Global Immigration Blog : Immigration Lawyers & Attorneys : Jackson Lewis Law Firm : Labor Certification, Adjustment of Status

The Extraordinary Ability (EB1) immigrant visa category, as the name suggests, is set aside for immigrants who possess extraordinary ability in their fields. Unlike the case of other visa categories, individuals in this category may submit petitions for themselves. It also avoids the backlogs in other visa categories and is commonly used by artists, entertainers and researchers. 

To qualify, an individual must provide evidence of (1) a one-time achievement that is of a major, international significance (the Nobel Prize is the standard example), or (2) at least three out of ten lesser types of accomplishments, as defined by regulations.

Although the regulatory framework has remained unchanged for years, USCIS has varied its interpretation of “extraordinary.” Recently, it has sought to impose requirements beyond those included in the regulations. Rather than accept evidence of three lesser accomplishments to show extraordinary ability, USCIS routinely has required applicants to prove how each accomplishment shows that they are extraordinary. 

For example, the agency required a researcher to show how his publications have changed the way researchers viewed the area of science, even though the regulations only require the applicant to have authored publications. In another instance, the applicant was expected to show that he was selected to conduct peer review because of his extraordinary ability despite the fact the regulations require only that the individual has done peer review. 

 

Kazarian v. USCIS may help check the USCIS’s excesses, at least in the Ninth Circuit. On March 4, 2010, the Court found "neither USCIS nor an [Administrative Appeals Office] may unilaterally impose novel substantive or evidentiary requirements beyond those set forth [in the regulations]." Specifically, the Court found improper the agency’s denial of a visa to Poghos Kazarian because of his failure to demonstrate the “research community's reactions to his publications." Ultimately, Kazarian did not qualify for the visa, but the Ninth Circuit’s affirmation that USCIS cannot impose new requirements on applicants arbitrarily is a major win for Extraordinary Ability applicants. (The Ninth Circuit has jurisdiction over Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.)

• Email This
• Print
• Comments
• Trackbacks
• Share Link

 

Start-up companies have always been a driving force in the U.S. economy. They are even more important in a down economy, as innovation drives job creation. While there are visa categories for entrepreneurs who invest their own capital, there is a gap in U.S. visa policy when it comes to entrepreneurs with great ideas who have established investors ready to back them financially. The current investor categories are limited by country of citizenship for temporary visas and by a minimum investment of $1 million ($500,000 in some cases) for green cards, making a permanent visa solution unlikely for the vast majority of would-be foreign national entrepreneurs in the United States. 

Senators John Kerry (D-Mass.) and Richard Lugar (R-Ind.) have introduced legislation proposing a new green card category for immigrant entrepreneurs who have secured at least $250,000 in funding from a qualified venture capitalist or “angel investor.” The bill is designed to drive job creation and increase the country’s global competitiveness by helping immigrant entrepreneurs secure permanent residence in the United States.

 

More than 160 venture capitalists from around the country have endorsed the bill, citing a restrictive visa policy that has forced many innovative entrepreneurs (and the corresponding creation of new jobs) to establish outside of the United States.

 

Jackson Lewis works with entrepreneurs and investors all over the world who wish to invest in the United States on opportunities which create jobs for Americans. If this bill is passed, the new visa category would substantially broaden the pool of potential investments for venture capital firms and help stimulate the U.S. economy. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

H-1B filing season is upon us again. The most often used work visa for Professional Workers is the H-1B. The H-1B has a limited availability of approximately 58,000 per year.  Despite the economy, these visas still are anticipated to be in high demand and become unavailable by the end of 2010.

Although, H-1B visas will be valid on October 1, 2010, a company may apply as early as April 1, 2010. Because of the high demand in this category, employers should file as early as possible. Indeed, the first week of April is recommended.

 

This H-1B quota applies to current or potential employees who are not in H-1B status, for example:

 

-          Employees currently in F-1 student status who are working on a limited duration work authorization;

-          Employees in TN, L, E or another status for whom the company may want to commence a green card process; and

-          Employees currently abroad who will move to a U.S.-based role in the fall.

 

Employees currently working based on H-1B status are not subject to this numerical limit, and therefore generally do not need to be concerned about this timing. 

 

Last year, the government did not meet the H-1B cap until December.  We anticipate that the filing window will be much shorter this year. Contact the Global Immigration practice group at Jackson Lewis as soon as possible to start the filing process.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

New legislation that would expand penalties for employers who knowingly hire unauthorized workers has been introduced in the House of Representatives. The “Criminal Penalties for Unauthorized Employment Act of 2010” (H.R. 4627), introduced by Representative Frank Kratovil (D-Md.), would significantly increase imprisonment terms, criminal fines, and civil fines that can be levied against an employer or individual with “hiring authority.” A person with “hiring authority” is anyone who has “direct authority to make a decision to hire or to recruit or refer for a fee, an individual for employment.”

Currently, criminal penalties for knowingly hiring unauthorized workers apply only if a “pattern or practice” can be shown. An entity or individual may be fined $3,000 and an individual may be imprisoned for up to six months for the entire “pattern or practice.”

The proposed legislation would impose criminal penalties for each unauthorized worker, and criminal penalties would increase with each subsequent conviction:
- For a first offense, a fine of $2,500 and/or imprisonment of up to 1 year
- For a second offense, a fine of $5,000 and/or imprisonment for up to 2 years
- For a third or subsequent offense, a fine of $10,000 and/or imprisonment for up to 5 years

The bill also would increase the civil penalties assessed:
- For a first offense, a fine ranging from $1,000 – 5,000 (currently $250 – $1,000)
- For a second offense, a fine ranging from $5,000 – 10,000 (currently $2,000 – $5,000)
- For a third or subsequent offense, a fine ranging from $10,000 – 20,000 (currently $3,000 – $10,000)
 

 

Stay tuned as Jackson Lewis will continue to follow this legislation and update readers through this blog.

• Email This
• Print
• Comments
• Trackbacks
• Share Link