The Impact Of EB-5 Visa Retrogression

Chinese nationals hoping to enter America through the EB-5 investor visa program now face a very long wait due to retrogression.

Chinese nationals hoping to come to America through the EB-5 investor visa program will now find themselves waiting in a very long line as a policy of “retrogression” has been instituted. This is despite the fact that EB-5 investors have preserved or created hundreds of jobs over the years and contributed a whopping $2 billion to the American economy in 2012 alone (according to White House data).

What is the EB-5 program?

Essentially, the United States government, through authority granted by the Immigration and Nationality Act, sets aside a certain number of visas annually for employment-related purposes, to be divided between different visa categories (EB-1, EB-2, EB-3, E-1, E-2, etc.). Of the employment-based visas available, only 7.1 percent of them are directly allotted to the EB-5 investor visa program, and any one country can only receive 7 percent of those, with additional visas being optional for some if there were “leftovers” from other countries that didn’t have sufficient applicants to meet their allotment.

The EB-5 visa program was once little used, but that has turned around since 2008; the program has grown in popularity exponentially since then. With the growth of the Chinese economy in recent years, the ability of that country’s citizens to branch out and invest in American businesses has likewise increased. In fact, Chinese nationals have represented 80 percent of EB-5 investor visas for several years, and that number was expected to grow in 2015.

What is retrogression?

In October of 2014, Charles Oppenheim (Chief of the Visa Control and Reporting Division of the U.S. Department of State) announced that the EB-5 program would undergo dramatic changes as of May 2015. The most significant of these would be to “retrogress” the EB-5 China visa category two years. This means that applicants whose applications have a priority date on or before May 1, 2013, would be considered for the foreseeable future. Applications with a priority date after then would only be evaluated once all the prior ones were completed.

Possible congressional intervention?

Back in January, Congressmen Jared Polis (D-Colorado) and Mark Amodei (R-Nevada) introduced House Bill 616: American Entrepreneurship and Investment Act of 2015. The bill would, if passed, do away with the need for retrogression of Chinese investor applications by more than doubling the cap to which individual countries wishing to take advantage of the EB-5 visa program are subjected (increasing it from 7 percent of employment-based visas to 15 percent).

H.R. 616 would also change the way in which spouses, children and other so-called “derivatives” are treated for purposes of the visa cap. Currently, investors are viewed alongside their dependents for visa purposes, thus limiting the number of investors who can take advantage of the program. The bill contains language that clarifies the role of investors versus derivatives when calculating visa totals, thus opening the door for more potential investment in American enterprises.

Unfortunately, H.R. 616 has languished in committee since January. According to GovTrack.US, it has a “0 percent chance of being enacted” into law anytime soon.

What does the retrogression mean for potential EB-5 applicants?

Retrogression could have a serious “chilling effect” on Chinese nationals interested in investing in domestic companies as a way to come to America. Unless applicants have a priority date of May 1, 2013 or before, their applications will be in legal limbo for a currently indeterminate time. This doesn’t necessarily mean that all immigration avenues are closed to these people, however. For more information about whether a different visa category might be an option, seek the advice of an experienced immigration law attorney.

To learn more or to speak to a lawyer, contact C.T. Lee & Associates, in New York City by calling 800-494-3809.

Keywords: EB-5 visa, investor visa, immigration, immigration law, immigrant, retrogression

Expansion Of The number of H-1B work visas remains highly controversial

The failure to expand the H-1B Visa program makes it extremely difficult for U.S. companies to bring highly skilled employees to this country.

When President Obama decided to take unilateral executive action to tackle immigration reform, many in the high-tech industry were disappointed by the scope of the reform. As reported in The New York Times, the technology industry had been pushing for changes in the nation’s immigration policy to allow more skilled workers to enter the country on visas. One hope was that immigration reform initiatives would significantly increase the number of available H-1B visas. Apparently, however, the ability to obtain more H-1B visas will have to await congressional action.

Like so many things that touch on the issue of immigration reform, the H-1B work visa program is no stranger to controversy. As reported by The Washington Post, critics tend to view the H-1B visa program as a way for companies to save money on labor costs by relying on lower-paid but highly skilled workers from abroad. Business Week has bluntly stated that the H-1B program has been “corrupted by a large and growing share of firms” that use it for the twin purposes of acquiring “cheap labor” and to “facilitate the outsourcing of jobs.”

Proponents of expanding the H-1B visa program assert that businesses cannot find sufficiently skilled American employees to meet their needs. Therefore, America’s businesses have a critical need to bring more highly skilled foreign workers into the United States.

The nonpartisan Immigration Policy Center believes that H-1B workers do not pose a threat to American workers, are not poorly compensated for their work and are not merely a source of cheap foreign labor. According to the Center, numerous studies indicate that the presence of H-1B workers cuts down on outsourcing. Moreover, allowing companies to attract the most talented and creative individuals gives them a decisive competitive advantage over companies located abroad. Failing to take advantage of the most skilled workers from around the globe would put the United States at risk of “losing out on greater economic growth and prosperity.”

Workers’ Rights

According to the U.S. Department of Labor, both employers and H-1B workers need to be aware that, under the law, H-1B workers are granted a number of rights. Some of the more significant rights granted to workers are as follows:

  • The employer must give the H-1B worker a copy of the Labor Condition Application in which the employer attests to compliance with the requirements of the H-1B program.
  • The employer must pay the worker at least the same wage as paid to other employees with similar experience and qualifications or the prevailing local wage for the occupation, whichever is higher.
  • The employer is obligated to pay for nonproductive time caused by the employer or the worker’s lack of a permit or license.
  • The employer must offer the worker the same fringe benefits as other employees.
  • An employer may not require the H-1B worker to pay a penalty for leaving his or her employment prior to the agreed date.

Note that the restriction on penalizing an H-1B worker for leaving his or her job prior to a certain agreed-upon date does not bar the employer from seeking liquidated damages pursuant to state law for a breach of a valid employment contract.

Seek Legal Help

If your company is one that could benefit from the H-1B visa program, you should contact a New York attorney with experience in handling visa matters. An attorney can do everything possible to facilitate the visa process while at the same time keeping your business compliant with applicable federal immigration laws and regulations. Contact C.T. Lee & Associates at 800-494-3809 for additional information.

Keywords: H-1B visas,Immigration reform,work visa program,Workers Rights, Legal Help,outsourcing,employees employment

Immigration Prosecution: Data And Common Charges

Immigration prosecution charges can include unlawful reentry. Penalties can include imprisonment and fines.

Deportation is a serious concern for immigrants attempting to start a new life in the United States. This is particularly true for those who also have a criminal record. The Associated Press recently published an article discussing deportation and criminal records. Essentially, the piece concludes that deportation efforts generally focus on immigrants with serious criminal records. As noted by Homeland Security Secretary Jeh Johnson last year, authorities focus on “finding and deporting immigrants who pose a national security or public safety threat, those who have serious criminal records, and those who recently crossed the Mexican border.”

Although this focus may be true, overall the number of prosecutions for immigration offenses occurring within federal courts has grown over the last two decades. An analysis by the Pew Research Center reviewed the issue, finding that between the years of 1992 and 2012 prosecutions grew from 36,564 cases to 75,867. These prosecutions were primarily for unlawful re-entry into the United States.

More On The Pew Analysis

The Pew report involved an examination of data from the United States Sentencing Commission’s Monitoring of Federal Criminal Sentences. This analysis focused on data from federal, not state or local court systems.

Researchers with the study note that the number of unlawful re-entry convictions increased from 690 cases to 19,463 between the years of 1992 and 2012. Unlawful re-entry includes entering or attempting to enter the United States more than once, or entering after being deported.

Current Immigration Prosecution Data

The Transactional Records Access Clearinghouse, also known as TRAC Immigration discussed the issue. TRAC is a database of immigration information maintained through Syracuse University. Their publication provides more current data, finding that this trend is slowly declining.

The publication states that the number of filings for prosecutions was down by 12 percent in 2015 compared to the previous year. Although these prosecutions are on the decline, they still remain high. The publication states 5,827 new immigration prosecutions were reported by the Justice Department for July of 2015 alone. Top charges include:

  • Entry of alien at improper time or place; etc. This offense accounted for 61.3 percent of all cases filed with U.S. Magistrate Courts. Convictions for this offense can lead to a variety of penalties, including a monetary fine ranging from $50 to $250 for each re-entry or twice that amount if previously subject to a civil penalty.
  • Re-entry of deported alien. This charge was listed as the second most common with 33.3 percent. Convictions come with severe criminal penalties that vary depending on the reason for the deportation. For example, those who were previously deported due to commission of misdemeanors involving drugs can face up to 10 years imprisonment along with a monetary fine.
  • Fraud – nat’zation, citizenship, alien registry. This offense experienced the largest increase in prosecutions over the last year. It jumped by 146.7 percent. Essentially, this is defined as making false statements in relation to naturalization, citizenship or registry. Conviction can lead to a monetary fine or imprisonment of up to five years.

Those who are facing prosecution and potential deportation for these or similar crimes are wise to seek the counsel of an experienced deportation lawyer. This legal professional will advocate for your rights, working to better ensure a more favorable outcome.

Contact Us To Learn More

Contact C.T. Lee & Associates by calling 800-494-3809. We have offices in New York City and Newark.

How To Establish “Extraordinary Ability” For An EB-1A visa

Those who excel in their professions may qualify for an EB-1A visa.

Immigrants who are attempting to enter the United States on a path to citizenship have many options. For those who excel in their fields, the EB-1A visa may be a wise choice. If granted, those who hold these visas are considered “priority workers,” translating to a higher priority for U.S. green cards.

More On EB-1A Visas

EB-1A visas are employment-based, first preference visas. Although an offer of employment or employer sponsor is not required for approval of this form of visa, it does require “clear evidence” of an extraordinary ability. The United States Citizenship and Immigration Services (USCIS) provides two main questions to aid applicants when attempting to determine if they qualify for an EB-1A visa:

  • Do you have an extraordinary ability? In order to qualify for this visa, the applicant must have an extraordinary ability in “business, science, arts, education or athletics.”
  • Do you have sustained national or international acclaim in your field? In addition to having this extraordinary ability, the applicant must also generally receive “sustained national or international acclaim” in the field.

If the applicant can answer yes to these questions and can establish that he or she intends to work in the area of extraordinary ability in the United States, an EB-1A visa may be an option.

Establishing That You Have An Extraordinary Ability

One way to establish that an applicant has an extraordinary ability is the presence of a major internationally recognized award, like the Nobel Prize, Pulitzer, Olympic Medal or Oscar. Applicants who do not have such an award can establish extraordinary ability by meeting three of the ten requirements provided by the USCIS. The requirements, as stated by the USCIS, are:

  • Evidence of receipt of lesser nationally or internationally recognized prizes or awards of excellence.
  • Evidence of your membership in associations in the files which demand outstanding achievements of their members.
  • Evidence of published material about you in professional or major trade publications or other major media.
  • Evidence that you have been asked to judge the work of others, either individually or on a panel.
  • Evidence of your original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field.
  • Evidence of your authorship of scholarly articles in professional or major trade publications or other major media.
  • Evidence that your work has been displayed at artistic exhibitions or showcases.
  • Evidence of your performance of a leading or critical role in distinguished organizations.
  • Evidence that you command a high salary or other significantly high remuneration in relation to others in the field.
  • Evidence of your commercial successes in the performing arts.

The applicant must also establish that he or she will continue to work in his or her specialty upon entering the country. This can be done through the use of letters from current or prospective employers, copies of contracts or a detailed statement specifically outlining plans to continue this line of work in the U.S.

Applying For An EB-1A Extraordinary Ability Visa And The Need For Legal Counsel

The USCIS notes that the application process requires “extensive documentation.” As a result, it is wise for those pursuing an EB-1 visa to seek the legal counsel of an experienced EB-1 immigration attorney to better ensure a more favorable outcome.

Contact Our Law Office Today

Contact C.T. Lee & Associates, located in New York City, by calling 800-494-3809.

Determining eligibility for H1-B visas

Before applying for an H1-B visa for yourself or a potential worker, understand the required criteria.

With an H1-B visa, an individual can be admitted to the United States to live and work for up to three years, with the ability to extend to up to 6 years. This category is for applicants who wish to obtain a specialty occupation that requires a particular level of education, merit or ability.

As the hiring employer or potential worker, it is vital to understand what specific employment positions fit the criteria forH1-B visas and qualifications an individual must possess to obtain one.

What is a specialty occupation?

To qualify as an H1-B-eligible specialty occupation, a job must require a bachelor’s degree or higher, or the equivalent to the minimum education typically required for this type of position. The job must possess unique requirements that can only be performed by an individual with this type of degree.

Some examples of common qualifying positions include:

  • Software developers
  • Computer programmers
  • Database managers
  • Mechanical engineers
  • Physicians and surgeons
  • Teachers, elementary and secondary
  • Lawyers
  • Accountants and auditors
  • Financial specialists
  • Architects
  • Marketing and public relations specialists
  • Medical scientists
  • Biological scientists

How does a worker qualify for an H1-B visa?

To obtain an H1-B visa, an individual must meet the following requirements:

  • An applicant must have a U.S. bachelor’s or higher degree that is required by the specialty occupation, or the equivalent foreign degree. This degree must be from an accredited college or university.
  • If the applicant does not have the appropriate degree, he or she must have education, training or progressive experience in the specialty area that is equivalent. Typically, three years of experience can substitute for one year of college.
  • The potential worker must possess the necessary licensure, registration or certification to practice that occupation in the intended U.S. state.

How to start the application process

The first step in an individual obtaining an H1-B visa is for the sponsoring employer to file the Labor Condition Application with the US Department of Labor. To ensure everything runs smoothly throughout the entire visa application process, employers and workers alike should seek the advice and representation of an experienced immigration lawyer. With qualified legal representation, you can ensure you comply with federal immigration laws and regulations and navigate through the application process as efficiently and effectively as possible.

With H1-B visas, time is of the essence. Applications for the H1-B lottery are due April 1, with a limit of 65,000 slots for workers with bachelor’s degrees and 20,000 slots for master’s degree or higher.

To discuss your immigration law needs and start the H1-B visa application process, contact C.T. Lee & Associates, located in New York City, at 800-494-3809.

EB-1b visas for professors and researchers: Information for applicants

Outstanding foreign researchers and professors can seek admission to the United States through an EB-1b visa.

Enrollments at colleges, universities and other post secondary educational institutions continue to rise in the United States. These institutions provide opportunities not just for the students, but for the educators employed to teach these students as well. Educators at these facilities are often given the opportunity to teach while expanding their expertise in their chosen fields. This can be done through continued research or publications with time generally allotted for these pursuits included as part of their employment agreement.

Such opportunities are projected to become even more lucrative for qualified candidates both home and abroad. According to the United States Department of Labor’s Bureau of Labor Statistics, the job outlook for postsecondary educators is better than many other occupations, with this field projected to grow an estimated 13 percent between the years of 2014 and 2024. Foreign applicants who are interested in pursuing these opportunities in the United States may qualify through the EB-1b visa program.

The EB-1b visa program: Outstanding professors and researchers

According to the United States Citizenship and Immigration Services (USCIS) Department, eligibility for the EB-1b visa program is available for candidates who can demonstrate “international recognition” for outstanding achievements in an academic field. The agency also requires that the applicant have a minimum of three years of experience in the area, either through teaching or research, and be pursuing a tenure or tenure track teaching or research position at either a university or other academic institution for higher learning.

In order to establish that these criteria are met, the applicant must provide at least two of the following pieces of documentary evidence, as stated by the USCIS:

  • The presence of major awards or prizes for outstanding achievement
  • Membership in associations where membership requires a demonstration of outstanding achievement
  • Publications about the academic field for which the applicant is applying for admission in professional publications
  • Participation as a judge of others in the same or similar academic field
  • Research contributions to the field
  • Authorship in books or articles in international scholarly journals for the specific field

Determining what qualifies as evidence can be difficult. As a result, it is wise to seek legal counsel before submitting an application.

The EB-1b visa program: Importance of legal counsel

Those who are interested in applying for an EB-1b visa can benefit from the aid of an experienced immigration attorney. This legal professional can assist in putting together proper supporting documentation as well as all necessary application materials, better ensuring a favorable result.

Useful information for students affected by University of Northern New Jersey (UNNJ)

Friday Apr 8, 2016

I am writing this article to clear up rumors and bad information being given out all across the country.

By now, students affected by the University of Northern New Jersey (UNNJ) are in all different stages. Some have been contacted or visited by ICE agents and some have not. Some have been given notices to visit the immigration office in their location. Some have received SEVP notices stating that they committed fraud and have 2 options, either be reinstated or leave the country. And some have received a notice to appear (NTA) in immigration court.

Our office’s message has been clear to those being affected by the UNNJ government. Please be calm and contact a lawyer for your choices. If you are meeting with an ICE officer, you do not need to answer questions that will incriminate you in any way. If you say anything relating to fraud to an ICE officer, it may be used against you so be careful. Saying nothing is better than lying to an ICE officer. You have the right to remain silent. Alternatively, you have the right to obtain a lawyer to meet with an ICE agent. Do not be scared, it is now unlikely that you will be detained. Instead, you will be processed by ICE and issued an NTA. Remember, you are not the target of the investigation- those that are being criminally prosecuted are the true targets of the investigation.

Do not leave the country immediately unless you have an emergency. If you are being alleged with fraud then coming back to the country will not be easy. A better option could be to appear in immigration court after you receive an NTA. This is especially true if the NTA itself alleges fraud. You can at least deny the fraud allegation on official record or if you have another form of relief, you can try and find another method of staying in the country.

Those who are lucky enough to have an option to immediately change to a different status should do so. That includes marriage to a spouse in H1-B status and converting to H4 status or similarly, marriage to an F1 student and changing to F2 status. Of course there is no guarantee of success but there is no harm in trying because if you do not succeed, you are right back in the same position you started (you can only improve your situation).

On the other hand, those students who have been issued an SEVP notice AND who can get a school to issue another I-20 should try to reinstate their status immediately. Students have 5 months beginning on April 4, 2016 to reinstate their status. That may be difficult for those whose last status on F1 or CPT was with UNNJ because new students may reject a student who is currently out of status. However, those who transferred to another school should contact their school immediately to ask for a new I-20. Then they should find a lawyer to process their reinstatement application. Again, this is worth a try because if you do not succeed, you are right back in the position you started.

Do not miss any immigration court hearings if you are issued an NTA. As of now, no NTAs that we know of have a court date yet. Another notice will be issued with a court date. If you change addresses you must fill out EOIR form 33 and serve it to both immigration court and the Department of Homeland Security. You also must fill out form AR-11 to inform USCIS. If you miss a court date, there will be a deportation order issued against you (called an in absentia order). There are solutions in that situation but you will make your lawyer’s job very difficult.

Your ultimate goal in immigration court is to clear your name of any association of fraud because fraud can affect your immigration file forever, whether changing status, adjusting to greencard status, or applying to become a citizen. The allegations on the NTA are only charges against you which you can deny. Additionally, you do not accrue unlawful status until you are deemed by ICE to have been a non-immigrant status violator. In other words, until a judge deems you removable, you do not accrue unlawful presence. That is why we advise our clients to stay in the country if they do not have an emergency.

Finally, if you have the ability to move to New York, then move here. Your court location depends on your physical residence. New York immigration court boasts one of the friendliest places to attend court in all of America and roughly ½ to 2/3 of the judges are compassionate people. Additionally, the second circuit court of appeals has one of if not the most immigrant friendly laws in all the United States if you have to appeal your case.

One final piece of advise- tell your lawyer the truth or he cannot help you.

Additional information from the New York Times article New Jersey University Was Fake, but Visa Fraud Arrests Are Real

*This article does not create an attorney client relationship. You should ask an attorney for legal advice before taking any actions in this article.