Written by Senior Planner, J. Bradford Flecke, JD, CFP®
In an August 2, 2011 press conference (transcript), US Citizenship and Immigration Services (USCIS, formerly USINS) announced some changes that benefit foreign investors and entrepreneurs. These changes are within agency discretion. In other words, they can be implemented without Congressional authorization. Expect the following changes in the coming weeks:
- H-1B professional worker visas for entrepreneurs. In practical terms this means that a Canadian entrepreneur can come to the US in visitor status, set up a business, and then apply for a multi-year worker visa. There are restrictions: the entrepreneur must serve the US business in a readily identifiable specialty occupation, one for which a specialized bachelor’s or advanced degree is typically required (and the individual has such a degree or an equivalent combination of education and experience). Such occupations as an engineer, accountant, scientist, or computer scientist should qualify—not a generic business manager.
An H-1B visa holder may qualify for US tax residency and the tax advantages associated with that status. However, it is not a long term US living option. The maximum allowable period in H-1B status is seven years. To remain in the US after seven years, the H-1B visa holder must change to a different nonimmigrant status or pursue Lawful Permanent Resident status (a green card). There are many options available; an experienced US immigration attorney should be consulted.
- Expedited processing of green cards for Multinational Managers (EB-1). Multinational managers are individuals who worked outside the US for a related company and are now coming to the US to serve in a managerial or executive capacity for US operations. This option is available to entrepreneurs who can maintain a Canadian business operation with its own manager and employees, while developing a US presence. It is the usual green card option for individuals who first enter the US as nonimmigrant Intracompany Transferees (L-1).
A number of KeatsConnelly clients have immigrated in the Multinational Manager category, typically using the L-1 as a stepping stone. For those willing to pay an extra fee (“premium”), this initiative may reduce green card processing time from about one year to as little as three months. If processing is only three months, intending immigrants should consider skipping the L-1 altogether
- Expedited processing of green cards for Immigrant Investors (EB-5). Investors willing to commit $500,000 or $1 million to a US job creating venture can obtain a US green card in as little as nine months, though processing time is often longer. With “Premium Processing” an investor may receive a green card in as little as three or four months. Remember that these green cards are for Conditional Permanent Resident status: after a year and nine months, the investor must show that ten permanent jobs were created directly or indirectly, in order to make the green card permanent. Typically the investor’s capital contribution can be recovered after five to seven years.
- Direct access to the EB-5 adjudication team. The immigrant investor (EB-5) application is large and complex. It is as challenging for government examiners to assess as it is for immigration attorneys to assemble. Though (or perhaps because) the examiners are among the most experienced and best educated at CIS, they often have questions that drag out the application process for months. Until now, those questions have been handled in writing and by regular mail—and an attorney’s written reply often begets more questions. USCIS concedes that in the 21st century this is not the most efficient method of adjudicating an application. In the coming weeks, applicants and their attorneys will have direct access to the EB-5 adjudication team to resolve questions and concerns by phone, fax, and email. Direct access may do even more than premium processing to put green cards in the hands of investors in record time.
- Reminder: a labor certification requirement can be waived. At the press conference, a US immigration official resolved apparent confusion about alien employment certification (aka “labor certification”). Generally, an entrepreneur whose US company plans to sponsor him/her for a green card as employee (other than the Multinational Manager described above) must obtain certification from the US Department of Labor that no qualified US worker is available at prevailing wages—that may be difficult or impossible to prove in the current job market. However, as the immigration official pointed out, labor certification may be waived for a foreign worker to fill a position in the EB-2 category, reserved for a) those positions for which an advanced degree is required and b) for individuals of exceptional ability. For a waiver of the labor certification requirement, the petitioning company must show that the individual’s immigration would be in the national interest. Proving national interest can be a daunting task but the immigration regulations allow much room for creativity in demonstrating “national interest”. An entrepreneur or worker who may qualify for EB-2 (advanced degree or exceptional ability) should explore the national interest waiver option with an attorney who has extensive experience with these waivers.
Despite the obvious need, Congress seems incapable of crafting innovative immigration laws that benefit the US economy. US Citizenship and Immigration Services is doing what it can to compensate for congressional inertia. Expect more creative ideas from USCIS in the months ahead.
J. Bradford Flecke is a Member of the Washington, DC Bar and the American Immigration Lawyers Association — practiced immigration law from 1988 to 2002