Meet the USCIS Entrepreneurs in Residence Tactical Team

USCIS has partnered with business experts to improve the way they approach the employment-based and high-skilled visa categories used by immigrant entrepreneurs.

Director Alejandro Mayorkas kicked-off this innovative program, called the Entrepreneurs in Residence (EIR) initiative, with an Information Summit in Silicon Valley in February. Now, USCIS has entered a new phase of the initiative by bringing together the EIR Tactical Team.

For 90 days this collaborative team, comprised of both USCIS employees and entrepreneurs from the private sector, will identify opportunities where USCIS can streamline pathways for foreign entrepreneurs. Team members began their work at USCIS in late March. Last week, they traveled to the California Service Center and met with USCIS officers to discuss the visa categories most often used by immigrant entrepreneurs: H-1B, L-1 E-1, E-2, and O-1.

EIR team members come from diverse backgrounds and offer vast business and immigration expertise. The USCIS employees are seasoned professionals with experience in employment-based immigration. The entrepreneurs bring a wide-range of real-world startup experience, including product development, investment and finance, and technology innovation. Together, they have worked with private companies, non-profits, students, and domestic and international startups at all stages of the startup lifecycle. You can read complete team member bios on our website.

Team members include (listed alphabetically):

  • Luis Arbulu, Founder and Managing Partner, Hattery
  • Sunny Choi, Associate Counsel , USCIS Office of Chief Counsel
  • Robert H. Cox, Associate Counsel, USCIS Office of Chief Counsel
  • Liz Elkiss, Counselor to the Director, USCIS
  • Paul Ford, Vice President, Community Development, SoftLayer Technologies
  • Ted Gonder, Co-Founder and Executive Director, Moneythink
  • Mark E. Harvey, Supervisory Immigration Services Officer, USCIS CSC
  • Efren Hernandez, Senior Advisor, USCIS Office of Policy and Strategy
  • Tanya Howrigan, Supervisory Immigration Services Officer, USCIS VSC
  • Julia C. Kennedy, Adjudications Officer, USCIS Service Center Operations
  • Emery Moore, Supervisory Immigration Officer, USCIS VSC
  • Blake Patton, Entrepreneur in Residence, Advanced Tech Development Center
  • Paul Singh, Partner, 500 Startups
  • Catherina Sun, Assistant Center Director, USCIS California Service Center
  • Natalie Tynan, USCIS Office of Policy and Strategy

We are excited for the opportunity to bring together a dynamic team of industry experts and talented USCIS employees to explore ways to better serve our customers and promote American prosperity and job creation. To read more about this program or employment-based immigration visit http://www.uscis.gov/

Link.

USCIS Q & A w/AILA from 9 OCT 2012 re: H-1B Processing Delays and Entrepreneur Visa Options

On October 9, 2012 the USCIS (United States Citizenship and Immigration Service) hosted an engagement with AILA (American Immigration Lawyers Association) representatives. USCIS discussed its current thoughts on issues related to H-1B processing delays and challenged faced by entrepreneurs.

H-1B Delays:

If your H-1B extension petition has been pending for longer than usual, the reason might be US CIS is prioritizing other cases over yours.  Emphasis has been placed Cap-Subject H-1B petitions, including Cap-Gap and Consular Notification cases.  These are generally people who are facing a gap in employment authorization, or waiting outside of the U.S.

If you have the need to expedite a decision in your case, perhaps due to holiday travel plans, you might consider using USCIS premium processing service, which requires an additional $1225 government filing fee, for an answer within 15 days.

Entrepreneurs:

The following question was raised by AILA:

How has the Entrepreneurs in Residence (EIR) program informed USCIS thinking in processing petitions filed by entrepreneurs?

The USCIS response was the EIR initiative has provided USCIS with a greater understanding about the startup landscape which should result in more efficient and effective processing of petitions filed by startup and small companies.

Specifically, the EIR team explored additional forms of evidence that the agency has not traditionally asked for, and that entrepreneurs may be able to provide, to help determine eligibility for certain nonimmigrant classifications. The EIR team also developed and deployed a training workshop for USCIS employment based immigration officers at the Vermont and California Service Centers that focused on entrepreneurs and the environment for startup companies and early-stage innovations.  Smaller group of officers at both the VSC and CSC, who have been designated to review all start up and entrepreneur petitions, received additional documents-specific training and participated in case study workshops with the EIR team.

In addition to internal education, the EIR team is developing a new web portal that aims to close the information gap between USCIS and the entrepreneurial community. This resource aims to provide foreign entrepreneurs with a high-level overview of the nonimmigrant visa process, summary of key requirements for nonimmigrant visa categories, and filing tips to help them better understand the evidentiary requirements of nonimmigrant visa categories.  Please see a USCIS video introducing the EIR team here.

Entrepreneurs Seeking H-1Bs:

In the context of  H-1B petitions filed by  entrepreneurs, the interpretation of the employer employee relationship advanced by USCIS in the Donald Neufeld Memo from January 2010 is critical.

AILA explained how it in impedes opportunities for entrepreneurs and small and startup businesses, noting the requirements to establish the existence of an employer – employee relationship set out in the memo are felt particularly by entrepreneurs seeking to have corporations that they established petition on their behalf.

The question was, what steps has USCIS taken to ensure that the adjudication of petitions for company owners are in line with the goals of the entrepreneurs in residence program and historical legal precedent on whether a corporation can petition for a shareholder?

The USCIS response was that the EIR team has evaluated the challenges and limitations based by entrepreneurs in filing for and obtaining H-1B visas enabling them to work for their own or other startup companies. USCIS confirmed they continue to review these issues as they relate to current guidance on the employer employee relationship.

From a practical perspective on what is required for a startup to sponsor an H-1B, please see my answer on quora here:

http://www.quora.com/What-are-the-minimum-requirements-for-a-startup-to-be-eligible-to-sponsor-H1B-visa.

As I have stated before, I understand the immigration challenges faced by entrepreneurs, largely stemming from a gap in U.S. immigration law.  There is no startup visa currently.  But I also believe the system generally employs good people, who will review a request on its merits.  So if you are an entrepreneur with a viable business, the door is not shut.  But you must carefully provide USCIS what they are looking for, to the greatest extent possible.

DREAM ACT DEFERRED ACTION UPDATE; PLEASE BE CAREFUL OF POTENTIAL FRAUD BY SO-CALLED "NOTARIOS"

Immigration lawyers around the United States welcomed the Administration’s recent announcement that younger immigrants may be eligible for “Deferred Action” and work authorization. The policy will grant qualified immigrants the opportunity to live free from fear of deportation and allow them to work legally. This exciting new development brings hope to immigrants and their families. It is not currently a path to a Green Card or Citizenship, nor does it grant permanent legal status to anyone.  It will also not extend to family members – everyone must qualify on his or her own.
To qualify, an individual must:
  • have arrived in the U.S. when they were under the age of sixteen;
  • have continuously resided in the U.S. for at least five years prior to June 15, 2012 and have been present in the U.S. on June 15, 2012;
  • currently be in school, have graduated from high school, have a GED, or be an honorably discharged veteran of the U.S. Coast Guard or the U.S. Armed Forces;
  • not have been convicted of a felony offense, a “significant misdemeanor offense,” three or more non-significant misdemeanors, or otherwise pose a threat to national security or public safety; and
  • have been under thirty-one years old on June 15, 2012
The deferred action offer will be available to those in proceedings, those with final removal orders, as well as to those who apply affirmatively.
The Administration is not yet accepting applications for this action. Within sixty days – by the middle of August – the Administration expects to issue guidance and information about how eligible individuals can request deferred action and work authorization.
If you are NOT IN REMOVAL proceedings, DO NOT apply for deferred action at this time.Unfortunately, this policy may open the door for fraud and deception by so-called “Notarios.” In the United States, notarios have no legal background and cannot legally practice law or represent you.
Further, anyone claiming they can submit an application or charging a fee for applying for deferred action should NOT be trusted until the process has been announced by the federal government. An immigrant’s case can be delayed by notarios acting in bad faith, resulting in penalties and even deportation.
Do not endanger your chance to qualify for this action and make sure to contact a licensed attorney for more information on applying for deferred action. If you believe you are eligible for deferred action, you may contact Ryvin Wallace Group by calling our Washington DC office (703) 531-0790, or San Francisco CA office (415-765-0679).
After the jump, please read what we expect to happen in the coming weeks, more early analysis, and key Department of Homeland Security Memo and FAQs.

What we expect to happen in the coming weeks:
·       Announcement from USCIS about how it intends to handle Deferred Action – note USCIS is under orders from the President to begin implementing by August 15, 2012
·       Publication of forms, filing fees, and other important details (currently  no formal form for this benefit)
·       Legal action from opponents of Deferred Action
More early analysis:
·       The process will require someone to prove eligibility under each of the criterion listed above
·       How will significant misdemeanor be defined?  Broadly, and remember a single offense makes someone ineligible
·       ICE has the authority to grant deferred action to anyone.  This is important, because some may find themselves just outside of the “group” defined by the criterion noted above; but who are still kind of young person targeted by the Administration:

o   Have or will soon have, at least a high school degree or GED
o   No trouble with the law
o   No current or past gang membership
o   Acclimated to life in the US
o   Arrived at a young age (note – the rules do not distinguish between those entered legally and then over-stayed, from those who entered without inspection, or who may be currently legal, but not work authorized)
For your reference:
DHS DEFERRED ACTION MEMO_6-15-2012
DHS Deferred Action Memo_6-15-2012
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DHS DEFERRED ACTION FREQUENTLY ASKED QUESTIONS_6-15-2012

DHS Deferred Action FAQ_6-15-2012
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FY2012 Visa Bulletin Predictions: Forward movement through March, steady for summer then possible retrogression

On the 23 JAN 2012 the American Immigration Lawyers Association (AILA) posted notes from a discussion with Charlie Oppenheim of the Visa Office about visa demand in the employment preference categories, and predictions for the FY2012 Visa Bulletin.

Please find notes including FY 2012 predictions from that discussion following the jump.

· EB green card usage has been very slow in FY2012, so DOS is advancing the dates to see how many cases are out there. Mr. Oppenheim is relying on USCIS and their estimate. USCIS thought more would come in, but 50% their estimate have actually filed an AOS. This movement is due in large part to the clearing out of the EB-2 2007 AOS cases. Mr. Oppenheim reminds AILA that DOS cannot “see” the I-140 cases that are approved and for which adjustment of status had been requested prior to September 2010, though he can “see” cases for which consular processing is requested.

· Mr. Oppenheim could not speculate why usage is slow/low. Economy? Foreign nationals lost jobs?

· Low usage of EB-1 numbers is assumed again this year. A fall-down of 12,000 additional EB-1 numbers into EB-2 is calculated into Mr. Oppenheim’s projections for 2012, although he thinks EB-1 number availability may be down by approximately 1,000 as compared to last year, due to heavier EB-5 usage since unused EB-5 numbers “spill up” to EB-1 and then down to EB-2.

· Mr. Oppenheim is very surprised by the severe downturn in EB-1 numbers. We cited the impact of Kazarian on USCIS filings and demand for EB-1-1 numbers, and the fact that it is difficult for an owner-beneficiary to obtain approval of EB-1-3 petitions.

· About 34% of the total number of permanent visas have been used this year, and 45% should be used by end of February.

· Adjustment of status through USCIS accounts for 85% to 90% of all EB green card cases.

· The impact on number usage of upgrades (EB-3 to EB-2) is still unknown. Upgrades were the reason the priority dates advanced so slowly in the beginning of FY2011. For upgrades, the EB-3 case does not get cleared out of the system until the EB-2 for the same person is approved.

· Mr. Oppenheim also wonders whether demand is weak for visas for dependent family members, and so fewer green cards are needed.
· Mr. Oppenheim meets monthly with USCIS and the Ombudsman’s office to review the receipt of cases. There was a recent meeting to discuss December numbers. There will be another review before he decides what he will do in March.


AILA Predictions:

· Employment-based priority dates will advance again with the March Visa Bulletin, likely by at least a few months. An advance of six months is possible, although an advance of one year is not likely. He will know as this month moves on. With normal USCIS adjustment of status processing times of four-to-six months, March is the last time for Mr. Oppenheim to get the AOS cases filed and possibly approved in FY2012. He will then probably hold the priority date over the summer, and then retrogress or advance it if needed. Mr. Oppenheim does not have enough data to predict demand and priority date changes in the last quarter of FY2012.

· USCIS is agreeing to the priority date advances, though significant advances are bit of a gamble for USCIS, because if they get inundated with adjustment filings, and subsequently there is priority date retrogression, USCIS will have to process EAD and advance parole extensions without additional fees. As we all know, retrogression causes chaos.