What is the International Entrepreneur Parole Rule and What Does it Mean for Foreign Entrepreneurs in the U.S.?

Are you a foreign national interested in starting or growing a business in the U.S.? If so, we have good news for you, as you may now qualify for a temporary permission to stay and work in the United States under the recently revived International Entrepreneur Rule (IER).  On May 10, 2021 the Department of Homeland Security (DHS) announced it is withdrawing a 2018 proposed rule to eliminate the IER in response to the President Biden’s Executive Order, (EO 14012, “Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans”.

Under the IER, the  DHS  may use its parole authority to grant a period of authorized stay up to 30 months, on a case-by-case basis, to foreign entrepreneurs who demonstrate that their stay in the United States would provide a significant public benefit through their business venture and who merit a favorable exercise of discretion.   This form of parole does not require that the entrepreneurs invest their own money, or that they possess certain nationality (unlike the E-2 investor visa).  Entrepreneurs granted parole will be eligible to work only for their start-up business, and  may be accompanied by their family members.  Importantly, the spouses of the foreign entrepreneur may also apply for a temporary work permit once in the U.S.

To qualify for the parole, the entrepreneurs must show that they :

  1. Possess a substantial ownership interest in a start-up entity created within the past five years in the U.S. that has substantial potential for rapid growth and job creation.
  2. Have a central and active role in the start-up entity such that they are well-positioned to substantially assist with the growth and success of the business.
  3. Will provide a significant public benefit to the United States based on their role as an entrepreneur of the start-up entity by showing that:
    • The start-up entity has received a significant investment of capital from certain qualified U.S. investors with established records of successful investments;
    • The start-up entity has received significant awards or grants for economic development, research and development, or job creation (or other types of grants or awards typically given to start-up entities) from federal, state, or local government entities that regularly provide such awards or grants to start-up entities; or
    • They can provide additional reliable and compelling evidence of the start-up entity’s substantial potential for rapid growth and job creation.

The parole is temporary and discretionary and may be renewed for an additional 30  months, or revoked by DHS, in their discretion.   To apply, you must file Form I-941, Application for Entrepreneur Parole, with the required fees , and supporting documentation with U.S. Citizenship and Immigration Service.

The international entrepreneur parole may be the best (or in some cases, the only available) option for foreign entrepreneurs seeking entry to the United States to work for a business venture.  We can help assess the interested entrepreneur’s eligibility or assist with the process.

Immigration Agency Interviews in COVID-19 Times

If you are applying for certain immigration benefits, for example U.S. citizenship or a marriage-based green card, the last step of your immigration journey is an interview with a U.S. Citizenship and Immigration Service (USCIS) Officer held at a local USCIS field office.  Needless to say, you should be well prepared for your interview and in many cases, it is recommended that you have an attorney accompany you to the interview.  These interviews are meant to be non-adversarial, with the goal of completing the adjudication of your immigration benefit application.  There are certain procedural requirements to be met, including regarding the interview environment, your right to privacy, and your right to counsel, which have recently been changed given the COVID pandemic to ensure the safety of the officers, the applicants, and the general public.  These changes bring up some strategic considerations for your preparation or legal representation at interview.

In today’s COVID times, the immigration interviews present new challenges, so here is a brief general summary of what you can expect.  The USCIS outlines the specific CDC mandated safety measures before you can even go to the interview. There are restrictions regarding who may accompany you, and if you have traveled outside the U.S. in the past 14 days immediately preceding the interview, you will not be allowed to proceed with the interview, which will be rescheduled.  Generally, you may not enter a USCIS facility, if you: (1) have any symptoms of COVID-19, including recently developed cough, fever, difficulty breathing, changes in smell or taste or fatigue (list is not all-inclusive); (2) have been in close contact with anyone known or suspected to have COVID-19 in the last 14 days; (3) have been instructed to self-quarantine or self-isolate by a health care provider, public health authority or government agency within the last 14 days; or (4) are awaiting the results of a COVID-19 test.

Further, you may not enter the facility more than 15 minutes before your appointment (30 minutes for naturalization ceremonies), and you must wear face coverings that cover both the mouth and nose (masks with exhaust valves, neck gaiters or bandanas are not allowed). You will have to follow social distancing guidelines and may have to answer health screening questions before entering a facility.  The immigration agency also encourages bringing your own pens.  These are some of the general office requirements but you should check your interview appointment notice for any additional instructions, as the practice of each USCIS field office significantly vary.

If you are represented by counsel, the above rules apply equally to you as the applicant, and to your attorney.  You should also note that some field offices may conduct interviews at the window, which raises privacy concerns if the are other persons waiting in the area.  Other field offices conduct interviews via video, which may impact the ability of the officer to obtain accurate information during the interview and for the applicant to understand the officer, particularly if there are issues with audio or video quality.  Attorneys may raise concerns regarding those issues by citing the relevant agency guidance, but accommodations are entirely within the Officer’s discretion.

It is also possible that USCIS separates the petitioner and applicant due to new room occupancy limits.  This means that a USCIS interview may be conducted where the attorney and clients are in one room and the officer in another, connected via iPad.  In that situation, you should assume that information shared in that setting is not confidential even if it appears that the iPad is “off”. Due to COVID-19 limitations on room occupancy, some field offices are now limiting the number of persons in the room to three, which results in the separation of the petitioner and applicant if an attorney attends in person. In this scenario, you may have the choice of being separated, or have your attorney appear by telephone or video.  However, some USCIS officers may give you an option of proceeding without an attorney, and you should be well-prepared to insist on calling your attorney and refuse to waive counsel, unless your attorney and you have already decided that you can proceed with the interview on your own.

All of these practices vary at the local USCIS field offices and pose concerns, so it is important that you discuss the best plan of action for you and your case with your attorney.  If you do not have an immigration counsel, you may wish to secure one for the interview, or at least speak to one who can prepare you for the interview, as the attorney will likely be more familiar with the local office procedures and able to advise you.  Feel free to reach out to us, if you have any questions about your upcoming immigration interview, or any other immigration concerns.

Planning to register for the H-1B cap season this spring but will you have a chance of being selected based on this new DHS Rule?

As many of you know, the most common H-1B professional worker visa category is subject to an annual quota/ cap per fiscal year (with some exceptions) and historically, the demand for initial H-1B numbers significantly exceeds the numbers available.  So last year, employers and foreign nationals welcomed a new H-1B registration rule, whereby employers seeking to file H-1B cap-subject petitions had to first register electronically with the U.S. Citizenship and Immigration Service (USCIS) during a designated registration period.  And at the end of the initial registration period, USCIS received more registrations than needed to reach the H-1B cap, so it randomly selected, through a computer generated lottery a sufficient number of registrations who were then notified to submit their H-1B cap petition filings to USCIS. Continue reading “Planning to register for the H-1B cap season this spring but will you have a chance of being selected based on this new DHS Rule?”

FY2022 Green Card Lottery Registration Period Opens October 7, 2020

The U.S. State Department will begin accepting online registrations for the 2022 Diversity Visa (DV) lottery aka green card lottery starting October 7, 2020 at noon EDT.  Those who wish to enter the lottery have until Tuesday, November 10, 2020 at noon EST to file online.

For FY 2022, the DV lottery program will make up to 55,000 green card numbers available through random selection and the results will be announced in May 2021. Those selected in the lottery can submit their green card applications starting on October 1, 2021.

To register for the DV Lottery, you must meet the following eligibility criteria:

  • Be born or have a spouse (and in some circumstances, a parent) born in a country with low rates of US immigration. The following countries are excluded from the FY2022 lottery, so if you are born in one of these countries, you are not eligible to participate in the lottery:
    • Bangladesh, Brazil, Canada, China (including Hong Kong SAR), Colombia, Dominican Republic, El Salvador, Guatemala, Haiti, Honduras, India, Jamaica, Mexico, Nigeria, Pakistan, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam.
  • Must have a high school education (or equivalent) or at least two years of qualifying work experience.
  • Must submit an online form and a digital photo through the official DV lottery website. DV lottery applicants may include a spouse (same-sex or opposite-sex) and children in their entry. Only one entry is permitted per person.

It is critical to carefully follow the State Department’s official lottery instructions , or you may be disqualified.  Also, very important to only use the official DV lottery website is located on the State Department website and to remember that the State Department does not charge a fee for lottery registrations. To learn more about DV lottery fraud, visit the websites of the State Department and the Federal Trade Commission.

If lottery assistance is needed, seek competent advice or reach out to us.  Good luck to all the DV lottery entrants!

 

U.S. Consulates Slowly Beginning to Resume Visa Services

U.S. Consulates around the world are gradually resuming routine nonimmigrant and immigrant visa services, after their suspension in mid-March due to the COVID-19 pandemic.  The Department of State has confirmed that each Consulate will begin visa services on its own timeline, in light of the particular conditions of that country. Applicants should check the specific U.S. consulate website for most up-to-date information, available through the following website http://usembassy.gov. This means that applicants may soon be able to schedule or reschedule their visa appointments. It is also possible that the Consulate may automatically reschedule the applicant’s prior appointment.  Importantly, Consulates continue to accept requests for emergency visa appointments through their scheduling service at https://ais.usvisa-info.com/.  If you have specific questions, talk to your immigration lawyer, as the situation is fluid and subject to change.

 

 

Immigrants Seeking Benefits in the U.S. Should Act Quickly Given the Immigration Agency’s Fiscal Crisis and Possible Furloughs

On June 25, 2020, the U.S. Citizenship and Immigration Services  (USCIS) announced its plans to furlough over 13,000 of its staff, which will impact its current  operations and mission.  The USCIS Deputy Director for Policy Statement explained that if Congress does not provide the much needed funding, the furlough will being on August 3, 2020 and will last through the end of Fiscal Year 2020.  The agency explained that this is due to the “ effects of the coronavirus pandemic”, that it has “a crippling budget shortfall that requires assistance from Congress.”

If the Congress does not provide additional funding to the agency over the course of the next month and USCIS furloughs its staff,  the processing of pending cases will be significantly delayed.  Moreover, USCIS may stop accepting new applications or may put them on hold until October 1, 2020.  If your work permit or status document expires soon,  you should work with you immigration counsel to see if your application/ petition can be submitted in the next month, before the expected furlough on August 3, 2020.  The timely filing of an application for immigration benefit within the U.S, will allow you, in certain circumstances to remain in the U.S, legally and continue working, while the case is being adjudicated.  Employers should work with their counsel to prioritize the cases for their employees who might be most adversely affected by these additional challenges.  In these unprecedented times, it is critical to not only get information from credible sources, but also seek advice from immigration attorneys who can help you assess your specific immigration situation.

Tips for Consular Interviews in the New Normal: Making Sure Employees are Ready when Visa Interviews Resume

U.S. Consulates around the world are beginning to reopen and start scheduling visa appointments and it is critical for applicants to be well prepared for their interviews.  Recently, the Department of State revised its Foreign Affairs Manual (FAM), to include a new, heightened adjudication standard for blanket L-1 applications.[1] As detailed in our prior blog, the revised provision directs the Consular Officer to deny the L-1 visa if he/she “has any doubt” whether an applicant has established their L visa eligibility and if the “questions or issues cannot be resolved during the interview.” So the visa applicants should be prepared to confidently, concisely and directly provide the relevant information in responding at the interview.    We recommend that employees, who would be applying for blanket L visas at U.S. Consulates abroad, work closely with their immigration counsel and prepare for their visa interviews.  Oftentimes, Consular Officers have only a few minutes to review the documents and question the applicant.  Therefore, the applicant’s preparation for the interview is critical for a successful visa adjudication.

Here are some tips for applicants preparing for their L-1 visa interview:

  • Make sure to read carefully and thoroughly the L visa application package, especially the company support letter explaining the relationship between the companies, the job offered, and how the applicant qualifies based on her/his specialized knowledge or managerial/ executive experience.
  • Applicants should be familiar with the content of the application packet but should not try to memorize it or use fancy complex legal verbiage.
  • Applicants should be prepared to explain, in their own words, what makes their transfer to the US business critical.
  • Applicants should be able to highlight their accomplishments as they relate to their specific employment within the company.

Applicants should be able to give direct, on point and truthful answers to the following common L visa interview questions:

    • Why was he/she selected for this job?
    • Isn’t there a US worker with the U.S. employer who can do the job?
    • What is his/her specialty?
    • What managerial decisions does he/ she make?
    • Who will the applicant be working for?
    • Who does the applicant report to? Who will the applicant report to in the U.S.?
    • Will anyone report to the applicant in the U.S.? Be prepared to state names and titles of direct reports.
    • If the applicant is coming to the U.S. as a specialized knowledge employee and will be working at a third party site, who at the U.S. company will control his/her work? It is important to know the name and title of his/her manager in the U.S.
    • What company specific experience or knowledge does she/he have?
    • How long does it take to acquire this special knowledge?
    • How long will the applicant remain in the US? This is especially important if he/she would be coming to the U.S. on an intermittent basis, over a period of time.
    • What are his/her plans after the US assignment ends?

This list is not exhaustive and the Consular Officer’s questions will be more case specific at the interview and applicants should be well prepared to respond, with the assistance of their counsel.  The attorney can explain the legal framework and requirements for the highly scrutinized L intra-company transfer non-immigrant visa, which will help him/her in responding to the questions at the visa interview to ensure the successful case outcome and the visa issuance.

The U.S. Immigration Agency (USCIS) Resumes In-Person Operations in Early June

U.S. Citizenship and Immigration Services (USCIS) plans to reopen its offices on or after June 4, 2020.  The USCIS temporarily suspended its in-person services at its field offices, asylum offices, and application support centers (ASCs) to help slow the spread of coronavirus .  USCIS field offices will send notices by mail to applicants and petitioners with rescheduled appointments and naturalization ceremonies impacted by the temporary closure.

The USCIS plans scheduling fewer appointments and interviews to ensure social distancing, allow time for cleaning and reduce waiting room occupancy, as well as to hold some interviews over video in separate rooms at an agency office. The USCIS  will also begin holding naturalization oath ceremonies,  but the ceremonies will be shorter and with limited exceptions, only the candidates will be permitted to attend to limit exposure.

Additionally, people entering USCIS facilities must wear face masks covering their mouths and noses and cannot arrive for interviews more than 15 minutes early or with too many people. Individuals should not come to their appointments if they are feeling sick, and there will be no penalty for rescheduling for that reason.  USCIS also encourages applicants to bring their own pens.

USCIS’ planned reopening comes as the agency, funded by application fees, faces a budget shortfall in response to a drop in application requests during the pandemic. Earlier this month, the USCIS requested $1.2 billion in emergency funding, which would be repaid by individuals seeking immigration fees in the form of higher application fees.

What is New with L-1 Blanket Consular Adjudications  – Expect Tougher Standards Ahead

The immigration regulations allow employees of large, multinational corporations that have an approved L-1 blanket petition, to apply directly at U.S. Consulates abroad for L-1 intra-company transfer visas to the U.S.  This has been a fast, cost effective, and often times, easier and preferred method for employees who qualify to be transferred to the U.S. in L-1 nonimmigrant status.  The standards for L-1 blanket adjudication at the U.S. Consulate have now been changed and seem to have become even stricter than for those seeking L-1 status through individual petitions filed with the U.S. Citizenship and Immigration Service (USCIS) – their standards have in practice also become tougher over the last 2 to 3 years, despite no recent regulatory changes.

The Consular L-1 adjudication process is detailed in the Foreign Affairs Manual (FAM), which includes a new, heightened adjudication standard for blanket L-1 applications.[1] This is a higher standard than articulated in the prior FAM section, which stated only that the application must be “clearly approvable.” The revised provision directs the Consular Officer to deny the L-1 visa if he/she “has any doubt” whether an applicant has established their L visa eligibility and if the “questions or issues cannot be resolved during the interview.” This is different than the former meaning of “clearly approvable”, which has been the longstanding standard for blanket L adjudications and has been interpreted to mean that the applicant needs to provide clear and convincing evidence of eligibility for the L-1 visa, or documentation that makes the purported fact “highly probably or reasonably certain.”

Interestingly, the term “clearly approvable” remains in the revised FAM section.  However, previously, the consular officers could issue an INA 221(g) refusal (aka administrative processing) notice and give the applicant an opportunity to submit further documentation to resolve the issue.  The new FAM section may eliminate this practice, as it states that the Officers “must deny the visa” if the issue cannot be resolved at the visa interview.  This is especially important, as U.S. Consulates around the world are beginning to reopen, and many potential or existing employees of large U.S. companies would likely be applying for blanket L visas at U.S. Consulates abroad in the coming months.  This also means that the applicant’s L-1 visa interview preparation will be crucial for the case outcome, given that this provision allows the Officers to deny the visa if they are not satisfied with the applicant’s answers and the application presented at the interview.

The alternative to consular filing is the filing of an L-1 individual petition with the USCIS, where the adjudication standard is “preponderance of the evidence” – i.e., the petitioner must establish that it is  more likely than not – that the beneficiary qualifies for the particular immigration benefit.  However, USCIS filings are generally more expensive, take longer and have, as indicated above, been subject to more scrutiny and requests for evidence, including more denials, in the past few years.

Given the anticipated increased scrutiny of blanket L applications at U.S. Consulates and the current USCIS adjudication climate, it is critical for employers and individuals to work closely with their immigration counsel to determine the best filing strategy for success, after careful analysis of the individual case circumstances.

[1] See 9 FAM 402.12-8, available at https://fam.state.gov/fam/09FAM/09FAM040212.html#M402_12_8_F

 

 

 

Is President Trump Going to Suspend U.S. Legal Immigration in Response to the COVID19 Pandemic?

In response to the coronavirus pandemic and to protect jobs for U.S. workers, President Trump announced at a Tuesday press conference (April 21, 2020) that he would sign an Executive Order temporarily suspending certain individuals seeking permanent resident (green card)  status into the United States.  The President is expected to sign the suspension order this week and its scope will be limited only to green card applicants.

Contrary to earlier reports, the immigration suspension order will not apply to individuals entering the U.S. on a temporary work or other visa.  The immigration suspension will not apply to essential immigrant workers, such as those working in the healthcare sector who are seeking permanent resident status and to their family members. Beyond that, the scope of the suspension and which specific agencies and programs will be affected are not known. The immigration suspension order will be in effect for 60 days but may be extended.

As noted, as of the time of this writing, there are solely reports about the draft Executive Order, but the actual suspension order has not yet been issued. We are closely monitoring the situation and will provide more information as soon as it is available.