The Law Offices of Robert Nadalin

Happy Holidays!


We would like to extend our best wishes to you for a Happy Holiday Season and a prosperous New Year.

Regarding holiday travel issues, many foreign workers have made plans to visit friends and family abroad during the year-end holidays. Workers who plan to obtain a new visa stamp while outside of the U.S. should plan in advance. U.S. consulates abroad observe both U.S. holidays and local holidays and many of their staff also take vacations at this time. These circumstances can extend processing times by a factor of 2-3 weeks or even longer. To accommodate any unforeseen delay, it is recommended that the foreign worker coordinates with his or her work supervisor to have a back-up plan in place so that work in the U.S. can continue without meaningful interruption in the event the foreign worker’s return from abroad is delayed. Information regarding visa application procedures at specific U.S. consulates abroad can be found at: www.usembassy.gov

What is EB-5?

EB-5 is the program through which immigrant investors can apply for lawful permanent residence (aka green card status) through an investment in the U.S. that results in creating at least 10 regular full-time jobs for U.S. workers. Employment-based (EB) permanent residence is regulated by a quota that is divided into 5 separate “preference categories.” The immigrant investor program is the fifth category on the list, hence the EB-5 name.

There are two subsets of EB-5, which include the direct EB-5 model and the regional center EB-5 model. Direct EB-5 investors are required to invest at least a million dollars into an investment that results in the direct creation of at least 10 full-time jobs. There is a limited exception to the required investment amount for persons who invest at least $500,000 in a targeted employment area that has an unemployment rate that is at least 150% of the national average. The direct EB-5 model is preferred by persons who wish to develop, direct, and control their own business. It is not unusual for a direct EB-5 investor to have invested significantly more than the required one million dollars.

Regional center EB-5 investors are only required to invest $500,000 in an investment made in an approved regional center. Also, unlike the direct EB-5 program, regional centers can rely on an economic model to document both direct and indirect job creation in counting the required 10 jobs. The regional center model is favored by investors who do not want to go through the difficulties of establishing and running a new business in a new country.

Both direct and regional center investors are subject to a two step process. The source of personal investment funds is confirmed in the first step through the filing of an I-526 petition with USCIS, which should result in a conditional 2 year permanent resident card. The employment creation portion of the case is confirmed two years later through the filing of an I-829 petition to confirm that the required number of jobs has been created. Direct investors may be better able to control this aspect of the case. Regional center investors are subject the progress that the regional center has or has not made in the development of the investment, and its ability to document direct and indirect jobs. If the required jobs are not created and documented to the satisfaction of the reviewing USCIS officer, the petition will be denied and the investor may lose his or her permanent residence status, and possibly the investment funds. For this reason, the selection of a reliable regional center can be the most important aspect of the case.

In choosing a regional center, potential investors will often want to confirm details including how many I-526 and I-829 approvals (and denials) have been issued to date. Investors may also insist on the use of an escrow account along with defined triggers for when funds are released to the project developer. The ability to obtain a return of principal at some point will also likely be important, although the profit made on the investment is less likely to be a high priority. Additional considerations may include whether or not the developer is personally invested in the project, and whether or not bank financing is a part of the project. Banks have high due diligence requirements and bank participation is likely to provide greater peace of mind to potential investors. Also, a conservative and familiar type of business in a familiar large city is more likely to be viewed favorably than a cutting edge business idea in an out of the way place.

In seeking to establish a regional center in the hope of accessing EB-5 investor capital, the developer should keep in mind the above listed investor concerns when structuring the program. In addition, it is important to be aware that EB-5 investments are viewed to be a security under U.S. securities laws, and that certain restrictions apply in how and to whom the program is marketed, even down to the finer points of how inquiries are processed through the regional center’s webpage. This highlights the importance of complying with SEC rules and well as the FINRA regulatory regiment and related practices that apply to securities brokers.

H-1B Cap Case Planning for the New Year

The H-1B visa is the visa category most used by companies to obtain work authorization for professionals coming from other countries. Under the current law, 20,000 visas may be issued to persons who have obtained a master’s or higher degree from a U.S. university. 65,000 visas are allocated to other professionals. USCIS will begin accepting petitions for Fiscal Year (FY) 2015 H-1B visas from April 1, 2014. The soonest these visas can be used for work authorization will be October 1, 2014, which is the start of FY 2015.

For FY2012, the H-1B cap was reached on November 22, 2011. For FY 2013, the H-1B cap was reached on June 11, 2012. For FY 2014, the cap was reached on April 5, 2013. While it is impossible to predict exactly when the FY2015 H-1B cap will be reached, it is likely to be the case that new H-1B visas will become unavailable sometime in the first 5 days of the filing season. Any proposed new H-1B petitions not filed when the quota opens on April 1, 2014 will run a high risk of encountering the cap. Given the high level of unpredictability regarding the cap, companies may want to initiate the petition process as soon as foreign workers in need of H-1B sponsorship are identified.

An additional recent concern has involved DOL website troubles as well as the impact that budget battles may have in delaying the issuance of LCA (Labor Condition Application) documents by the U.S. Department of Labor beyond the normal 5-7 business day processing time. USCIS will normally not accept any H-1B petition that does not contain a certified LCA document confirming the required H-1B salary amount. Given the large volume of LCA documents being filed in the month of March, and possible limitations on the DOL resources applied to adjudicating the applications, any cap subject H-1B petitions should be started within the next 1-2 months in order to maximize the Company’s ability to submit a timely filing.

Please note that the cap only affects H-1B visa petitions filed on behalf of a foreign worker for the first time. H-1B extension cases, H-1B change of employer cases, or initial cases acknowledged as received by the CIS will not be affected. Further, some employees affected by the cap may have additional work visa options including F-1 practical training, TN, E, J, L, O-1 and even permanent resident visas. Other foreign workers may need to wait outside of the U.S., possibly at a foreign subsidiary, until new H-1B visas become available. As the available case options will be unique to each individual employee, we recommend that you contact an immigration attorney regarding any specific employees you may be considering for H-1B status.

USCIS Site Visits for H-1B and L-1 Petitioners

In order to combat fraud and to maintain the integrity of the H-1B and L-1 visa programs, the USCIS FDNS (Fraud Detection and National Security) division often conducts a follow up visit to the petitioning employer’s worksite. These visits are normally unannounced. In the visit, the inspector will normally ask to see the sponsored employee as well as the employee’s work station to confirm his or her physical presence at the designated work site and to confirm that the employee is performing the job duties outlined in the visa petition. In addition, the inspector will often ask to meet the company representative who signed the petition, and to review payroll records to confirm that the promised wage is being paid. Identification documents are normally requested to confirm that the person being interviewed is in fact the employee beneficiary or the designated company representative. For H-1B cases, the inspector will also ask to see the labor condition application (LCA) public access file.

Employers should anticipate these visits and be prepared for when they occur. In order to minimize the chance of confusion, it is important that the receptionist know the name and contact information for the person in the office who is responsible for the company’s immigration matters. That person in turn should be familiar with the list of sponsored employees and the location of related documents including payroll records and the company’s LCA public access files. Employers should always notify the company’s immigration attorney whenever the company is visited by a government representative in connection with any immigration related matter.

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About the Author

Attorney Robert Nadalin is a highly qualified and dedicated California Immigration Lawyer who can help you in your time of need. Learn more about your legal options during an honest consultation in San Diego, CA.