• Entrepreneur Tips from Steven Hoffman, Founders Space Chairman

    For our start-up founders today, we have a treat!  Our post is this awesome interview with Steven Hoffman, a serial entrepreneur, investor, and the Captain and Chairman of Founders Space, ranked one of the Top 10 incubators by Inc. Magazine and the number 1 accelerator for foreign startups by Forbes Magazine.

    Q: Steve, you travel the world and have met start-up founders from all over. Aside from the passion to take huge risks on their ventures, what are a few similarities you have observed between these founders that have crossed cultural boundaries and contributed to their overall success?

    Startup founders in practically every country tend to be enthusiastic, young at heart, and open to new things. They believe they can make a difference. They are also optimistic–sometimes to a fault. They believe in their ideas and their ability to do whatever it takes to succeed. Whenever you generalize, you run the risk of stereotyping, but the differences are sometimes more interesting than the similarities. Startup founders in China tend to be born entrepreneurs. They see an opportunity and lunge at it, while Europeans tend to be more cautious and analytical. While Chinese want the quickest path to riches, Europeans tend to move more slowly and think carefully about every aspect, sometimes to their own detriment. Americans tend to be the most idealistic and dreamy. Americans love to think anything is possible. In Taiwan, they have the opposite problem. They tend to think small, believing they have a better chance of succeeding if their idea isn’t too big. Koreans are in the middle. And most Japanese still prefer to work for big companies than take the risk.

    Q: What are some worldwide trends in entrepreneurship that you think the U.S. hasn’t seen yet, but would benefit from the trends?

    QR codes are huge in China. Everyone uses them to promote their businesses, make purchases, and share events and information. I used to think QR codes were silly, but now I’m a believer. They are a major driver of commerce and information sharing.

    Payment and commerce through chat applications is another big opportunity that Asia has taken the lead on. The US is just realizing the potential but has a long way to go.

    Cleantech is moving faster outside the US than inside. Our government isn’t nearly as supportive as those of other countries.

    Q: Founders Space is rated as one of the Top 10 incubators in the U.S. as ranked by Forbes. Your organization provides a variety of resources to founders. If you were to focus on just the videos posted on your website as a starting point, which video is the most popular with  founders and why do you think it is so popular?

    My most popular video is Hunting Unicorns: http://www.foundersspace.com/investing/.  Startups love the practical advice. Every entrepreneur wants to know exactly what smart investors are looking for in a startup.

    Q: There is this myth that it’s easy for founders to raise capital from investors if they simply come to the Bay Area and do a few pitches or demo their product/service. There are multiple workshops, incubators and programs targeting and tailored to founders. For founders who experience multiple rounds of rejections from investors, it can be demoralizing. Under these circumstances, successful founders who have exited from their companies have advised these founders to “bootstrap it” and refine the product/service until there is enough traction to attract new investors. Would you agree with this advice? What additional motivational tips would you give to these founders?

    My biggest tip is not to waste time trying to raise money before you’ve figured out your business. If you have the data to back up your assumptions and prove that there’s a real business, it’s not hard to raise capital. The problem is that most founders don’t have much more than an idea or an app with very few users. That’s not enough to get funded, and it’s better to hold off until you have something solid.

    Q: For foreign founders coming to the U.S., sometimes a difference in culture may contribute to unknowingly offending certain cultural norms in the U.S. For example, speaking too quickly during a pitch with a heavy foreign accent might unnecessary create confusion, making it difficult for investors to understand what was being presented. What are some effective resources foreign founders may find helpful in becoming aware of and managing some of these cultural challenges?

    I tell all foreign startup founders to speak slowly, especially if they have an accent. Also, the problem isn’t usually the accent. The problem is that their pitches tend to be convoluted. They need to simplify their pitches and focus on clearly explaining their product. This sounds easy, but it’s not. Explaining something as complex as a new business idea in simple, clear language can be a challenge, and we work with our overseas entrepreneurs to help them surmount this challenge.

    Q: How do investors view a previously failed attempt at a startup by a founder currently pitching to them?

    It used to be a real stigma. But now it’s just accepted as a fact of doing business. Most startups fail. That’s part of the process. Of course, it’s always better to have a success story, but failure isn’t looked down upon like it used to be. Most investors actually like to see entrepreneurs who have had past experience, even if that experience wasn’t successful.

    ***

    Thanks to Steve for his words of wisdom and taking a Visa Pit Stop with us!  If you enjoyed this article, please share it with your friends and subscribe to our blog!

  • Will President-Elect Trump Revise, Block or Pass Parole for Entrepreneurs?

    For the past couple of weeks since the presidential election, many foreign founders have asked what’s going to happen to the Parole for Entrepreneurs that is currently under review by USCIS.  You’ll recall that USCIS announced in late August a Parole for Entrepreneurs that would allow eligible foreign founders who have secured at least $345,000 from private venture capital firms or $100,000 from a government source to request permission to stay in the U.S. to operate their startup.  The public comment period closed on October 17, 2016.

    While we all know it’s a wait and see approach at this point, let’s lay out the options:

    Hypothetical #1: Revise the Regulation:

    What would revising the regulation look like and how long would it take?  If USCIS were to take into consideration new directives from its new boss, it’s theoretically possible that USCIS could substantively revise the regulations as it was initially released back in September 1, 2016.  In that event, USCIS could reissue a second proposal for public comment and endure another round of public comment, for either 45 or 60 days, regarding the revised proposal.  After USCIS reviews all comments, it could then issue a final regulation at some point in the future.  We’re talking at least another six months after January 20, 2017 before a revised regulation.

    Hypothetical #2: Block the Regulation:

    Another scenario could be if President-Elect Trump decided that Parole for Entrepreneurs was an unconstitutional action by now President Obama, then President-Elect Trump could block the regulation entirely by redirecting the priorities that USCIS should undertake.  This could happen because the President has the powers to enforce existing laws of the U.S.  In this case, USCIS is overseen by the Department of Homeland Security, which is headed by a Secretary who is appointed by the President.  As of the time of publication of this article, the Department of Homeland Security has yet to be appointed by President-Elect Trump.  Thus, if the Parole for Entrepreneurs regulation is blocked, then we the public likely won’t see any updates on the regulation becoming a final rule.

    Hypothetical #3: Pass the Regulation:

    As I stated in my earlier analysis, President-Elect Trump is an entrepreneur himself.  He may very well allow the proposed regulation to become final and go into effect.  If this were to happen, how quickly could the rule go into effect?  Best case scenario, USCIS would need to issue a final rule sometime in the near future and the rule could go into effect 60 days from the final rule.  Theoretically, the rule could be implemented as soon as Q1 of 2017.  The rule itself, as proposed, has fairly stringent guidelines, targets only a small subset (approximate 2940 entrepreneurs) whose ultimate goals are to create U.S. jobs in order to continue to be eligible for work authorization.  It’s really a drop in the bucket.

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  • How President-Elect Trump’s Immigration Plan Would Impact Employers & Entrepreneurs

    There’s been a lot of forceful soundbites from Donald Trump on immigration during his Presidential campaign but it’s yet to be determined how much of that rhetoric will transform into actual policy.

    From a logistical perspective, the Department of Homeland Security, who issues immigration benefits and enforces immigration rules, may be faced with changing course on how they evaluate immigration cases.  It’s not uncommon for Presidents to issue guidance and directives to federal agencies, including the Department of Homeland Security, on what priorities to focus.  While a President can issue executive orders, executive orders that unilaterally alter existing federal regulations might be challenged in court as an abuse of power.

    • Immigration laws require Congressional approval to amend
    • Immigration regulations issued from federal agencies require public notice and comment before being finalized as regulations. Any regulatory reversals would also require public notice and comment before being finalized.

    As of today, November 9th, here’s what we do know in terms of where Trump stands on immigration that would significantly impact U.S. employers and foreign entrepreneurs based on his August 31, 2016 10-Point Speech on Immigration.  (Keeping in mind that these policies were largely crafted by conservative-leaning immigration reform groups.)

     

    NAFTA and TN Visas

    Trump has lambasted NAFTA as a terrible trade agreement that hurts the U.S. and has promised to renegotiate better terms for the U.S. or otherwise withdraw if those new terms aren’t met.

    Under the North American Free Trade Agreement entered into by Canada, Mexico and the U.S., in 1994, a new professional visa category (TN visa) was created to enable Canadians and Mexicans to enter the U.S. and fulfill certain occupational work here. The Agreements allows for any party to withdraw under Article 2205, by providing written notice six months in advance to all parties.

    Impact to Employers: If the U.S. pulls out of NAFTA, it is possible employers may have to find alternative work options for TN employees in the U.S. (and for U.S. employees working in Canada or Mexico in TN status).  The timeline could be as early as 2017Q3 but more will be revealed….

     

    H-1B Visas

    As I previously indicated here, Trump wants to impose new requirements for all immigration-related visas, particular for the H-1B, by requiring employers to first test the labor market by 1) attempting to fill any open positions with U.S. workers first before hiring foreign workers and 2) by requiring employers to pay a certain prevailing wage level.  This is consistent with the 10th point of his 10-Point Ideal discussed in his August 31, 2016 speech:

    We will reform legal immigration to serve the best interests of America and its workers

    …The time has come for a new immigration commission to develop a new set of reforms to our legal immigration system in order to achieve the following goals:

    • To keep immigration levels, measured by population share, within historical norms
    • To select immigrants based on their likelihood of success in U.S. society, and their ability to be financially self-sufficient. We need a system that serves our needs – remember, it’s America First.
    • To choose immigrants based on merit, skill and proficiency
    • And to establish new immigration controls to boost wages and to ensure that open jobs are offered to American workers first.

    Employers currently already must meet prevailing wage standards in order to be approved for an H-1B visa for an employee.  While this new labor market test would be an added requirement, it must first jump through a few hurdles.  It’s unknown exactly how the labor market test will be structured, but if it’s anything like the current process for PERM, the Department of Labor may have to get involved in evaluating the sufficiency of each employer’s labor market test.  In this scenario, we’re talking months of delay due to increased backlogs and more work for any federal agency will likely mean more funding will have to be diverted to fund those operations.

    It would be interesting to see, logistically, how these new requirements would be implemented; either via federal regulatory change (requiring public notice and comment) or congressional amendment to the Immigration and Nationality Act.

    Impact to Employers: If Congress gets involved and passes an amendment to the law, then employers may have to follow these new requirements very quickly.  New requirement to meet certain wage requirements may actually end up producing a law that would pay foreign workers more than actual U.S. workers!  Additionally, the requirement to advertise for U.S. workers before being able to apply for the H-1B petition may delay innovation and corporate expansion.  As a result, multinational companies may consider offshoring jobs if the burden to hire qualified workers in the U.S. is too high.

     

    Update 11/10/2016: H-4 Spousal EADs

    Part of President Obama’s Execution Action involved enabling spouses of certain H-1B visa workers to apply for work authorization.  H-4 spouses, as they are called, could receive employment authorization documents (EADs) that would enable them to work for any U.S. employers of their choosing.  At that time, USCIS had proposed a change in regulations, made the rule available for public notice and comment, reviewed the comments and then issued a final rule as required by the Administrative Procedures Act.  In May 26, 2015, the rule went into effect.

    President-Elect Trump has stated he would “cancel every unconstitutional executive action, memorandum and order issued by President Obama” within his first 100 days in office.  If he orders USCIS to reverse course on EADs for H-4 spouses, then USCIS would have to follow the same procedures it did two years ago in notifying the public, requesting comment, reviewing comment and therefore issuing a final rule.  This may take time and likely any rule eliminated the EAD category for H-4 spouses may likely be prospective and not retroactive.

    Impact to Employers: Workers who hold an EAD based on their qualified H-4 status may possible lose the ability to continue to work after their EAD expires.  Employers may have to evaluate staffing needs in the next six – eight months, in preparation for this potential outcome.

     

    DACA Employees

    Trump has not been shy about wanting to reverse much of President Obama’s executive actions, including the Deferred Action for Childhood Arrivals (DACA) program that enabled eligible undocumented children who entered the U.S. before their 16th birthday to apply for work authorization.

    It would be within a new President’s powers to reverse the previous Executive Action as quickly as January 20, 2017, when the new President is sworn into office.

    Impact to Employers:  Employers who currently employ DACA workers may find themselves short-staffed as early as late January 2017 if DACA is rescinded by President-Elect Trump.  This is particularly alarming, as U.S. Citizenship & Immigration Service has received more than 1.54 million applications since the inception of the DACA program in 2012 and has approved more than 1.45 applications since then.  It’s unclear how many U.S. employers would be impacted by this policy change but data will likely reveal itself in the upcoming months.

     

    Startup Visa for Entrepreneurs

    President-Elect Trump has voiced little about a start-up visa for entrepreneurs.  As a serial entrepreneur himself, one would imagine he would appreciate the values and benefits that entrepreneurship carries with it.  Not so, as it appears at odds with his stance on isolation and populism. Further, even if entrepreneurs were allowed to enter the U.S. via a special visa,  if the entrepreneur stems from a country that has been historically (or is now) affected by terrorism, that that entrepreneur might now be subject to aggressive “vetting” despite their efforts, desires or ability to create U.S. jobs.

    As an aside, the U.S. Citizenship & Immigration Service had announced on September 1, 2016, the Parole for Entrepreneurs as a means to allow certain eligible, high-growth entrepreneurs to enter the U.S. to operate their business.  Comments had closed on October 17, 2016 and it’s still up in the air whether USCIS can review the public comments quickly enough to enact a final rule for the regulation to go into effect before January 20, 2017. If the regulation were to go into effect that quickly (although unlikely), the regulation could still be reversed in the future, but not without first having to go through various administrative hurdles.

    Impact to Entrepreneurs: We won’t know if the Parole for Entrepreneurs will go into effect, only to be later reversed, or if it will go into effect at all.  We also won’t know if the President-Elect will push forward a startup visa bill for Congress to pass that would jump-start innovation.  We’ll have to have wait and see what the next administration brings.

    ***

    As a general aside, the rhetoric from Trump about deporting millions of undocumented immigrants in the U.S. is not typically a topic that is discussed on this website.  However, it’s important to understand that a policy of this magnitude and impact would require significant taxpayer funding; funding that would need to be appropriated by Congress to support and execute.  It’s yet to be seen if the U.S. has room in its budget to finance this policy endeavor.

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  • 5 Things Every Foreign Founder Should Do Pre-Visa Stage

    While there are many challenges facing foreign founders eager to start up a company in the U.S., the visa immigration process should hopefully be the least daunting.  Follow these Top 5 Steps to ease the preparation of the eventual immigration process.

    1. Make Your Company Official. U.S. companies typically have a separate, legal identity from their founder(s). Forming a company, whether as a limited liability company, a partnership, or a corporation, is an important first-step in doing business in the U.S.  By making it official, you’re able to secure a federal employer identification number to pay taxes, hire employees, secure registrations and licenses from local authorities, and so much more.  From an immigration perspective, it’s also a good faith step towards running an operation in the U.S.
    2. Securing “Office” Space. In today’s global arena, a physical office seems a distant relic from a bygone era. Yet, companies still need a place to receive mail and conduct official business.  While a traditional office lease is ideal, other arrangements including co-working space, an executive virtual space, or even a home address for the right business type, might be viable.  Every company needs an epicenter.  Not having an “office” space is not acceptable when it comes to preparing for a future immigration application.
    3. Business Plan. Two words: get one. It need not be formal or even professional, but it should be detailed and have clear indicators of the business model, monetization methods, forecasts, market research on competitors and more.  Having a business plans is a good indicator there’s been serious thought put into how the business will operate and what will make it competitive and successful.
    4. Get a website. Company websites need not be fancy, but they are a great proxy for providing a lot of detail in a central location, without having to interact directly with visitors. One of the advantages of a well-designed website is to ensure the website represents the company’s mission.
    5. Traction. Get it. Maintain it.  Propel it.  Traction can come in all forms, whether it be product development in the form of a proof of concept, interests from potential partners or customers, or even funding from external capital investors.  Gaining traction is a great momentum indicator.

    The best part about our Top 5 List is that founders do not even have to be physically in the U.S. to make it all happen!  After all, it is pre-visa stage.

    ***

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  • How Clinton and Trump 2016 Campaigns Compare on Immigration

    Both Hillary Clinton and Donald Trump have ambitious plans for immigration if either are to be elected president of the United States of America.  Today’s article addresses some of their finer points on immigration and provide details on how those plans might impact U.S. employers, entrepreneurs and investors.  (For the sake of brevity, we’re only focusing on the two leading candidates.)

     

    Greencard for International STEM Graduates

    Candidate’s Position:  As part of a comprehensive immigration reform, Hillary Clinton would develop a path for permanent residence for all international students who matriculate from an accredited university with a masters or doctoral degree in a STEM field.

    Practical Impact:  Huge!  (Or as some would say, Yuge!)  From an economic perspective, the U.S. would ultimately become the leading destination for all foreign students eager to study a STEM field in the U.S.  No doubt many U.S. universities would likely see an increase in revenue from tuition rates for foreign students.  The ability to retain talented STEM-educated foreign students also means these students can pursue additional research, start new companies, or be hired right off the bat by leading companies and bypassing the H-1B lottery entirely.  This might actually alleviate the H-1B visa quota.

    Feasibility Prediction: Moderate.  In order to implement a new pathway towards obtaining a greencard, a bill would need to pass both the Senate and the House (Congress) by a simple majority vote in order to be approved, reconciled, and presented to the President to be signed into law.  (This particular proposal cannot be implemented through Executive Action.)  Any immigration reform bill would therefore need to be structured in a way that aligns the interests of a majority of Congressional members.  (See how laws are made here.)  Therefore, the makeup of Congress is a huge factor in determining the likelihood of a comprehensive immigration reform bill being passed.

    Opposing Candidate’s Position: Donald Trump’s position in general is to ensure U.S. workers have a chance at the job market.  It’s unclear where he stands on this specific issue at the time of publication.

     

    H-1B Visas

    Candidate’s Position: Donald Trump would abolish the H-1B visa as it is currently structured and require employers to test the labor market first before sponsoring a foreign worker for any employment visa.  There would be no exceptions.

    Practical Impact:  This proposal would impede economic growth.  For example, a multinational company would not be able to send its foreign managers to develop product in the U.S. without first attempting to hire U.S. workers to fulfill those roles.  In this example, if there are no other internal employees in the U.S. qualified to fulfill that role, and the foreign managers are in the best position and possess proprietary knowledge to develop the company’s product, it’s unclear how forcing the employer to test the labor market would enable the company to develop the product any faster.  Employers would be required to test the labor market for all work visas, which would delay hiring, delay product development, delay service fulfillment, etc.  The Department of Labor would likely experience an influx of labor certification applications as a result, and will likely have significant backlogs.  Meanwhile, other countries that have more generous laws on intra-company workers would see greater economic growth.

    Feasibility Prediction:  Low.  While Congress may be amenable to imposing a labor market test for certain types of employment visas, such as the H-1B visa, a blanket requirement for all employment visas would likely not pass Congress approval.

    Opposing Candidate’s Position: Hillary Clinton’s position on immigration reform does not specifically address H-1B visas, but does address the need to provide less burdensome methods for employers to recruit and retain foreign workers.

     

    Start-up Visa

    Candidate’s Position:  Hillary Clinton would develop a start-up visa allowing top entrepreneurs, who have secured financial support from U.S. investors to enter the U.S. to build technology-oriented companies.  Job creation and performance milestones would be part of the criteria for pursuing a greencard.  This too would be another component of Hillary Clinton’s comprehensive immigration reform bill.

    Practical Impact:  This proposal appears to be much broader than the Proposed Parole for Entrepreneurs by allowing entrepreneurs to demonstrate financial backing from any U.S. investor (rather than limiting it to venture capital firm with an established track record.)  If passed into law, Clinton’s start-up visa would superseded parole for entrepreneurs.  The balance of Clinton’s proposal for a start-up visa is still vague, but the good news is that it aims to provide a path to permanent residence rather than merely temporary work authorization.

    Feasibility Prediction:  Moderate.  See Greencard for International STEM Graduates, above, for a detailed explanation.

    Opposing Candidate’s Position: Donald Trump’s position on this issue is unknown at the time of publication.

     

    Mandatory E-Verify

    Candidate’s Position:  Donald Trump would require an E-Verify system to be mandated nationally for all employers to prevent unauthorized employment of foreign workers.

    Practical Impact:  All U.S. employers may be required to enroll in the E-Verify system in conjunction with completing the Form I-9.  Although the current system is free, employers should be aware that failure to utilize the system properly (or at all), or discriminating against authorized workers may result in potential fines from Immigration Customs Enforcement.  Additional investment in time and training may be required of employers.

    Feasibility Prediction: High.  It is likely that any comprehensive immigration reform bill will contain a provision moving E-Verify from a voluntary system to a mandatory system for all U.S. employers.  To learn more about the program, please contact us for details.

    Opposing Candidate’s Position: Hillary Clinton’s position on this issue is unknown at the time of publication.

     

    Export Control Reform

    Candidate’s Position: Hillary Clinton indicated that she would “advance Export Control Reform, pursue policies to protect U.S. trade secrets and IP, and resist calls for forced tech transfer or localization of data.”

    Practical Impact: Private U.S. employers who manufacture, sell and distribute sensitive technologies and associated data must comply with export control laws, including the International Traffic in Arms Regulations (ITAR) and the Export Administration Regulations (EAR) to prevent those technologies from being accessed by unauthorized foreign nationals.  Efforts for accelerated reform may impact U.S. employers.  Companies that have historically employed highly qualified foreign nationals in the past may find those existing employees may now require heightened security clearances, which can only be achieved through obtaining permanent residence or citizenship.

    Feasibility Prediction: High.  Export Control Reform has been moving forward since at least 2014. Desire to tighten security around sensitive technologies and data, in light of recent cyber-attacks is strong and will likely gain bipartisan support.

    Opposing Candidate’s Position: Donald Trump’s position on this issue is unknown at the time of publication.

     

    J-1 Visa

    Candidate’s Position: Donald Trump would abolish the J-1 visa classification and instead offer “job opportunities to inner city youth.”  (This position appears to have been removed from the official Trump website so it’s unclear if this is still his official position.)

    Practical Impact:  The J-1 visa program contains 14 different programs at the moment, covering professor and research scholars, physicians, au pairs, camp counselors to summer workers (to name a few).  It’s unclear if Trump’s position is to abolish the entire J-1 visa classification, or just one program within the classification.  For example, the J-1 Physician program is an important pipeline that encourages U.S. trained medical physicians to practice medicine in underserved areas throughout the U.S. suffering from a severe shortage of medical professionals.  The J-1 Professor and Research program enables collaboration with foreign academicians in the U.S. to promote research and development of all kinds of research, producing results that significantly advance scientific and academic fields.  Abolishing the J-1 program in its entirety would be akin to throwing the baby out with the bath water.  U.S. research institutions would be unable to invite foreign scholars and researchers to the U.S. to collaborate on research.  It’s unclear what alternative would be available to them.

    Feasibility Prediction: Low. Abolishing an existing visa program that was enacted by law would require Congressional sponsorship and approval.  It is unlikely Congress would abolish the program entirely without offering a replacement that addresses the majority of the visa’s 14 programs.  Summer work programs may ultimately be revised to require U.S. employers either recruit U.S. workers, or agree to pay some sort of prevailing wage above and beyond minimum local, state or federal standards.

    Opposing Candidate’s Position:  Hillary Clinton’s position on immigration reform does not specifically address J-1 visas but her overall desire to initiate comprehensive immigration reform indicates a desire to address the pitfalls of plaguing the current J-1 visa classification.

    ***

    Stay tuned for more updates on what the post-election landscape may look like!  Subscribe to our blog to receive email alerts!

  • How to Decipher and Read the U.S. Visa Bulletin

    Every month, around the end of the first week, the Department of State issues a Visa Bulletin to inform the public how many immigrant visas have been issued (i.e.: how many greencard “slots” have been issued.”)  The charts on the visa bulletin are a bit confusing because there are many different categories and countries.  Sometimes, the indications move backwards (“retrogress”) instead of moving forwards, thereby making wait times for a greencard even longer.

    How exactly does one decipher and read the Visa Bulletin?  While there are plenty of articles, there are few visual aids.  We’re attempting to tackle this task today!

    Read Me First: The Visa Bulletin indicates when a foreign national may either submit their greencard application, or, if the application has already been submitted, when the government is currently reviewing that application.  “When” this occurs is based on when the underlying immigrant petition was initially submitted to USCIS.  That date is considered a “priority date” and will be notated on the immigrant visa petition approval.

    Step 1: Visit the Department of State’s Visa Bulletin webpage.  There are usually links to the current month and the next month’s chart.  There are also links to archived bulletins from past years.  Select the link you wish to inspect.

    US Visa Bulletin

    Step 2: Locate your “Preference” charts.  The Preference is the basis for which the applicant is eligible to apply for a greencard.  There are three preferences:

    1. Family Preference: when a relative sponsors you for a greencard
    2. Employment Preference: when you are eligible to apply for a greencard through employment purposes
    3. Diversity Lottery Preference: when you are eligible to apply based on the Diversity Lottery. Read more about it here.

    Today’s article focuses on the second preference based on employment charts.  (You’ll notice there are two charts under this preference.  Chart A. Final Action Dates is normally the default chart.  We’ll address the issue of why there are two charts at Step 4).

    Step 3: Locate your Employment-Based (EB) preference category.  For example, let’s say your employer filed an immigrant petition based on the EB-3 category.  Then your preference category would be “3rd”.  Then, locate the country you were born.  The intersection where the preference category meets the country of birth is the visa date the government is current reviewing greencard applications.  In the example in the illustration below, an Indian national who is 3rd preference category would have a visa date of March 8, 2005.  This means that if the priority date on the Indian national’s I-140 immigrant petition approval notice is March 8, 2010, the Indian national would be waiting another five years before her priority date will be current and she will be eligible to submit her greencard application.  (Note that if she had already submitted her greencard application, then the government will review her application once her priority meets or precedes the visa date indicated on the Visa Bulletin.

    How to Read US Visa Bulletin

    Q:  What if the intersection date say’s “C”?  “C” stands for current.  Priority dates that are current means that applicants who submit their greencard applications need only to wait as long as it takes an officer to review the case.  They applicant doesn’t experience the long delays that are found in other preference categories.

    Q: Why is 1st Preference Category current for all country nationals?  This is usually the case because the number of applicants in this category seldom exceed the visa quota imposed in this category.  In other words, when there are plenty of visas allotted for that category, and the number of applicants are low, the visa dates are almost always current.

    Q: I checked last month and my priority date preceded my preference category date.  This month, when I checked again, I noticed the date moved backwards.  What does this mean?  When visa dates move backwards from the prior month instead of advancing, this means that visa numbers “retrogressed.”  This is a calibration method by the Department of State.  The Department of State controls the Visa Bulletin but both the Department of State and USCIS issue visa numbers.  As a result, USCIS must report to the Department of State how many visa numbers were by USCIS so that the Visa Bulletin can be adjusted.  Sometimes, part of that adjustment means that visa dates retrogress in order to ensure the correct amount of visa numbers are issued for the fiscal year in that preference category.  (There is a finite number of visas that can be issued per category.)

    Step 4: Why are there two different Employment-Based charts and what do they mean?

    vb3

    Back in the days when only one chart was used, Chart A. Final Action Dates was the only chart.

    Chart B. Dates for Filing was the delayed implementation of President Obama’s Executive Action recommendation in November 2014 for the Department of State to modernize its greencard backlog.  It was first introduced back in September 9, 2015 for October 2015’s Visa Bulletin but quickly created a lot of confusion.  A revised October 2015 Visa Bulletin was issued on September 25, 2015.  The basis for the second chart was to equalize the amount of time individuals would generally have to wait to submit their greencard applications.  USCIS process applications from individuals in the U.S. waiting to apply for their greencards whereas the Department of State processes applications from individuals waiting.  The wait times for either queue were not equitable so Chart B was meant to equalize the wait times.

    Q: How do I know whether I should use Chart A or Chart B?  If you are waiting in the U.S. and planning on “adjusting your status”, then you may use Chart B only when USCIS had indicated it is okay to do so.

    Step 5: You can determine when USCIS says it’s okay to rely on Chart B usually by mid-month of each month. USCIS will update is visa bulletin instructions webpage and instruct whether to use “Final Action Dates” chart or “Dates for Filing” chart for both the current month and the next month.  (See screenshot below.)

    Final Action or Filing Date Chart

    So there you have it; a very easy tutorial on how to read the Visa Bulletin.  If you want more tips like this, subscribe to this blog!

  • Six Nobel Laureates are U.S. Immigrants: Outstanding Researchers!

    The Nobel Foundation awarded Nobel prizes to six researchers in the U.S., all of whom are immigrants.  It is self-evident that significant research and discovery is not and should not be bound by borders.  In fact, because immigration has been such a hot topic during this year’s presidential campaign, some of the Nobel Laureates have spoken out.

    Nobel Laureate in Chemistry, Sir J. Fraser Stoddart, a native of Scotland, United Kingdom, immigrated to the United States and become a naturalized citizen in 2011.  He teaches at Northwestern University but has a historic career as in chemistry.  Sir Stoddart made the following comments during a recent interview:

    I think the resounding message that should go out all around the world is that science is global … as long as we don’t enter an era where we turn our back on immigration. … It’s particularly pertinent to have these discussions in view of the political climate on both sides of the pond at the moment. … I think the United States is what it is today largely because of open borders.

    Professor Duncane Haldane, Nobel Laureate in Physics this year, currently teaches at Princeton University.  As a native of the United Kingdom, he commented that the U.S. immigration process was a “bureaucratic nightmare for many people” despite the fact that the U.S. is one of the most desirable places for researchers to conduct and obtain funding for their research.  “There’s a tradition of funding very fundamental research without regard for it being ‘useful,’”.

    To date, the United States remains in the lead with the most number of Nobel Laureates.  Of those Laureates, 40% are immigrants to the U.S. based on an analysis conducted by Stuart Anderson of the National Foundation for American Policy in June 2014.  Mr. Anderson largely credits the openness of the scientific community to immigrants based on the passage of the U.S. Immigration and Nationality Act of 1965 (which removed discriminatory quotas against Asian immigrants) and the Immigration Act of 1990 (which increased employment-related permanent visas).

    While some of the rise in indicators like immigrant Nobel Prize winners reflects an overall increase in the reputation and capability of American institutions and researchers post-1960, a greater openness to immigration helped make the United States the leading global destination for research in many different science and technology fields, including computers, cancer research and many others.

    Other Nobel Laureates in Physics include Professors David Thouless of Yale University and Michael Kosterlitz of Brown University, both natives of the United Kingdom; Nobel Laureates in Economics are Professors Oliver Hart of Harvard University, a native of the United Kingdom as well, and Bengt Holmström of the Massachusetts Institute of Technology, a native of Finland.

    2016 Nobel Laureate U.S. Immigrants chart

    Of course, honoring U.S. Nobel Laureates who are immigrants isn’t a new thing as there are plenty of articles that cover this each year, including this article.  It happens every year, when the Nobel Foundation announces it winners.  Invariably, the winners are immigrants who have moved to a new country to seek out better opportunities.

    One of the categories to immigrate to the U.S. permanently is the Outstanding Researcher category. While winning a Nobel Prize is an automatic qualifier, a researcher who has at least three years of research experience may also meet any two of the six criteria below, in order to be considered for a fast-track towards a greencard by USCIS:

    1. Evidence of receipt of major prizes or awards for outstanding achievement
    2. Evidence of membership in associations that require their members to demonstrate outstanding achievement
    3. Evidence of published material in professional publications written by others about the alien’s work in the academic field
    4. Evidence of participation, either on a panel or individually, as a judge of the work of others in the same or allied academic field
    5. Evidence of original scientific or scholarly research contributions in the field
    6. Evidence of authorship of scholarly books or articles (in scholarly journals with international circulation) in the field

    Curious about the Outstanding Researcher categories for a greencard or other categories?  Send us your comments or reach out!

  • Comment on USCIS Proposal for Entrepreneur Parole

    Submitted to USCIS on October 6, 2016.

    I am Ann Cun, Business Immigration Attorney and founder of Accel Visa Attorneys, PC based in the Bay Area.  I have worked with numerous startup founders in helping them navigate alternatives to the H-1B, such as E-2s, O-1s, L-1s and EB-1A visas.  I have also volunteered actively with FWD.us with regards to shaping the dialogue on immigration reform and am a long time member of the American Immigration Lawyers Association.  My comments represent my own views as a practitioner.  They are based on years of anecdotal evidence, my impressions of the immigration bar’s collective experience with USCIS and the lack of meaningful immigration policies towards expanding foreign entrepreneurship in the U.S.

    I applaud the efforts set forth in the Proposal by USCIS and offer the following five points for the Service’s consideration during this comment period:

    1. Unintended Consequences: Disparate Impact on Women and Minority Founders. It is evident the Service considered multiple research studies on entrepreneurship, including those published by the Kaufmann Foundation. The Kaufmann Foundation 2012 study (See FN 66) categorizes high-growth entrepreneurship into three types: professional-user, end-user and hybrid model. In short, professional-user entrepreneurs receive external financing (private equity, VC and bank loans) at a higher percentage than end-user entrepreneurs. Professional-user Entrepreneurs also have higher rates of advanced degrees, and greater years of work experience, leading to a larger network from which to build. Professional-user Entrepreneurs are overwhelmingly white 87% and male 78.5%. The study shows that Professional-user Entrepreneurs report a higher percentage of revenue over time, greater revenues, higher numbers of full-time and part-time employees, as compared to their End-User Entrepreneur counterparts, who are comprised of a higher percentage of women and minorities, receive less external capital, and start their companies with personal funds at higher rate. Therefore, it is not surprising that with higher education, more experience, and a greater likelihood of receiving external funding, that the data resulting from Professional-user entrepreneurs results in higher revenue and hiring. If the Service were to extrapolate revenue and job creation as the deciding indicia for determining “potential for rapid growth”, the Service would be without fault to do so, as these two indicia appear neutral, on its face.

    However, additional studies by the Kaufmann Foundation, American Immigration Council, Small Business Administration, and the Minority Business Development Agency point out that immigrant and native women and minorities face disproportionate obstacles when it comes to obtaining external financing of their enterprises, including obstacles such as bias and discrimination.  (See also my article.)

    Although addressing the biases that exist at all levels of business financing (whether government or private equity/venture capital) is beyond the scope of this comment, the reality that immigrant women and minorities face when attempting to procure private capital financing is real. By prefacing eligibility solely on financing success procured from limited U.S. sources imposes unnecessary barriers for entry into this promising program. If the Service relaxed the financing threshold to also include additional (alternative) funding sources, so long as source of funds can be established (see my recommendations at #2 below), it would widen the eligibility pool.

    2. Revised Alternative Third Criterion for Parole.  The Proposal indicates that if an applicant partially meets either the private or public financing threshold, he/she may provide alternative documentation to demonstrate “‘reliable and compelling’ evidence of the entity’s substantial potential for rapid growth and job creation”. The Service should seriously reconsider this alternative criteria and divest it entirely from the need to partially satisfy the other two criteria.  Instead, a revised third criterion could allow for reliable and compelling evidence of any of the following, or satisfaction of two or more of the following:

    a) Other reliable alternative funding sources, either from abroad or from within the U.S., evidence of source of funding required

    b) Participation in a leading accelerator or incubator abroad, as established by press or foreign government support or backing

    c) Evidence of substantial revenues already earned, whether in the U.S. or abroad, that exceeds the Income-Related Conditions for Parole.

    d) Scope of the business and whether it is in the national interest (e.g. public benefit corporations, focused in a STEM field, etc.)

    e) Evidence of intent or engagement with U.S. entities for the duration of the initial parole period.d

    3. Data Be Publicly Available.  Although the proposal is silent on the issue, to further shape policy and to ensure transparency, making available important data from the Parole for Entrepreneurs Program is critical. Data should include the number of applications submitted, rates of issuance of RFEs, rates of denials/approvals, processing times initially and after RFE response received, along with industry types, financing amounts received at the time of filing, along with applicant demographics, at annual intervals with the goal of gauging program outreach and efficacy.

    4. Impact of Parole on Non-Immigrant Intent. The language of the proposal is unclear regarding the nature of the long-term impact the parole period would have on a foreign entrepreneur’s ability to obtain a non-immigrant visa abroad. Will the five years spent in the U.S. impinge on the foreign entrepreneurs’ ability to overcome non-immigrant intent with the Department of State when applying for non-immigrant visas that do not permit dual intent?

    5. Delays in processing times. The proposal provides for no avenue to expedite an application.   Bear in mind that existing USCIS customers are experiencing lengthy delays on applications and petitions submitted to USCIS; wait times that exceed six months.  (Examples include Form I-539 Applications that have been pending for over six months with no ability to expedite via premium processing and H-1B petitions submitted in the most recent fiscal year’s lottery that are still pending despite commencement into this current fiscal year.)  What steps will USCIS take to ensure the Parole for Entrepreneur Program allocates proper resources to avoid exacerbating the backlog of existing applications/petitions?  Will USCIS dedicate one Service Center to process parole applications for entrepreneurs?  How many new staff members will the Service hire, if any, to accommodate the increase this new program?

    Thank you for your consideration.

  • SB1001 on Unfair Immigration Practices: An Alert for California Employers

    California Senate Bill 1001 on Unfair Immigration-Related Practices was signed by Governor Jerry Brown and goes into effect on Jan 1, 2017.  California employers, and employers who hire workers in the state of California, should take notice of SB1001.

    The text of SB1001 emphasizes the need for employers to be mindful of the rules regarding what type of documents to accept from foreign employees when verifying employment during the I-9 process.  If employment documents appear to be genuine, employers should not request additional documentation.  Employment documents should also not be rejected on the type of employment classification, or based on an impending future expiration of the employment document.

    SB1001 also codifies these rules, along with penalties for violations, under a new California Labor Code subsection 1019.1.  Violations may be lodged by a job applicant or an employee, or their representative.  The California Labor Commissioner may impose a penalty of up to $10,000 per violation.

    The bill arose from concerns raised by public interest groups that employees who presented an Employment Authorization Document “EAD” based on the Deferred Action for Childhood Arrivals (DACA) program were disparately treated during the I-9 process by employers.

    As a rule of thumb, rejecting job applicants because they will need an employer to sponsor a visa (such as an H-1B visa) is permissible, according to the Office of Special Counsel “OSC” for Immigration-Related Unfair Employment Practices.  An employer may choose not to employ individuals who will require employer-sponsorship of a work visa.  Employers may even prefer certain classes of non-immigrant workers over other non-immigrant classes of workers (e.g.: preferring F-1 OPT STEM over an F-1 OPT without STEM).

    On the other hand, the OSC has warned that employers should be careful to avoid causing confusion from its pre-employment questioning.

    Asking job applicants detailed questions about their immigration or citizenship status may deter individuals who are protected from citizenship status discrimination, such as refugees and asylees, from applying [for the job] due to a misunderstanding about their eligibility for the position.

    Additionally, employers should be mindful of whether or not their hiring practices, in general, might appear to prefer candidates or employees based on the candidates’ country of origin.  This is especially a tricky area for employers who are vetting candidates who have an EAD, since EADs are issued based on numerous classifications ranging from asylee/refugee status, to Temporary Protected Status (TPS) and DACA.  Some individuals who receive an EAD may fall under the “protected class” of individuals under immigration anti-discrimination laws.

    Therefore, the types of permissible questions employers may ask during pre-employment screening should be carefully evaluated prior to deployment.  Employers should consult with an experienced immigration attorney to help design a hiring policy that is in compliance with both federal and California rules.

    For more updates on I-9 news, please subscribe to our blog.

  • Diversity Immigrant Visa Program Begins Oct 4, 2016

    Tomorrow, October 4, 2016 is the opening day for the Diversity Immigrant Visa Program Fiscal Year 2018!  The DV program is a part of the Immigration and Nationality Act that allows immigrants from historically low rates of immigration the opportunity to apply for a greencard in the U.S.  Each year, 50,000 diversity visa (DVs) are available.

    All eligible applicants must submit their applications online.  Similar to the H-1B Lottery where USCIS conducts a computerized drawing, the Department of State uses a computerized system to randomly draw winners in the DV Program.  Winners are eligible to advance to the next step of applying for a greencard.

    The DV Program is great for foreigners interested in permanently immigrating to the United States.  However, this process is not without some pitfalls and warnings.  First, foreign nationals who are in the United States in a temporary non-immigrant status should be warned that submitting an immigrant visa application to the U.S. government may negatively impact your non-immigrant status.  Please double-check with an immigration attorney if you find yourself in this situation.  Second, the deadline to successful navigate through this process, if you are selected in the lottery, expires quickly.  If you snooze, you will lose!

    What Are the DV Program Eligibility Requirements?

    To be eligible to submit an online application, applicants

    1. Must be born in an eligible country.
      1. Nationals of these countries are ineligible: Bangladesh, Brazil, Canada, China, (mainland-born), Colombia, Dominican Republic, El Salvador, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Peru, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam.
      2. Nationals of all other countries listed by the Department of State, including the countries persons born in Hong Kong SAR, Macau SAR, and Taiwan, are eligible.
      3. You may claim the country of birth of your spouse, or your parent (certain limitations apply)
    2. Must meet the educational or work requirements
      1. At least a high school education or equivalent, or
      2. 2 years of work experience within the past 5 years, in an occupation that requires at least two years of training or experience to perform

    When Should Applicants Submit their DV Program Application?

    The period to apply usually opens sometime in early October of each year and lasts for about a month.  The Department of State typically will make an announcement each fiscal year in September.

    For example, the FY2018 DV Lottery opens on Tuesday, October 4, 2016 at noon Eastern Standard Time and ends at noon, Eastern Standard Time, Monday, November 7, 2016.

    Applicants may submit only one electronic entry.  Submitting more than one entry will disqualify the applicant.  There is no fee to submit an application online.  Each application is considered one entry.  For married applicants, their spouses may submit their own, separate application.

    What Information Is Needed to Submit a DV Program Application?

    Applications must be submitted online to the Department of State’s DV Program Website.  The following information will be required from all applicants:

    • Name
    • Gender
    • Date of birth
    • City where you were born
    • Country where you were born
    • Country in which you are eligible under the DV Program
    • Digital photograph taken within the last six months
    • Mailing address
    • Country where you currently live
    • Phone number
    • Email address
    • Details about your highest education level
    • Current marital status
    • Number of children

    Applicants will receive an online entry registration that contains a unique confirmation number.  Applicants will know their online submission was successful when a confirmation number is issued.

    How Are Applicants Notified of Selection in the Lottery?

    In May of the following year, the Department of State will usually announce the results of the DV Program.  The Entrant Status Check is made available on the E-DV Website www.dvlottery.state.gov where applicants can check their unique confirmation number to see if their application was selected in the DV Program lottery.  (If you lost your confirmation number, you may retrieve your confirmation number on the website.)

    For the FY2018 DV Program, the website will be available from May 2, 2017 through the end of September 30, 2018.  Applicants will be able to check if their applications were selected or not selected in the DV Program lottery.  Being selected does not mean an immigrant visa (aka “greencard”) has been issued; it merely means that applicants are now eligible for the next step in the process, applying for an immigrant visa.

    Applicants selected will be redirected to a link with instructions on how to submit an immigrant visa application and what fees will need to be paid.

    When to Submit an Immigrant Visa (aka Greencard)?

    Immigrant visa applications may be submitted during very specific periods of time within that fiscal year period.  For example, an applicant who submitted an application in October 2016 for the FY2018 DV Program, and was selected in the lottery in May 2017 will need to monitor the E-DV website regularly to determine when he or she will be eligible to advance to the final step: submitting the immigrant visa application.

    Not everyone who is selected in the DV Program lottery will be able to submit an immigrant visa application immediately.  This is because the Department of State usually selects over 50,000 applicants, because not all the applicants selected in the lottery will ultimately meet the requirements to be approved for an immigrant visa.  The Department of State will issue a lottery ranking to each selected applicant via the E-DV website.  The lottery ranking numbers will correspond with a range of numbers each month, indicating which ranks are eligible to submit an immigrant visa application.  Lottery rank numbers that are current indicate the applicant is eligible to submit their immigrant visa applications.

    Therefore, applicants should monitor the E-DV website regularly and submit their immigrant visa applications as soon as their lottery ranks are within the current numbers.  Their applications must also be reviewed, approved and issued on or before the end of the fiscal year of that program.  For example, FY2018 DV Program applicants who are selected in the lottery must have their immigrant visa applications approved/issued on or before September 30, 2018.

    Visit the Department of State’s DV website or read the official instructions here to confirm a list of eligible countries.  If you liked today’s article, please share it with your friends and subscribe to blog today.