On December 1, 2017, the US District Court in DC ruled in favor of the entrepreneurs and venture capitals and vacated the rule (“Delay Rule”) delaying the effective date of the Parole for International Entrepreneurs Rule (PIER) until March 14, 2018. In the Delay Rule, the Department of Homeland Security (DHS) also stated that the PIER was “highly likely to be revoked.” This ruling represents a great step forward towards a fully operational “startup visa” in the US and is a win for entrepreneurs all over the world that are seeking to grow their companies in the US market.
Effective October 1, 2017 nationwide, USCIS will begin contacting those who filed their employment-based petitions after March 6th for interviews when they have also applied for Adjustment of Status to Permanent Residence. The USCIS Ombudsman provided an informative Q and A session last Thursday. Here is what applicants need to know:
- Under 14 years old may be waived from the interview requirement – there is a waiver that applicants must complete.
- Will receive a separate notice, but family groups should be scheduled for the interview at the same time. However, they make no promises that it will be at the same time.
- Family members could be expected to prove relationship to the primary beneficiary – bring copies and originals of certificates. Officer may also require showing that the marriage was bona fide.
- USCIS does not want applicants to send in unsolicited documents after the initial application is submitted. Because of the multiple steps involved, if USCIS needs new evidence, they will request them and applicants should follow the address and the instructions on the RFE so that the documents do not get lost.
- Questions that will be asked include those that are on the I-485 and the applicant’s eligibility for Adjustment, and admissibility issues. Also, officers may ask into what the beneficiary/self-petitioner will do, their experience, and their educational background. The main purpose of pursuing these interviews is fraud detection and national security, so referrals to ICE is possible if interviewing officer detects credible threats.
- Processing times: USCIS does not believe that these interviews will affect the processing times for the Employment-Based Adjustment applications, however, we may see some slow-down on family-based adjustments and naturalization interviews because of this.
- If the defects in the I-140 were a basis for the denial, then the field office will return the I-485 and the I-140 together to the service center and recommend that it be revoked. If the service center determines that the I-140 should not be revoked, then the service center will approve the application.
- On the other hand, if the I-140 is okay, but there are defects in the I-485, then the field office will refer the case to the consulate to be re-adjudicated in accordance with consular processing.
- Medical Exams: Without further advice from USCIS at this moment, we would also recommend waiting until you are contacted through the Request for Evidence or at the interview to submit the medical examination. Because the medical exams are only valid for one year and it could take a year or more for the Adjustment application, it could be a waste of money and resources to submit the medical exams with the I-485 packet.
Our office is ready to help Employment-Based adjustment applicants prepare for these interviews, collect the required documents, and go with them, if necessary. Please contact us if you wish to have some assistance in these uncertain times.
When applying for temporary visas to work in the U.S., USCIS requires many foreign national healthcare professionals to get VisaScreen certificates to certify that their degrees fits the requirements of the visa that they are seeking. The temporary visas that require this certificate are the E-3 Australian Specialty Occupation Professionals, H-1Bs, O-1s, and TNs. The certificate is also required for the employment-based immigrant visas (EB-1, EB-2, EB-3). The healthcare workers to which this requirement applies are Registered Nurses, Physical Therapists, Occupational Therapists, Speech Language Pathologists and Audiologists, Medical Technologists, Medical Technicians (general), and Physicians Assistants. The reason for this requirement is because, for many of these professions, other countries could require less than the U.S. degree requirements in order to practice in the field. Therefore, VisaScreen Certificates, like the degree equivalency certificates, certifies that the professional is qualified to practice in the U.S. under that specific profession because their coursework is the same as that of a higher degree in the U.S. However, note that even if a foreign national obtained the healthcare degree in the U.S., in order to apply for any work visa, he/she would still have to obtain the VisaScreen Certificate.
Our firm has been working on a few EB-2 with National Interest Waiver cases since Matter of Dhanasar came out. This case was determined to be friendlier to entrepreneurs, in addition to the traditional professions (physicians, scientists, etc.) and more focused on the future, and it is. However, a review of recent decisions from the Administrative Appeals Office (AAO) shows that denials are increasing.
In March, President Trump issued a new version to Executive Order #13780 (EO), which banned individuals from 6 countries – Iran, Libya, Somalia, Sudan, Syria, and Yemen – from entering the US for 90 days. This had been dubbed in the media as the Muslim Ban. Suits were filed to halt the enforcement of the EO. The Federal District Courts granted the preliminary injunctions. The Court of Appeals for the Fourth Circuit and the Ninth Circuit then upheld the preliminary injunctions.
On January 17, 2017, the U.S. Department of Homeland Security (DHS) published the final rule for providing parole to international entrepreneurs who are starting their own businesses in the U.S. Recall that I had published my commentary on the proposed version of the same rule, here. Of course, as someone who follows and practices immigration options for international entrepreneurs, I was excited for that rule. Then, DHS added more discretionary factors to the EB-2 self-petitions with National Interest Waiver (NIW), which would be difficult to obtain for someone who wants to start their own business soon after graduating with an undergraduate degree. Subsequently, DHS published the NEW Parole for International Entrepreneurs Rule, effective July 17, 2017.
Previously, I released a blog on Five Ways that international entrepreneurs can start a business and obtain a green card. At that time, I mentioned the EB-2 and the National Interest Waiver, which had rigid standards based on NYSDOT, 22 I&N Dec. 215. Towards the end of 2016, against all the rubble and darkness the end of that year provided, a light emerged for international entrepreneurs planning to start their own businesses. In an earlier blog, I outlined in detail the new proposed rule of Parole for International Entrepreneurs, for which the final rule will be published on January 17, and effective 180 days after that. A lot is happening in the international entrepreneurs section of immigration laws, so stay tuned!
We recently worked on a J-1 Visa case where the young lady came here from China on a J-1 Visa, married a U.S. Citizen, and is now seeking a waiver for her foreign residency requirement. The wonderful thing is that J-1 Visas are a good substitute for the overused H-1B, as long as the employer hires through a sponsoring organization. This topic is beyond the scope of this blog, but please contact us if you are interested in finding out how you can do this.
USCIS is increasing their filing fees across the board effective December 23, 2016. We have parsed through the fee summary charts and organized the fees into those that affect the services offered by our firm. We wanted to pass this on to our potential clients to help you plan ahead and also include a little Holiday Surprise during this time of the year.
Our immigration law firm represents many small business employers, many of whom, for many legitimate reasons prefer to hire their family members to assume important functions in their businesses. On October 21, 2016, BALCA released decisions on two cases dealing with PERM labor certification and audits for hiring relatives, Tyrrell Limited on behalf of Espino, Jose Miguel Tantoco and Johnman U.S.A., Inc. d/b/a Karoke Champ, on behalf of Kida, Takuya, with opposite rulings.