The international entrepreneur status would have offered foreign-born entrepreneurs a unique pathway to live and work in the US for 3 to 6 years while developing their business. Signed by Obama in his waning days of Presidency, this rule was scheduled to take affect July 17th, 2017. However, Trump and the Department of Homeland Security have decided to postpone its start until March 14th, 2018. The administration has suggested the rule may be eliminated entirely before then.
Because visitors are barred from partaking in productive work and nonimmigrant worker visas such as H-1Bs require a preexisting corporate company to sponsor the employee, few opportunities exist for international entrepreneurs to take advantage of the resources in the U.S. in developing their business models.
Although critics of the international entrepreneur status point to preserving jobs and opportunities for U.S. citizens, the majority of American startups valued at greater than $1 billion dollars have been launched by immigrants and yield roughly 760 new jobs per company. While an estimated 3,000 entrepreneurs may have qualified for this unique status, this surprising postponement is especially disappointing to tech hubs in the U.S. such as Silicon Valley that are increasingly competing to recruit foreign talent. For comparison, other countries including Australia, Canada, Chile, Ireland, and New Zealand all have standing immigration policies to attract international entrepreneurs.
We share below a letter from a colleague to the American Immigration Lawyers Association. It aptly captures the frustrations that employers (and their immigration attorneys) face in this political climate.
Recently, U.S. Citizenship and Immigration Services (USCIS) released data indicating that H-1B approvals are down significantly from last year. This is, counterintuitively, not due to an increase in denials due to an official change in regulatory criteria or the laws governing these filings. Rather, I believe it’s due to a passive-aggressive strategy by USCIS to bury lawyers and their clients in requests for more and more documentation, and clarification on points that were already extremely clear in the initial filing. In many cases, the documentation requested from USCIS was already submitted or is factually irrelevant to the case, and certain requests are being issued in all cases, regardless of the nature of the employer and the position. In short, it feels as if USCIS is waging a war of attrition, waiting for U.S. employers to throw up their hands and give up. But giving up would mean harm to our economy. Giving up would mean companies moving their operations and jobs overseas rather than staying in the U.S. and being subjected to this bureaucratic entanglement.
One new trend involves USCIS questioning the use of a “Level 1” wage (out of a 4-tier system). For example, in one of my cases, USCIS asked why a newly-graduated engineer would receive a Level 1 wage and whether, if the Level 1 wage is appropriate, the position truly requires at a minimum a Bachelor’s Degree. Others have also received such requests for newly-graduated physicians, questioning the Bachelor’s-level requirement for new physicians. USCIS is also asking for extensive documentation from the employer to prove that there is sufficient work for the prospective employee, even where the company does not provide consulting services to outside clientele. I recently received this type of request for a nonprofit employer that connects disabled workers with jobs in their communities. Another example of a recent Request I’ve received includes a data scientist who would be responsible for conducting complicated mathematical and statistical analyses on behalf of a major multinational corporation’s clientele. All types of employers are now receiving these types of punitive notices.
While an individual Request for Evidence (RFE) is always deflating, receiving requests on nearly every application that is filed reflects what I believe is a larger, more insidious strategy by an agency that is attempting to change the laws that lay out specific criteria for employer-sponsored visas and green cards. This is particularly disturbing because the agency – rather than Congress – is enacting changes that will have widespread economic repercussions. These professionals have much to offer their U.S. employers and our local communities but right now their applications are stymied. These new practices by USCIS are going to serve as a deterrent to U.S. employers who seek to hire the best and the brightest international talent.
So I will pull together the reams of unnecessary evidence and keep my head held high, knowing that I am on the right side of this battle. I will remind myself and my clients that Congress hasn’t passed any new legislation changing the H-1B program and that USCIS is treading on very thin ice. These destructive bureaucratic stalling tactics could deter future petitions, and perhaps that is the intended effect. In the meantime, this attorney is going to give herself another pep talk and soldier forward knowing that my work is important and meaningful and beneficial to U.S. employers, the immigrant community, and to the U.S. economy as a whole.
The Trump Administration has begun more intensive vetting of some visa applicants, including the completion of lengthy questionnaires and asking for applicants’ social media handles. Consular officers will focus on certain immigrant and nonimmigrant visa applicants worldwide who have been determined to warrant additional scrutiny in connection with terrorism, national security-related, or other visa ineligibilities. They may ask more detailed information, utilizing a supplemental questionnaire, in order to enhance visa screening. The Trump administration moved to make this questionnaire a more permanent component of the visa application process seeking to use the questionnaire for the next three years.
The supplemental information includes 15 years of an applicant’s travel history and passport information, including the source of funding for any trips, as well as employment and marital history. Previously, this information was requested, but not so far back into time. What is new, is the question requesting an applicant’s user name on all social media accounts in the last five years. This question has sparked some controversy, as some believe it to be an unnecessary invasion of privacy, while others believe it to be a rigorous and integral part of the vetting process.
The Department of State estimates that approximately 65,000 visa applicants per year fit a profile warranting use of the additional questionnaire. Though responses to these questions are “voluntary,” one is obligated to respond if he or she wants to obtain or retain an immigration benefit. Those expecting to attend a consular interview, especially individuals from the six specified countries in the travel ban (Syria, Iran, Yemen, Somalia, Sudan, and Libya), should be prepared to respond to these additional questions and plan to spend at least another hour for the interview process. Dayzad Law will continue to monitor any changes in the visa application process.
Advance Parole is permission to enter the United States. If you plan to enter the United States using an Advance Parole travel document (as opposed to a valid travel visa or Green Card), be prepared for longer than normal processing times. It is very likely that those entering on advance parole will be asked to go through secondary inspection, which means that Immigration officials will more thoroughly inspect your documents and ask you more detailed questions regarding your immigration status.
Common Advance Parole users are individuals who have pending Green Card applications, either family or employment based, or DACA recipients who are traveling internationally. For individuals asked to go through secondary inspection, be prepared for questions regarding your basis for Advance Parole. For example, if your family based Green Card application is pending, the officer may ask you about your relationship to the petitioner. The same holds for employment based applicants, though they will ask you about your position within your company. Derivative spouses should be prepared with information regarding their spouse’s employment.
If traveling on Advance Parole, allow yourself extra time – approximately 1-3 hours. However, if possible, it is best to travel using your underlying immigration status as opposed to relying on Advance Parole. Regardless, always make sure your passport is stamped to accurately reflect your proper length of admission and status in the U.S. Dayzad Law will continue to monitor processing of Advance Parole and any other issues that may arise when foreign nationals attempt to enter the U.S.
The Supreme Court decided to partially implement portions of President Trump’s second Executive Order regarding the Travel Ban. The Supreme Court will hear arguments during its next session in fall 2017. In the meantime, it is worth noting who can and cannot enter the country or who may have difficulty.
The Executive Order continues to ban nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen until September 27, 2017. However, individuals with valid immigrant or non-immigrant visas issued on or before June 26, 2017, should be permitted to enter the U.S. Students admitted to U.S. universities, workers who have accepted offers of employment with U.S. companies, and lecturers invited to address an American audience, should similarly be permitted to enter. Furthermore, individuals with visas coming to live or visit with family members with whom they have a close family relationship, should also be admitted. Very few diversity visa applicants will be able to establish the close relationship to a person or entity in the U.S. and will, therefore, be denied entry.
Following the Supreme Court decision, the Department of State released a cable defining “close family relationship” to mean parent (including parent-in-law), spouse, child, adult son or daughter, son-in-law, daughter-in-law, sibling (including whole or half and step relationships). Notably not included are grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers and sisters-in-law, fiancés, and any other “extended” family members.
Essentially, those truly affected by the travel ban will be individuals without immediate familial relationships or relationships with a U.S. entity, tourists without a specific connection to the U.S, and refugees from any country. Notably the ban does not apply to Legal Permanent Residents, and dual nationals should travel on the passport of the country that is not one of the six designated countries. The ban was implemented on June 29, 2017 and will last for at least 90 days. As always, Dayzad Law Offices will continue to monitor the situation as it develops for our clients. If a client faces difficulty when trying to enter the U.S., contact us immediately.