It’s been a very successful summer so far for The Alagiri Immigration Law Firm. We’re happy to report that all of our H-1B applications filed under the H-1B cap this year have been approved. We have also received approvals on several challenging L-1A non-immigrant visa cases as well as EB-1 immigrant visa (green card) cases.
It’s been another hot month for immigration news. I just returned from spending 3 days at the American Immigration Lawyers Association’s Annual Conference, where I heard from officials from USCIS, U.S. Customs and Border Patrol, U.S. Department of State and the U.S. Department of Labor.
It was confirmed at the conference that immigrant visa numbers for EB-2 India will move forward 4 years in the August visa bulletin. Therefore, those with priority dates around September 2008 or earlier should immediately start taking steps to file their I-485 green card applications.
Also, there were two big immigration-related national news stories this past week:
First, the Senate passed significant comprehensive immigration reform legislation. While not perfect, the bill moves the U.S. toward real immigration reform which we desperately need. Among other things, the legislation makes it easier for foreign students who have science and engineering degrees from American universities to get permanent residency, creates a new temporary visa for entrepreneurs, and increases the number of H-1B visas. The legislation now moves to the House, where it will be more challenging to pass unfortunately. We will keep you posted as any further updates become available.
Second, the U.S. Supreme Court overturned as unconstitutional the government’s Defense of Marriage Act (DOMA), which means that now same sex married couples can receive the same Federal benefits as heterosexual married couples. In terms of immigration, this decision means that a U.S. citizen can now sponsor his or her same sex spouse for a green card.
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USCIS launches a new online resource for foreign entrepreneurs. The resource center, Entrepreneur Pathways, provides ways to navigate the immigration process for entrepreneurs who want to startup a business in the United States.
For more information, please click here.
Q: How can a foreign entrepreneur startup a company in the U.S.?
A: Being in the center of innovation in Silicon Valley, this is a commonly asked question and the following lays out some visa options to explore.
First, the L-1 visa. Known as the intra-company transfer visa, the L-1 visa specifically permits the starting up of a new office in the U.S. The caveat, though, is that the new office must be related (ex. subsidiary or affiliate) to a foreign company, and the visa applicant must have worked as an executive, manager or specialized knowledge employee for that foreign company for at least one year out of the last three years. If approved, the L-1 visa is granted for only one year, after which time the L-1 visa holder must apply for a visa extension. The benefits of this visa are that there are no minimum education requirements and visa holders can likely eventually qualify for the fast-track EB-1 category to obtain permanent residence. However, all L-1 new office applications must include extensive evidence of the company’s viability as well as proof of sufficient physical premises to house the new company.
Second, the E-2 visa. This visa also permits foreign nationals to start up a new company in the U.S. However, it is only reserved for citizens of E visa treaty countries. Unfortunately, India is not an E visa treaty country, but Japan and many South American and European Union countries are treaty countries. If the foreign entrepreneur is a citizen of an E-2 treaty country, then this visa further requires that he or she make an at-risk, “substantial” investment in a bona fide U.S. enterprise. The E-2 investor must also own at least 50% of the startup company. The E-2 investor could potentially stay indefinitely on the E-2 visa, but the downside is that, unlike the L-1 visa, E-2 visa holders are not permitted to pursue permanent residence.
Third, the H-1B visa. Most everyone has heard of the H-1B visa. Although commonly used by companies to hire specialized workers, it can also be used by foreign nationals to startup a company in the U.S. under certain conditions. According to a recent initiative by the U.S. Citizenship and Immigration Service, a foreign entrepreneur can apply for the H-1B visa to start a company in the U.S. if he or she can demonstrate that the startup company has the right to control the foreign entrepreneur’s employment (i.e. an employer-employee relationship). Such control would exist, for example, if the company has a separate Board of Directors that has the authority to hire, fire, pay, or supervise the foreign entrepreneur. As with any H-1B application, the startup company must also still demonstrate its viability to sponsor an H-1B employee.
Finally, the EB-5 visa, which was addressed in the August issue of India Currents.
The above is a very general outline of the visa options available to foreign entrepreneurs. Each option comes with its own set of unique requirements, but it provides a good place to start for those brave and innovative foreign citizens wanting to launch a startup in the United States.
This animation highlights the problems facing foreign entrepreneurs. The Bulgarian entrepreneur depicted had attended a top business school in the U.S. and came up with an idea that VCs would fund. He made several attempts to find a visa to stay in the U.S. and startup his company, but all his attempts were ultimately rejected by USCIS. He is now headed to Canada to startup and run his business. Watch the clip here.
On March 16, 2012, Charlie Oppenheim, Chief of Visa Control and Reporting at the Department of State announced that he will likely retrogress India and China-mainland born Employment-Based Second Preference priority dates to around August 2007, effective with either the May or June 2012 Visa Bulletin. He also advised that he projects that all EB-1 visas available in FY2012 will be used this year, resulting in no “spilldown” to EB-2.
We will notify you once we receive any further information regarding these priority dates.
On January 31, the Obama Administration announced a set of immigration initiatives intended to attract and retain highly skilled foreign students and workers. Read more about these initiatives here.
Question: I currently work on H1B for my employer,and my AOS (I-485) is pending, priority date is current and I’ve already got my EAD. Can I start my own company in USA now? Or should I wait until my green card is approved?
Answer: Usually, it’s recommended that people in your situation stay working on their H1B visas until their AOS applications have been approved. If you start working on your EAD, then you’ll no longer be in H1B status. The problem arises if your AOS application is denied for some reason. In such an instance, you don’t have a valid visa status by which to remain in the U.S. Having an EAD card doesn’t give you status to remain in the U.S. and, with no H1B visa (or other type of visa), you’ll have to leave the U.S. I recommend you ask your immigration lawyer whether or not you should start working with your EAD.
This article first appeared in Business Insider.
By Priya Alagiri, The Alagiri Immigration Law Firm
Who’s the next Steve Jobs? He’s foreign born, U.S. educated and likely on a plane home.
When I explained to Sudhir, an Indian citizen with a Masters Degree in engineering from a top U.S. university, that his application for a work visa to be CEO of his high technology company would be an expensive, difficult, and likely unsuccessful undertaking, he simply shrugged his shoulders and said that he’d return home then to startup his company.
Welcome to the so-called “Reverse Brain Drain,” whereby tens of thousands of U.S. educated high technology immigrant entrepreneurs are fleeing the U.S. each year out of frustration with our overly burdensome immigration system. For example, it’s currently taking 70 years for highly skilled Indian citizens to get a green card under the most common employment-based visa category.
Why should we care? Because this demographic is a powerful economic lifeline. In the midst of the worst financial crisis of our generation and record high joblessness levels, we must retain these entrepreneurs.
Like Steve Jobs, they’re smart, creative, and passionate risk-takers who generate an astonishing amount of jobs and revenue in the U.S.
A recent study by the Kauffman Foundation found that, in 2005 alone, immigrant-founded U.S. engineering and technology companies produced $52 billion in sales and employed 450,000 workers. In addition, according to a report by The Partnership for a New American Economy, more than 40% of Fortune 500 companies were founded by immigrants (or their children).
These Fortune 500 companies employ more than 10 million people and generate $4.2 trillion in revenue annually – more than the GDP of most every other country in the world.
Apart from these hard statistics, the fact that these entrepreneurs leave their countries and attempt to start an innovative business in a foreign land speaks to their high levels of motivation and resourcefulness, and consequently their potential to re-energize our economy.
Indeed, immigrant entrepreneurs are the best and brightest the world has to offer and our immigration system is driving them away.
Of course, not all of them want to leave. One Ukranian entrepreneur believes the U.S. is a “paradise” in terms of opportunity, transparency and equality, and intends to fight hard until the end to remain here.
However, with other countries instituting bold incentive programs – like Startup Chile, Startup Canada, and Startup U.K. , which offer visas and money to woo young, enterprising entrepreneurs – a large percentage are finding other locales more welcoming and profitable. Seeing their value, well-known Silicon Valley venture capital firms are even setting up funds for them abroad.
So, how can we keep them here?
The White House recently announced two administrative initiatives to improve the visa process in order to retain these entrepreneurs. However, as President Obama said recently, Congressional action is needed to make a real difference.
To its credit, legislators have introduced an impressive 8 employment-related immigration bills in Congress this session. Not one, though, has been passed. Certainly, passing legislation in Congress is no easy task. But, in the past, Congress has enacted immigration legislation during pressing times.
For example, in 1961, it enacted the J1 visa, which eased visa restrictions for foreign doctors in order to remedy a health care shortage. Also, in 2000, it passed the American Competitiveness Act of the 21st Century, which revised several employment-based immigration rules in order to enhance the economy.
We must pursue smart immigration policies that encourage the brightest, most inventive and entrepreneurial to start their high technology companies here, and thereby create more jobs, increase economic growth, and strengthen our competitiveness.
Given the right immigration environment, the next greatest American business high technology icon may very well be non-American.
Steve Jobs once said that “innovation distinguishes between a leader and a follower.”
Which one are we destined to become?
Read more: http://www.businessinsider.com/the-next-steve-jobs-is-foreign-born-american-educated-and-on-a-plane-home-2011-12#ixzz1fucjflB2