Proposed New Rule for Entrepreneurs

October 20, 2016 § Leave a comment

On November 21, 2014, Department of Homeland Security (DHS) Secretary Johnson directed USCIS to “propose a program that will permit DHS to grant parole status, on a case-by-case basis, to inventors, researchers, and founders of start-up enterprises who may not yet qualify for a national interest waiver, but who have been awarded substantial U.S. investor financing or otherwise hold the promise of innovation and job creation through the development of new technologies or the pursuit of cutting-edge research.”
In response, the new proposed “International Entrepreneur Rule” was published on August 31, 2016 in the Federal Register, and the government accepted public comments until October 17, 2016 .  The proposed rule allows immigrant entrepreneurs to stay in the country on a parole basis. It is intended to allow entrepreneurs who are making significant contributions to US business and job growth to stay within the United States on a temporary parole basis of up to five years.

To qualify, the applicant must have significant ownership (at least 15%) in a business within the US that was founded within the last three years. The business must have received an investment(s) within the last year of $345,000 or have received $100,000 in government awards or grants. If these qualifications are met and the application is approved, the parolee could stay in the country for up to two years and is automatically granted employment authorization at his/her start-up entity. Small business with limited growth potential created solely to provide employment to the entrepreneur and his/her family will not qualify.

The parolee could receive another three years of residency if s/he receives at least $500,000 in investments, government rewards or grants, or a combination; OR creates at least 10 new jobs for US citizens or legal residents within the initial two year parole period; OR if the parole received at least $500,000 in increased revenue and achieved at least a 20% growth during the initial parole period. To qualify for reparole, the parolee must still have maintained at least a 10% ownership in the company.

The parole’s spouse and children must apply for parole status separately and by proving their relationship to the entrepreneur. After being paroled into the US, the entrepreneur’s spouse is eligible to apply for employment authorization. No employment authorization will be granted to the children.

There are concerns that this rule has created too difficult of a standard for new entrepreneurs such as students on F-1 status who are starting a business as a part of their MBA studies. The qualifying investment threshold of $345,000, for example, may be too onerous and greatly limits the pool of potential applicants.  Many of the proposed criteria for both an initial grant of parole and re-parole could only be satisfied by a company in a fairly advanced stage of operations.  However, the proposed rule presents a great opportunity for the immigration community, and it will be worthwhile to see what comes of it in the months to come.

Expanded I-601A Waivers- Provisional Waiver of Inadmissibility

September 6, 2016 § Leave a comment

If a visa applicant was facing a 3 or 10 year bar from entering the United States, s/he can request admission by applying for the I-601 waiver. Before March 4, 2013, this waiver could only be applied for from outside of the US.

The applicant would have had to-

  • Leave the United States, knowing that s/he may not be allowed to return for 10 years.
  • Attend an interview with the US consulate in the applicant’s home country.
  • Be found inadmissible because of the 3 or 10 year bar.
  • Then, apply for the I-601 waiver.

Understandably, visa applicants inside the US who had accrued enough unlawful time to be facing a 3 or 10 year bar were reluctant to leave the country to attend their consular interviews. It was impossible to know how long the interview, denial, and waiver application process could take.

The Department of Homeland Security has tried to amend that. As of March 4, 2013, applicants who would face a 3 or 10 year bar upon exiting the US can apply for a provisional unlawful presence waiver from the bar, while still on US soil. On July 29, 2016, the DHS expanded upon this rule which took effect on August 29, 2016. In the final rule, the provisional unlawful presence waiver process has been expanded to now include all individuals seeking provisional waivers, including those in removal proceedings before the Executive Office for Immigration Review (EOIR).  This also means that a qualifying US relative now includes U.S. permanent residents as well as U.S. citizens.

Further, the final rule allows individuals to apply for provisional waivers even if USCIS has a reason to believe that they may be subject to other grounds of inadmissibility.  Other modifications include: Eliminating the proposed temporal limitations that would have restricted eligibility for provisional waivers based on DOS visa interview scheduling; Allowing individuals with final orders of removal, exclusion, or deportation to be eligible for provisional waivers provided that they have already applied for, and USCIS has approved, an Application for Permission to Reapply for Admission into the United States After Deportation or Removal, Form I-212; Clarifying that DHS must have actually reinstated a removal, deportation, or exclusion order in order for an individual who has returned to the United States unlawfully after removal to be ineligible for a provisional waiver on that basis; as well as several technical and non-substantive changes.

The new provisions for applying for the I-601A are intended to help to promote family unity and improves administrative efficiency. Visa applicants facing a 3 or 10 year bar can apply for the I-601A while still inside the US, and can be reasonably sure before they leave whether they will be barred from readmission to the United States.


Refugee Protection Act of 2016

August 24, 2016 § Leave a comment

The Refugee Protection Act of 2016 has been introduced to the US House and Senate by Senator Patrick Leahy of Vermont and Representative Zoe Lofgren of California on July 14, 2016. This act is intended to strengthen current U.S. laws pertaining to refugees and asylum seekers, the passage of which date back to the historic Refugee Act of 1980.   The bill also seeks to correct barriers that bar deserving individuals from receiving asylum in the United States. According to Human Rights First, some of the improvements proposed in the Refugee Protection Act of 2016 are an elimination of the one year filing deadline, the provision for asylum cases to be handled at an asylum office rather than in an immigration court, setting criteria for detaining an asylum seeker, and providing legal counsel to some particularly vulnerable populations.

Each year the president sets a ceiling for the number of refugees it will accept. In 2015, the ceiling was 70,000. 69,933 refuges were accepted. Obama has proposed to increase this ceiling to 100,000 by 2017. The passage of the bill would be a significant step toward protecting freedom and preserving human rights of those facing persecution from all around the world.

Status of STEM Extension or OPT Extension

August 19, 2015 § Leave a comment

On Wednesday, August 12, 2015, the US District Court for the District of Columbia ruled that the US Department of Homeland Security (“DHS”) did not follow required procedures when it promulgated regulations allowing for certain extensions of F-1 Optional Practical Training (“OPT”) employment authorization. The Court has provided a period of six months by February 12, 2016 to allow DHS time to submit the rule again with appropriate notice and comment. There is no immediate impact on STEM or “cap-gap” OPT extensions.  The judge’s decision does not invalidate the employment authorization for current STEM extension holders, nor does it preclude an individual from applying for and being granted a STEM extension up until February 12, 2016. With the six month period, DHS should have sufficient time to issue the rule again for notice and comment and finalization prior to February 12, 2016. If DHS follows the Court’s direction, there should continue to be no impact on STEM or “cap-gap” OPT extensions. More updates will be provided as new information becomes available.

FY2016 H-1B Update

April 23, 2015 § Leave a comment

This year USCIS received nearly a whopping 233,000 H-1B petitions during the filing period, which began April 1. On April 13, USCIS used a computer-generated random selection process, or lottery, to select enough petitions to meet the 65,000 general-category cap and the 20,000 cap under the advanced degree exemption.

USCIS conducted the selection process for the advanced degree exemption first. All unselected advanced degree petitions then became part of the random selection process for the 65,000 limit.  All final unselected petitions would be rejected and returned with their filing fees, unless the petition is found to be a duplicate filing.

USCIS will begin premium processing for cap-subject H-1B petitions requesting premium processing, including petitions seeking an exemption for individuals with a U.S. master’s degree or higher, on April 27, 2015.  For H-1B petitions that are not subject to the cap and for any other visa classification, the 15-day processing period for premium processing service begins on the date that USCIS receives the request. However, for cap-subject H-1B petitions, including advanced degree exemption petitions, the 15-day processing period set by 8 CFR § 103.7(e)(2) will begin on April 27, 2015, regardless of the date on the Form I-797 receipt notice, which indicates the date that the premium processing fee is received.

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