Immigration Updates from Challa Law Offices May 2011

lux & lex

May 2011

Greetings!

Please forward this newsletter to persons you think will be interested.

GRAND OPENING!

Challa Immigration Law Offices opened a new location April 2011 in Morrisville, N.C.

The honorable Mayor, Jackie Holcombe, joined Lakshmi to cut the celebratory ribbon; amongst attendees, esteemed members of Morrisville and Cary Chambers of Commerce. We'd also like to thank our longtime affiliates from the Richmond Kickers and new associates from the Raleigh RailHawks.

In addition, we'd like to extend our gratitude to business associates, friends, family, and Challa Law Richmond staff - who joined us for this memorable occasion.

H-1B Cap Count as of 05/06/2011

Regular Cap: 10,200 (out of 65,000 cap)

Master Cap: 7,300 (out of 20,000 cap)

The H-1B Cap Is Still Wide Open - File Now!

The first information about petitions submitted for the Fiscal Year 2012 H-1B program has just been posted by USCIS and, as expected, the amount of petitions received by the federal agency are low. As was seen last year, only a small handful of companies have submitted requests for highly skilled workers under the H-1B program. As of April 29, 2011, a total of 9,200 petitions have been received for the regular cap program and 6,600 petitions have been received for the H-1B Master's Exemption category. Only 65,000 H-1B visas are available each year, and 20,000 of these visas are reserved for workers with advanced degrees.

This is great news for employers who wish to file H-1B petitions! This means that there is still time to file H-1B petitions. This is a great time of year to hire fresh, bright graduates who may be able to work on OPT temporarily, but ultimately need H-1B status. Take advantage of this opportunity, and contact Challa Law today to initiate your filing!

H-1 B Visa Cap Exemptions for Non-Profit Entities

In response to recent stakeholder feedback, recently U.S. Citizenship and Immigration Services (USCIS) announced that it is currently reviewing its policy on H-1B cap exemptions for non-profit entities that are related to or affiliated with an institution of higher education. Until further guidance is issued, USCIS is temporarily applying interim procedures to H-1B non-profit entity petitions filed with the agency seeking an exemption from the statutory H-1B numerical cap based on an affiliation with or relation to an institution of higher education.

Effective immediately, during this interim period USCIS will give deference to prior determinations made since June 6, 2006, that a non-profit entity is related to or affiliated with an institution of higher education - absent any significant change in circumstances or clear error in the prior adjudication - and, therefore, exempt from the H-1B statutory cap. However, the burden remains on the petitioner to show that its organization previously received approvals of its request for H-1B cap exemption as a non-profit entity that is related to or affiliated with an institution of higher education.

Petitioners may satisfy this burden by providing USCIS with evidence such as a copy of the previously approved cap-exempt petition (i.e. Form I-129 and pertinent attachments) and the previously issued applicable I-797 approval notice issued by USCIS since June 6, 2006, and any documentation that was submitted in support of the claimed cap exemption. Furthermore, USCIS suggests that petitioners include a statement attesting that their organization was approved as cap-exempt since June 6, 2006.

USCIS emphasizes that these measures will only remain in place on an interim basis. USCIS will engage the public on any forthcoming guidance.

Each year 65,000 H-1B visas are issued to foreign professionals working in "Specialty Occupation." A specialty occupation means an occupation that requires "theoretical and practical application of a body of highly specialized knowledge and attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States." Out of these 6800 visas are issued to professionals from Chile and Singapore under the Free Trade Agreements (FTAs). Therefore, just 58,200 H-1B numbers are available in the standard H-1B pool, though some unused FTA visas from a prior fiscal year may be recaptured and made available in the first six weeks of the following fiscal year.

An additional 20,000 visas are issued to foreign professionals who have advanced degree graduates of U.S. universities and these visas are exempted from the annual cap. The USCIS will exempt the first 20,000 petitions for H-1B workers who have a master's degree or higher from a U.S. institution of higher learning. After those 20,000 slots are filled, the USCIS will apply petitions for H-1B workers with a master's degree or higher against the annual cap of 65,000.

Apart from the 20,000 exemption for advanced degree professional, several types of H-1B cases are exempt from the cap without regard to the number of such cases that filed. These include: (1) petitions for employment at an exempt organization, such as an institution of higher education or a related or affiliated nonprofit entity, nonprofit research organization, and governmental research organization (note, however, that if an H-1B professional mover from an exempt nonprofit organization to a for-profit organization, he or she would then be subject to the cap).

Immigration Reform Rumblings - Are You Ready?

Immigration reform efforts are also continuing to develop. President Obama addressed the need for real immigration reform on May 10 in El Paso, Texas. He said that most undocumented immigrants are just trying to earn a living and provide for their families. The problem, he said, was that because these immigrants have to hide from the authorities, they are often exploited by unscrupulous businesses. President Obama said that Democrats and Republicans must come together to fix the US's immigration laws. He said that a reformed immigration system would make it easier for immigrants to study, start businesses, and create jobs in the US. He also praised the Dream Act and said that Congress should try to pass it again.

While we do not know when immigration reform will happen, it is important to be ready when it comes. And when immigration reform does happen, those who have already begun their green card petitions will be able to hit the ground running, instead of starting at the end of the line. The time to take action is now. Contact Challa Law Offices today to initiate your employment-based or family-based permanent residence process!

The StartUp Visa Act of 2011

Senators Kerry (D-MA), Lugar (R-IN) and Udall (D-CO) are the main architects of introducing the StartUp Visa Act of 2011. The highlight of this bill is that it will allow an immigrant entrepreneur to receive a two year visa if he or she can show that a qualified U.S. investor is willing to invest in the immigrant's startup venture. And in an expansion from the Kerry-Lugar StartUp Visa Act of 2010, the pool of eligible immigrants would now include holders of H-1B visas and entrepreneurs living outside the United States with a market presence in the country.

The following are the Options for Entrepreneurs:

The StartUp Visa Act of 2011 would amend immigration law to give immigrant entrepreneurs three new options for entry or retention of residency:

Option One: Immigrant entrepreneurs living outside the U.S. would be eligible to apply for a StartUp Visa if a qualified U.S. investor agrees to financially sponsor their entrepreneurial venture with a minimum investment of $100,000. After two years, their business must have created 5 new jobs and raised not less than $500,000 in additional capital investment or generate not less than $500,000 in revenue.

Option Two: Immigrant entrepreneurs currently in the U.S. on an unexpired H-1B visa; OR immigrant entrepreneurs currently in the U.S. who have completed a graduate level degree in science, technology, engineering, math, computer science, or other relevant academic discipline from an accredited United States college, university, or other institution of higher education would be eligible for a StartUp Visa if;

· They demonstrate annual income of not less than roughly $30,000 or the possession of assets of not less than roughly $60,000; and

· Have proven that a qualified U.S. investor agrees to financially back their entrepreneurial venture with a minimum investment of $20,000.

· After two years, their business must have created 3 new jobs and raised not less than $100,000 in additional capital investment or generate not less than $100,000 in revenue.

Option Three: Immigrant entrepreneurs living outside the U.S. would be eligible to apply for a StartUp Visa if they have controlling interest of a company in a foreign country that has generated, during the most recent 12-month period, not less than $100,000 in revenue from sales in the U.S.

After two years, their business must have created 3 new jobs and raised not less than $100,000 in additional capital investment or generate not less than $100,000 in revenue.

State Department Broadens Authority to Revoke Visas

A new State Department rule gives consular officers broader authority to revoke a visa in their discretion at any time, and allows them to do so more quickly and easily. The rule means that a foreign national's ability travel to the United States using an existing visa could be suspended or terminated without notice if a consular officer has any question about the individual's ability to possess the visa. The rule was published in today's Federal Register and has immediate effect.

Though consular officers have long been authorized to revoke a visa when they determine that a foreign national is not or has ceased to be eligible for the nonimmigrant classification for which the visa was issued, today's rule broadens that authority substantially. Consulates also have new power to "provisionally" revoke a visa if an officer believes that more information is needed to determine a foreign national's eligibility, though the visa could be reinstated if the foreign national is later found to be entitled to it. In a departure from prior rules, foreign nationals are no longer able to request the consulate to reconsider a decision to revoke a visa.

A visa that is revoked - whether finally or provisionally - is invalid and cannot be used for travel to the United States, even if it is not physically canceled. If a provisionally revoked visa is reinstated, the visa holder can once again use it for travel.

What This Means for Foreign Nationals and Their Employers

If a foreign national's existing nonimmigrant visa is revoked, he or she could face lengthy delays in the ability to enter or return to the United States for business or employment, and future difficulties in obtaining subsequent visas. Because consulates are not required to send a notice of revocation, a foreign national may not learn that a visa has been revoked until he or she is inspected at a U.S. port of entry and refused admission.

DHS Removes Designated Countries from the National Security Entry-Exit Registration System (NSEERS) Registration Requirement

The DHS is eliminating redundant programs by removing the following countries from, and relieving nonimmigrant nationals or citizens of the following countries from compliance with, the special registration procedures under the NSEERS: Afghanistan, Algeria, Bahrain, Bangladesh, Egypt, Eritrea, Indonesia, Iran, Iraq, Jordan, Kuwait, Lebanon, Libya, Morocco, North Korea, Oman, Pakistan, Qatar, Saudi Arabia, Somalia, Sudan, Syria, Tunisia, United Arab Emirates, and Yemen. Over the past six years, the Department of Homeland Security (DHS) has implemented several new automated systems that capture arrival and exit information on nonimmigrant travelers to the United States, and DHS has determined that recapturing this data manually when a nonimmigrant is seeking admission to the United States is redundant and no longer provides any increase in security. DHS, therefore, has determined that it is no longer necessary to subject nationals from these countries to special registration procedures, and this notice deletes all currently designated countries from NSEERS compliance.
Accordingly, effective 04/28/2011 when the notice will be published, nonimmigrant nationals and citizens of these countries are no longer required to comply with the requirements of 8 CFR 264.1(f), including the requirement that they exit through designated ports of entry. Nationals and citizens from these countries are no longer subject to the NSEERS registration requirement. Accordingly, DHS will no longer register aliens under NSEERS effective 04/28/2011. This notice does not relieve any alien of any other requirement under the law.
This notice will take effect tomorrow, 04/27/2011. Please read the full text of the advance copy which will be published in the federal register tomorrow.

USCIS Q&A on F-1 OPT Extension Under H-1B Cap Gap Regulation