• Why EB-3 is not so bad for applicants born in China

    Almost every week, someone asks me, “Is my application EB-2 or EB-3?” For most employment-based applicants born in India or China, one of the most important outcomes is to have their applications qualify for EB-2. 

    EB-2 and EB-3 are the two categories for PERM-based green card processes. EB-2 means an applicant is being sponsored for a role which requires an advanced degree (Master’s degree or higher) or a Bachelor’s degree followed by 5 years of work experience. This is the “higher” of the two classifications and traditionally provides a faster path to a green card than the EB-3 classification – at least for applicants born in India and China. This is why most applicants from these two countries have always pushed for EB-2.  

    However, for applicants born in China, an EB-3 application may not be so bad as it can sometimes be faster than EB-2. Here is a look at the State Department’s Visa Bulletin going back 2 years:

     China EB-2 Cut-Off Date (Final Action) China EB-3 Cut-Off Date (Final Action) 
    May 2020 10/01/2015 05/15/2016 
    April 2020 09/01/2015 04/15/2016 
    March 2020 08/01/2016 03/01/2017 
    February 2020 07/15/2015 01/01/2016 
    January 2020 07/01/2015 12/01/2015 
    December 2019 06/22/2015 11/01/2015 
    November 2019 03/15/2015 11/01/2015 
    October 2019 01/01/2015 11/01/2015 
    September 2019 01/01/2017 01/01/2014 
    August 2019 01/01/2017 07/01/2016 
    July 2019 11/01/2016 01/01/2016 
    June 2019 11/01/2016 01/01/2016 
    May 2019 05/15/2016 08/22/2015 
    April 2019 04/01/2016 08/01/2015 
    March 2019 01/01/2016 07/08/2015 
    February 2019 10/01/2015 07/01/2015 
    January 2019 08/01/2015 06/08/2015 
    December 2018 07/01/2015 06/08/2015 
    November 2018 05/15/2015 06/01/2015 
    October 2018 04/01/2015 06/01/2015 
    September 2018 01/01/2013 11/01/2014 
    August 2018 03/01/2015 07/01/2014 
    July 2018 01/01/2015 01/01/2013 
    June 2018 09/01/2014 06/01/2015 
    May 2018 09/01/2014 06/01/2015 

    As you can see, over the last 2 years, about half the time EB-3 had a later cut-off than EB-2. Since the cut-off date determines when an applicant can file a green card application (either an I-485 application for adjustment of status with USCIS or an immigrant visa application through Dept. of State), at certain times it can be advantageous to be in the EB-3 classification. (With the Visa Bulletin, the earlier the cut-off date, the longer the wait to file a green card application.) 

    The beauty of it is that applicants whose PERM applications qualify for EB-2 can choose to downgrade to EB-3 in order to file an I-485 application with USCIS. Even if an applicant already has an approved PERM and an EB-2 I-140 approval, he or she can always file another I-140 petition and request the EB-3 classification in order to proceed with the I-485 filing. 

    In October 2019, we received an approved PERM for an employee who was born in China. Although the PERM qualified for EB-2, we gave the employee the choice of filing an EB-3 I-140 petition and also a concurrent I-485 application for adjustment of status (AOS) based on a priority date from a previous I-140 approval. As you know, there are many advantages of having a filed AOS, including an EAD and AC21 job portability where an applicant may be able to change jobs after the I-140 is approved and the AOS has been pending for 180 days. This particular employee politely declined and wanted to wait for the EB-2 date to become current. As of the end of April 2020 this employee is still waiting. In putting together this chart of the Visa Bulletin dates for China, I noticed that if this employee had filed his AOS back in October 2019, based on USCIS processing times and immigrant visa number availability over the past 4-5 months, he probably would have received his green card by now.  

    So the moral of the story is – don’t be afraid to process in the EB-3 category. It may be faster than EB-2 at times (for applicants born in China) and you know what they say about a bird in the hand…. From our perspective, the actual green card looks the same regardless of whether it was issued based on EB-2 or EB-3.  

    To speak to an attorney about the PERM process or any other employment-based green card matters, please contact us here. Our experienced team can advise you on the quickest way to process your case.

  • Can your patent qualify as evidence in EB and O visa petitions?

    The EB immigrant visa and the O non-immigrant visa are reserved for “extraordinary ability” workers who have demonstrated a high level of expertise in their respective field. Congress set a high benchmark for aliens of extraordinary ability by statutorily requiring extensive documentation of the alien’s achievements.  In recent years, the Trump administration has made the process more arduous as reflected in the nosediving approval rate for EB-1 extraordinary ability petitions from 88% in 2016 to 51% in 2019.  With the right strategy, applicants can fortify their qualifications through patents.

    How Can A Patent Indicate Extraordinary Ability?

    The government regulations for both the O and EB visas allow evidence of a foreign national’s original scientific, scholarly, artistic, or business-related contributions of major significance in the field to demonstrate extraordinary ability.  This can be demonstrated through patents.

    1. Originality

    USCIS has indicated that the issuance of a patent verifies the originality of a device or process. Named inventors, be they principal or contributing investors, of patented technology in the field of extraordinary ability can potentially satisfy the originality requirement.  Pending patent applications can still be utilized, but additional testimonials may be necessary from other experts in the field.

    2. Major significance

    The major significance of patented technology was recently considered by the Administrative Appeals Office (AAO) in 2018. For the uninitiated, the AAO is the judicial body that reviews whether USCIS correctly denied an O-1 or an EB-1 petition. AAO decisions are not necessarily binding on USCIS for all future cases, but its logic and rational can be very helpful in understanding how to craft a case to win the “major significance” argument.

    In Matter of Z-L-, ID# 1034540 (AAO April 4, 2018) the AAO overturned a finding by USCIS that the petitioner had failed to show the major significance of their patented technology. The AAO based this on the evidence in the record, which included: intellectual property documents identifying the petitioner as an inventor on several patents, evidence of the commercialization of his inventions, and statements from experts confirming that they used the petitioner’s work to further their own.

    As noted earlier this month, we have seen an increase in the frequency of requests for evidence (RFEs) with clear misinterpretation of the regulations. Unfortunately, the major significance of patented technology is no exception. Since this decision, we have seen USCIS RFEs seeking “evidence that the innovation is being widely utilized by others in the field, reaching far beyond your employer, clients, or customers.”  This highlights the inconsistency between USCIS and AAO decisions. The AAO believes the commercialization of patented technology, by itself, demonstrates major significance to the field.  Meanwhile, the USCIS that proprietary technology has been used by clients or customers does not necessarily rise to the level of significance to the field.

    The USCIS standard places an unreasonably heightened burden on inventors to show the major significance of their patented technology – especially for entrepreneurs. After all, the purpose of securing a patent is to gain protection against widespread use of the proprietary technology, and failure to enforce a patent can risk losing the right to recover damages from the infringement. Under the USCIS standard, even the Apple employees named on the patented design on the iPhone would have failed to satisfy the “major significance” element of this criterion. If the named inventors had applied for a visa and allowed the widespread use of their patents, Apple may not have been awarded over $500 million in damages in their infamous patent litigation with Samsung. While the USCIS may push back, patented technology can be used to show extraordinary ability without foregoing damages for infringement. An experienced immigration attorney like our team at Accel can help you identify evidence and will fight on your behalf against USCIS errors. Contact us here to arrange a consultation and analysis of your case.

  • The New Age of RFEs

    The Request for Evidence (RFE) is intended to be a valid inquiry into one or more aspects of a foreign national’s petition or application to USCIS.  A reviewing officer may ask for documents that might have been mistakenly omitted or they may request additional supporting evidence to further ascertain how an applicant meets the regulated visa criteria.  With the current presidential administration, there has been a marked increase in RFEs and denials.  While there have been no new laws or regulations passed that have changed the qualifying criteria for various nonimmigrant and immigrant visas, there have been several policy changes affecting the USCIS review process that have opened the door for this increase in RFEs across all visa categories. 

    Buy American, Hire American Executive Order

    In April of 2017, President Trump signed an Executive order entitled “Buy American, Hire American” with the intent to create higher wages, increase employment for U.S. workers, and “to protect the interests of the United States workers in the administration of our immigration system, including through the prevention of fraud or abuse.” (Presidential Executive Order)  This order specifically targets the H-1B visa program which was immediately impacted.  According to the National Foundation for American Policy (NFAP), USCIS produced RFEs in the 4th quarter of FY2017 nearly equal to the total number of RFEs for the combined first three quarters of FY2017 (National Foundation for American Policy).  This aggressive H-1B review process has continued, resulting in a current H-1B denial rate that has quadrupled since 2015.

    Rescinding the Deference to Prior USCIS Determinations

    In October of 2017, USCIS issued a Policy Memorandum that it would rescind its policy regarding the deference to prior approvals for nonimmigrant petitions, when adjudicating renewals or extensions for these same cases.  (PM-602-0151)  This change means that renewal or extension of a petition that has received prior approval is now reviewed with the same scrutiny as a completely novel petition – even if there is no new evidence since the prior filing.  Previously, if there were no material changes in a case, USCIS would defer to the prior approval ruling as the beneficiary was not required to reprove the merits of the case.  The shift in policy obliges applicants to resubmit documentary evidence that has already been reviewed and approved by USCIS, resulting in unnecessary paper production as well as increased time spent by USCIS in the adjudication process.  As officers are pressed for time to review more and more petitions, they are likely to disregard or overlook evidence.  This results in an RFE for clarification or supporting documentation that may have been already been included in the filing.

    Misinterpretation of Regulated Criteria

    There has also been a noticeable change in the way USCIS officers interpret the regulated criteria.  With O-1 visas, for example, USCIS has been interpreting criteria far more strictly than ever and disallowing evidence that had generally been acceptable in the past.  Regarding the standard for “Published material in professional or major trade publications, newspapers or other major media about the beneficiary and the beneficiary’s work in the field for which classification is sought” (O-1 Eligibility, EB-1 Eligibility), USCIS used to accept media about the foreign national’s work even if they were not directly named in the article.  We are now seeing more and more RFEs disqualifying this evidence because the applicant is not specifically mentioned in the media. 

    Similarly, supporting documentation for command of a high salary (for both O-1 and EB-1 visas) has been held to an unduly high standard over the past several years.  Not only does USCIS now require extensive field-specific wage comparisons and detailed employment agreements, RFEs often include language that discredits the evidence because the beneficiary’s wage is not at the very highest end of the wage range.  This is a clear misinterpretation of the regulation.  Many applicants legitimately satisfy this criterion since they earn an annual wage that is significantly higher than the average wage for their position and geographic location – they need not earn the highest possible wage.

    Over the past few years, there has also been an increase in the seeming randomness of RFEs.  Evidence that once met the regulatory standard is now often excluded through technicalities or simply ignored.  Additionally, applicants are frequently held to a higher industry standard than what the regulations imply.  In some cases, RFEs include incorrect information about the petitioner, beneficiary, or evidence provided.  It’s reasonable for USCIS officers to use templates for RFEs; however, when an RFE references an incorrect job title or field of expertise or erroneously comments on evidence, one can’t help but question the officer’s full attention to the review process. As such, even the most well-deserving and thoroughly prepared cases can receive RFEs for seemingly arbitrary rationale.  Whether it’s providing additional supporting documentation or “respectfully” clarifying evidence submitted in the initial filing, the timely response must be comprehensive in addressing all issues raised in the RFE.  Receipt of an RFE can be intimidating (and, sometimes, infuriating) but the key is to remain calm and connect with an experienced immigration attorney to determine the best response strategy.  Accel Visa Attorneys is on top of trending RFE issues for all visa types – contact us for more information.

  • The Truth About Awards for O-1 Visas

    The year 2020 was a groundbreaking year for the Oscars because the movie Parasite took home the most awards; Best Picture, Best Directing, Best International Feature Film and Best Writing (Original Screenplay). As writer, director and producer, South Korean national Bong Joon Ho received a full sweep of honors. (It is also notable that Parasite received BAFTA awards for Best Foreign Language Film, Best Original Screenplay, and nominated for Best Film and Best Direction).

    As an immigration attorney, all I could think was how Bong Joon Ho could easily qualify for an Extraordinary Ability visa (O-1 visa and EB-1 visa) to work in the U.S. For the uninitiated, both the O-1 and the EB-1 visas can be obtained for individuals who have received a major, international award such as a Nobel.

    In my experience, receipt of an Oscar, Emmy, Grammy, Tony or similar type award can usually qualify an individual for an O-1 or EB-1 visa since most adjudicating immigration officers consider these awards to be major, and international in scope. Ironically, Boon Joon Ho himself, in an October 2019 interview with Vulture magazine, stated that, “The Oscars are not an international film festival. They’re very local.” In other words, the Oscar awards was a local event, made and produced for and by Americans. Perhaps his statement that the Oscars are not an international event may have merit.

    While adjudicating immigration officers in the U.S. would most likely interpret the receipt and/or nomination of an Oscar award as having met the threshold for an O-1 visa, it’s been our experience that officers examine awards from other countries with more scrutiny.

    Not All Awards Are Equal

    Some awards are well documented and have a long history, such as Nobel, Fields Medal, BAFTAs, Oscars and many others. However, the lesser known awards, particularly those that are regional or industry-specific, may be more difficult to include as evidence to support an O-1 visa. Adjudicating officers have no way to determine whether an award is truly prestigious and elevates the individual above her peers without the proper context such as how the award was judged, by whom, how many entered, and how often the award was issued.

    Often, I ask the individual, what was so different about this award? Did the award elevate the individual’s status, or was the award given as a result of the individual’s stature in the community? Ask these questions and you may find very interesting responses that can further guide you on the eligibility for an O-1.

    Yet, even with the proper context, awards from countries that have better infrastructure and the luxury to develop a robust cultural and economic offering may fare better than awards from countries that are lacking in these areas. This may be due to lack of available documentation, or simple outdated prejudices. Therefore, it’s important for individuals to carefully consider their qualifications in the greater context of the O-1 regulations.

    Curious to learn more about preparing a successful O-1 visa? Contact our experienced team for more details here.

  • Exploring the O-1 Visa as an Alternative to the H-1B

    As H-1B season approaches, employers and potential foreign employees may be finding it difficult to maintain a positive outlook. For those of you who attended today’s USCIS webinar on the H-1B online registration process, it’s obvious the USCIS is still working through many uncertainties surrounding the new H-1B registration process. When you factor in the rising incidences of denials by USCIS and issuing requests for evidence (RFE), it’s no wonder employers are exploring other non-immigrant visa options.

    While the preparation for the H-1B petition is relatively straightforward, USCIS statistics show that H-1B RFEs and denials have increased significantly over the past several years. The denial rate for new H-1B petitions has jumped from 6% in FY 2015 to a whopping 32% in FY 2019 (through the second quarter). Between FY 2010 and FY 2015, you’ll observe that H-1B denials rates never exceeded 8%. Today, the rate has quadrupled to 32%.

    Given the current landscape, it’s worthwhile for employers to explore alternative work options for their employees. The O-1 visa offers advantages for work authorization that are worth considering.

    The O-1A Visa
    The O-1 visa is an employment-based temporary work visa reserved for individuals who can demonstrate “extraordinary ability” in the sciences, business, athletics, or arts. Employers may submit the O-1 petition any time during the year to ask for an initial three years of work authorization. The best part is there is no annual O-1 quota or O-1 “lottery” to deal with.

    One of the challenges though, is proving an employee’s qualifications for an O-1 visa. Employees must be able to demonstrate they have “risen to the top of the field” through various categories such as having:

    • Received top honors or awards for their work;
    • Been a member in prestigious organizations;
    • Served as a peer judge or reviewer;
    • Authored articles in their area of expertise;
    • Publications about themselves or their work;
    • Been employed in a critical role for distinguished organizations; and,
    • Received high remuneration.

    While the list may appear intimidating, many employees in specialized fields, especially those who have a masters degree or higher, have already published their work in the industry, have co-authored patents, and have made significant original contributions in their field which can qualify them for the O-1 visa.

    One advantage of the O-1 visa that is often overlooked by employers, is how much of a competitive edge the O-1 visa offers. While there is indeed more effort that goes into preparing a strong and approvable O-1 petition, the benefits are much higher to the company in the long term. Employers who pursue an O-1 visa for their employees benefit from recruiting “aliens of extraordinary ability.” They signal to candidates that the company is open-minded, can think outside-the-box, and willing to explore opportunities that will help the company grow. It may also signal the possibility the company would apply that same logic for greencard options as well. Companies who can distinguish themselves from competitors by exploring immigration options for candidates will probably fare better when it comes to recruiting that highly sought-after candidate.

    Therefore, it is well worth the effort to explore all options with an experienced immigration attorney, particularly a team with years of experience assessing and drafting O-1 visa petitions. Contact Accel Visa Attorneys to learn which visa best suits your needs.

  • E-2 Investor Visa Application Filing Tips from an Experienced Immigration Attorney

    In the midst of the Trump Administration’s crackdown on immigration to the U.S., for certain foreign nations, the E-2 visa remains one of the most popular avenues to obtain authorization to work, invest and reside in the U.S.  (Curious if your country of nationality is on the list of treaty nations with the U.S.?  Check it out here.) 

    What makes the E-2 Investor Visa So Attractive? 

    First, the E-2 Investor Visa classification offers investors lots of freedom to develop their business model.  While most consulates and embassies around the world have specific guidelines on how to prepare the application, there are no strict rules about the investor’s business model, per se.  This means the average café owner is just as eligible to obtain an E-2 Investor Visa as a well-versed venture capitalist flush with millions of dollars in funding, ready to invest in their next venture. 

    Second, the E-2 Investor can submit their application at any time of the year, so long as the investor is ready to appear for their interview.  This year-round flexibility can be extremely beneficial, especially for investors who must schedule around their children’s school year. 

    Finally, most E-2 Investor Visa applicants have the chance to interface directly with a consular officer reviewing the application (when the application has been lodged with the consulate).  As a result, that face-to-face interview can prove to be a great opportunity to describe and explain their business model. 

    How to Get your E-2 Investor Visa Application Approved? 

    Speaking of face-to-face interactions; how do E-2 investors get their applications approved? 

    According to a government report in 2019, the most common challenges consular officers struggled with during an E-2 interview, were 1) the unfamiliarity of the new business venture and 2) how to assess whether the investment met the “substantial” investment test. 

    1. Explaining Your New Business Venture 

    Depending on how busy the consulate is, consular officers may be reviewing hundreds or thousands of E-2 investor visa applications each year.  Ensuring your application is approvable requires a clean and clear explanation of your business model because it helps the consular officer understand the application.  If they understand it, they are more likely to approve the application.  Is the description about the E-2 business clear and concise?  Consider what questions a consular officer may ask about the business model and then ensure those questions are very obviously answered in your application. 

    2. Investment Amount is Substantial 

    All E-2 investor visa applicants have the burden of proving to the consulate officer that they have invested a “substantial” amount of money in the business. How much is a “substantial” amount?  

    In practical terms, “substantial” means an amount of money to ensure the business can generate enough profit to support hiring additional workers and grow the company in the U.S.   The consular officer will look at the actual amount invested (non-refundable) and then analyze how much money it will take for the business to likely succeed (make a profit).  For new business ventures, this can be especially challenging to prove, which is why it is very critical to ensure the application very clearly and confidently explains how the business will operate. 

    Pro-Tip for E-2 Investor Visa Applicants 

    In our experience, new businesses that may have complicated funding structures, such as capital funding in the form of SAFEs, other convertible promissory notes, bridge loans or other capitalization methods can easily add complications to an E-2 investor visa application.  Therefore, it is important for investors to understand how their capitalization methods may complicate their applications, especially since a moderate increase in E-2 visa application denials have also been trending from 2014 to the present. 

    Foreign investors can reduce the risk of being denied by seeking counsel from experienced E-2 visa attorneys.   Curious if your E-2 business model is viable for an E-2 application?  Contact Accel Visa Attorneys for a consultation on your E-2 business idea here

  • 5 Things Every Foreign Worker Must Consider Before Changing Jobs

    Editor’s Note: Today’s guest blog is written by Mark Gabel, an employment lawyer who helps executives, professionals, and individuals understand and protect their rights at work. He advises on employment contracts, human resources issues, helps with severance negotiations, and represents individuals in wrongful termination claims and other disputes with their employers.

    Foreign workers in the U.S. face special challenges due to their unfamiliarity with the U.S. work environment, especially when changing jobs. Compensation and long-term career prospects are important, but there are other factors foreign workers should also consider when evaluating a new job opportunity in the U.S, in order to maximize job satisfaction. Five of the most important of those factors are below.

    1. Your own motivations for moving to a new role.

    All of the reasons to change jobs boil down to three factors:

    (i) Increasing your job satisfaction and your happiness at work (e.g., a boss and co-workers you enjoy working with, prestige, hours, flexibility and work-life balance).
    (ii) Improving your compensation package (e.g., salary, bonuses, equity compensation, commissions, and/or benefits).
    (iii) Improving the long-term trajectory of your career (e.g., better opportunities for promotion, acquiring skills and experience that will help you to get a job you hope to have down the road).

    When considering an offer for a new job, think about which of these factors—at that time—are most important to you, and why. Then look at the new job and decide whether and how it checks these boxes. You shouldn’t take on a new role unless it fits with both your short term and long-term goals.

    For example, a better title, more responsibility, or more money may not always be the best decision. If you hate the job or your co-workers, or the hours or commute make you miserable, the extra money, responsibilities, or prestige may not make you happy. On the other hand, even if you want to be home for dinner with your family every night, you may decide to give that up and take on a longer commute for a while so you can save for a down payment on a house, assist family back in your home country, save for a college education, or your own retirement.

    2. Differences in corporate cultures and policies.

    Do you have a good sense for what it’s going to feel like to go to work every day? Are people happy working there? Will you be? Some companies are known for working hard to address employees’ needs, or bending over backwards to fully support their foreign workers when it comes to immigration. Other companies have a reputation for cutthroat office politics, or waiting until the last possible year to start the greencard process for foreign workers. Do these things matter to you?

    Because foreign workers are less familiar with the U.S. job markets, they may overlook these factors. But they can affect whether you’ll love it or hate it at a new company, so asking these questions early on can help in making an informed decision about whether to accept a job offer. It’s a good idea to research the culture of your prospective new employer before accepting an offer, if you haven’t already.

    3. How will your changing jobs impact your and your family’s immigration?

    Make sure you’ll be able to keep your U.S. work authorization after changing jobs. Don’t assume that you can immediately transfer your visa status to your new job, because certain types of visas will take much longer to process than others, and you’ll need to do that BEFORE you may start working for the company.

    Also, if your spouse’s visa status is tied to your own, consider whether to make changes to their visa status, too. Talk to an immigration lawyer—yours or your employer’s—to make sure that you know what you need to do, and when, to meet your goals.

    4. Will your non-salary compensation change?

    If you’ve been offered equity along with your new job, think carefully about the implications. At most tech startups, your equity won’t start to vest until you’ve worked at the company for a year. And if company is not publicly-traded, your equity may not be worth much. Even if it is very valuable, there may be no one to whom you can sell your shares. Compare this prospect to what you currently have at your employer. If you’re vested, and a sale, IPO, or stock buyback occurs in the future, crunch those numbers now to see how much you would gain, and then consider whether you would actually realize that money.

    You might also want to consider this: if you have vested equity at your current employer when you leave, or if you’re granted options, stock, or other equity at the new company right away, you may get hit with a sizable tax bill you’ll be responsible for paying. If you don’t have a savings cushion to absorb this tax bill when it comes, you may be in a pinch. (Check with an accountant who is experienced with equity compensation to find out more about the tax implications of changing jobs.)

    Many employees don’t think much about the non-monetary parts of their compensation packages, but employee benefits for professional workers can have a cash value equal to 30% of salary. These include health insurance and contributions to retirement accounts. Make sure you understand what insurance options your new employer offers, and how much you’ll have to pay for coverage at the new job. Many foreign workers decide to contribute to U.S. retirement plans, especially if they plan to become citizens eventually.

    5. Where you hope, plan, or expect to be working down the line.

    If later on you’re planning on returning to your home country, or moving on to another foreign job on another continent, think about how the new job will prepare you for those goals. What industries are strongest in the places you may want to work later? What jobs are most in demand? What kind of experience may employers in those places want to see—for example, would you do better later on if you were a manager now, or an independent contributor? You may or may not know the answers to these questions, but if you plan to leave the U.S. at some point, they should at least be part of your thinking.

    Finally, remember that jobs don’t last forever. Companies change their business models, get acquired, reorganize, and go out of business every day. If that happens at your new job, your responsibilities and reporting structure could change, or you could be laid off. Would the new company accommodate your immigration needs? Those risks are often greater at newer startups, or companies that have just been acquired. The rewards of working at newer companies may be worthwhile but it’s always a good idea to do your research in advance prior to accepting that new role.


    This post does not constitute legal advice, and should NOT be rely upon when making decisions that may impact your legal rights. No two situations are alike. Mark Gabel can be reached at Gabel Law Firm, P.C. at info@gabel-law-firm.com and online https://gabel-law-firm.com/contact/.

  • International Entrepreneur Rule (Parole) Suffers the Trump Effect

    The U.S. Citizenship and Immigration Service officially released its notice to delay the implementation of the International Entrepreneur Rule to March 14, 2018.  The Notice seeks public comment on the prospect of rescinding the plan.

    Had the plan been left to go live on July 17, 2017 this year, entrepreneurs seeking to remain in the U.S. who were poised start hiring U.S. workers could stay in the U.S. to run their enterprises for 30 months.  If their start-ups were successful during that time period, they could renew for an additional 30 more months.  They could bring their spouses and children to the U.S. to develop their business and expand their operations.  This program would have been the closest solution to the lack of a start-up visa the last five sessions Congress have failed to pass into law.

    Meanwhile, Canada, Australia, the United Kingdom, Chile, Brazil, France and many other countries are all too eager to provide start-up packages for entrepreneurs willing to relocate their new endeavors there.  Though, the reality is that there is only one Silicon Valley and the start-up community is inherently different and unique to the Bay Area.  Many entrepreneurs come to the Bay Area to make connections in hopes of being the next big unicorn.

    It’s disappointing that the Notice that was published today, fails in an epic way, to explain exactly what aspects of the International Entrepreneur Rule would have a significantly negative impact on job creation or security in the U.S.  Rather, the Service explains that logistically, it would be unfair to expend USCIS resources beginning July 17th if the rule were to be ultimately scrapped down the road.  Unsurprisingly, the Trump Administration remains conveniently silent on this matter.

    One can only hope that a newer, better International Entrepreneur Rule will take it’s place but if the rewrite of the current Health Care bill is any indication of progress, we’re in for a long ride!

  • Trump Enjoys Partial Victory in Travel Ban

    Yesterday, the U.S. Supreme Court issued a decision to temporarily allow limited portions of President Trump’s Travel Ban to remain in effect.  Individuals who fail to demonstrate a “bona fide relationship with any person or entity in the United States” would be temporarily blocked from receiving a visa if they are citizens or nationals of the six countries (Iran, Libya, Somalia, Sudan, Syria and Yemen). Bona fide relationships include individuals who are coming here for school, for work, or have substantial connections to existing family members in the United States.

    What does this mean for folks with no previously established connection to family, school or work in the U.S.?  If they are nationals from any of the above countries, there’s a good chance their visa applications would be halted for the time being.

    The unsigned Supreme Court opinion also provides a glimpse into the near future into the direction the Court may lean when making a final decision on the constitutionality of the President’s Executive Order.  The Court will hear oral arguments later this October but in its recent opinion yesterday, it indicated agreement with the lower courts so far.  If the travel ban remains in effect at that time, we’ll see a real show-down between the President and the Supreme Court. Stay tuned!

  • Progress Stalls on Parole for Entrepreneurs – Senators Push Back

    This week is Tech Summit week at the White House, where many top-level officials from leading technology companies are convening with the President and his team to discuss ways to modernize the government. Yet, amidst the talk of modernization, the White House had recently pulled the plug on a scrappy program that would have created thousands of jobs in the U.S.: Parole for Entrepreneurs. While the program technically is still on the books, its fate is appearing less and less vibrant as the days pass with only matter of time before its likely to be scrapped entirely.

    Although far from the perfect, the Parole for Entrepreneurs program would have allowed foreign entrepreneurs who were ramping up business to stay in the U.S. to run their company. If they met goals of creating more jobs for U.S. workers, they would be eligible to renew for additional 2.5 years. (Read more about it here.)

    On May 25, 2017, the final rule was pushed back to the Office of Management Budget (OMB) for further review by the Administration. The OMB regularly reviews draft regulations prior to it becoming a final rule and rolled out to the public in order to determine economic and other impacts to stakeholders, as well as consistently with furthering government policies.
    On June 16, 2017, the OMB concluded its review of the Parole for Entrepreneur program.

    During the course of OIRA’s review of a draft regulation, the Administrator may decide to send a letter to the agency that returns the rule for reconsideration. Such a return may occur if the quality of the agency’s analyses is inadequate, if the regulatory standards adopted are not justified by the analyses, if the rule is not consistent with the regulatory principles stated in EO 12866 or with the President’s policies and priorities, or if the rule is not compatible with other Executive Orders or statutes. Such a return does not necessarily imply that either OIRA or OMB is opposed to the draft rule. Rather, the return letter explains why OIRA believes that the rulemaking would benefit from further consideration by the agency.

    It’s particularly telling that no “return letter” was issued to USCIS on any potential negative impact by the program. Having returned the rule back to the USCIS, time will tell if the program will be rolled out. Rumors indicate that the Trump Administration plans to scrap the program, but not without strong comment from at least four senators Republication Senators: Orrin Hatch (R-UT), Jeff Flake (R-AZ), John McCain (R-AZ) and Jerry Moran (R-KS).

    In their June 20, 2017 letter, the four Senators site to Canada and France as welcoming foreign entrepreneurs to their countries. Canada’s Immigration and Citizenship bureau has already implemented a similar program. France also has implemented a similar program for startups call French Tech Ticket.

    What’s particularly confounding about the Administration’s pullback is that the Parole for Entrepreneur program aims to promote and produce U.S. jobs, goals that are entirely consistent with the Administration’s stated policy. It’s no secret that small businesses are the bulwark of job creators in the U.S., according to the Small Business Administration. The reality is that while other countries may offer a friendly process to start up a company, there is only one Silicon Valley and it sits in the Bay Area and that’s where most Entrepreneurs want to be.

    For this Administration to stay true to its stated policy, it must develop an even better program, and soon, if the current one is to be abandoned. What do you think?  Is the Administration being fair to foreign entrepreneurs?  We’d love to hear your opinion on this matter.