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The Department of Homeland Security has closed out the summer with an encouraging proposal designed to allow certain founders of start-up companies from abroad to come to the U.S. for an initial stay of up to two years to build their business here. In a move recognizing the entrepreneurial spirit embodied by the many foreign individuals who have contributed to making the United States a beacon of innovation and creative ambition, the service released an advance copy of the proposed “International Entrepreneur Rule.” The drafters of the proposal lay out the intended benefits in their introduction: “to increase and enhance entrepreneurship, innovation, and job creation in the United States. The proposed rule would add new regulatory provisions guiding the use of parole on a case-by-case basis with respect to entrepreneurs of start-up entities whose entry into the United States would provide a significant public benefit through the substantial and demonstrated potential for rapid business growth and job creation.”

Under the current framework, foreigners wanting to build businesses in the United States must navigate a complex set of visa categories, each of which contains significant limitations. For example, B-1 business visitor status allows foreign businesspeople to enter the country for a much shorter timeframe (typically six months, extendable), and restricts them to non-employment activities; the E-2 investor visa category is only available to individuals holding select nationalities where a bi-lateral treaty exists with the U.S.; and the EB5 “green card investor” visa category requires the foreign individual to put from $500,000-$1,000,000 at risk to qualify. If implemented, the proposed “International Entrepreneur Rule” would provide two years (extendable to five years) of stay in the U.S. to establish and grow a business with a much lower financial commitment ($345,000 capital requirement, which may include investment from qualified U.S. persons or government grants of at least $100,000, or some combination thereof). Under the rule, international entrepreneurs must maintain an active role in the business and at least 15 percent ownership of the enterprise, two requirements that should not present an issue for most new company founders.

While the public must await publication of the proposal in the Federal Register to submit comments within the 45-day comment window, immigration and business advocates can together celebrate the agency’s attention to this fundamental component of maintaining America’s competitive advantage, today and into the future.

Jackson Lewis will continue to monitor developments of this exciting new initiative.

 

This time last year, USCIS Director Alejandro Mayorkas announced a new Entrepreneur in Residence (EIR) initiative to create jobs in the U.S. Now, USCIS has launched a new Entrepreneur Pathways website designed to give visa information to foreign entrepreneurs who want to start a new business in the United States. The website offers a Nonimmigrant Visa Guide describing the visa categories available to foreign entrepreneurs and provides an overview of the pre- and post-visa application process.

According to USCIS, the EIR team, comprised of startup experts from the private sector along with USCIS immigration experts,  accomplished the following as of November 2012.  It

• Conducted a training workshop for USCIS employment-based immigration officers focusing on entrepreneurs and the environment for startup companies and early-stage innovations;
• Trained a team of immigration officers to handle entrepreneur and startup nonimmigrant visa cases;
• Modified Request for Evidence (RFE) templates for certain nonimmigrant visa categories to accept new sources of evidence related to entrepreneurs and startup companies; and
• Developed a plan for quarterly engagements with the entrepreneurial community across the U.S.

As part of his vision for immigration reform, President Barack Obama has indicated that he supports a “startup visa” that would allow foreign entrepreneurs who receive financing from U.S. investors to come to the U.S. to start their businesses. The visa also would allow foreign entrepreneurs to remain permanently in the U.S. if their companies create jobs for American workers and generate revenue.

Foreign entrepreneurs should take note that some of the nonimmigrant visa categories listed on the Entrepreneur Pathways website do not provide automatic work authorization upon admission to the U.S. For example, B-1 business visitors may conduct business on behalf of a foreign entity and be paid from a foreign source, but are not authorized to engage in productive employment in the U.S. Additionally, F-1 students in Optional Practical Training must apply for and obtain authorization from USCIS before they are authorized to work in the U.S.

For more information on nonimmigrant visa eligibility requirements and work authorization issues, please contact your Jackson Lewis attorney.

In response to high skilled labor shortages, the UK has announced a program aimed at attracting the “best and brightest” from around the world.

Under the new scheme, alumni of top non-UK universities who have graduated within the past five years can apply for the streamlined High Potential Individual (HPI) visa and have their cases adjudicated within a few weeks.

Other key features include:

  • The HPI visa is good for two years, three if the individual has a doctoral degree.
  • There is no extension of the HPI visa, but beneficiaries will be eligible for other, more permanent statuses in the UK.
  • The beneficiary’s partner and children can join the beneficiary in the UK.
  • There is no job offer requirement; individuals with the HPI visa can work in most jobs, look for work, be self-employed, or even volunteer.

The current list of about 40 eligible universities includes 20 in the United States:

  • California Institute of Technology
  • Columbia University
  • Cornell University
  • Duke University
  • Harvard University
  • Johns Hopkins University
  • Massachusetts Institute of Technology
  • New York University
  • Northwestern University
  • Princeton University
  • Stanford University
  • University of California at Berkeley, Los Angeles and San Diego
  • University of Chicago
  • University of Michigan at Ann Arbor
  • University of Pennsylvania
  • University of Texas at Austin
  • University of Washington
  • Yale University

The UK is one of many countries that are expected to be increasingly hard hit by a dearth of high skilled workers. The UK has been having trouble attracting talent from the EU due to new immigration issues caused by Brexit. It is trying a new HPI visa option that might make things worse in the United States. Countries such as Canada have established pathways to attract high skilled workers from abroad. In the United States, there is also a need to attract and retain high skilled workers. The U.S. House of Representatives recently passed legislation that would help companies in the United States compete for top talent. It is unclear whether the Senate will pass similar legislation. Meanwhile, companies try to offer more benefits to attract top talent, while continuing to await much-needed government action.

More business immigrant visas may become available if the latest version of the Build Back Better reconciliation bill passes.

If approved by the Parliamentarian and passed as it stands, the bill would make more immigrant visas available by:

  • Recapturing unused visa numbers from 1992 to 2021;
  • Retaining the availability of Diversity Visas from fiscal years 2017 to 2021; and
  • Making it possible for individuals with approved employment-based immigrant visas and priority dates more than two years away to file applications for adjustment of status by paying an additional $1,500 fee.

The bill substantially increases many filing fees and, rather than depositing those fees into the USCIS account, the supplemental fees would be deposited into the U.S. Treasury’s general funds. Because the budget for USCIS operations is based on the fees collected, this would be a change that would not directly benefit USCIS. USCIS needs funds to build its staffing and decrease its backlog of applications. To adjust for this, the reconciliation bill proposes to add $2.8 billion to the USCIS budget to increase its capacity.

This is not the first time in recent years that USCIS filing fee increases have been proposed. In August 2020, during the previous administration, the Department of Homeland Security published a new rule that raised USCIS filing fees by a weighted average of 20 percent. Some of the most popular business-related petitions were slated for larger increases. There were complaints over the negative effects this would have on the economy. This led to litigation and, by the end of 2020, the fee increase was not implemented.

The supplemental fees in the current House reconciliation bill include an additional:

  • $500 for E, H-1B, L, O, and P petitions (Form I-129);
  • $500 for each application to change or extend nonimmigrant status (Form I-539);
  • $500 for applications for employment authorization (Form I-765);
  • $75 for each approved nonimmigrant visa;
  • $800 for each employment-based immigrant visa petition (Form I-140);
  • $500 for requesting a replacement or expired permanent residence card (Form I-90); and
  • $15,000 for each immigrant petition for an alien entrepreneur (Form I-526).

If these $500 changes become law, the fee increases will be higher than those proposed in 2020. For example, in 2020, H-1B fees were being increased by $235, to $695. L petitions were to be increased by $345, to $805. Applications to change or extend nonimmigrant status were being increased by only $20, to $390. Fees for Form I-140s were scheduled to decrease.

The fate of the House reconciliation bill and its various provisions is far from clear. Jackson Lewis will provide updates as they become available.

The effects of the COVID-19 pandemic are far reaching. The labor shortage plaguing America has been one of the most publicized. Why is it so difficult for some employers to find employees? The 2020 United States Census offers possible reasons: an aging population, decreased fertility rates, and low rates of immigration.

The 7.4% population increase reported in the 2020 Census is one the smallest increases ever – second only to the one following the Great Depression. While pro-family policies can help to increase family size, according to a policy expert, “immigration is a much more reliable driver of population growth.” Studies have shown that immigration provides a younger workforce, the entrepreneurial workers, and the skilled employees needed for essential industries such as healthcare, construction, agriculture, and food processing.

According to the U.S. Chamber of Commerce, “a worker shortage is holding back job creators across the country.” It is also leading to “supply-chain bottlenecks and higher prices for businesses and consumers.” The Census had forecasted a 1.4 million increase in immigrants from 2017 to 2019. Instead, the figure was much smaller – 400,000. That is one reason the Chamber and others are lobbying to double the number of H-1B and H-2B visas available, to ease the labor shortage and all the economy to surge.

The labor shortages are being felt perhaps most acutely in areas of the country that had, before the COVID-19 pandemic, experienced great population and economic growth, such as Northwest Arkansas and other non-coastal areas. In many of these areas, economic booms have been fueled by immigrants. Without immigrants, these areas could experience zero or negative population growth, a smaller workforce, and an aging economy.

The Biden Administration has expressed time and time again that it is committed to implementing long-term immigration reform. The fact is, we are losing immigrant entrepreneurs and talent to other nations, and our longevity in an increasingly competitive world is tied to an immigration policy that makes sense in the 21st century economy.

Congresswoman Zoe Lofgren recently introduced a bill that creates a new nonimmigrant visa for startup founders. This bill creates a direct path to a green card if the start-up entity meets certain benchmarks that demonstrate the founder has a proven track record of success in business development, then the founder can apply for and receive lawful permanent residence. The bill will also create nonimmigrant visa categories for managerial and executive employees of the startup entity. Common sense policies, such as Lofgren’s bill, will ensure America remains the primary destination for the world’s best and brightest.

If you have questions about the Biden Administration’s proposals for business immigration, Jackson Lewis attorneys are available to assist you.

Just before midnight on April 23, 2020, President Donald Trump’s “Proclamation Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak” went into effect. The proclamation’s purpose was to temporarily suspend the entry of new immigrants (green card holders) into the United States for 60 days, until June 23, 2020. Because U.S. Embassies and Consulates abroad have been closed for routine visa processing since March 20, 2020, the proclamation did not immediately change the current situation. Unlike the consular closures, the April 23rd proclamation was not issued to prevent the spread of COVID-19; it was issued to restrict immigration because of high unemployment in the United States due to states’ stay-at-home orders.

The 60-day mark is far from the only important date in the proclamation. By the 30-day mark, May 22, 2020, the President will decide whether to take “other measures” regarding nonimmigrant visas to stimulate the economy and prioritize the hiring of U.S. workers. By the 50-day mark, a decision will be made about whether to continue the immigrant visa suspension beyond 60 days. It is the specter of these unknown “other measures” that has created concern on the part of employers and temporary visa holders themselves.

On May 7, 2020, four senators, Tom Cotton (R-Ark.), Ted Cruz (R-Tex.), Charles Grassley (R-Iowa), and John Hawley (R-Mo.) fleshed out the possibilities in a letter to President Trump urging him to “suspend all new guest worker visas for sixty days, and to suspend certain categories of new guest worker visas for at least the next year, or until unemployment has returned to normal levels.” The categories the senators would like to see suspended for a year include H-2B visas for nonagricultural seasonal workers, H-1B visas for specialty occupation workers, and the Optional Practical Training Program (OPT) used by foreign students after graduation. Their stated purpose is to “limit the importation of unnecessary guest workers while American families and businesses get back on their feet.”

But many disagree with the senators’ assumption that limiting immigration will help the economy and U.S. workers. Indeed, there is some contrary economic theory, data, and statistics, including the following:

Given the current climate, these issues will undoubtedly remain hotly contested as the May 22, 2020, 30-day mark approaches. Jackson Lewis attorneys will provide updates as they become available.

Although not legal on the federal level, the marijuana industry is a fast-growing economic sector in the U.S. Thirty-three states have legalized medical marijuana and 10 of those have legalized recreational use. Based on online job search websites, there are about 200,000 to 300,000 marijuana-related jobs available (many on the lower-paid agricultural-side). As the industry grows, the need for more high-skilled workers, such as chemists, is likely to grow. Canada legalized marijuana in 2018 and the first marijuana exchange-traded fund is already becoming profitable. A Wall Street analyst who has followed the industry since 2016 forecasts that the market in the U.S. could grow to $80 billion by 2030 if there is federal legalization. Without federal legalization, however, the profits and high-skilled foreign workers will go elsewhere.

Under U.S. immigration law, any foreign nationals, even green card holders, who participate in the marijuana industry, make investments, or use marijuana where it is legal (even for medicinal purposes) may be subject to harsh consequences — barred from returning to the U.S. or prevented from naturalizing (for at least five years).

There have been bills introduced in Congress that would help to alleviate the conflict between state and federal laws, including eliminating federal penalties for those complying with state marijuana laws and removing marijuana from the list of controlled substances.  But to date none, other than the SAFE (Secure and Fair Enforcement) Banking Act, have had much traction. SAFE, a bill that would protect banks that work with the legal marijuana industry, passed in the House of Representatives but likely will not pass in the Senate. If passed, this bill would be a first step, but would do nothing to protect foreign entrepreneurs and workers involved in the legal marijuana industry.

Should Congress pass a bill removing marijuana from the “controlled substance” list, it would end the immigration problem (at least going forward). Immigration “penalties” that affect those involved with the legal marijuana industry come into play because marijuana is considered a “controlled substance” under federal law. The alternative would be to change federal immigration law regarding admissibility so that use of marijuana or participation in the legal marijuana industry would no longer be a bar to benefits. Some foreign nationals who have been denied benefits on these bases are appealing the decisions.

Non-U.S. citizens should be wary of participation in the marijuana industry. If you have questions about these issues, please reach out to a Jackson Lewis attorney. We will continue to follow this issue and provide updates as they become available.

USCIS has published its new final rule significantly changing the EB-5 Immigrant Investor Program to address concerns about fraud, abuse, and national security risks. The new regulations will become effective on November 21, 2019.

The EB-5 Investor Visa Program was created almost 30 years ago to incentivize foreign investments and create jobs in the United States, particularly in underserved areas.

Under the EB-5 Program, foreign investors (and their dependents) may apply for permanent residence (“green cards”) — and, eventually, citizenship — if they make the necessary investment in a commercial enterprise in the United States and create or preserve at least 10 permanent full-time jobs for U.S. workers. A certain number of these visas are set aside for individuals who invest in enterprises in designated regional centers — areas identified as having high unemployment. The EB-5 Program has been used effectively by many real estate developers. It was most popular among Chinese investors, but, recently, more investment has been coming from South America.

As a result of the popularity, however, applicants from certain countries that constitute the majority of the EB-5 investors suffer from extensive wait times for immigrant visa number availability. For example, Chinese nationals can wait for up to 15 years for their priority dates to become current, and processing times for the two sets of petitions that must be filed (Form I-526, Immigrant Petition by Alien Entrepreneur, and Form I-829, Petition by Entrepreneur to Remove Conditions on Permanent Resident Status) can take from two years to four years each. Priority date issues will subside for Chinese nationals if the Fairness for High Skilled Workers Act (or the BELIEVE Act) is passed, but the wait times for entrepreneurs from other countries will grow.

Key changes in the new rule include the following:

  • The standard investment amount will increase from $1 million to $1.8 million.
  • The investment amount for regional centers will increase from $500,000 to $900,000.
  • In order to eliminate gerrymandering, states will no longer be able to designate regional centers; that will be reviewed and determined by DHS.
  • To improve the adjudication process and provide flexibility, certain derivative family members will have to file independently of the principal investor to remove conditions on their permanent residences. To help with priority date issues, in certain circumstances, petitioners will be able to retain priority dates from previously approved EB-5 petitions.

Jackson Lewis attorneys will continue to monitor the implementation of the new EB-5 regulations and are available to answer your questions about them.

 

Canada has been having success in attracting more high-tech companies and employees from the United States. This trend began in 2008, when such companies in the U.S. could not obtain the number of H-1B visas they needed due to the limited number available. Microsoft opened a development office in Vancouver at that time.

Since then, the problem for companies has only grown. The Trump Administration has made the H-1B program more restrictive and companies have to deal with even more uncertainty about whether they will be able to “capture” an H-1B visa. In response to President Donald Trump’s “Buy American, Hire American” Executive Order, even the cost of obtaining an H-1B visa is rising precipitously. This is due to the number of Requests for Evidence being issued (at close to 70% in the 4th quarter of FY 2017). In addition, denial rates are up and processing times, according to the American Immigration Lawyers Association (AILA), have almost doubled in the past four years. Even so, Silicon Valley and other areas of the U.S. (Texas, New York, and New Jersey) still draw high-tech companies and employees, but Canadian entrepreneurs are ready to take a bigger piece of that pie.

Such companies as Mob Squad in Canada are working on persuading some Silicon Valley companies to move workers to Canada. Mob Squad works as an intermediary to bring employees to Canada in four weeks’ time. It is less expensive to live in Canada than it is to live in San Francisco, therefore salaries can be lower. Applying for permanent residence is faster and less burdensome than it is in the U.S. For some foreign nationals, the last straw has been the Administration’s threat to eliminate H-4 EADs. For others, it is the long waits for H-1B adjudications that have left them without U.S. work authorization.

In the meantime, the Canadian government is working hand in glove to fast track high-tech workers. In 2017, the Trudeau government started the Global Talent Stream Program to grant work permits in a few weeks’ time. In the midst of the NAFTA debate, Prime Minister Justin Trudeau brought his “charm offensive” to the San Francisco Bay Area and offered “a two-week, fast track employment permit for certain workers, dubbed the ‘global skills strategy visa.’” He stated: “We know that bringing in great talent from around the world is an enormous benefit, not just to the companies that want to do that, but to Canadian jobs and to our country as a whole, so we’re going to continue to do that . . . . “ The results are clear. “Toronto’s tech scene is so hot the city created more jobs than the San Francisco Bay area, Seattle and Washington, D.C., combined last year, while leapfrogging New York in a ranking of ‘talent markets.’”