Green Card & Visa News » Visa Category

L-1 visa petitions for applicants starting a new U.S. office

Tushar Mathur — Wed, 02 Nov 2011 04:20:00 +0000

Immigration Act Section 101(a)(15)(L) allows a multinational company to temporarily transfer foreign nationals with management, executive, and specialized knowledge skills to the United States to continue employment with an office of the same employer. Petitioners seeking to classify foreigners as intracompany transferees must file an I-129 petition with a USCIS service center for a determination. There are many complicated issues involved in the adjudication of an L-1 visa petition. For examples, the petitioner must establish that there is a qualifying relationship between the U.S. business entity and the foreign operation which employs the beneficiary abroad; the foreign national must have been employed abroad by the related foreign entity for at least one of the last three years in an executive, managerial, or specialized knowledge capacity; the U.S. business and the foreign company must continue to do business in the U.S. and a foreign country, either directly or through a related business entity such a parent, branch, subsidiary, etc.

The L-1 visa category has been identified by the government as one with vulnerabilities. For example, in a 2006 report prepared by the Inspector General’s Office of the Department of Homeland Security, there were concerns raised about whether foreign nationals will be coming to the U.S. to perform the duties in an L-1 executive or manager capacity. The government was also concerned about the definition of “specialized knowledge” being too broad. Finally, the government found it difficult to verify a petitioner’s foreign operations and recommended measures to start investigations in foreign countries. Consequently, each L-1 petition is subject to very strict scrutiny by the USCIS.

For L-1A managers or executives who are transferred to the U.S. to start a new office, their visa applications are subject to even stricter examination by the adjudication officers. The government adjudicators often question the veracity of such petitions and issue lengthy requests for further evidence requiring the production of extensive amount of documentation such as lease agreements, company organizational charts, employee information and job duties, financial documents, business documents such as invoices and purchase orders, etc. Petitioners often find it difficult to respond to such requests because, by definition, a new office usually does not have a history of business transactions, a team of professional employees, or even a fixed office location. To the extent that the petitioner has the burden to provide the documentation required to establish eligibility for L classification, failure to satisfy a request for additional evidence often would lead to a denial of the petition.

The issue is further complicated by the modern-day technologies and different means of conducting business. It is often possible for a new business operation to take off without plenty of office space and a team of employees. All one needs is a telephone, a fax machine, a telephone and an internet connection. Many well-known U.S. corporations started humbly in the founder’s garage. When foreign companies start a new branch office in the U.S., oftentimes they want to keep costs and overhead low. Before there is sufficient business volume to justify further expansion, these companies are hesitant to hire a team of professionals or sign a long term lease for office and warehouse spaces. However, when an L-1 visa petition is adjudicated, these nuisances generally cannot be used as excuses for failure to produce the required documents.

The American Immigration Lawyers Association has brought these issues to the attention of the USCIS in a recent meeting, and the USCIS has agreed to take AILA’s recommendations into consideration. The USCIS also commented that each case will be adjudicated based on its particular set of facts. For example, the evidentiary requirements for a request of a one-year extension of L-1 status and a request for a two-year extension of status will be different. Similarly, the evidence required to approve an import-export business’ petition will also be different from the evidence required to approve a chemical manufacturing company. The USCIS is also currently reviewing and revising its templates for L-1 Requests for Evidence. It is hopeful that positive changes will be made soon. One important issue to note is that, it is not wise to exaggerate the expansion plans or inflate the projected business revenues in the initial petition, as the USCIS will hold them against the petitioner during the adjudication of a subsequent extension petition.

UK economy at risk from immigration cap

Tushar Mathur — Wed, 07 Sep 2011 17:11:00 +0000

The UK Government’s own advisory committee, the Migration Advisory Committee, has stated that the British economy could suffer permanent damage if the Government continues to restrict non-EU skilled immigration.

In April of 2011, the current Government implemented a permanent cap on Tier 1 and Tier 2 skilled immigration. This followed on from the temporary immigration cap of the previous year. The popular Tier 1 (General) category no longer exists. There is a new Tier 1 (Exceptional Talent) category; However, hardly anyone meets the requirements for this visa category. Moreover, Tier 2 skilled immigration for applicants with a job offer from a UK employer was capped at approximately 21,000 visas per year and, for many people, made a lot more difficult.

The measures were put in place to appease popular anti-immigration sentiment in Britain. Immigration Minister Damian Green has stated that his government intends to reduce immigration to the “tens of thousands”.

However, a report from the Government’s Migration Advisory Council, Limits on Tier 1 and Tier 2 for 2011/2012, has stated that whenever the number of skilled non-EU migrants coming to the UK is reduced by 10,000, over half a billion pounds is lost from the UK GDP. This could have disastrous consequences for the British economy at a time when it has still not fully recovered from the global financial crisis of 2008.
The report suggested that “non-EU Tier 1 and Tier 2 migrants, at present levels have a small positive impact on GDP per head” and contribute positively to net public finances and play an important part in the provision of education, health and social services.

The report stated that cutbacks to immigration would not be evenly spread and could have a severe impact on certain sectors.

“It would be remiss not to point out that there is widespread concern among employers regarding the impact that limits on migration could have,” the report stated.

UK Businesses and industry groups are concerned about the recent immigration restrictions.

Neil Carberry, employment affairs director at the Confederation of British Industry (CBI), told The Independent that the “ability to base highly skilled foreign staff in the UK helps to attract investment that also supports British jobs.”

“With numbers in the employer-sponsored work permit system already relatively low, there is little evidence that this part of the system should be the government’s key priority on controlling migration,” he added. “We should want to attract these people to come and retaining a route to settlement is a key part of that, although businesses don’t object to having a more formal points test for the right to settle.”

United States encourages entrepreneur immigration

Tushar Mathur — Thu, 11 Aug 2011 11:16:00 +0000

The US government has outlined a series of “policy, operational, and outreach efforts” which it hopes will drive economic growth and stimulate investment by encouraging foreign entrepreneurs to immigrate to the United States.

The new initiatives were announced by United States Citizenship and Immigration Services (USCIS) director Alejandro Mayorkas and Secretary of Homeland Security Janet Napolitano.

“The United States has a long, rich history of welcoming innovative entrepreneurs and skilled workers into our country,” Mayorkas said on his blog.

“These men and women fuel our nation’s economy by creating jobs, and promoting new technologies and ideas,” he added.

“Today, I joined Secretary of Homeland Security Janet Napolitano and outlined a series of new policy, operational, and outreach efforts that will help fuel the nation’s economy and stimulate investment by making it easier for high-skill immigrants to start and grow companies and create jobs here in the United States.”

USCIS announced that it will:

Clarify that immigrant entrepreneurs may obtain an employment-based EB-2 immigrant visa if they satisfy existing requirements, and that they may also qualify for a National Interested Waiver (no job offer required) under the EB-2 immigrant visa category if they can demonstrate that their business will be of interest to the United States.
Expand the Premium Processing Service to immigrant petitions for multinational executives and managers
Clarify that a sole owner of a business who wishes to employ himself/herself in some circumstances can establish a valid employer-employee relationship to qualify for an H-1B non-immigrant visa
Implement enhancements to streamline the EB-5 immigrant investor process
Launch new “engagement opportunities” to seek input and feedback from entrepreneurs and companies. USCIS will take this into account when developing new policies and procedures. It is hoped that this will result in changes that will help entrepreneurs, new businesses, and startup companies

“The United States must continue to attract the best and brightest from around the world to invest their talents, skills, and ideas to grow our economy and create American jobs,” said Napolitano in a statement.

“Today’s announcements will help our nation fully realize the potential of existing immigration laws,” she added.

USCIS Initiatives for Entrepreneurs and High Skilled Workers – EB2 Workers, NIW Petitions, H1B Self-Petitions, etc.

Tushar Mathur — Sun, 07 Aug 2011 19:32:00 +0000

USCIS Director Alejandro Mayorkas announced recently in a blog post several new initiatives to encourage entrepreneurs and high-skilled workers to bolster the U.S. economy and stimulate job growth. Director Mayorkas noted that the U.S. has a long history of welcoming innovative entrepreneurs and skilled workers into our country, and in turn they would fuel the nation’s economy by creating jobs, and promoting new technologies and ideas. It is the Obama Administration’s policy to continue this long standing tradition. Consequently, a series of new policy, operational, and outreach efforts will be pushed out by USCIS to help expand the nation’s economy and stimulate investment by making it easier for high-skill immigrants to start business enterprises and create job opportunities in America. Fully supported by the Department of Homeland Security, these measures will also ensure that America will continue to innovate and compete in a global economy. Specifically, these measures will include:

(1) Allow immigrant entrepreneurs to 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 (NIW) under the EB-2 immigrant visa category if they can establish that their business endeavors will benefit an important interest of the United States – This is a breakthrough for self-employed applicants, whose immigrant petitions have been subject to very strict scrutiny.

(2) Expand the Premium Processing Service to immigrant petitions for multinational executives and managers – This new policy will speed up the application process for key employees and managers to immigrate to the U.S.

(3) Clarify when a sole employee-entrepreneur can establish a valid employer-employee relationship for the purposes of qualifying for an H-1B non-immigrant visa – Clarification of this sticky issue will make the H-1B program more predictable and versatile for the professional entrepreneurs.

(4) Enhance and streamline the EB-5 (Investor Visa Program) process based directly on stakeholder feedback – This step will make it easier for foreigners to invest their capital and to create job opportunities in the U.S.

(5) Launch new engagement opportunities to seek input and feedback on how to address the unique circumstances of entrepreneurs, new businesses and startup companies. For example: the Director launched “Conversations with the Director,” which is a new series of small group meetings to be held to discuss immigration issues important to communities around the country.

In today’s global economy, both cash investment and human capital are essential for any country to grow its economy.

We applaud these concrete efforts of USCIS to facilitate the inflow of capital and skilled workers into the U.S. We will continue to report any concrete plans for the implementation of these new initiatives.

June Visa Bulletin: Advancements in Family 1st and 2nd, Employment 2nd

Tushar Mathur — Sat, 14 May 2011 20:36:00 +0000

In June’s Visa Bulletin, the headline news is advancements in Family 1^st and 2^nd, as well as Employment 2^nd visa categories. On the employment side, EB1 remains current across the board for all countries. Besides India and China, EB2 remains current for Mexico, Philippines, and other countries. EB2 advances to October 15, 2006 for both China and India. The State Department has been concerned about EB2 visa usage due to upgrading of cases from the EB3 visa category. So far, the effect due to upgrade has been minimal, allowing the State Department to significantly advance the EB2 cutoff days for China and India by using the unused visa numbers from the EB1 category. For EB3, Philippines and other countries advance three weeks to September 15, 2005; other countries also enjoy some nice forward movements. The “Other Worker” category moves forward by two months to November 8, 2003 for Mexico, Philippines, and other countries.

On the family side, the focus remains on changes in cutoff dates after retrogression. Heavy visa demands in 2010 caused major retrogression in family visa numbers during the first few months of 2011. In June, there are some nice forward movements. F1 (unmarried adult children of US citizens) advances sevens months to February 22, 1996 for Philippines but remains unchanged for most other countries. F2A moves forward by ten weeks to August 22, 2007 for Philippines, China, India and other countries. F2B Philippines moves forward by three months to June 8, 2000 but other countries remain unchanged.

Going forward, availability of employment visa numbers remains uncertain, depending on demands as well as upgrades from EB3 cases. The State Department is not making any predictions or assumptions on visa availability; it also does not eliminate the possibility of retrogression for FY2011. Slow forward movements remain possible on the family side. Applicants who have been negatively affected by retrogression must remain patient. The State Department continues to process retrogressed cases after processing has begun. Petitioners should pay the visa fees and submit the required civil documents in a timely fashion.

Special news update: Due to a computer programming problem, the State Department recently voided the results of the 2012 Diversity Lottery that were previously posted on its website. A new random computerized drawing will be conducted and the results of the new selection process is expected to be available on or about July 15, 2011.

Family	Other Countries	CHINA- mainland born	INDIA	MEXICO	PHILIPPINES
F1	01MAY04	01MAY04	01MAY04	01MAR93	22FEB96
F2A	22AUG07	22AUG07	22AUG07	22JUL07	22AUG07
F2B	15APR03	15APR03	15APR03	22AUG92	08JUN00
F3	01JUN01	01JUN01	01JUN01	15NOV92	08MAR92
F4	08MAR00	08MAR00	08MAR00	15FEB96	01MAY88

1st: Unmarried Sons and Daughters of Citizens (about 23,000 per year).

2A: The 2 “A” preference is for Spouses and Children (under 21 & unmarried) of LPR’s.

2B: The 2 “B” Preference is for Unmarried Sons and Daughters (21 or older) of LPR’s.

3rd: Married Sons and Daughters of Citizens.(about 23,000 per year)

4th: Brothers and Sisters of Adult Citizens.(about 65,000 per year)

Employment	Other Countries	CHINA- mainland born	INDIA	MEXICO	PHILIPPINES
EB1	C	C	C	C	C
EB2	C	15OCT06	15OCT06	C	C
EB3	15SEP05	15MAY04	22APR02	22DEC04	15SEP05
Other Workers	08NOV03	22APR03	22APR02	08NOV03	08NOV03
EB4	C	C	C	C	C
Religious Workers	C	C	C	C	C
EB5	C	C	C	C	C

1st: Priority Workers (Extraordinary ability aliens, multinational companies executives/managers, outstanding prof./researchers)

2nd: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability.

3rd: Skilled Workers, Professionals, and Other Workers (Unskilled.)

4th: “Special Immigrants” (Religious & others)

5th: Employment Creation (Investors)

UK immigration announces changes to Tier 4 student visas

Tushar Mathur — Thu, 07 Apr 2011 16:54:00 +0000

UK immigration has announced a number of changes to the Tier 4 student visa category. There will be new accreditation criteria for sponsors and tougher English language requirements. An outline of the changes is included below:

21 April 2011 Changes:

New sponsors will need to meet new educational accreditation criteria in order to be issued a Tier 4 licence.

There will be interim limit on the number of students that can be sponsored unless the sponsor meets the following requirements:

hold Highly Trusted Sponsor status; and
meet the new accreditation criteria.

B rated sponsors will only be able to assign CAS to complete a course.

There will be tougher English language requirements for Tier 4 (General) students:

a B1 Secure English Language Test (SELT) requirement for all courses at NQF 3-5/QCF 3-5 / SCQF 6-8 (ending the current SELT exemptions on pre-sessionals pathway /foundation degree courses);
a B2 SELT requirement for courses at NQF 6 /QCF 6 / SQCF 9 and above

Higher educational institutions will be allowed to make their own assessment.

Normally a CAS may only be issued in respect of a single course, except in a situation where you are attending a pre-sessional course of not more than three months’ duration and you have an unconditional offer of a place at a higher education institution or at an independent school starting not more than one month after the end of the pre-sessional course.

July 2011 Changes:

If you are a Sponsor you will have to vouch for academic progression for students changing course, where the new course is not a step up the NQF/ QCF / SCQF scale.
If you are a student applying for a visa you will need to declare at the visa application stage that you hold and will continue to hold the required maintenance funds to support yourself and pay the course fees.
If you are a Student from a designated low-risk nationalities attending courses at Highly Trusted Sponsors you will you will not necessarily have to show documents normally asked for other students relating to maintenance and educational qualifications.
You will only be allowed to work during your studies if you are at an higher education institutions or publicly funded further education colleges.
You will only be allowed to sponsor dependents if you are a new student studying at a higher education institution on a course on NQF 7 / QCF 7 / SQCF 11 or above lasting 12 months or more.

Your dependants will be able to work.

April 2012 Changes:

All sponsors must have reached Highly Trusted Sponsor Status.
The interim limit will be extended if you are an existing sponsor and have acquired HTS status but not met the new educational accreditation requirements.
Courses offering work placements will have to have a study:work ratio of 66:33 except at higher education institutions.
You will normally only be allowed a maximum time of five years in Tier 4 studying at degree level and above; There will be exceptions for some courses and for PhD students.
The Tier 1 Post Study Work visa will end.
There will be new provisions for Student entrepreneurs.

End of 2012 Changes:

If you are a sponsors you will need to meet the new educational accreditation criteria to be able to sponsor new students.

April 2011 Visa Bulletin: Retregression for USC’s Sons and Daughters

Tushar Mathur — Fri, 11 Mar 2011 16:39:00 +0000

For April’s Visa Bulletin, “continued heavy applicant demand for numbers in the Family First (F1) preference category has required the retrogression of the Worldwide, China-mainland born, and India cut-off date for the month of April,” according to the State Department. Yes, indeed. All three F1 cut-off dates retrogress eight months from Jan. 1, 2005 to May 1, 2004. The F1 preference category is for unmarried sons and daughters of U.S. citizens, with about 23,000 available visa numbers per year. The good news is that Family Second (F-2A) finally moves forward by four months to April 1, 2007 for Worldwide, China, India, and Philippines. F2A Mexico advances six months to July 1, 2006. The F2A visa category (legal residents’ spouses) have suffered major retrogression recently. However, the State Department commented that further retrogression is possible for other family preference categories in the future based on the current level of visa usage.

On the employment side, while EB2 China advances two weeks to July 22, 2006, EB2 India remains unchanged at May 8, 2006. It should be noted that EB2 India has not moved for more than six months now. For EB3, there are some forward movements across the board: Worldwide and Philippines move forward by three weeks to July 22, 2005; China nicely advances five weeks to March 1, 2004; India leaps forward by three weeks to April 8, 2002; Mexico moves forward by four months to May 8, 2004; but the Philippines only advances 21 days to July 22, 2005.

FAMILY	Other Countries	China	India	Mexico	Philippines
F-1	01MAY04	01MAY04	01MAY04	15FEB93	01APR95
F-2A	01APR07	01APR07	01APR07	01JUL06	01APR07
F-2B	15APR03	15APR03	15APR03	15JUL92	01DEC99
F-3	15MAR01	15MAR01	15MAR01	08NOV92	01JAN92
F-4	01FEB00	01JAN00	01FEB00	01FEB96	08MAR88

1st: Unmarried Sons and Daughters of Citizens (about 23,000 per year).

2A: The 2 “A” preference is for Spouses and Children (under 21 & unmarried) of LPR’s.

2B: The 2 “B” Preference is for Unmarried Sons and Daughters (21 or older) of LPR’s.

3rd: Married Sons and Daughters of Citizens.(about 23,000 per year)

4th: Brothers and Sisters of Adult Citizens.(about 65,000 per year)

EMPLOYMENT	Other Countries	China	India	Mexico	Philippines
EB-1	C	C	C	C	C
EB-2	C	22JUL06	08MAY06	C	C
EB-3	22JUL05	01MAR04	08APR02	08MAY04	22JUL05
Other Workers	22JUL03	22APR03	08APR02	22JUL03	22JUL03
EB-4	C	C	C	C	C
Religious	C	C	C	C	C
EB-5	C	C	C	C	C

1st: Priority Workers (Extraordinary ability aliens, multinational companies executives/managers, outstanding prof./researchers)

2nd: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability.

3rd: Skilled Workers, Professionals, and Other Workers (Unskilled.)

4th: “Special Immigrants” (Religious & others)

5th: Employment Creation (Investors)

UK Government clarifies upcoming immigration changes

Tushar Mathur — Wed, 02 Mar 2011 09:43:00 +0000

The UK Border Agency (UKBA) has provided further details of the changes that will take place in April 2011 which include a permanent immigration cap on skilled immigration, a new exceptional talent visa, and new criteria for skilled workers with a job offer and intra-company transfers. There will in effect be significant changes in the rules for sponsoring non-EU workers. In addition the Tier 1 General skilled immigration visa will in effect end on 6 April 2011.

From 6 April 2011, there will an annual limit of 20,700 Tier 2 visas and 1,000 visas for the new ‘exceptional talent’ visa category. The exceptional talent visa will replace the popular Tier 1 (General) highly skilled immigration route.

The UKBA, has said that there will be 20,700 Tier 2 certificates of sponsorship available which will be divided into 12 monthly quotas of 1,500 places. Because of expected high demand when the permanent immigration cap is introduced in April 2011, the monthly allocation for April 2011 will be higher with 4,200 certificates of sponsorship.

“In the event that the monthly allocation is over subscribed, certificate of sponsorship applications will be ranked using a points system designed to favour jobs on the shortage occupation list, scientific researchers and those with a higher salary,” the UKBA said in a statement.

“Once a certificate of sponsorship has then been granted to an employer it must be assigned to the prospective employee within 3 months,” they added.

Currently, businesses have an annual allocation of certificates of sponsorship. Under the new rules, employers will have to apply for a certificate of sponsorship from the UKBA for a specific post.

Non-EU workers must meet new requirements to be eligible for a Tier 2 visa starting in April 2011. They must be working in a graduate level job in the UK, speak at intermediate level English, and meet certain salary and employment requirements.

The Tier 2 visa intra-company transfer route will also see some changes; Although the UK will not place a cap on the number of workers that can enter the UK though this scheme, applicants must be in an occupation on the graduate occupation list. If a worker is to stay in the UK beyond one year, he or she must be working in an occupation that pays more than £40,000 per year. For those earning more than £40,000 a year visas will be granted for three years with the possibility of extending the visa for another two years. For jobs that pay between £24,000 and £40,000, workers may only stay in the UK for one year; At the end of the first year they must leave the UK for at least 12 months before applying again for a Tier 2 visa.

Visa for Nurses

Tushar Mathur — Fri, 25 Sep 2009 14:26:47 +0000

Looking at the huge shortage of the nurses in the United States today, this has gone up to 117,000 for the case of unfilled vacancies for registered and qualified nurses, at different hospitals and nursing homes across the United States.

As a resolution to the above mentioned problem on the 11^th of Feb in 2009. A new act was introduced in the house known as the Nurse Relief Act HR 1001. The crux of this new Act is that a new category of visas, the W – Visa category would be introduced which would only be for the nurses from all over the world to come over to the United States. The annual capping for this new visa category would be currently at 50000.

The nurses and the physiotherapists fall in Schedule A, They get preference under the third preference employment immigrant category and thus do not need the labor certification. But currently the visas under the said category for the nurses and the physiotherapists are not available at all and one would be required to wait till October to see the scope coming out of this category.

Again the H-3 temporary non immigrant level visa would allow nurses to enter the United States for the purpose of acquiring training in the said skill and would be expected to leave post the completion of the training.

Similarly, nurses could opt for the J-1 exchange visitor program and enter the United States in the capacity of an exchange visitor training and then leave post the completion of the training. In this visa category they would not allowed to work. But rather this is also a training visa. However the nurses coming under the said J-1 visa category would be eligible to get minimum wage rate, as applicable, under the provisions of the visa category.

The primary reasons for introducing the new W- Visa are:

As per the labor department in the United States the shortage of qualified nurses stand at a staggering 120,000. There was an urgent need to address this concern.
The states in the West and the Southwest United States have a higher growth rate than the rest of the country.
Other countries in the world like India, China and the Philippines have a higher number of nurses that they do not hire as well. Such surplus human resource could be better used in a country like the United States where the demand is higher than the supply.