KIWI Act Grants E-1/E-2 Visa Opportunity to New Zealand Citizens

It’s a bird! It’s a fruit! No, it’s the KIWI Act, a bill passed by the U.S. House of Representatives and Senate and then signed into law by President Trump on Wednesday, August 1, 2018.

The KIWI Act, short for Knowledgeable Innovators and Worthy Investors Act, extends the E-1 Treaty Trader and the E-2 Treaty Investor visas to New Zealand citizens. Unlike the EB-5 Immigrant Investor visa, the E-1 and E-2 visas allow foreign nationals of certain treaty countries to invest in the United States without a set minimum investment.

The E-1 Treaty Trader is granted to individuals to engage in international trade on his or her own behalf. The individual should demonstrate they will carry on substantial trade and that the principal trade will be between the United States and their qualifying home country. USCIS defines substantial trade as “the continuous flow of sizable international trade items, involving numerous transactions over time.” The agency also states that while there is no minimum monetary threshold, greater value will provide a better argument for the substantiality of the business.

The E-2 Treaty Investor allows an individual to invest in a U.S. business and then enter the U.S. to develop and direct the business. The E-2 visa holder must demonstrate a minimum of 50% ownership of the enterprise or “operational control through a managerial position or other corporate device.” Similar to the EB-5 investment requirements, the E-2 requires the investor’s funds to be “at risk” or subject to loss if the investment is not successful.

If you are interested in learning more about the E-1 or E-2 visas or to find out if your trade or investment might qualify, please contact us at info@challalaw.com.


Shifting H-1B Standards – In-House vs. End Client Adjudication Trends

The H-1B program has come under scrutiny in recent years, with critics claiming the program is being used to replace U.S. workers with lower-paid foreign workers. Since President Donald Trump signed the “Buy American, Hire American” executive order on April 18, 2017, the Department of Homeland Security has made a series of changes to adjudication processes through policy memoranda. The executive order put a special emphasis on the H-1B program and directed the Secretary of Homeland Security to “suggest reforms to ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.”

RFEs and Denials Increase in FY2017

A recent report by the National Foundation for American Policy (a non-partisan group) found that denials and Requests for Evidence (RFEs) increased soon after the “Buy American, Hire American” executive order was signed. From the third to fourth quarter of FY2017, “the proportion of H-1B petitions denied for foreign-born professionals increased by 41%… rising from a denial rate of 15.9% in the 3rd quarter to 22.4% in the 4th quarter.” RFEs also jumped from 63,599 in the first three quarters combined to 63,184 in the fourth quarter, causing the rate of RFEs to completed cases to jump from 23% in the third quarter to 69% in the fourth quarter.

This increased rate of RFEs and denials can seem alarming, but the recently released policy memos offer valuable clues as to how the President’s executive order will be implemented and how USCIS has changed expectations and requirements at the case adjudication level. In this H-1B update, we’re going to put on our detective hats to investigate some of the clues USCIS has provided.

Common RFE Topics: Employer-Employee Relationship & Specialty Occupation

The employer-employee relationship and the availability of specialty occupation work have historically been the subject of many RFEs, due to large IT companies utilizing the H-1B visa to employ individuals at third-party worksite locations. Many of the explanatory language describing the employer-employee relationship is derived from a 2010 Memorandum to Service Center Directors titled “Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Placements.”

The memo, also known as the Neufeld memo, describes the relationship “as indicated by the fact that it may hire, pay, fire, supervise, or otherwise control the work of any such employee” and puts special emphasis on an employer’s “right to control over when, where, and how the beneficiary performs the job.”

Seasoned H-1B petitioners are accustomed to providing evidence to satisfy USCIS requirements such as proving that the petitioner supervises the beneficiary and can control his or her work on a day-to-day basis, along with nine other potential factors outlined in the memo.

In February of 2018, a new policy memo titled “Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites” expanded certain evidentiary criteria from optional to required. While USCIS acknowledges that third-party arrangements “may be a legitimate and frequently used business model,” the memo also states that it is “more difficult to assess whether the petitioner has established that the beneficiary will actually be employed in a specialty occupation or that the requisite employer-employee relationship will exist.” The memo gives a list of possible evidence to include actual work assignments, signed contractual agreements between the petitioner and other companies involved in the beneficiary’s placement, work orders or detailed work statements, or end-client letters with detailed descriptions of the job duties, duration, wages, etc.

Most significantly, the memo enforces that itineraries describing the dates and locations of the services to be provided should be submitted in every petition with multiple third-party worksites, with no exemptions. Prior guidance allowed the request to be made on a case-by-case basis. The itinerary of services should include the dates of each service or engagement, the names and addresses of the employers, and the name, location and telephone numbers for each location where the services will be performed, along with evidence to support each item.

Policy Analysis: In-House vs. Third-Party Standards

While the February itineraries memo specifically targets third-party worksites using the employer-vendor-client model, our office has found that many of the underlying principles governing those adjudications are also being applied to beneficiaries working on in-house projects. Recent RFEs have requested additional evidence to prove the position is a specialty occupation with enough work to satisfy that requirement and that a valid employer-employee relationship exists by requesting evidence to demonstrate that the employer has a right to control the employee’s work. While these subjects have always been the target of RFEs, the specific evidentiary requests are similar to those previously applied to beneficiaries working at off-site locations.

Why is USCIS applying these standards to in-house projects?

USCIS may view in-house projects with companies that typically engage in third party placement as a suspicious deviation from the typical consulting services they provide. Officers are placing these petitions under increased scrutiny to make sure the projects are significant enough to warrant the requested approval period.

Our team may ask for additional project-based evidence to prove that the project is not marginal. If all of the requested documentation is not provided, you may risk receiving an RFE or a denial. If the petition is ultimately approved with less documentation, it may be for a shorter window than the requested validity period. This limits companies from hiring an employee for in-house projects with the intent of then transferring the employee to other client projects.

It is essential to provide complete documentation for an H-1B beneficiary’s in-house projects. Our paralegals and attorneys may request additional job duty details, project plans, presentations, or promotional materials relevant to the project.

If you have any questions about how recent adjudication trends have impacted your labor force, please contact us at info@challalaw.com.


New Policy Memo Grants USCIS Officers More Power to Deny Petitions: Tips for Navigating the Shifting Immigration Landscape

 

Starting on September 11, 2018, USCIS adjudicators will have full discretion to deny all types of applications, petitions, and requests (with an exception for DACA due to a preliminary injunction) without first issuing a Request for Evidence (RFE) or a Notice of Intent to Deny (NOID). In the policy memo announcement, USCIS stated that the change:

“will discourage frivolous filings and skeletal applications used to game the system, ensure our resources are not wasted, and ultimately improve our agency’s ability to efficiently and fairly adjudicate requests for immigration benefits in full accordance with our laws.”

The now-rescinded policy memo from 2013 previously limited immediate denials, encouraging RFEs or NOIDs unless there was “no possibility” of an approval being issued. The new policy memo “restores to the adjudicator full discretion” and allows for “statutory denials… when the applicant, petitioner, or requestor has no legal basis for the benefit/request sought.”

While many of the media reports following this announcement have used alarming language surrounding the potential denials, it is important to note that USCIS must still follow existing regulations and can only deny a request if required evidence is not provided to establish an applicant’s eligibility.

What does this mean for employers and beneficiaries?

While we can’t predict how USCIS officers will interpret this memo, we believe it will primarily target the firms submitting incomplete petitions to purposely trigger an RFE. When our office submits a petition, we gather documentation that will provide a complete picture of a case for the adjudicating officer. For example, an H-1B employee may be working for an employer, through a middle vendor, for an end client. It is critical, now more than ever, to “connect the dots” for each of the three parties involved and show the adjudicating officer how each party is connected.

 Three Tips for Avoiding Denials

  1. File early.

As we navigate through the new adjudication trends, you should file early to allow enough time for alternative actions in case of a denial or RFE. In some cases, it may make sense to file using Premium Processing for a faster response. An earlier answer may provide additional flexibility for the employer and employee.

  1. Tell a complete story.

Occasionally it may be time-consuming to obtain end client letters or other critical pieces of evidence for your filing. When your paralegal or attorney requests these documents, please provide as much information as possible: they are requesting items that will strengthen your chances of an approval. As mentioned above, there must be proof of the chain of employment at the time of the filing. It is our job to transform a group of complex documents into a meaningful case that meets all legal requirements.

  1. Be adaptable.

We may have to modify how we approach cases as we study adjudication trends and see the impact of new memos and regulations. The new policy memo may dictate a different minimum threshold of evidence than in the past, but our experienced paralegals and attorneys will communicate the shifts as we encounter them. We ask that you attempt a similar level of flexibility during the adjustment period, so we can continue to offer you a high level of service.

We will always strive to get your case approved, so we will not submit a “frivolous filing” or “skeletal application” like the memo purports to target. Despite some claims that individuals will be deported if a document is left out of a petition, there are legal steps that must be followed by the U.S. government. While we will save a more complete discussion for another article, rest assured that deportation proceedings are not initiated until a series of preceding items occur. Although at times an adjudicating officer may miss a piece of submitted evidence, there are different appeals processes in place for USCIS errors. Feel free to contact us if you have any concerns about your specific case.

At Challa Law Group we consider our team to be part of your team and we will guide you through the complexities of new (and existing) immigration regulations. If you have any questions about the new memo or any of the new regulations and policies being implemented, please email us at info@challalaw.com.


Adjudication Alert: I-765 Photographs

Each form submitted to USCIS has different legal requirements, but we often find that as administrations change, so do adjudication and processing trends. Today’s adjudication alert is related to Form I-765, or the Application for Employment Authorization.

As a reminder, the I-765 instructions state:

You must submit two identical color photographs of yourself taken within 30 days of filing your application. The photos must have a white to off-white background, be printed on thin paper with a glossy finish, and be unmounted and unretouched.

The directions go on to explain that the photos must measure 2” by 2” and be in color, with a full face, frontal view. The photos must also have the applicant’s name and Alien Receipt Number printed in pencil or felt tip pen on the back of the photo.

Why are we addressing such trivial instructions today? Recently, our office was engaged to respond to a Request for Evidence for a client’s recently submitted EAD application. Two passport-style photos, that seemingly met the criteria above, were submitted with the original application. However, in the RFE, USCIS pointed out that the photos were not taken within 30 days of the filing. The RFE stated that when the officer compared the photos with an EAD from two years ago, they noticed the photos were identical. The individuals must now have new photos taken in order to respond to the RFE, further delaying a decision on the EAD application.

This is just one example of the heightened scrutiny we have seen across visa types over the past months. In today’s immigration climate, it is important to have a legal team on your side that is not only aware of adjudication trends, but detail-oriented and responsive to shifting government priorities and processes. At Challa Law Group, we are dedicated to finding the best immigration strategy for our clients. Contact us today for an appointment with one of our attorneys.


International Students: Updates to Unlawful Presence and OPT Third-Party Worksite Placements

International students only make up five percent of current collegiate students, but they are integral to the U.S. economy, both as consumers and as entrepreneurs and leaders. According to the New American Economy, international students contributed almost $33 billion in revenue to the economy and supported over 334,000 jobs in 2015.

While earning a degree at a college or university in the United States (or upon graduation), international students can also elect to participate in OPT, or Optional Practical Training. OPT is a form of work authorization, allowing the student to work in positions related to their field of study as part of a “practical training” program. Students in a Science, Technology, Engineering, or Math (STEM) degree program may be eligible for a 24 month STEM OPT extension. STEM OPT allows U.S.-educated individuals to fill positions in fields with critical labor shortages. The New American Economy reports that for every unemployed STEM worker, there were 13 vacant STEM jobs posted in 2016.

Third-Party Placements

A 2015 change to the STEM OPT rule allowed Department of Homeland Security to begin unannounced and announced visits to the employer locations where the STEM OPT students are employed. The change also increased reporting requirements for students and schools and required a formal training plan for the student. Previously, there was no specific prohibition on employers placing OPT recipients at client worksites, as long as the requisite employer-employee relationship was maintained. However, DHS recently clarified these rules by updating the STEM OPT website, stating that because they would not be able to conduct site visits at the location of the employer’s client or customer, those types of third party placements are prohibited. Recent guidance also outlines other types of arrangements that may not be appropriate for STEM OPT extensions, including multiple employer arrangements, sole proprietorships, employment through “temp” agencies, employment through consulting firm arrangements that provide labor for hire, and other relationships that establish a bona fide employer-employee relationship.

As with other recent rule changes, there could be legal challenges looming. Since the change was made to a website, it doesn’t carry the same weight as a Policy Memorandum or a change to the regulation. The administration faced similar legal battles when they announced the International Entrepreneur Rule would be discontinued without issuing a proposed regulation and allowing a period for public comment.

Unlawful Presence

There are approximately 1.2 million international students in either F (academic) or M (vocational) student status, slightly down .5 percent from March 2017. USCIS has changed the way these students begin to accrue unlawful presence, making it extremely important for student visa holders to be aware of the terms of their status and its validity period. Previously, students would only accrue unlawful presence after being notified by USCIS, but under the new rules visa holders immediately begin accruing unlawful presence, even if they are violating their status unintentionally and are unaware of the violation.

The policy memorandum states that students who failed to maintain their status before August 9, 2018, will now accrue unlawful presence on that date or on the date of the earliest of the following events:

  • The day after DHS denied the request for an immigration benefit, if DHS made a formal finding that the individual violated his or her nonimmigrant status while adjudicating a request for another immigration benefit;
  • The day after their I-94 expired; or
  • The day after an immigration judge or in certain cases, the Board of Immigration Appeals (BIA), ordered them excluded, deported, or removed (whether or not the decision is appealed).

After August 9, 2018, the students who fail to maintain their status will accrue unlawful presence on the earliest of the following:

  • The day after they no longer pursue the course of study or the authorized activity, or the day after they engage in an unauthorized activity;
  • The day after completing the course of study or program, including any authorized practical training plus any authorized grace period;
  • The day after the I-94 expires; or
  • The day after an immigration judge, or in certain cases, the BIA, orders them excluded, deported, or removed (whether or not the decision is appealed).

Accruing unlawful presence during a single stay may result in a temporary bar to admission. If students stay 180 days past their validity period and then depart, they may be subject to a three-year or ten-year bar. If individuals accrue a year or more of unlawful presence in a single stay or throughout multiple stays in the U.S., and then attempt to reenter without admittance or parole may be permanently inadmissible.

Those subject to the three-year, 10-year, or permanent unlawful presence bars to admission are generally not eligible to apply for a visa, admission, or adjustment of status to permanent residence unless they are eligible for a waiver of inadmissibility or another form of relief.

Do you have questions about your F-1 status or moving to an H-1B or other visa type? Email us at info@challalaw.com and be sure to check out our video on travel guidelines for F-1 students!


Federal Rule Allows DHS to Track Immigrants (and Citizens) Online

On September 18, 2017, the Department of Homeland Security published a new rule in the Federal Register proposing a modification of how individuals are tracked as they move through the immigration process. The new rule will expand the types of information stored in an individual’s file, including “social media handles, aliases, associated identifiable information, and search results.” The rule also allows DHS to “update record source categories to include publicly available information obtained from the internet, public records, public institutions, interviewees, commercial data providers, and information obtained and disclosed pursuant to information sharing agreements.”

The rule outlines that any immigrant would be subject to this information collection, including lawful permanent residents, naturalized U.S. citizens, individuals petitioning for benefits under the INA on behalf of another individual, relatives and associates of any of the individuals listed above who are subject to the INA, and approximately ten other separate categories. Also included in the list of individuals covered under the system are preparers and interpreters assisting an individual seeking immigration benefits and attorneys who are recognized by USCIS or accredited by the BIA. This type of scrutiny could have a chilling effect on those who assist immigrants in navigating the legal system.

Any wide scale collection of information on the listed individuals would not only include “immigrants” but many naturalized and U.S.-born citizens, either as directly collected by the law or as a result of their communications with individuals in the listed categories. The rule also includes “law enforcement officers who certify a benefit requestor’s cooperation in the investigation or prosecution of a criminal activity.” The certification is one requirement for individuals applying for a U visa, which is a nonimmigrant visa reserved for “victims of certain crimes who are currently assisting or have previously assisted law enforcement in the investigation or prosecution of a crime, or who are likely to be helpful in the investigation or prosecution of criminal activities.” Officers may hesitate to provide this certification knowing that they could potentially be subject to additional monitoring, leading to increased distrust between the immigrant community and law enforcement and other unwanted outcomes in communities across the country.

There are a number of federal statutes that this policy may affront, but particularly the rule raises questions in terms of its constitutionality, as it could impact First and Fourth Amendment rights of many U.S. citizens. The Fourth Amendment to the U.S. Constitution places limits on search and seizure by the government, and this protection often hinges on what is deemed to be “public” and therefore imputing license and consent. Where probable cause or a warrant is needed to enter an individual’s house or vehicle, the Fourth Amendment does not limit the government’s ability to follow people on a public street. Our daily internet activities are increasingly subject to the same types of arguments: does the act of posting from a social media account imply consent by placing the information on a public domain? Alternatively, users can limit who sees posted content by adjusting privacy notifications and designating what is available to the general public. Does this indicate that the information resides in the private domain because an invitation is necessary? These questions will have to be addressed as regulations evolve in our increasingly digital world.

The Federal Register states that “the purpose of this system of records is to facilitate administration of benefits and enforcement of provisions under the INA and related immigration statutes.” However, permanent residents and naturalized citizens have already undergone intense vetting procedures and U.S. citizens are no longer seeking any immigration benefits. Including these individuals (and even natural-born citizens who have never sought immigration benefits), seems contrary to the system’s purpose and could lead to increased costs for data collection and storage.


What Type of Visa Do You Need to Tour the U.S. for a Year?

immigration lawyer Richmond VA Global travel is the dream of many young adults before or during college — and it appeals to retired adults and adults between jobs as well. Backpacking across Europe is a popular excursion, for example. However, the United States is far larger than many other countries and you could justify spending an entire year traveling from state to state exploring the diversity within one nation.

Ask an Expert

The best immigration lawyer Richmond VA area visitors and residents need can work with them regardless of the circumstances of their travel to the U.S. At Challa Law, we also help people currently in the U.S. to get their family members and friends in another country the visas they need to come for a visit or an extended stay.

The B-2 Visa

The B-2 visa is ideal for most people planning an extended trip to the U.S. It’s given for what are considered pleasure trips — vacations to sightsee, visits to friends and family or even for medical trips or community service trips. It can be issued for an entire year, allowing you plenty of time to visit each of your intended destinations.

Requirements

To qualify for the B-2 visa, you must have proof of:

  • Enough funds to finance your trip
  • Your intended return date and a permanent residence to return to in your native country
  • Your trip’s qualification as a “pleasure trip” (if you have business to attend to, you may be better served by the B-1 visa)

A Challa Law attorney would be happy to help you get your application in order to be granted a temporary travel visa that will allow you to make your dream of traversing the United States a reality. Contact us about getting your B-2 visa — or seeing if there is a more appropriate visa for your circumstances — as soon as you start thinking of planning your trip.


Can You Get an Employment-Based Visa If You’re Already in the U.S.?

employment visa statusEmployment-based visas allow you to stay in the United States for specific amounts of time — sometimes permanently — based on the sponsorship of your employer and your continued status as a full-time employee.

Many immigrants receive their job offers or transfers before they come to the U.S., making their visa applications more streamlined. However, others are already in the U.S. and may be considering employment visas as a way to stay or return after a short period back in their native countries.

Finding a Job

The most important factor in qualifying for employment visa status is that you have a job offer in hand so you have an employee sponsor. While you’re considering staying in the U.S., start looking for work. Earning a degree will give you an advantage.

Start the process by meeting with a Challa Law immigration attorney, but make finding a full-time job your number one priority, especially if you’re on a deadline and your student or other temporary visa is about to expire.

Why You’re Here

Why you’re in the U.S. will make a difference in your application process. If you’re here on a student visa that’s about to expire, you may have an advantage because your school can help you find a job after you graduate and you can more easily transition to an employment visa if you secure a position and sponsorship.

If you’re just visiting, you probably won’t have enough time and can apply from outside the country. If you’re about to turn 21 or get married after living with an employed immigrant parent, there may be some leeway to work with.

Changing Jobs

After going through a long process to be approved for an employment visa, you may be hesitant to ever quit your job, even if you’re unhappy. However, if you secure another job offer and meet with an attorney, the transition can go smoothly.

Talk to a Challa Law representative as soon as possible if you’re considering applying for an employment visa and wonder if your current status in the U.S. complicates matters or makes it more expedient. We’ll do everything we can to counsel you and give you the best advantages for getting the visa you need to achieve your dreams.


How to Increase Your Chances of Earning Permanent U.S. Residency Through Employment

immigration lawyers in Richmond VA Whether you’ve studied in the U.S. before or you’re even currently residing there on a student or temporary work visa, or you’ve never lived in the States, if you’re aiming to live in the U.S. as a permanent resident, employment may be the best way to do so. Once you’ve secured permanent residency through a job, you can then bring your immediate family (your spouse and unmarried children under the age of 21) as well.

Work with the Right Lawyer

The best immigration lawyers in Richmond VA know exactly how to tailor the permanent residency application process to every individual applying for a green card to make the process go as quickly as possible. If you have a family member in the area who can sponsor your application, it’ll go even more smoothly.

Apply for a Job First

If you have a job waiting for you — whether it’s a transfer from another branch in your company or a job you apply for on your own — you’re more likely to get permanent residency because your employer can sponsor your application. If the job starts fast, you can get temporary residency while you’re in the process of applying for a more permanent solution.

Learn a Trade or Degree

Specialized labor is in greater demand and is more likely to lead to your permanent residency. Professions that are particularly sought after include physicians, professors, researchers, and other professionals with advanced degrees. Even professionals with an undergraduate degree get more priority over those without one.

Permanent residents are even able to sponsor other members of their family, such as adult children who are both married and unmarried, which will make the process far easier for your loved ones to join you in the States. Work with an attorney at Challa Law who can look over your case and provide you with an individualized plan to permanent residency.


Can You Bring Family With You to the U.S. on a Student Visa?

immigration attorney Richmond, VA Coming to the U.S. to earn a degree at an academic institution or a vocational school offers immigrants so many opportunities. They can use that degree to get a better-paying job back home or to increase the likelihood of starting a career in the U.S. and potentially earning permanent residence. Many students are adult learners with families of their own. If you’re worried about your family being able to accompany you to the U.S., speak with an immigration lawyer to learn how your family can accompany you.

Consult With a Lawyer

At Challa Law, we’re happy to act as the immigration attorney Richmond, VA residents or would-be residents need to get their entire families to the States. The sooner you speak with us, the smoother the immigration process will be. As soon as you start thinking about going to school in the U.S., talk to one of our attorneys to see what you need.

Who Qualifies?

Your spouse and any unmarried children — your children or step-children — under the age of 21 can qualify for an F-2 or M-2 Visa, depending on whether you qualify for an F-1 or an M-1 Visa. You must remain a full-time student for your family to retain their F-2 or M-2 status.

Difference Between F-1 and M-1

Students attending an SEVP-approved school qualify for the F-1 student visa; you must have this acceptance in hand before you actually apply for the visa. M-1 visas are issued to foreign students attending vocational schools in the U.S.

It may be because you have a family that you’re eager for better-paying jobs and earning a degree. Don’t make the mistake of thinking you’ll have to part with your family if you come to the U.S. for your education. With the help of the right attorney, you’ll be able to bring your immediate family along.