USCIS Initiatives to Promote Startup Enterprises and Spur Job Creation

Background

On Aug. 2, 2011, Secretary of Homeland Security Janet Napolitano and USCIS Director Alejandro Mayorkas outlined a series of policy, operational, and outreach efforts to fuel the nation’s economy and stimulate investment. These initiatives will allow our nation to realize the potential of current immigration laws to attract the best and brightest from around the world to invest their talents, skills, and ideas to grow the U.S. economy and create American jobs.

Introduction

The following actions mark the six-month anniversary of Startup America, a White House-led initiative to reduce barriers and accelerate growth for America’s job-creating entrepreneurs. These measures have been one key focus of the President's Council on Jobs and Competitiveness, which has recommended taking action to help ensure that America can out-innovate and out-compete the world in a global economy.

Availability of EB-2 National Interest Waivers to Entrepreneurs

Entrepreneurs may obtain an employment-based second preference (EB-2) immigrant visa if they satisfy the existing requirements, and also may qualify for a National Interest Waiver under the EB-2 immigrant visa category if they can demonstrate that their business endeavors will be in the interest of the United States. USCIS has issued Frequently Asked Questions to clarify this issue. USCIS will also conduct internal training on the unique characteristics of entrepreneurial enterprises and startup companies and incorporate input from the upcoming stakeholder engagements detailed below.

The EB-2 visa classification includes foreign workers with advanced degrees and individuals of exceptional ability in the arts, sciences, or business. Generally, an EB-2 visa petition requires a job offer and a Department of Labor certification. These requirements can be waived under existing law if the petitioner demonstrates that approval of the EB-2 visa petition would be in the national interest of the United States.

Availability of H-1B Visas to Entrepreneurs

Entrepreneurs with an ownership stake in their own companies, including sole employees, may be able to establish the necessary employer-employee relationship to obtain an H1-B visa, if they can demonstrate that the company has the independent right to control their employment. USCIS has updated existing FAQs to clarify this issue.

New Procedures for Processing EB-5 Petitions

USCIS is enhancing the EB-5 immigrant investor program by transforming the intake and review process. In May, USCIS proposed fundamental enhancements to streamline the EB-5 process which include: extending the availability of premium processing for certain EB-5 applications and petitions; implementing direct lines of communication between the applicants and USCIS; and providing applicants with the opportunity for an interview before a USCIS panel of experts to resolve outstanding issues in an application. After reviewing stakeholder feedback on the proposal, USCIS will begin implementing the first of these enhancements within 30 days.

Premium Processing Service Available to Additional Employment-Based Visa Categories

USCIS will also expand its Premium Processing Service to immigrant petitions for multinational executives and managers (often referred to as “E13”). The Premium Processing Service allows employers to expedite processing of their petitions, absent evidentiary deficiencies, fraud or national security concerns. With this addition, nearly all employment-based petitions and applications will have the option of Premium Processing.

New Engagement Opportunities for Entrepreneurs and Startup Companies

USCIS is committed to open and transparent communication with stakeholders. The Office of Public Engagement will host a series of meetings to discuss issues of importance to foreign entrepreneurs and start-up companies. These engagements will provide USCIS with valuable stakeholder feedback on how entrepreneurs and start-up companies can be eligible for employment-based visa categories. USCIS will host the first of these engagements on Aug. 11, 2011.

USCIS is also launching Conversations with the Director, a new series of small group meetings with Director Mayorkas to discuss immigration issues important to communities around the country. The first meeting will take place the week of Aug. 15, 2011, and will focus on economic development and the EB-5 investor program.
http://www.greencardapply.com/news/news11/news11_0809.htm


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Student and Exchange Visitor Information System

The Student and Exchange Visitor Program (SEVP) is developing the next generation of the Student and Exchange Visitor Information System (SEVIS). The new system, known as SEVIS II, is designed to address the limitations of the current SEVIS system.

While SEVIS II will modernize and improve many areas of the process, it also will transfer more responsibility for the maintenance of status to the foreign national students, themselves, who are in F, M, and J nonimmigrant statuses. As soon as there is better access to one's SEVIS record, it will be important to monitor that record.

Following September 11, 2001, Congress mandated the use of an electronic system to collect information on students (F-1 and M-1), exchange visitors (J-1) and their dependents. To meet this mandate, the U.S. Department of Homeland Security (DHS), in conjunction with the U.S. Department of State (DOS), developed the web-based SEVIS system that includes information on enrollment, graduation, program compliance, and program transfer for the foreign nationals subject to SEVIS.

SEVIS also maintains information on sponsoring schools and authorized exchange visitor program sponsors. This allows U.S. consular officers to confirm information received on the forms issued by the sponsors to the foreign nationals via SEVIS. These are Form I-20 for F-1 and M-1 students and DS-2019 for J-1 exchange visitors.

While SEVIS II will continue to collect information on students and exchange visitors throughout their periods of authorized stay, it is intended to modernize and improve the current SEVIS system in a number of areas. These are explained below.

SEVIS II will transition to a paperless tracking system. Students, exchange visitors, school officials, and sponsor officials will be able to use digital signatures to sign electronic forms. This will eliminate the need for hardcopies of Forms I-20 and DS-2019.

Government officials also will have the ability to electronically document decisions on visa issuance, change of status, requests for employment authorization, and related matters. After the new system is implemented, it is recommended that students retain their historical hardcopies of Forms I-20 and DS-2019.

SEVIS II will allow students and exchange visitors to create individual user accounts that will permit them to directly access their own records. If information is inaccurate, students and exchange visitors will be able to request that SEVP update their information. This will help ensure that data is accurate and up to date. This is an important feature, as students and exchange visitors frequently do not become aware of problems with their SEVIS registration for some time. See http://www.greencardapply.com/news/news11/news11_0817.htm

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Self-Check Services for Employment Authorization Verification

USCIS Expands Self-Check Services for Individual Employment Authorization Verification to 21 States. The USCIS announces that USCIS is releasing the Self Check service in phases.

At this point the service is offered only to users that maintain an address in Arizona, California, Colorado, the District of Colombia, Idaho, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Mississippi, Missouri, Nebraska, Nevada, New Jersey, New York, Ohio, South Carolina, Texas, Utah, Virginia, or Washington. The availability of Self Check will be limited for the initial launch as the service is tested and improved upon based on the outcomes of the initial implementation.

Self Check is a voluntary, fast, free and simple service that allows you to check your employment eligibility in the United States. If any mismatches are found between the information you provide and your Department of Homeland Security or Social Security Administration records, Self Check will inform you of how to correct those mismatches.

Self Check is a service of E-Verify. Once you have confirmed your employment eligibility using Self Check, you are unlikely to encounter difficulties upon being hired by an E-Verify participating employer. See http://www.greencardapply.com/news/news11/news11_0818.htm

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Secure Communities - Federal Policy Resulting in Wave of Deportations Draws Protests

A program that is central to President Obama’s immigration enforcement strategy has drawn protests by Latino and immigrant organizations in six cities in the last two days, as those groups stepped up their confrontation with the administration over the fast pace of deportations.

In Los Angeles, about 200 immigrants and their supporters walked out of a stormy hearing Monday evening that was called by a task force advising the enforcement program, known as Secure Communities. Bearing signs that said “Stop Ripping Families Apart,” the protesters called for an end to the program, which they said had led to the deportation of victims who reported domestic violence to the police, and to parents of American citizen children.

On Tuesday in Chicago, several dozen protesters delivered thousands of petitions calling for an end to the program to the headquarters of Mr. Obama’s re-election campaign. Petitions were also delivered by small groups of protesters to Democratic Party offices in Miami, Atlanta, Houston and Charlotte, N.C.

About two dozen prominent immigrant advocacy organizations issued a report denouncing the program and calling on the administration to halt it. Organizers said the protests were a response to an announcement on Aug. 5 by Immigration and Customs Enforcement, the federal agency that runs Secure Communities, that the program would continue to expand to meet its declared goal of covering the whole country by 2013. Clarifying doubts about whether states and cities could choose whether to participate, John Morton, the agency’s director, said that agreements with state and local officials were not required for the agency to proceed.

President Obama has made no headway in a divided Congress toward an immigration overhaul that would give legal status to millions of illegal immigrants. At the same time, in each of the last two years immigration authorities have deported nearly 400,000 people.

Under Secure Communities, fingerprints of anyone booked into jail by the state and local police are sent to the F.B.I. for criminal checks — long a routine practice — and also to the Department of Homeland Security, which records immigration violations. Immigration agents decide whether to detain noncitizens signaled by fingerprint matches.

The ferment on Tuesday exposed vastly differing views of the program between immigrant advocates and Obama administration officials. In an interview, Mr. Morton said the program was working effectively to carry out his agency’s focus on deporting immigrants convicted of serious crimes.

“It’s the law, and we think it is very good policy, to focus our resources on people who are here unlawfully and also committing crimes,” Mr. Morton said. He said agency figures showed that about 90 percent of those deported under Secure Communities since it was started in 2008 were either convicted criminals or foreigners who had failed to obey a court order to leave the country or who had returned to the United States illegally after deportation.
See http://www.greencardapply.com/news/news11/news11_0825.htm


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Prevailing Wage Determinations in PERM labor certification

Recently, Board of Alien Labor Certification Appeals (BALCA) rendered an opinion on cases regarding the use of expired Prevailing Wage Determinations (PWDs) in PERM labor certification cases. The appeals body within the U.S. Department of Labor (DOL) is the Board of Alien Labor Certification Appeals (BALCA). The useful information that follows is provided to help both employers and employees as such cases demonstrate the complexity and, sometimes, conflicting outcomes when PERM regulations are applied to specific situations.

BALCA issued an opinion in the Matter of Horizon Computer Services, Inc. on May 25, 2011 vacating a denial of a PERM labor certification (PERM/LC). As mentioned above, as an appeals body, BALCA rules on appeals of denied PERM/LCs.

This case had been denied because the required recruitment of U.S. workers had commenced prior to the validity of the PWD and the case had been filed after the PWD expired. As explained below, BALCA agreed with the procedures used by the employer, and allowed the case to go forward even though recruitment was started before the PWD was obtained, and the case filed after the PWD expired.

The regulations governing PERM/LCs require employers to either file the PERM case during the validity period of the PWD or initiate recruitment during the validity of the PWD. In the Matter of Horizon Computer Services, Inc., the employer commenced its earliest recruitment efforts before the PWD validity period began, and filed the PERM/LC after the PWD had expired. The argument surrounded whether the recruitment efforts must begin (i.e. the first step) while the PWD is valid, or whether it is enough that any recruitment (even if not the first step) occurs when the PWD is valid.

BALCA held that, to use an expired PWD to file a PERM case, the employer must have initiated at least one recruitment step during the PWD's validity period. It allowed this case to go forward because part of the recruitment had occurred while the PWD was valid. BALCA did not require that recruitment wait entirely until the PWD validity period. Since the employer had met the requirement with respect to the recruitment timing, it was determined to be acceptable to file the case after the PWD expiration. See http://www.greencardapply.com/news/news11/news11_0905.htm



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B-2 Status and Extensions of B-2 Status

USCIS Policy Memorandum on Changes to B-2 Status and Extensions of B-2 Status for Cohabitating Partners and Other Nonimmigrant Household Members

This memorandum which was released on 08/17/2011 and published on 08/26/2011 clarifies that change of stutus to B-2 visitor or one or more extension of B-2 status are appropriate in the exercise of discretion for household members, including the cohabitating partner of a principal nonimmigrant visa holder when other eligibility requirements are met for the change of status to B-2 or extension of B-2 status.

When evaluating an application for change to or extension of B-2 status based on cohabitation, the cohabitating partner’s relationship to the nonimmigrant principal alien in another status will be considered a favorable factor in allowing the household member to obtain or remain eligible for B-2 classification.

When considering a change of status and/or multiple extensions for the cohabitating partner or other household member, the finite nature of the stay, rather than the duration of the stay or number of extensions sought, is controlling with respect to nonimmigrant intent.

For example, the visit should be considered temporary even if the status may be extended several times over several years in order to match an extended course of study undertaken by the principal alien. However, while the I-539 (B-2) application must be adjudicated on its own merits, a finding that the principal nonimmigrant lacks nonimmigrant intent is a negative factor in the exercise of discretion. See http://www.greencardapply.com/news/news11/news11_0906.htm

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