utilize industry expertise to strengthen USCIS policies and practices surrounding immigrant investors, entrepreneurs and workers with specialized skills, knowledge, or abilities. Mayorkas announced the initiative at the Jobs Council’s High Growth Entrepreneurship Listening and Action Session at AlphaLab in Pittsburgh before the Council’s quarterly meeting with President Obama.

“This initiative creates additional opportunities for USCIS to gain insights in areas critical to economic growth,” said Director Mayorkas. “The introduction of expert views from the private and public sector will help us to ensure that our policies and processes fully realize the immigration law’s potential to create and protect American jobs.”

USCIS will launch the “Entrepreneurs in Residence” initiative with a series of informational summits with industry leaders to gather high-level strategic input. Informed by the summits, the agency will stand up a tactical team comprised of entrepreneurs and experts, working with USCIS personnel, to design and implement effective solutions. This initiative will strengthen USCIS’s collaboration with industries, at the policy, training, and officer level, while complying with all current Federal statutes and regulations.

The initiative builds upon USCIS’s August announcement of efforts to promote startup enterprises and spur job creation, including enhancements to the EB-5 immigrant investor visa program. Since August, USCIS is:

  • Conducting a review of the EB-5 process
  • Working with business analysts to enhance the EB-5 adjudication process
  • Implementing direct access for EB-5 Regional Center applicants to reach adjudicators quickly; and
  • Launching new specialized training modules for USCIS officers on the EB-2 visa classification and L-1B nonimmigrant intra-company transferees.

For more information on USCIS and its programs, please visit www.uscis.gov or follow us on Twitter (@uscis), YouTube (/uscis) and the USCIS blog The Beacon.

Source: uscis business

USCIS Initiatives to Promote Startup Enterprises and Spur Job Creation Fact Sheet

Background

On Aug. 2, 2011, Secretary of Homeland Security Janet Napolitano and USCIS Director Alejandro Mayorkas outlined a series of policy, operational, and outreach efforts to fuel the nation’s economy and stimulate investment.  These initiatives will allow our nation to realize the potential of current immigration laws to attract the best and brightest from around the world to invest their talents, skills, and ideas to grow the U.S. economy and create American jobs.

Introduction

The following actions mark the six-month anniversary of Startup America, a White House-led initiative to reduce barriers and accelerate growth for America’s job-creating entrepreneurs.  These measures have been one key focus of the President’s Council on Jobs and Competitiveness, which has recommended taking action to help ensure that America can out-innovate and out-compete the world in a global economy.

Availability of EB-2 National Interest Waivers to Entrepreneurs

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. USCIS has issued Frequently Asked Questions to clarify this issue. USCIS will also conduct internal training on the unique characteristics of entrepreneurial enterprises and startup companies and incorporate input from the upcoming stakeholder engagements detailed below.

The EB-2 visa classification includes foreign workers with advanced degrees and individuals of exceptional ability in the arts, sciences, or business.  Generally, an EB-2 visa petition requires a job offer and a Department of Labor certification.  These requirements can be waived under existing law if the petitioner demonstrates that approval of the EB-2 visa petition would be in the national interest of the United States.

Availability of H-1B Visas to Entrepreneurs

Entrepreneurs with an ownership stake in their own companies, including sole employees, may be able to establish the necessary employer-employee relationship to obtain an H1-B visa, if they can demonstrate that the company has the independent right to control their employment. USCIS has updated existing FAQs to clarify this issue. 

New Procedures for Processing EB-5 Petitions

USCIS is enhancing the EB-5 immigrant investor program by transforming the intake and review process.  In May, USCIS proposed fundamental enhancements to streamline the EB-5 process which include: extending the availability of premium processing for certain EB-5 applications and petitions;  implementing direct lines of communication between the applicants and USCIS; and providing applicants with the opportunity for an interview before a USCIS panel of experts to resolve outstanding issues in an application.  After reviewing stakeholder feedback on the proposal, USCIS will begin implementing the first of these enhancements within 30 days.

Premium Processing Service Available to Additional Employment-Based Visa Categories

USCIS will also expand its Premium Processing Service to immigrant petitions for multinational executives and managers (often referred to as “E13”). The Premium Processing Service allows employers to expedite processing of their petitions, absent evidentiary deficiencies, fraud or national security concerns.  With this addition, nearly all employment-based petitions and applications will have the option of Premium Processing. 

New Engagement Opportunities for Entrepreneurs and Startup Companies

USCIS is committed to open and transparent communication with stakeholders.  The Office of Public Engagement will host a series of meetings to discuss issues of importance to foreign entrepreneurs and start-up companies.  These engagements will provide USCIS with valuable stakeholder feedback on how entrepreneurs and start-up companies can be eligible for employment-based visa categories.  USCIS will host the first of these engagements on Aug. 11, 2011.

USCIS is also launching Conversations with the Director, a new series of small group meetings with Director Mayorkas to discuss immigration issues important to communities around the country. The first meeting will take place the week of Aug. 15, 2011, and will focus on economic development and the EB-5 investor program.

Source: uscis business

Questions & Answers: USCIS Issues Guidance Memorandum on Establishing the “Employee-Employer Relationship” in H-1B Petitions

Published Jan. 13, 2010; revised Aug. 2, 2011 and March 12, 2012

Introduction

On Jan. 8, 2010, U.S. Citizenship and Immigration Services (USCIS) issued updated guidance to adjudication officers to clarify what constitutes a valid employer-employee relationship to qualify for the H-1B ‘specialty occupation’ classification. The memorandum clarifies such relationships, particularly as they pertain to independent contractors, self-employed beneficiaries, and beneficiaries placed at third-party worksites. The memorandum is titled, “Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements:  Additions to Officer’s Field Manual (AFM) Chapter 31.3(g)(15)(AFM Update AD 10-24).” In addition to clarifying the requirements for a valid employer-employee relationship, the memorandum also discusses the types of evidence petitioners may provide to establish that an employer-employee relationship exists and will continue to exist with the beneficiary throughout the duration of the requested H-1B validity period. 

Questions and Answers

Q1:  Does this memorandum change any of the requirements to establish eligibility for an H-1B petition?

A1:  No. This memorandum does not change any of the requirements for an H-1B petition. The H-1B regulations currently require that a United States employer establish that it has an employer-employee relationship with respect to the beneficiary, as indicated by the fact that it may hire, pay, fire, supervise or otherwise control the work of any such employee. In addition to demonstrating that a valid employer-employee relationship will exist between the petitioner and the beneficiary, the petitioner must continue to comply with all of the requirements for an H-1B petition including:

  • establishing that the beneficiary is coming to the United States temporarily to work in a specialty occupation;
  • demonstrating that the beneficiary is qualified to perform services in the specialty occupation; and 
  • filing of a Labor Condition Application (LCA) specific to each location where the beneficiary will perform services.

Q2:  What factors does USCIS consider when evaluating the employer-employee relationship?

A2:  As stated in the memorandum, 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. Please see the memorandum for a list of factors that USCIS will review when determining whether the petitioner has the right to control the beneficiary. Please note that no one factor is decisive; adjudicators will review the totality of the circumstances when making a determination as to whether the employer-employee relationship exists.

Q3:  What types of evidence can I provide to demonstrate that I have a valid employer-employee relationship with the beneficiary? 

A3:  You may demonstrate that you have a valid employer-employee relationship with the beneficiary by submitting the types of evidence outlined in the memorandum or similar probative types of evidence. 

Q4:  What if I am unable to submit the evidence listed in the memorandum? 

A4:  The documents listed in the memorandum are only examples of evidence that may establish the petitioner’s right to control the beneficiary’s employment. Unless a document is required by the regulations, i.e. an itinerary, you may provide similarly probative documents. You may submit a combination of any documents that sufficiently establish that the required relationship between you and the beneficiary exists. You should explain how the documents you are providing establish the relationship. Adjudicators will review and weigh all the evidence submitted to determine whether a qualifying employer-employee relationship has been established.

Q5: Am I required to submit a letter or other documentation from the end-client that identifies the beneficiary to demonstrate that a valid employer-employee relationship will exist between the petitioner and beneficiary if the beneficiary will perform services at an end-client/third-party location?

A5: No. While documents from the end-client may help USCIS determine whether a valid employer-employee relationship will exist, this type of documentation is not required. You may submit a combination of any documents to establish, by a preponderance of the evidence, that the required relationship will exist. The types of evidence listed in the memorandum are not exhaustive. Adjudicators will review and weigh all the evidence submitted to determine whether you have met your burden in establishing that a qualifying employer-employee relationship will exist.

Q6:  What if I receive or have received a Request for Evidence (RFE) requesting that I submit a particular type of evidence and I do not have the exact type of document listed in the RFE? 

A6:  If the type of evidence requested in the RFE is not a document that is required by regulations, you may submit other similar probative evidence that addresses the issue(s) raised in the RFE. You should explain how the documents you are providing address the deficiency(ies) raised in the RFE. Adjudicators will review and weigh all evidence based on the totality of the circumstances. Please note that you cannot submit similar evidence in place of documents required by regulation.

Q7:  Will my petition be denied if I cannot establish that the qualifying employer-employee relationship will exist? 

A7:  If you do not initially provide sufficient evidence of an employer-employee relationship for the duration of the requested validity period, you may be given an opportunity to correct the deficiency in response to an RFE. Your petition will be denied if you do not provide sufficiently probative evidence that the qualifying employer-employee relationship will exist for any time period. 

Q8:  What if I can only establish that the qualifying employer-employee relationship will exist for a portion of the requested validity period?

A8:  If you do not initially provide sufficient evidence of an employer-employee relationship for the duration of the requested validity period, you may be given an opportunity to correct the deficiency in response to an RFE. Your petition may still be approved if you provide evidence that a qualifying employer-employee relationship will exist for a portion of the requested validity period (as long as all other requirements are met). However, USCIS will limit a petition’s validity to the time period of qualifying employment established by the evidence.

Q9: What happens if I am filing a petition requesting a “Continuation of previously approved employment without change” or “Change in previously approved employment,” and an extension of stay for the beneficiary in H-1B classification, but I did not maintain a valid employer-employee relationship with the beneficiary during the validity period of the previous petition?

A9:  Your extension petition will be denied if USCIS determines that you did not maintain a valid employer-employee relationship with the beneficiary throughout the validity period of the previous petition. The only exception is if there is a compelling reason to approve the new petition (e.g. you are able to demonstrate that you did not meet all of the terms and conditions through no fault of your own). Such exceptions would be limited and made on a case-by-case basis.

Q10:  What if I am filing a petition requesting a “Change of Employer” and an extension of stay for the beneficiary’s H-1B classification? Would my petition be adjudicated under the section of the memorandum that deals with extension petitions?

A10:  No. The section of the memorandum that covers extension petitions applies solely to petitions filed by the same employer to extend H-1B status without a material change in the original terms of employment. All other petitions will be adjudicated in accordance with the section of the memorandum that covers initial petitions.

Q11: I am a petitioner who will be employing the beneficiary to perform services in more than one work location. Do I need to submit an itinerary in support of my petition? 

A11:  Yes. You will need to submit a complete itinerary of services or engagements, as described in the memo, if you are employing the beneficiary to perform services in more than one work location (in order to comply with 8 CFR 214.2(h)(2)(i)(B)). Furthermore, you must comply with Department of Labor regulations requiring that you file an LCA specific to each work location for the beneficiary.

Q12: The memorandum provides an example of when a beneficiary, who is the sole owner of the petitioning company or organization, would not establish a valid employer-employee relationship. Are there any examples of when a beneficiary, who is the sole owner of the petitioning company or organization, may be able to establish a valid employer-employee relationship?

A12.   Yes. In footnotes 9 and 10 of the memorandum, USCIS indicates that while a corporation may be a separate legal entity from its stockholders or sole owner, it may be difficult for that corporation to establish the requisite employer-employee relationship for purposes of an H-1B petition. However, if the facts show that the petitioner has the right to control the beneficiary’s employment, then a valid employer-employee relationship may be established. For example, if the petitioner provides evidence that there is a separate Board of Directors which has the ability to hire, fire, pay, supervise or otherwise control the beneficiary’s employment, the petitioner may be able to establish an employer-employee relationship with the beneficiary.

Q13:  The memorandum provides an example of when a computer consulting company had not established a valid employer-employee relationship. Are there any situations in which a consulting company or a staffing company would be able to establish a valid employer-employee relationship?

A13:  Yes. A consulting company or staffing company may be able to establish that a valid employer-employee relationship will exist, including where the beneficiary will be working at a third-party worksite, if the petitioning consulting or staffing company can demonstrate by a preponderance of the evidence that it has the right to control the work of the beneficiary. Relevant factors include, but are not limited to, whether the petitioner will pay the beneficiary’s salary; whether the petitioner will determine the beneficiary’s location and relocation assignments (i.e. where the beneficiary is to report to work); and whether the petitioner will perform supervisory duties such as conducting performance reviews, training, and counseling for the beneficiary. The memorandum provides a non-exhaustive list of types of evidence that could demonstrate an employer-employee relationship.

Q14: What happens if I do not submit evidence of the employer-employee relationship with my initial petition? 

A14:  If you do not initially provide sufficient evidence of an employer-employee relationship for the duration of the requested validity period, you will be given an opportunity to correct the deficiency in response to an RFE. However, failure to provide this information with the initial submission will delay processing of your petition.

For more information on USCIS and its programs, call 1-800-375-5283.

Source: uscis business

Employment-Based Second Preference Immigrant Visa Category Frequently Asked Questions Regarding Entrepreneurs and the Employment-Based Second Preference Immigrant Visa Category

Questions and Answers

Q1. Where can I find the laws governing the Employment Based Second Preference (EB-2) Immigrant Visa Category?
A1. The statutory requirements may be found in the Immigration and Nationality Act (INA) at Section 203(b)(2).  The regulatory requirements may be found in the Title 8 Code of Federal Regulations (8 CFR) at section 204.5(k).

Q2. What is the EB-2 Immigrant Visa Category?
A2. Congress created the employment-based second preference visa category with the Immigration Act of 1990. This classification includes:

  • Members of the professions holding advanced degrees or their equivalent, and
  • Individuals who because of their exceptional ability in the sciences, arts, or business will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States, and whose services in the sciences, arts, professions, or business are sought by an employer in the United States.

Q3. Does anyone with an advanced degree qualify for an EB-2 Immigrant Visa?
A3. No, not every individual with an advanced degree will qualify.  It must be demonstrated that the occupation is a profession.  The term “profession” is defined by 8 CFR 204.5(k)(2) as any occupation for which a U.S. baccalaureate degree or its foreign equivalent is the minimum requirement for entry into the occupation.  Occupations include but are not limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academics, or seminaries.

Q4. Can an entrepreneur qualify as a member of a profession holding an advanced degree?
A4. Yes.  An entrepreneur can qualify if the:

  • Entrepreneur will be working for a U.S. employer who files a petition on the entrepreneur’s behalf
  • Entrepreneur is a member of the profession holding an advanced degree or foreign equivalent degree
  • Underlying position requires, at a minimum, a professional holding an advanced degree or the equivalent
  • Petitioning employer has received an individual labor certification from the Department of Labor; and
  • Entrepreneur meets all the specific job requirements listed on the individual labor certification

Q5. Can an entrepreneur qualify as an individual of exceptional ability in the sciences, arts, or business?
A5. Yes.  An entrepreneur can qualify if the:

  • Entrepreneur will be working for a U.S. employer who files a petition on the entrepreneur’s behalf
  • Entrepreneur will be working in the sciences, arts, or business
  • Entrepreneur has exceptional ability in the sciences, arts, or business
  • Entrepreneur will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States
  • Petitioning employer has received an individual labor certification from the Department of Labor; and
  • Entrepreneur meets all the specific job requirements listed on the individual labor certification.

Q6. Why is a labor certification required to qualify for an EB-2 Immigrant Visa Category?
A6. The labor certification process exists to protect U.S. workers and the U.S. labor market by ensuring that foreign workers seeking immigrant visa classifications are not displacing equally qualified U.S. workers. 

Q7. How is exceptional ability defined?
A7. 8 CFR 204.5(k)(2) defines exceptional ability as degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.

Q8. How can an entrepreneur establish that he or she has exceptional ability in the sciences, arts, or business?
A8. First, the entrepreneur would need to establish that they meet at least three of the criteria found at 8 CFR 204.5(k)(3)(ii).  The criteria are:

(A) An official academic record showing that the beneficiary has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability
(B) Evidence in the form of letter(s) from current or former employer(s) showing that the beneficiary has at least ten years of full-time experience in the occupation for which he or she is being sought
(C) A license to practice the profession or certification for a particular profession or occupation
(D) Evidence that the beneficiary has commanded a salary, or other remuneration for services, which demonstrates exceptional ability
(E) Evidence of membership in professional associations; or
(F) Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations

It should be noted that, as set forth in subparagraph (A) above, the regulation requires that the alien (in this case, the entrepreneur) have a degree “relating to” the area of exceptional ability.  This means that the entrepreneur’s degree need not be in the same field of claimed exceptional ability, but only that it be related to that field.  For example, an entrepreneur seeking to start an internet-related business and who claims exceptional ability in that field might qualify with a degree in computer science, network technology, or certain areas of business.

Second, the entrepreneur must demonstrate that he or she has a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.

Q9. If an entrepreneur is unable to provide documentary evidence that he or she meets at least three of the six regulatory criteria for exceptional ability, can he or she submit other evidence to demonstrate exceptional ability in the sciences, arts or business?
A9. Yes.  8 CFR 204.5(k)(3)(iii), states:

If the above standards do not readily apply to the beneficiary’s occupation, the petitioner may submit comparable evidence to establish the beneficiary’s eligibility.

Comparable evidence is to be accorded the same weight as evidence submitted in support of the criteria listed above.  Irrespective of the type of evidence presented, the entrepreneur has the burden of proving, by a preponderance of the evidence (i.e. more likely than not), his or her eligibility for the EB-2 visa classification.  USCIS will take into account the totality of the circumstances when reviewing the evidence provided.  

When comparable evidence is presented, the entrepreneur must explain how and why the regulatory criterion for which comparable evidence is being submitted does not readily apply to his or her occupation. 

There is no limitation on the type of comparable evidence the entrepreneur may present; instead, the focus is on the quality of the evidence presented and how it compares to the regulatory criterion for which it is being substituted.  For example, the entrepreneur might demonstrate such past achievements as his or her successful history in obtaining venture capital funding from reputable sources, or his or her past participation in incubators (entities that provide resources, support, and assistance to entrepreneurs to foster the development and growth of an idea or enterprise) that have high evaluative standards for participation.

Q10. How does an entrepreneur show that he or she will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States?
A10. Entrepreneurs should discuss which element(s) (national economy, cultural or educational interest, or welfare of the United States) the entrepreneurial enterprise is claimed to benefit.  For example, the educational interests of the United States may be met by an entrepreneurial enterprise that establishes tutoring instruction learning centers throughout the United States.
 
As another example, the entrepreneur could demonstrate that at least one aspect of the welfare of the United States will be “substantially” better off were the entrepreneurial enterprise to be located in the United States.  It should be noted that the term “welfare” as used by the statute is a broad concept and could refer to any number of areas. 

NATIONAL INTEREST WAIVER

Q11. Is there a “national interest waiver” (NIW)?  And if so, what is it?  Can an entrepreneur qualify for a NIW?
A11. Yes.  A NIW exempts the petitioner from the normal requirement of a job offer, and thus from obtaining a labor certification from the U.S. Department of Labor.  Entrepreneurs, if they qualify, can obtain a waiver of the job offer requirement if it is in the national interest.  

Q12. If an entrepreneur wants to file for a NIW, does he or she still have to be a member of the profession holding an advanced degree or an individual of exceptional ability?
A12. Yes.  The entrepreneur must first demonstrate that he or she is either a member of the profession holding an advanced degree or an individual of exceptional ability.

Q13. If an entrepreneur wants to file for a NIW must he or she have an actual employer in the United States?
A13. No.  Pursuant to INA 203(b)(2)(B), an entrepreneur does not need to have an actual job offer from a U.S. employer if he or she qualifies for a NIW.  In other words, an entrepreneur may be able to petition for him or herself and fill the role of both the petitioner and beneficiary.  The law provides that the Secretary of the Department of Homeland Security may, if he or she deems it to be in the national interest, waive the requirements that an individual’s services in the sciences, arts, professions, or business be sought by an employer in the United States. 

Q14. Is there a definition of “national interest”?
A14. The term “national interest” is not defined in the statute or the regulations, and Congress did not specifically define the phrase in the relevant legislative history.  However, USCIS issued a precedent decision concerning NIWs, Matter of New York State Dept. of Transportation, 22 I&N Dec. 215 (Comm. 1998) (NYSDOT). 

While NYSDOT does not involve an entrepreneur, the decision contemplates that entrepreneurial or self-employed beneficiaries may qualify for the NIW under limited circumstances.  Footnote 5 in the decision states:

The Service acknowledges that there are certain occupations wherein individuals are essentially self-employed, and thus would have no U.S. employer to apply for a labor certification…[T]he petitioner still must demonstrate that the self-employed alien will serve the national interest to a substantially greater degree than do others in the same field.

NYSDOT lays out a three pronged test for NIW applicants to qualify for a waiver of the job offer requirement.
 
Q15. What are the three prongs laid out in the NYSDOT decision?

A15.

1. The waiver applicant must seek employment in an area that has substantial intrinsic merit.
2. The waiver applicant must demonstrate that the proposed benefit to be provided will be national in scope. 
3. The waiver applicant must demonstrate that it would be contrary to the national interest to potentially deprive the prospective employer of the services of the waiver applicant by making available to U.S. workers the position sought by the waiver applicant.

Stated another way, the petitioner, whether the U.S. employer or the NIW applicant, must establish that the entrepreneur will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications.

Q16. How does the first prong of NYSDOT relate to entrepreneurs?
A16. Under the first prong of the NYSDOT test, the entrepreneur must seek employment in an area that has substantial intrinsic merit.  It is important for the entrepreneur to focus on the proposed employment rather than the entrepreneur’s qualifications.  In NYSDOT, the beneficiary was a structural engineer working on highway bridges. This activity was found to have substantial intrinsic merit. 

Q17. How does the second prong of NYSDOT relate to entrepreneurs?
A17. The second prong of the NYSDOT test requires that the entrepreneur demonstrate that the proposed benefit to be provided will be national in scope.  For example, the entrepreneur might be able to demonstrate that the jobs his or her business enterprise will create in a discrete locality will also create (or “spin off”) related jobs in other parts of the nation.  Or, as another example, the entrepreneur might be able to establish that the jobs created locally will have a positive national impact.  As described below, and as the law contemplates, USCIS will give due consideration to entrepreneurs who establish that their entrepreneurial enterprise will serve the national interest to a substantially greater degree than the work of others in the same field.

Q18. How does the third prong of NYSDOT relate to entrepreneurs?
A18. NYSDOT’s third prong is best understood in light of the labor certification process and the assumed benefit that it provides to the United States.  An individual seeking an exemption from this process must present a national benefit so great as to outweigh the national interest inherent in the labor certification process.  NYSDOT’s third prong requires that the entrepreneur “present a significant benefit to the field of endeavor.”  The field should be the same as that identified in prong one of the analysis and the entrepreneur must document how the entrepreneurial enterprise will benefit that field.

NYSDOT states:

“In all cases, while the national interest waiver hinges on prospective national benefit, it clearly must be established that the beneficiary’s past record justifies projections of future benefit to the national interest. The petitioner’s subjective assurance that the beneficiary will, in the future, serve the national interest cannot suffice to establish prospective national benefit if the beneficiary has few or no demonstrable achievements.”

The entrepreneur who demonstrates that his or her business enterprise will create jobs for U.S. workers or otherwise enhance the welfare of the United States may qualify for an NIW.  For example, the entrepreneur may not be taking a job opportunity from a U.S. worker but instead may be creating new job opportunities for U.S. workers.   The creation of jobs domestically for U.S. workers may serve the national interest to a substantially greater degree than the work of others in the same field.

Source: uscis business