USA Green Card Immigration Blog

Review & Outlook: A Better Idea for Green Jobs – WSJ.com.

Washington has spent years trying to force-feed green jobs, to little good effect. So here’s a better idea: Expand the number of green cards, as in the number of immigrant visas for foreign-born graduates of American universities in science, technology, engineering and mathematics.

This could even be bipartisan. President Obama this week praised the latest report from his jobs council that proposed more such visas. And this week Idaho Republican Raúl Labrador, a freshman of tea party provenance, introduced a bill in the House to do the same. The evidence is overwhelming that if we let these young people stay in America, rather than sending them home, they’ll end up building new companies and tens of thousands of new jobs.

Consider the immigrant record on technology start-ups, which is summarized in a 2009 Kauffman Foundation study, “Foreign-Born Entrepreneurs.” Vivek Wadhwa, a Duke University researcher, found that in 25% of “the U.S. science and technology companies founded from 1995 to 2005, the chief executive or lead technologist was foreign born.” In 2005 those firms produced $52 billion in revenue with 450,000 employees. In Silicon Valley alone, the percentage of immigrant-founded start-ups was 52%.

Mr. Wadhwa found that 74% of these entrepreneurs held advanced degrees, and three-quarters of those who had advanced degrees had concentrations in science, technology, engineering or math. “The vast majority of these company founders didn’t come to the United States as entrepreneurs—52% came to study, 40% came to work,” he writes. The study adds that in 2006 the inventors or co-inventors of more than 25% of U.S. patent applications were from foreign nationals residing in America.

None of this is news to American industry. “Innovation requires innovators,” Darla Whitaker, a Texas Instruments senior vice president, told a House subcommittee last week. Many of the graduates her company recruits are foreign born. The long wait for a green card, she said, is “frustrating for them, limits employer flexibility, and diminishes productivity.” Many of them pack up and go home.

Here’s another bureaucratic wrinkle: India and China have a disproportionate number of such science and engineering graduates, but U.S. law says that any one country can only tap 7% of the total green cards available. This has pushed many of the most attractive recruits to the back of the line. Yet Mr. Wadhwa reports that Indian immigrants founded 26% of immigrant-founded start-ups in Silicon Valley in 2005, which is more than the next four groups from Britain, China, Taiwan and Japan combined. The law’s country limit means that the green card wait can be nine years for many Indians.

Mr. Labrador’s bill would create a special green card category for science, technology, math and engineering master’s and Ph.D. grads who have a job offer. There would be no quota caps, and company recruits would be fast-tracked through the visa process.

Opponents claim these foreigners steal jobs from Americans, but unemployment is low in industries that recruit these highly skilled workers. Everyone wishes more Americans studied science, engineering or math, but not enough do. For example, 55% of U.S. master’s degrees and 63% of doctorates in electrical engineering go to foreign-born students. Mr. Labrador’s bill would collect a fee from employers who sponsor these foreign-born recruits that will go to scholarships for American students.

Meantime, the U.S. has to compete for talent. “We’re finding a lot of these graduates get job offers, but when they find out how long it will take them to get green cards they leave and go work in other countries where they become our competitors,” Mr. Labrador says. The global competition for human capital is as fierce as it is for financial capital, and the U.S. can’t afford to reject either one.

U.S. to Assist Immigrant Job Creators – WSJ.com.

In its quest to spur job growth and jump-start the economy, Washington is reaching out to foreign entrepreneurs.

Alejandro Mayorkas, chief of U.S. Citizenship and Immigration Services, a unit of the Department of Homeland Security, on Tuesday will unveil several initiatives designed to attract and retain foreign entrepreneurs, particularly in the high-tech sector, who wish to launch start-up companies in the U.S.

Among the initiatives is a plan to make it easier for some foreigners to qualify for legal permanent residence, or green cards, if they can demonstrate their work will be in the U.S. national interest. The changes will also include a way for entrepreneurs to obtain work visas without a job offer from an established company.

Mr. Mayorkas also plans to announce that his agency will be training its examiners on how visa-eligibility requirements apply to entrepreneurs.

“In this economy, it certainly is in the interest of this nation to welcome foreign talent,” Mr. Mayorkas said in an interview.

The changes come as increasing numbers of software entrepreneurs have been taking their start-ups to other countries, often after completing advanced degrees in the U.S., because of the difficulty in securing temporary work visas and permanent residency here.

Vivek Wadhwa, a visiting scholar at the University at California, Berkeley, who studies immigrant entrepreneurs, estimates the new measures could yield “tens of thousands of start-ups and hundreds of thousands of jobs.”

The measures won’t require congressional approval because they don’t constitute changes in current immigration law. Instead, clarifications will be issued for existing visa categories with the objective of enabling more entrepreneurs to gain entry into the U.S. and of bringing more speed and efficiency to the visa-application process.

“The Obama administration is getting the immigration system engaged in creating jobs,” said Steve Yale-Loehr, a professor of immigration law at Cornell University Law School. “They are trying to facilitate the ability of entrepreneurs to get temporary work visas and green cards when the economy is in the doldrums.”

Generally, immigrant entrepreneurs must have a specific job offer to qualify for an employment-based immigrant visa or green card, such as in the category for individuals with exceptional ability in the arts, sciences and business.

As part of the new initiatives, foreign entrepreneurs will be eligible for a so-called EB-2 immigrant visa without a specific job offer, as long as they demonstrate that their business endeavors will be in the U.S. national interest.

The government is also seeking to bolster use by foreign entrepreneurs of H-1Bs, which are temporary work visas for foreign workers in a specialty occupation.

The H-1B program has been a mainstay of software companies and other businesses that seek foreign nationals to fill certain jobs, and an employer-employee relationship has generally been a prerequisite for qualifying.

As part of the new measures, a sole entrepreneur can qualify for an H-1B if the individual’s employment is decided by a corporate board or shareholders of the start-up company.

Mr. Mayorkas will also unveil enhancements to the EB-5 investor program, which enables foreign investors and their families to qualify for green cards if they invest at least $500,000 in a U.S. project that generates at least 10 jobs.

His agency is also seeking to speed up the approval process by hiring additional adjudicators to evaluate applications and enabling petitioners to make their case before an expert panel should their application require further evidence or be denied.

The moves come as demand for H-1B visas has fallen. As of July 22, USCIS had received approximately 21,600 H-1B petitions out of 65,000 available for the 2012 fiscal year. The agency had received approximately 26,000 such applications for the same period last year.

Several factors are at play, including higher fees for the visas and increasingly better opportunities in countries such as India that entice their skilled workers to return home rather than stay in the U.S.

While completing his Master’s degree in computer science at the University of Southern California in 2008, Anuj Agarwal launched a company called Nachofoto.com, a start-up that makes a product used by search engines and digital-media companies. Unable to get a U.S. visa for himself and expecting his workers would have the same trouble, Mr. Agarwal moved the company to India.

“After realizing we had visa barriers to the U.S., we opened another company here,” Mr. Agarwal said in an interview from Mumbai.

Norberto Guimaraes of Portugal said he had to leave the U.S. in May 2010 after his student visa expired and his H-1B petition was denied because he lacked an employer to sponsor him, even though he was the founder and chief executive of his start-up.

“I had to sell the start-up that I had created while doing my M.B.A. at U.C. Berkeley together with another M.B.A. colleague,” he said.

Mr. Guimaraes was able to return to the U.S. this year, sponsored for a work visa by another company.

Michael Moritz: Immigration Lessons From English Soccer – WSJ.com.

Here in Silicon Valley, immigrants and first-generation Americans provide the drive and hunger for almost every company worth its salt. But these days protectionism and xenophobia are choking off the supply of H1-B visas for the best and brightest foreigners. Sadly, we no longer lay out the welcome mat for people with names like Grove, Brin, Yang, Bechtolsheim, Huang, Nguyen, Omidyar and Wadhwani.

Some say that the effect of immigrants on Silicon Valley is exaggerated and that venture capitalists should provide more opportunities for homegrown Californians. But the state’s xenophobes and protectionists need only take a look at the recent history of the English Premier League to see the staggering and transformative effect that immigrants can have on a market.

Twenty years ago, English professional soccer was in a shambles. Most of the stadiums had just a few seats. Stabbings and fights on the terraces were part of the entertainment. In 1989, 96 people were trampled to death during one tragic game. Almost all the players in the league had been born in England—many within sight of the stadiums in which they played. Clubs in Italy, Spain, Brazil and Argentina provided a more scintillating version of the sport. Revenues from television coverage were small. In less than two decades all that has changed, and today the best soccer in the world is played in England. The reason: immigrants.

The English Premier League is a testament to what happens when immigration barriers are broken down and a market attracts the most talented people from around the world.

In 1992, the year of its formation, there were only 11 soccer players in the English Premier League who had not been born in the United Kingdom or Ireland. Now that number is more than 250—in a league where the total number of players in the overall starting lineup is 220. In 1999, Chelsea became the first team to field a Premier League starting lineup composed entirely of foreign-born players.

The main reason behind this dramatic change was a labor ruling in 1995 by the European Court of Justice. The court ruled that arcane rules restricting the free movement of soccer players were in breach of the law of the European Union. When the rules were lifted, the English Premier League was flooded with the best players in the world.

The economic result of the influx of talented immigrants has been profound. Today the soccer on view in the English Premier League is far and away the most attractive in the world. The domestic market has expanded—hooliganism is in decline, and women and children flock to stadiums on Saturdays. Meanwhile, the export market is more lucrative than ever. More than half a billion people in some 200 countries follow the exploits of Chelsea, Manchester United, Aston Villa, Blackpool and Tottenham Hotspur. A preseason tour of Asia has become de rigueur for the best clubs.

The league has also drawn foreign capital with club owners from the United States, India, Russia and the Middle East. Only three sports leagues—the NFL, MLB and NBA—top the English Premier League in revenues. But these leagues, it should be noted, compete in a domestic market six-times larger than England’s.

In 1986, a two-year TV agreement for the top flight of English soccer was sold for 6.3 million pounds, the equivalent of about $10 million today. In 2007, a set of three-year rights was sold for 1.7 billion pounds, or $2.7 billion. It’s little wonder that last year the English Premier League won the Queen’s award for enterprise in international trade.

Players like Chelsea’s Didier Drogba (Ivory Coast), Arsenal’s Cesc Fabregas (Spain), and Manchester United’s Nemanja Vidic (Serbia) may not possess the technical chops to start technology companies in Silicon Valley. But they answered the same clarion call that rang out to the founders and families that once spawned Intel, eBay, Google, Nvidia, Yahoo and hundreds of other companies formed between San Jose and San Francisco. These soccer players are living proof that the best people score the most goals.

Turning away talent—wherever it’s from—only weakens the market and brings down everyone’s game.

The Public Law 111-230 was signed into law by President Obama on Aug 13, 2010. The public law includes provisions to increase the L1 and H-1B visa fees. As per the Public Law 111-230, in addition to the existing filing fees, petitioners are obliged to submit a fee of $2,000 for certain US H-1B visa petitions and $2,250 for certain L-1A and L-1B visa petitions. This additional fee applies to those petitions that are postmarked on or after Aug 14, 2010.

The increase in L1 and H-1B visa fees will be effective until Sept 30, 2004. It is applicable to those petitioners who have more than 50 percent of its employees in the H-1B or L-1 nonimmigrant status.

In order to act in accordance with Public Law 111-230, U.S. Citizenship and Immigration Services (USCIS) is working towards the revision of Form I-129, Petition for a Nonimmigrant Worker. Petitioners applying for H-1B, L-1A, and L-1B visas are requested to submit the additional fees or the evidence explaining why the additional fee is not applicable.

Additionally, if the fee is required, the petitioners are requested to mention in bold capital letters on the cover letter. If any such documentation is not received along with the initial form filing by USCIS, a Request for Evidence (RFE) may be issued by USCIS to find out if the public law covers the petition. Even when the evidence has been submitted, USCIS may still require an RFE if it has any doubts.

The new fee will be included in addition to the Fraud Prevention and Detection Fee, base processing fee, American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) fee, if applicable, and premium processing fees, if any.

In order to bring about a smooth transition, U.S. Citizenship and Immigration Services will work in collaboration with its stakeholders.

The Emergency Border Security Supplemental Appropriations Act of 2010 has recently been passed by the U.S. Senate. The L-1 and H-1B visa fees for some employers, who have a workforce of more than fifty percent of H-1B and L-1 nonimmigrants, has been increased by the provisions of the law. On August 5, the bill was initially passed in the House. However, a constitutional requirement forced the bill to be sent back to the House. After its return to the Senate, the bill was approved by the President.

In order to raise funds to protect the US-Mexico border, the L-1 and H-1B visa fees has been increased mostly for Indian companies. Most of the Indian as well as American companies have termed the bill as “discriminatory.”

After the US Senate reconvened on August 12, 2010, the passage of the new border security bill was welcomed by Obama. Charles Schumer and Democrats Ben Cardin were the only two senators who attended this short session. As per the Senate rules, if legislation is agreed by everyone, only two senators have to be present in the session. The bill was passed by the House of Representatives in early August.

Senator Claire McCaskill stated that the H-1B and L-1 visa fees will be increased by USD 2,000 per visa application to those foreign-controlled companies who greatly depend on H-1B and L-1 visas to bring foreign nationals into the US and work for them.

President Obama is of the view that the increase in fees for L-1 and H-1B petitions will strengthen not only the work of federal law enforcement forces, but also their partnership with local, state, and tribal law enforcement. He said that communities along the Southwest border and all over the country would be effectively protected through the resources that are made available. He also added that the new legislation will help build up the partnership between America and Mexico in their mission of deterring criminal activities along the border.

U.S. Citizenship and Immigration Services (USCIS) has recently published a memo clarifying guidance on O petition validity period. On the basis of the specific period of time that is needed to perform or take part in a particular event, the validity period of the O-1 visa classification is asserted.

While assessing an O-1 petition, the “gap”, the period of time between the scheduled events, is used as a standard to verify whether the schedule corresponds to a single continuous event or separate events. The verification is to determine if the separate events require separate petitions.

There were certain cases where there was a considerable “gap” in between events. This “gap” made adjudicators arrive at the conclusion that a single petition was filed for separate events. The validity period of petitions in such cases will be same as the period of time that is required to complete the initial specific event. The continuous event that has been mentioned in the O-1 petition will not affect the validity period of the petition. A gap of a certain number of days in a schedule does not indicate a new event. According to the regulations, the term, “event”, refers to the tours and multiple appearances.

Owing to the statutory and regulatory background, the length of validity period may be flexible to the requirements of the petitioner. As per the statute and regulations, the validity period of an O-1 petition is not supposed to exceed 3 years. It is the duty of adjudicators to assess the completeness of the evidence. The evidence that has been submitted should be verified if they can be regarded as an “event.” Service Centers ought to approve a petition for the requested period of time once the validity period that has been requested for is confirmed through the submission of evidence.

The USCIS has issued an advisory regarding the extension of authorized stay for foreign nationals. This advisory is for foreign nationals who are stranded in the U.S due to the recent closures of the European airports because of the Icelandic volcanic eruptions. The foreign nationals are permitted up to 30 days to depart if they have exceeded or about to exceed their authorized stay period.

For visitors who are travelling under the visa waiver program it is better to contact the U.S. Customs and Border Protection office if they are stranded at the airport. Otherwise the travelers must visit the local U.S. Citizenship and Immigration Services office. In case you are travelling under a non immigrant visa contacting the local U.S. Citizenship and Immigration Services (USCIS) office along with your passport, itinerary for the cancelled flight, and your I-94 departure record would be of assistance.

The candidates can avail this kind of benefit on the USCIS application, petition or immigration status if he/she has been affected by the uncontrollable circumstances like the natural catastrophes or other extreme situations. On their application to extend their stay or change the status with the USCIS due to a disaster, if the traveler shows how the disaster directly affected him/her then the request might be considered.

Working off-campus might be essential if a student has been affected by the disaster and is unable to self – support. The disaster might occur anywhere, either in the United States that prevents a student from working on campus or when in overseas that affects their financial position. The demonstration of such a situation along with the recommendation for an off-campus employment by the Designated School Official (DSO), might entitle them to receive an employment authorization when filing the Application for Employment Authorization (I-765). At the time of loss of the USICS – issued documents a concern may be raised and appropriate forms be submitted to replace the documents.

The U.S. Citizenship and Immigration Services [USCIS] announced the acceptation of H-1B petitions for the fiscal year (FY) 2011 cap from the 1st of April 2010. The USCIS H1-B petitions acceptation date will be based on the day the USCIS receives properly filled H1-B petitions with the exact fee and not by the postmarked date.

The USCIS has cited 65000 as the fiscal year cap for the FY 2011. The first 20,000 H1-B petitions filed on behalf of the personnel who have earned a Masters degree or a higher degree in the U.S will be exempted from the H1-B petitions cap.

The date on which the USCIS receives the adequate number of H1-B petitions to meet numerical criteria of the H1-B petitions cap will be notified to the public. In-case adequate number of H1-B petitions is not there to reach the numerical limit; the USCIS will randomly select the H1-B petitions received on the final receipt date to reach the H1-B cap. The cap-subject H1-B petitions that are not accepted and the late entries that did not reach the USCIS on or before the final receipt date will be rejected by the USCIS.

The annual cap is exempted for new H1-B petitions for employment if individuals intend to work at institutions of higher education or allied non-profit entities, non-profit research organizations or government research organizations. Workers can continue to file petitions to come under the H1-B cap exemption categories while they search for work dates from FY 2010 to 2011.

The USCIS will continue the process involved with H-1B non-immigrant visa program petition with the forth mentioned criterion; H1-B workers who intend to extend the period of stay in the U.S., H1-B workers who intend to change their employment terms, H1-B workers who wish to change from their current employers or H1-B workers who aim to work in a second H1-B position simultaneously.

The USCIS has provided details on the H-1B and H-2B cap exemptions for workers qualifying in the H-1B and H-2B classifications and admitted to perform labor and services in the Commonwealth of the Northern Mariana Islands (CNMI) and Guam. Starting from November 28, 2009 until December 31, 2014, these workers are to be exempted from the cap.

The H nonimmigrant workers in Section 214(g) of the Immigration and Nationality Act (INA) get a special exemption to the statutory numerical limitations (or “caps”) according to the Consolidated Natural Resources Act of 2008 (CNRA), Public Law 110-229.

The nonimmigrants admitted as H-1B and H-2B workers for labor or services in the CNMI and/or Guam may qualify for this CNMI and Guam H cap exemptions. Further, the petition of the prospective employer must include a Labor Condition Application (LCA) listing employment or services in the CNMI and/or Guam only, for the nonimmigrant to qualify for the exemption in H-1B classification. On the other hand to qualify for the exemption in H-2B classification, a temporary labor certification (TLC) listing labor or services in the CNMI and/or Guam only must be included in the petition.

H nonimmigrant workers performing employment outside Guam or the CNMI are not eligible for the H cap exemptions. The H nonimmigrant workers under the cap exemption can freely travel to any U.S. state or territory. If an employer would like a worker granted H classification under this cap exemption to work at another U.S. location outside of the CNMI and Guam, then the employer needs to file another petition with USCIS.

The spouse and children of the H nonimmigrant workers under the H cap exemptions are eligible to apply for the H-4 “dependant of an H worker” classification. The H-4 classification may be obtained by the family members by directly applying for a visa at the U.S. Embassy or Consulate.

The USCIS has come forward with further information on the Employ American Workers Act (EAWA) to those employers looking to file H-1B petitions. The H-1B is a non-immigrant visa which permits U.S. employers to temporarily recruit alien workers.

The EAWA has been brought into effect to make sure that those companies which receive financial support under the Troubled Asset Relief Program (TARP) or section 13 of the Federal Reserve Act do not remove U.S. workers from their concern. Under EAWA, any concern that has received covered funding for hiring H-1B employees is an “H-1B dependent employer”. While filing a Labor Condition Application (LCA), the EAWA puts forth employment and non-displacement constraints of U.S. workers. An H-1B dependent employer ought to make statements on them to the U.S. Department of Labor (DOL).

Following the enactment of the EAWA, the USCIS has included a new question (A.1.d) to its Form I-129 to make out if the employer has received any covered funding. Those employers who have repaid their obligations might answer “No” to that question. To know if your obligations have been repaid, the Department of Treasury, or the Federal Reserve has to be contacted.

While the H-1B petition is filed with USCIS, a valid Labor Condition Application must be filed with the U.S. Department of Labor. If the LCA does not match up with the question A.1.d of the H-1B petition, it may lead to a delay or rejection in processing, unless the petitioner comes up with a convincing explanation about the discrepancy to the USCIS.

The H-1B dependent employer should note that the EAWA pertains only to hires taking place on or after Feb 17, 2009 and before Feb 17, 2011. It is not applicable to a petition which is applied to extend the H-1B status of a current employee with the same employer. Neither to a petition applied to change the status of a work-authorized employee to H-1B status.