News

1.Effect of Immigration Executive Order of June 24, 2020

No effect of Immigration Executive Order on:

The Executive Order makes it clear that the following groups are not impacted:

• Those who are inside the U.S. This means H1B and L1 Visa status holders who are physically located in the U.S. could still file extensions, change of status applications, and Green Card applications without issue.
• Those who already have valid H1B and L1 Visas in their passports should be fine to re-enter the U.S. using those valid visa stamps.
• Those who already have valid H1B and L1 Visas in their passports should be fine to re-enter the U.S. using those valid visa stamps.
• E1, E2, and E3 Visa holders are not impacted by the Immigration Order.
• O1 Visa holders are not impacted by the Order.
• Mexican and Canadian TN holders are not impacted, and should be allowed to travel, absent any applicable COVID-19 related travel restrictions.
• Other nonimmigrant visa types not listed in the Order should not be impacted.
• Those who have other official travel documents other than a visa (i.e.: a transportation letter, an appropriate boarding foil, or an advance parole document) can still travel, so long as the document is valid on June 24, 2020 or issued on any date thereafter that permits a person to travel to the United States and seek entry or admission.

Canadian H1B and L1 Employees are not impacted?

Update: As of June 24, 2020, CBP headquarters has confirmed that CANADIANS ARE EXEMPT FROM THE PROVISIONS OF THE LATEST TRUMP IMMIGRATION ORDER, this includes H1B and L1 holders. Guidance has reportedly been issued to local ports notifying CBP of this policy position.

This post discusses the mechanics of this Canadian exemption for H1B, L1, or J ‘Visa’ holders under Proclamation 10014. As reviewed in detail how this will impact visa holders seeking entry from abroad through the H1B professional worker visa, L intra-company transfer visa (likely including both L1A and L1B), J1 visa, and the H2B. This also impacts al the dependents of these visa types including H4, L2, and J2.

The Immigration Order specifically impacts those who find themselves outside the United States now or in the future, without a valid current visa stamp.

It is this last point, regarding other official travel documents other than a visa, listed in the Trump Immigration Executive Order of June 22, 2020, in Section 3, which begs the question of how Canadian H1B and L1 holders are impacted if at all.

What is special about Canadian citizens in the context of US immigration law, is that they are visa-exempt for most visa types, including H1B, L1, O1, TN, and more. When examining part (iii) in the following section of the Executive Order closely, it thus appears that Canadians might be exempted and be allowed to enter in H1B and L1 status:

The suspension and limitation on entry pursuant to section 2 of this proclamation shall apply only to any alien who:

(i)    is outside the United States on the effective date of this proclamation;

(ii)   does not have a nonimmigrant visa that is valid on the effective date of this proclamation; and

(iii)  does not have an official travel document other than a visa (such as a transportation letter, an appropriate boarding foil, or an advance parole document) that is valid on the effective date of this proclamation or issued on any date thereafter that permits him or her to travel to the United States and seek entry or admission.

Since Canadians are visa-exempt and do not need an H1B or L1 visa stamp, it stands to reason that they are in fact allowed to enter using just their Canadian passport and the applicable USCIS I-797 approval notice or I-129S (in the case of a blanket L approval).

Disclaimer: The information provided here is not legal advice and does not purport to be a substitute for advice of counsel on any specific matter. For legal advice, you should consult with an attorney concerning your specific situation. Legal standards and rules often change.

2.Extension of OPT

U.S. Citizenship and Immigration Services (USCIS) transmitted an interim final rule to the Federal Register today that affect employees who are working via their F-1 visa via Optional Practical Training (OPT). Certain employees working on their OPT will now get to extend their OPT beyond their basic 12 month period.

The new interim final rule to be published this Monday is applicable to two separate categories of OPT employees, each to benefit from an extension beyond their basic 12 month employment eligibility. The two categories of OPT employees are:

• Those with a degree in science, technology, engineering, or mathematics (STEM) who are employed by businesses enrolled in the E-Verify program (eligible for a 17-month extension);
• All those whose OPT expires before he or she can begin H-1B employment (eligible for extended status and employment authorization to cover the gap between their 12-month OPT and the start of their impending H-1B status).

The U.S. Department of Homeland Security released today an interim final rule extending the period of Optional Practical Training (OPT) from 12 to 29 months (an additional 17 months) for qualifying F-1 students on their I-20.

Who Qualifies for the additional 17-Month OPT Extension?
The extension will be available to F-1 students with a degree in science, technology, engineering, or mathematics (STEM) who are employed by businesses enrolled in the E-Verify program.

To be eligible for an OPT extension, an F-1 non- immigrant student must:

• Currently be participating in a 12-month period of approved post-completion OPT; 
• Have successfully completed a degree in science, engineering, technology, or mathematics (STEM) included in a Department of Homeland Security STEM Designated Degree Program List from a college or university certified by the U.S. Immigration and Customs Enforcement’s Student and Exchange Visitor Program; 
• Be working for a U.S. employer in a job directly related to the student’s major area of STEM study; 
• Be working for, or accepted employment with, an employer enrolled in U.S. Citizenship and Immigration Services’ E-Verify program; and 
• Properly maintain F-1 status and abide by special OPT 6 month registrations.

What is the E-Verify Program?
E-Verify (formerly known as the Basic Pilot/Employment Eligibility Verification Program) is an Internet-based system operated by the Department of Homeland Security (DHS) in partnership with the Social Security Administration (SSA) that allows participating employers to electronically verify the employment eligibility of their newly hired employees. E-Verify is free and voluntary and is the best means available for determining employment eligibility of new hires and the validity of their Social Security Numbers.

Before registering for E-Verify, contact Immigration Solutions Group, PLLC to provide guidance on the legal implications of registration and for instruction on the registration process. At the end of the registration process, businesses will be required to sign a Memorandum of Understanding (MOU) that provides the terms of agreement between you, the employer, the SSA, and USCIS. Understanding the legal implications is critical.

3. Current Immigration: EB-5 Immigrant Investors

Congress created the EB-5 immigrant investor visa category in the Immigration Act of 1990 in the hopes of attracting foreign capital to the US and creating jobs for American workers in the process. The overall advantage of the EB-5 visa category is that it allows the beneficiary to engage in commercial enterprise anywhere in the US subject only to some restriction in the pilot program targeting certain areas. There are 10,000 visas available in the category each year, one-half of which are reserved for people who participate in a Pilot Program option designed for targeted investments in approved regional areas. Although the investment requirement is less, the Pilot Program will expire September 30, 2008. This article addresses the requirements and issues for both options available under the EB-5 visa category.

What are the filing procedures for the EB-5 visa?
An applicant for the EB-5 visa must file Form I-526, Immigrant Petition by Alien Entrepreneur with the appropriate regional USCIS Service Center including fees and evidence supporting the application as described in this article.

What are the basic requirements for the EB-5 visa?
There are three basic requirements as follows:

• First, the alien must establish a business or invest in an existing business that was created or restructured after November 19,1990
• Second, the alien must have invested $1 million ($500,000 in some cases) in the business
• Third, the business must create full-time employment for at least 10 US workers

Since its creation, the USCIS created the category very harshly, taking a series of actions that have severely limited its use. For example, in 1998 the INS General Counsel issued a highly restrictive interpretation regarding the validity of certain types of programs commonly used to set up the required business enterprises. Second, the USCIS has launched a series of investigations against companies that assist people in setting up their investments. Lawsuits were filed to attempt to force the INS into reversing its position, but they did not succeed. Congress stepped in, however, and in 2002 it ordered the INS to reconsider its decision.

How does the EB-5 investor meet the requirement for a qualifying business?
There are three ways of meeting the requirement a qualifying business:

• The creation of an original business;
• The purchase of an existing business with simultaneous restructuring or reorganization such that a new commercial organization results; or
• Expansion of an existing business created after November 1990 through the investment of the required amount and the creation of ten new jobs.

Any for-profit entity formed for the ongoing conduct of lawful business may serve as a commercial enterprise, including sole proprietorships, partnerships, holding companies, joint ventures, corporations, business trusts, etc. A holding company with its subsidiaries would also qualify if each subsidiary is engaged in the active conduct of business. Noncommercial activities, such as home ownership, do not qualify. Also, the alien must be actively involved in the business, and cannot be a passive investor.

What types of investments meet the requirements for the EB-5 investor?
The investment can be in the form of cash, equipment, inventory, other tangible property, cash equivalents and indebtedness secured by assets owned by the alien provided that he or she is personally and primarily liable and the assets of the new commercial enterprise are not used to secure any of the indebtedness. The definition specifically excludes capital acquired by unlawful means.

How much investment is required to be an EB-5 investor?
The basic investment amount is $1 million. The required investment is $500,000 for a business established in a “targeted employment area.” Targeted employment areas include: 

1. Rural areas, defined as any area other than one within a metropolitan statistical area or within the boundary of a city or town with a population of 20,000 or more; and
2. Areas having an unemployment rate that is at least 150% of the national average.

For a Pilot Program investment, the threshold is a $500,000 capital contribution to a designated Regional Center which allocates portions of the capital in the form of business loans to small business within the targeted area.

What entities qualify as Regional Centers for the purposes of the Pilot Program?
Any economic unit, public or private, involved with the promotion of economic growth of a particular region may qualify as a Regional Center. Proposals for participation in the Immigrant Investor Pilot Program should be submitted to the Assistant Commissioner for Adjudications and should include the following documentation:

• A description of the regional focus of the Regional Center and how it will promote economic growth
• Details on how jobs will be created indirectly through increased exports, but not necessarily exports directly generated by the activities promoted through the regional center.
• A description of capital, both sources and amounts, committed to the Regional Center as well as the promotional efforts both employed and projected by the sponsors of the Regional Center.
• Forecasts of the positive impact on the regional and national economy

What happens if the Regional Center is terminated?
If the Regional Center is terminated within any investor’s two-year qualifying period, a formal notice will be sent to any alien granted lawful permanent residence on a conditional basis under the Pilot Program for investment within the Regional Center.

How may the EB-5 Investor invest in a qualifying new enterprise?
There are several ways an EB-5 applicant can qualify by investing in a new enterprise. The EB-5 investor can create an original business purchase an existing business or expand an existing business. Investment in an existing business must result in a substantial change in the business’ net worth or number of employees by at least 40%. The EB-5 investor must meet the required investment amounts of $1,000,000. Furthermore, the EB-5 investor must demonstrate that the investment capital was obtained form a legal source and the required capital is at risk for investment purposes.

What evidence is required for an application for the EB-5 investor investing in a new enterprise?
The EB-5 investor should provide evidence of creation of a new enterprise, or investment in an existing enterprise including, but not limited to the following:

• Articles of incorporation, partnership agreements, organizational documents 
• Evidence of lease agreements for the qualifying enterprise 
• State business licenses
• Evidence that the required amount of capital has been transferred 
• Evidence that investment has resulted in the substantial increase of net worth 
• Documentation of sources of capital 
• Documentation of intent to invest or actual commitment to invest capital 
• Documentation of assets purchased or transferred from abroad for the qualifying enterprise

How many full-time jobs must be created by the EB-5 qualifying investment?
The investment must create at least 10 full-time jobs for US citizens, lawful permanent residents or other immigrants lawfully authorized to be employed in the United States. Full-time employees are defined to include workers working at least thirty-five hours per week. This includes conditional residents, temporary residents, asylees, refugees, and recipients of suspension of deportation, but does not include nonimmigrants. In calculating the required number of employment positions, the investor may not include spouses or children, but may include other family members who are employed by the business.

The 10 positions must be full time. This means employment of a qualified employee in a position that requires a minimum of 35 working hours per week.

Can a commercial enterprise involving multiple investors be used as a basis for classification as an EB-5 investor?
Yes. Multiple investors may establish a new commercial enterprise which can be the basis for the EB-5 classification. However, each investor applying for the classification must meet the requirements for the EB-5 classification separately. For example, each investor must create 10 jobs for US workers.

Must the EB-5 Investor be involved in the management of the qualifying enterprise?
Yes. An EB-5 investor must be engaged in the management of enterprise either through day-to-day managerial control or through policy formulation. A purely passive role is not permitted. An EB-5 should submit documentation verifying such a role which may include the following:

• A statement of position or title and a description of duties
• Evidence EB-5 investor is a corporate officer or member of the board of corporate officers
• Evidence demonstrating management role of EB-5 investor if qualifying enterprise is a partnership

Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk.