DHS Announces Proposed $10 H-1B Registration Fee

Earlier this week, the Department of Homeland Security (DHS) proposed to amend regulations to require petitioners filing H-1B cap-subject petitions to pay a $10 registration fee for each registration submitted for consideration during the H-1B cap selection process. This aligns with previous American Immigration Lawyers Association (AILA) predictions based on responses to comments received on the original rule that partially took affect on April 1, 2019.

After numerous public comments, USCIS posted the final H-1B registration rule in January, requiring petitioners to register in a new system on behalf of cap-subject aliens. The rule also reversed the order in which H-1B petitions are selected for adjudication in an attempt to increase the number of H-1B visa holders with U.S. master’s degrees. While the rule was published on January 31, 2019, the electronic registration requirement was suspended until the FY 2021 cap season “to complete user testing and ensure the system and process are fully functional.”

Since President Donald Trump signed the “Buy American, Hire American” executive order in 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.” USCIS Director Cissna stated:

“The registration system, once implemented, will lower overall costs for employers and increase government efficiency. We are also furthering President Trump’s goal of improving our immigration system by making a simple adjustment to the H-1B cap selection process. As a result, U.S. employers seeking to employ foreign workers with a U.S. master’s or higher degree will have a greater chance of selection in the H-1B lottery in years of excess demand for new H-1B visas.”

The new registration system would allow employers to wait until a registrant is selected for the cap before submitting the H-1B petition. Only basic information would be required during the registration process for the employer and beneficiary, including the employer’s name, EIN, address, authorized representative information, basic biographic information about the beneficiary, and notification of the employer’s attorney or accredited representative.

Once the registration system is implemented and this secondary rule (titled “Registration Fee Requirement for Petitioners Seeking To File H-1B Petitions on Behalf of Cap Subject Aliens”) is finalized, cap-subject petitions will only be accepted for adjudication if properly registered and selected for the fiscal year cap. The rule notes that the fee is an estimate of the cost to run the program and could change once more data is collected, likely after the 2020 cap season. The H-1B registration final rule estimated that petitioners as a whole will save $42.7 to $66.8 million annually based on the costs of unselected petitions, but would spend approximately $8.5 million to $12.9 million for registration costs (an average of $15.63 to $30.80 per registration) depending on the method the petitioner chooses to complete the registrations.

While we have not yet seen the proposed system, the functionality described in the regulations will require the petitioner to first register the company or organization and then separately register each proposed beneficiary, paying the $10 registration fee for each. DHS has acknowledged that registering electronically to determine selection for the cap (as opposed to filing a full paper petition) is a lower barrier to entry and some petitioners could choose to register a larger number of beneficiaries.

The proposed rule that would require a $10 registration fee is open for public comment until October 4, 2019. Since the registration fee rule is not considered a “major rule” it is not subject to a 60-day delay in effective date and DHS has stated the shorter comment period is necessary to implement the fee for the FY 2021 cap filing season. We expect that the rule will be published and effective prior to the 2020 cap season.

E-mail us at info@challalaw.com for questions about this article.


Public Charge Rule Increases Hurdles for Legal Immigration

 

The U.S. Department of Homeland Security (DHS) published the final rule titled “Inadmissibility on Public Charge Grounds” this week, changing how DHS determines if an individual is “likely at any time to become a public charge.” Thirteen states have joined to file a federal lawsuit, claiming that the rule has unlawfully expanded “the term ‘public charge’ – a previously rare designation that triggers exclusion from the United States – in a manner that is contrary to congressional intent and agency interpretation that has prevailed for nearly 70 years, and contrary to two 1996 federal statutes.” If the federal courts don’t take action within the next 60 days, the rule is set to become effective on October 15, 2019. Applications and petitions filed prior to October 15, 2019 will be adjudicated using the current regulations and guidance.

The new rule redefines many of the terms associated with the previous public charge standards. In an interview with NPR’s Morning Edition, acting USCIS Director Ken Cuccinelli undertook his own revisions to the famous Emma Lazarus poem engraved on a bronze plaque at the Statue of Liberty, stating “Give me your tired and your poor who can stand on their own two feet and who will not become a public charge.”

The current regulations interpret a public charge to be “primarily dependent on the Government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or institutionalization for long-term care at Government expense.” The new rule acknowledges that non-cash benefits were not previously included and in order to be self-sufficient, the rule redefines public charge:

“to mean an alien who receives one or more designated public benefits for more than 12 months in the aggregate within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months.) This rule defines the term ‘public benefit’ to include cash benefits for income maintenance, SNAP, most forms of Medicaid, Section 8 Housing Assistance under the Housing Choice Voucher (HCV) Program, Section 8 Project-Based Rental Assistance, and certain other forms of subsidized housing.”

What does this mean for individuals seeking permanent residence?

While some categories, such as asylees, refugees, or other vulnerable populations (including T and U visa recipients) are exempted from the inadmissibility, other individuals applying for green cards, whether family or employment-based, may be scrutinized under the new public charge rule. The rule outlines a number of positive and negative factors that DHS will consider when determining if an alien is inadmissible.

Example: It is a positive factor if the alien is between the ages of 18 and 61, but negative if he or she is younger than 18 or older than 61. A heavily weighted negative factor is when an individual has work authorization, but cannot demonstrate current employment, recent employment history, or a reasonable prospect of future employment.

A new form, Form I-944, will be utilized for green card applicants filing Form I-485 (Application to Register Permanent Residence or Adjust Status) to prove they are not subject to the public charge ground of inadmissibility. The form will collect information based on the positive and negative factors related to an individual’s age, health, family status, assets, resources and financial status, education and skills, prospective immigration status and period of stay. The draft form instructions also state that USCIS could request certain individuals filing Form I-539 (Application to Extend/Change Nonimmigrant Status) or Form I-129 (Petition for a Nonimmigrant Worker) to also file the I-944 form, whether a principal or derivative beneficiary.

What are the negative factors that would weigh heavily in the determination that an individual is likely to become a public charge (and therefore inadmissible or ineligible to adjust or extend status)?

  • The alien is not a full-time student and is authorized to work but cannot show current employment, recent employment history, or a reasonable prospect of future employment.
  • The alien has received, or has been certified or approved to receive, one or more public benefits for more than 12 months in the aggregate within any 36-month period, beginning no earlier than 36 months before the alien applied for admission or adjustment of status on or after Oct. 15, 2019.
  • The alien has been diagnosed with a medical condition that is likely to require extensive medical treatment or institutionalization or that will interfere with his or her ability to provide for him or herself, attend school, or work and he or she is uninsured and has neither the prospect of obtaining private health insurance nor the financial resources to pay for reasonably foreseeable medical costs related to a medical condition.
  • The alien has previously been found by an immigration judge or the Board of Immigration Appeals to be inadmissible or deportable based on public charge grounds.

What are the positive factors that would weigh heavily against a public charge determination?

  • The alien has household income, assets, resources, and support from a sponsor, excluding any income from illegal activities or from public benefits, of at least 250% of the Federal Poverty Guidelines for his or her household size.
  • The alien is authorized to work and is currently employed in a legal industry with an annual income of at least 250% of the Federal Poverty Guidelines for a household of his or her household size.
  • The alien has private health insurance appropriate for the expected period of admission, so long as the alien does not receive subsidies in the form of premium tax credits under the Patient Protection and Affordable Care Act to pay for such health insurance.

What benefits are exempted from the rule?

  • Emergency medical assistance
  • Disaster relief
  • National school lunch programs
  • Foster care and adoption
  • Student and mortgage loans
  • Energy assistance
  • Food pantries and homeless shelters
  • Head Start
  • Benefits received by noncitizen members of the U.S. armed forces serving in active duty or in Ready Reserve components (and by service member’s spouse and children)

What are some examples of benefits not considered by the new standards?

  • Receipt of Medicaid for the treatment of an emergency medical condition
  • Services or benefits funded byMedicaid but provided under the Individuals with Disabilities Education Act
  • School-based services or benefits provided to individuals who are at or below the oldest age eligible for secondary education as determined under state or local law
  • Medicaid benefits received by an alien under 21 years of age
  • Medicaid benefits received by a woman during pregnancy and during the 60-day period beginning on the last day of the pregnancy.

Stay tuned for more information and tips on how to prepare for the rule’s effective date of October 15, 2019.

 


5 Things You Need to Know About PERMs

 

Workplace Stability

Sponsoring your employees for permanent residence allows you to extend the H-1B visa beyond the typical six year maximum validity period. When the employee is the beneficiary of an approved I-140 petition, the H-1B visa can continue to be extended while the employee waits on a visa to become available. The first step to the permanent residence process is the PERM labor certification, which takes months to complete due to regulatory time frames for the various steps.  In this stage, you must prove to the Department of Labor that the foreign national doesn’t harm the interests of U.S. workers. 

Bonus Round: 3 PERM Tips 

  1. Consult with an attorney to determine the best employment-based category.It may seem more appealing to go with a “second preference” or EB-2 visa, but backlogs for foreign nationals from some countries could cause processing times to be longer than the “third preference” or EB-3 category.
  2. Spend time discussing the job description with your attorney. It may be tempting to match a PERM description to a beneficiary’s qualifications, but an attorney can advise on the balance between generic and specific requirements.
  3. Plan ahead for the I-140 stage. The employer must prove its ability to pay the employee the prevailing or offered wage starting with the priority date. Your attorney can discuss the types of evidence required to prove the company’s financial ability to pay. 

Challa Law Group is your one stop shop for H-1Bs, L-1s, PERMs, and adjustments of status. Contact us to discuss how we can streamline the immigration process for your employees, giving you a more stable and engaged workforce to achieve your company’s goals.

 

 

 


Regulatory Agenda Gives Clues to DHS Priorities and Upcoming Changes to H-1B and H-4 Visas

Regulatory Agenda Gives Clues to DHS Priorities and Upcoming Changes to H-1B and H-4 Visas

This spring, the final H-1B rule partially went into effect for the FY 2020 cap season. The rule changed the way petitions were selected for the H-1B cap and also set forth the conditions for a new H-1B registration system. After significant public feedback, DHS decided to delay the registration system until the FY 2021 cap season. There have been a number of changes discussed that would affect the H-1B and H-4 visa programs, so we wanted to summarize and update you on the most impactful proposals.

Updated I-539 Form: No Courtesy Premium Processing for H-4 Spouses

H-4 spouses no longer enjoy courtesy premium processing when the H-1B petition is upgraded to the faster processing option. As a reminder, USCIS updated the Form I-539 during the busy weeks of this year’s cap season, making the following changes:

  • Every co-applicant on the primary Form I-539 must submit and sign a separate Form I-539A. Parents or guardians may sign on behalf of children under the age of 14.
  • Every applicant and co-applicant must now pay separate $85 biometric services fees (except certain A, G, and NATO nonimmigrants).
  • Every applicant and co-applicant will receive biometric services appointments, regardless of age, containing an individual receipt number. The appointments will be scheduled at the Application Support Center (ASC) closest to the primary applicant’s address. (Co-applicants who wish to be scheduled at a different ASC location should file a separate Form I-539.)

Proposed Rescission of H-4 EAD 

In 2015, DHS published a final rule extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants seeking employment-based permanent residence. That rule is now being reconsidered as the Trump administration signaled its intent to remove work authorization for H-4 dependents in late 2017. The proposed rule has moved forward to review by the Office of Management and Personnel, but has likely been delayed by ongoing litigation.

While the final rule will not be available until it is published in the Federal Register, we expect that the rule will provide a timeline for no longer accepting H-4 EAD applications and that it will determine when current H-4 EAD holders will need to stop working (unless obtaining an alternative work-authorized status). If the rule is rescinded, there could be additional litigation to challenge the ruling. Individuals currently working on the H-4 EAD should consider an independent work-authorized status if available.

I-129 Tips: Rejection for Incomplete Information & Updated Filing Addresses Without Announcement

Companies use Form I-129, or Petition for a Nonimmigrant Worker, to file for workers to come to the U.S. to temporarily perform services or labor. Many common visas utilize the form including but not limited to the H-1B, E-1/E-2, L-1A/L-1B, O-1A/O-1B, and P-1 visas. USCIS announced that beginning on Monday, August 5, 2019, Form I-129s without a petitioner or applicant’s name and primary U.S. office address will be rejected without adjudication or review. Currently I-129 forms can be rejected for a missing signature, checks made out for the wrong fees, or an unauthorized third party signing instead of a petitioner.
 
The announcement specifically notes that the primary U.S. office address cannot be the address of the counsel or any clients. According to the announcement, including clients or attorney addresses instead of the primary U.S. office address “creates unnecessary delays in the adjudication of Form I-129 and may result in its rejection.” In most cases, the Form I-129 can simply be refiled with missing information and fees, but it is important to consider status issues and planning ahead for a timely filing.
In July 2019, certain I-129 filing addresses were updated on the USCIS website, without prior notice or announcement. It appears that the changes affected cap-exempt petitions for extension of stay, change of status, concurrent employment, consular notification, and amended petitions, but excludes those filed for cap-exempt entities. Petitions were previously accepted at Vermont and California Service Centers, but will also be directed to the Nebraska and Texas Service Centers going forward.

H-1B Registration Rule Update: Registration Fee May Apply

After numerous public comments, USCIS posted the final H-1B registration rule requiring petitioners to register in a new system on behalf of cap-subject aliens. The rule also reverses the order in which H-1B petitions are selected for adjudication, potentially increasing the number of H-1B visa holders with U.S. master’s degrees. While the rule was published on January 31, 2019, the electronic registration requirement has been suspended until the FY 2021 cap season “to complete user testing and ensure the system and process are fully functional.”

Since President Donald Trump signed the “Buy American, Hire American” executive order in 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.” USCIS Director Cissna stated:
“The registration system, once implemented, will lower overall costs for employers and increase government efficiency. We are also furthering President Trump’s goal of improving our immigration system by making a simple adjustment to the H-1B cap selection process. As a result, U.S. employers seeking to employ foreign workers with a U.S. master’s or higher degree will have a greater chance of selection in the H-1B lottery in years of excess demand for new H-1B visas.”

The new registration system would allow employers to wait until a registrant is selected for the cap before submitting the H-1B petition. Only basic information would be required during the registration process for the employer and beneficiary, including the employer’s name, EIN, address, authorized representative information, basic biographic information about the beneficiary, and notification of the employer’s attorney or accredited representative.

This spring, DHS published the Unified Agenda of Regulatory and Deregulatory Actions which included mention of a fee for H-1B registrations for petitioners seeking to file H-1B petitions on behalf of cap subject individuals. According to the American Immigration Lawyers Association (AILA), the fee will likely be between $10 and $20 for each registration, based on the response to comments received on the original rule. AILA also predicts that the proposed rule could be published this summer for implementation prior to the FY 2021 H-1B cap filing season begins.

Contact Challa Law to discuss how the changes to the H-1B and H-4 visa programs could affect your company.


Review of the Proposed Employment-Based Immigration Bills in U.S. Congress: Potential Backlog Reduction for EB-2, EB-3, and EB-5 Visa Categories

These bills have the potential to reduce or eliminate the backlogs for the EB-2 and EB-3 categories that are critical to your company’s success. Did you know that an H-1B visa can be extended beyond six years if the individual also has an approved I-140 as part of the green card application process? Contact us today to discuss starting the permanent residence process for the resources who are critical to your bottom line.

Review of the Proposed Employment-Based Immigration Bills in U.S. Congress: Potential Backlog Reduction for EB-2, EB-3, and EB-5 Visa Categories

A series of immigration bills are making their way through Congress with some bipartisan support. The U.S. House of Representatives passed the Fairness for High-Skilled Immigrants Act of 2019 (H.R. 1044) on July 10, 2019 with 224 Democrats and 140 Republicans supporting the bill. However, a companion bill in the Senate called the Fairness for High-Skilled Immigrants Act of 2019 (S.386) is facing some opposition from several senators who have placed holds on the bill, which may prevent the bill from getting to the floor for a vote. Senator Rand Paul objected to moving the bill forward in June and a few weeks later introduced an immigration bill titled the Backlog Elimination, Legal Immigration, and Employment Visa Enhancement (BELIEVE) Act (S. 2091).

Senator Paul’s bill would eliminate the per-country limits for all employment-based categories and would increase the number of green cards available each year. He also proposes to exempt certain health care workers and some spouses and children from counting against the limits on employment-based visas. The bill would also allow spouses and children of E, H, and L visa holders to pursue their own employment. The bill currently has no co-sponsors and some believe it could be a distraction from the Fairness for High Skilled Immigrants Act of 2019, preventing the Senate from moving forward.

The House version of the Fairness for High-Skilled Immigrants Act would eliminate the per-country limits on all employment-based immigration categories and would increase per-country limits for family-based categories from 7 percent to 15 percent. The bill also allows for a three-year transition period and includes a “do no harm” provision which would attempt to ensure that beneficiaries of employment-based petitions approved prior to the bill’s enactment receive a visa no later than they otherwise would have if the bill had not been enacted.

The Senate companion to the bill has similar provisions, but instead of providing the transition period to the EB-2, EB-3, and EB-5 categories like the House bill does, the transition does not apply to EB-5 visa applicants. However, the “do no harm” provision is included in the Senate version, which would provide some protection to EB-5 visa applicants who had an approved petition prior to the bill’s enactment.

The Senate version also makes some changes to the H-1B visa program, due to an amendment by Senator Chuck Grassley. His amendment adds the requirement for internet postings to a DOL website, requires an administrative fee for LCAs, and make several updates to allow the USCIS and DOL to ensure compliance.

If the Fairness for High-Skilled Immigrants Act passed in the Senate, a conference committee would need to be assembled to reconcile the two versions of the bill. If the bill passed the House and Senate, it may be challenged by President Trump, who could choose not to sign the bill into law.

In summary, here are some of the anticipated impacts of the bill on employment-based visa applicants:

  • The elimination of the per-country limits would move green card wait times for those who have waited the longest in queue, especially those from India and China in the EB-2, EB-3, and EB-5 visa backlogs.
  • Within 5-7 years of the transition period, the employment-based green card backlog will likely end.
  • This comes at the expense of individuals in other countries who previously did not have long wait times – it is estimated that all categories will have some wait times.
  • Executive Director of the National Foundation for American Policy (NFAP) Stuart Anderson predicts that up to 40,000 green cards could go to Indians in the EB-2 and EB-3 visa categories in FY 2023 and 2024.
  • Anderson also predicts that during 2023, all Indians in the EB-3 backlog may have received green cards, but that would leave around 290,000 in the EB-2 backlog. Some may choose to refile under the EB-3 category and by FY 2027 or 2028, the entire backlog for Indian nationals who were waiting prior to the bill’s enactment would be eliminated.

The bill could also have the following impacts on family-based visa applicants:

  • The increase of the per-country limits from 7% to 15% (15,820 to 33,900 from a single country annually) would result in more visas being allocated to individuals from backlogged countries.
  • The new limits could help individuals born in Mexico and Philippines, and to a lesser degree, India, who have been waiting the longest in family-sponsored visa categories.
  • Individuals in other countries will likely have increased wait times as the backlogs are cleared.

New Citizenship Test to be Piloted This Fall

Naturalization Civics Test Questions to Change

For many immigrants, U.S. citizenship is the ultimate accomplishment. Naturalization can take decades if you first entered the country as a student or foreign worker. As the wait times for green cards have steadily increased (to over ten years for some categories), citizenship remains elusive for many. In order to become a U.S. citizen after immigrating, an individual must be a green card holder for a minimum of three to five years (depending on how the green card was obtained) and then they must pass civics and English tests to demonstrate their commitment and loyalty to the United States.

Earlier this year, former USCIS Director Francis Cissna issued a memorandum titled “Revision of the Naturalization Civics Test” to associate directors and program office chiefs to notify them of upcoming changes to the civics test. The memo also stated that the test will be revised every ten years going forward, formalizing a process that has been done intermittently in the past. The last major revision happened in 2009 when USCIS implemented standardized test forms for the English and civics test requirements.

A new announcement today confirmed that a naturalization test revision working group formed of USCIS agency members has been updating test questions since December 2018. The group is also exploring changes to the speaking portion of the English test, which also includes reading and writing portions. USCIS has set the implementation date for December 2020 or early 2021 but plans to pilot the program this fall. We will keep you posted on any major updates to the naturalization tests that we see as a result.

Cissna’s memo describes citizenship as “the culmination of an immigrant’s journey to fully join our nation and live with us in a common bond. It is the most meaningful immigration benefit our country offers.”

Are you ready to complete your immigration journey? Contact Challa Law to start your citizenship application today.


EB-5 Rule Finalized: Changes to Minimum Investments, TEA Designation, Regional Centers, & More

 

On July 24, 2019, the Department of Homeland Security published the final “EB-5 Immigrant Investment Program Modernization” rule, making sweeping changes to the investor visa program starting on November 21, 2019. Some of the changes are good news for immigrant investors, including the new priority date retention policy. Other updates such as the increased minimum investment levels and more restrictive Targeted Employment Area (TEA) designation process will pose some challenges to new investors hoping to earn a green card.

Here are the major changes the rule makes to the EB-5 investor visa program:

Priority dates can be retained for certain EB-5 investors.

  • A petitioner with multiple approved immigrant petitions as an investor can utilize the earliest qualifying priority date.
  • This situation might occur when an investor must file a new petition due to a regional center termination or a material change in the business conditions underlying the qualifying investment.
  • Once the conditional green card is issued, the priority date cannot be retained for another petition. You must meet the criteria for removing the conditions to receive your regular green card.
  • The priority date retention is generally available except in cases of fraud or misrepresentation.

Minimum investments have increased.

  • Standard EB-5 investments will increase from $1 million to $1.8 million.
  • Targeted Employment Area (TEA) investments will increase from $500,000 to $900,000.
  • Minimum investment amounts will now automatically increase for inflation every five years.

The TEA designation process has been shifted to DHS.

  • States will no longer have the ability to designate areas as high-unemployment areas.
  • DHS will now review all requests for TEA designations.
  • Only cities and towns with populations of 20,000 or more outside of MSAs may qualify as a specific and separate TEA based on high unemployment.
  • DHS is finalizing a census tract process for making special TEA designations.
  • DHS will amend its regulations so that a TEA may consist of a census tract or contiguous census tracts in which the new commercial enterprise is principally doing business if the new commercial enterprise is located in more than one census tract; and the weighted average of the unemployment rate for the tract or tracts is at least 150 percent of the national average.
  • DHS will also amend its regulations so that a TEA may consist of an area comprising the census tract(s) in which the new commercial enterprise is principally doing business, including any and all adjacent tracts, if the weighted average of the unemployment rate for all included tracts is at least 150 percent of the national average.

Family members must file their own petitions to remove conditions (if not included in the petition filed by the principal investor).

  • The rule clarifies that any derivatives must file separate petitions if they are not included on the principal investor’s petition to remove conditions.
  • There will be more flexibility in interview locations related to the Form I-829.

I’ve already invested and filed Form I-526. Does the new rule affect me?

As an existing investor you will benefit from the priority date retention. There are a variety of factors that could cause the basis for your petition to no longer qualify for the removal of conditions on the green card. If you chose to file an additional I-526 based on a new qualifying investment, you would need to meet the new minimum investment levels, but could retain the priority date of your first petition. Please note that once a conditional green card is issued, the priority date cannot be retained for another petition.

What do new investors need to know?

New investors will still be subject to the underlying requirements of the EB-5 visa, including making a necessary investment in a commercial enterprise in the United States and creating 10 full-time jobs for qualified U.S. workers. If you are planning to invest and file prior to the November 21, 2019 effective date, you can still utilize the lesser investment amounts of $500,000 (for a TEA investment) or $1 million (standard EB-5 investment). We recommend starting that process now if you plan to file before the rule goes into effect, as it could take quite some time to gather the appropriate documentation and transfer the funds to a project.

Request some free information on the EB-5 visa by emailing us at info@challalaw.com.

You can also download the following resources:


U.S. Department of State Begins Collecting Social Media Information: Guidelines and Tips for Nonimmigrant and Immigrant Visa Applicants

Pursuant to a Trump administration Executive Order encouraging increased vetting of visa applicants, the Department of State announced that it would begin requiring 5 years of social media history, including usernames, previous email addresses, and phone numbers. As part of phase one of the increased information collection, Forms DS-160 and DS-260 have been updated to request social media information from applicants for immigrant and nonimmigrant visas.

How does the announcement change what information is collected?

Effective on May 31, 2019, a new question was added to Forms DS-160 and DS-260 requiring the disclosure of visa applicants’ social media identifiers for all accounts used within the last five years.

The forms direct visa applicants to provide identifiers related to specific social media platforms used to interact with others online. The new questions ask visa applicants to list the username, handle, or screenname associated with a profile or account. For example, for Twitter or Instagram a sample handle or username might be @janedoe123. For Facebook, LinkedIn, and other platforms, you may be asked to provide the full name used for the account, as well as a link to page(s). The updated visa application forms list the specific social media platforms for which identifiers are being requested. If you have multiple usernames or accounts within the last five years, all of your social media accounts should be included on the form. 

Which social media platforms are requested?

Currently, the below platforms are requested on the two forms:

Ask.FM Instagram Reddit Twoo
Douban LinkedIn Sina Weibo Vine
Facebook Myspace Tencent Weibo Vkontakte (VK)
Flickr Pinterest Tumblr Youku
Google+ Qzone (QQ) Twitter YouTube

What limits are in place to protect applicant’s privacy?

Consular officers may only ask for the applicant’s social media identifiers and are not permitted to request any passwords nor will they have the ability to access privacy controls applicants may have implemented. According to a DOS Supporting Statement, consular staff will be directed:

  • “not to engage or interact with individual visa applicants on or through social media when conducting assessments of visa eligibility;
  • not to request user passwords in furtherance of this collection;
  • not to violate or attempt to subvert individual privacy settings or controls the applicants may have implemented on social media platforms;
  • and not to use social media or assess an individual’s social media presence beyond established Department guidance.”

Individuals also do not need to share company or organization profiles if multiple other employees have access and control over those accounts.

What if the visa applicant doesn’t have any social media accounts?

A response is required to the questions related to social media on forms DS-160 and DS-260. Even if you choose to delete a social media account prior to your application, it must be listed on the form if it existed within the last five years. However, visa applicants who have never used social media will not be refused on the basis of failing to provide a social media identifier since the form does allow the applicant to respond to the question with an answer of “None.” Applicants should complete the application as completely and honestly as possible to avoid any delays in processing or unfavorable decisions.

What additional questions are being added in phase two?

The Department of State plans to add questions on the following topics in phase two:

  • An optional free-text field for applicants to provide identifiers associated with any other social media platforms during the five years preceding the date of application, other than those platforms listed.
  • Five years of previously used telephone numbers, email addresses, and international travel;
  • All prior immigration violations; and
  • Whether specified family members have been involved in terrorist activities.

How will consular officers use the information collected?

The rule posted in the Federal Register outlines that the Department of State will use the social media information for “identity resolution and vetting purposes based on statutory visa eligibility standards.” Visa applicants should consider that publicly available information they have posted on social media could be used during adjudication and processing of their visa applications.

In a Supporting Statement, the Department of State specifically notes that the social media information will be used to understand “existing and evolving threats to national security, to enable more rigorous evaluation of applicants.” The statement goes on to claim:

“Within consular and fraud prevention sections of Department’s overseas posts, public-facing social media information may be reviewed to assess potential visa fraud that would lead to a conclusion that the applicant is not eligible for a visa.  For example, information on social media pages or posts may be used to validate legitimate relationships or employment required for visa eligibility, to identify indicia of fraud, or to identify misrepresentations that disguise potential threats.”

Social Media Tips for Visa Applicants

When evaluating their social profiles, visa applicants should make sure their employment history is accurately reflected and that other posts do not conflict with information included in the visa application. Applicants should be truthful about any social media profiles in existence, as neglecting to include that information could be seen as a misrepresentation or an attempt to conceal information. This could not only lead to delayed processing times, but also potential denials of the current and future applications.

Main Visa Ineligibilities

Code Section:

(b) Every alien (other than a nonimmigrant described in subparagraph (L) or (V) of section 101(a)(15), and other than a nonimmigrant described in any provision of section 101(a)(15)(H)(i) except subclause (b1) of such section) shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for a visa, and the immigration officers, at the time of application for admission, that he is entitled to a nonimmigrant status under section 101(a)(15).

  1. g) No visa or other documentation shall be issued to an alien if (1) it appears to the consular officer, from statements in the application, or in the papers submitted therewith, that such alien is ineligible to receive a visa or such other documentation under section 212, or any other provision of law, (2) the application fails to comply with the provisions of this Act, or the regulations issued thereunder, or (3) the consular officer knows or has reason to believe that such alien is ineligible to receive a visa or such other documentation under section 212, or any other provision of law.

Specific Ineligibilities Outlined by Department of State:

A Supporting Statement for the DS-160 changes specifically draws attention to the following ineligibilities (emphasis added):

“Among the grounds of ineligibility are those related to the health of the applicant, the applicant’s past and present criminal activities, security concerns, potential for the applicant to become a public charge, and previous violations of the INA by the applicant; however, not all grounds of ineligibility apply to all visa classifications.  In the visa application form, applicants are asked a series of questions relevant to a determination of visa eligibility.”

Below are some examples of social media information that may conflict with restrictions on various visa types. Please direct any additional questions to info@challalaw.com.

VISA TYPE REQUIREMENTS EXAMPLES OF CONFLICTING INFORMATION ON SOCIAL MEDIA
Nonimmigrant visas that don’t allow dual intent (i.e. B-1, F-1, etc.) MUST INTEND TO RETURN TO THEIR HOME COUNTRY 1.    Posts about their impending marriage in the U.S.

2.    Posts about being out of work

3.    Posts about family in the U.S. that weren’t disclosed on the visa application

F-1 MUST INTEND TO STUDY IN THE U.S. 1.    A LinkedIn update about his/her new job in the U.S.
B-1 MUST NOT ENGAGE IN WORK ACTIVITIES 1. Posts about going to their company’s U.S. office to work on a project
Family-based visa VALID MARRIAGE 1.    Posting lots of photos of fun times with friends but not with one’s U.S. citizen spouse

2.    Failing to say a thing about one’s wedding despite having posted about every other major and minor incident in one’s life for the past year

L-1 MUST WORK ONE YEAR OUT OF LAST THREE IN RELATED QUALIFYING ENTITY 1. LinkedIn profile shows that the individual worked for unrelated entities for past three years
2. Posts showing that the individual started their job with the entity less than one year prior
Immigrant Visas MUST NOT BE LIKELY TO BECOME A “PUBLIC CHARGE” 1. Facebook posts bemoaning one’s financial situation
2. GoFundMe or other crowdfunding pages asking for money
Nonimmigrant and Immigrant Visas NO INADMISSIBLE BEHAVIOR 1.    Bragging about having engaged in criminal activity

2.    Mentioning illegal use of drugs

3.    Mentioning legal use of drugs in another country (but the specific drugs are illegal in the U.S.)

 


E-2 Treaty Investor Visa Available to Citizens of Israel

On May 1, 2019, the E-2 visa will be extended to Israeli citizens for the first time. The E-2 Treaty Investor is a nonimmigrant visa that 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.”

While roughly the same size as the U.S. state of New Hampshire, Israel boasts a successful high-tech industry. According to the U.S. Embassy website for Israel:

“U.S. firms have been a big part of the Start-Up Nation story, with U.S. companies establishing two-thirds of the more than 300 foreign-invested research and development centers in Israel.  Israeli firms, meanwhile, represent the second-largest source of foreign listings on the NASDAQ after China – and more than Indian, Japanese, and South Korean firms combined.”

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. 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, as long as the investment meets several criteria to determine if it is substantial.

In addition to the substantiality test, the enterprise must exceed the marginality test and the E-2 visa applicant must be in a position to develop and direct the enterprise, through special qualifications that make the employee’s services essential to the efficient operation of the business.

Visit our website for an introduction to the E-2 Treaty Investor visa and determine if your intended U.S. investment plan meets the E-2 requirements. Contact us at info@challalaw.com if you have any questions.


An Introduction to the E-2 Treaty Investor Visa: Marginality, Substantiality, Essentiality & Other Key Tests

The E-2 Treaty Investor visa 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.

Essentiality of E-2 Employee

The E-2 visa also emphasizes that an applicant should have “special qualifications” or “skills which make the employee’s services essential to the efficient operation of the business.” The application must demonstrate that the individual not only that possesses the necessary special qualifications, but also establishes the length of time those skills may be needed for the successful and efficient operation of the U.S. enterprise. This essentiality of the potential E-2 employee may be measured by:

  • The degree of proven expertise in the employee’s area of operations
  • Whether others possess the employee’s specific skills
  • The salary that the special qualifications can command
  • Whether the skills and qualifications are readily available in the United States.

Impact of U.S. Workers

While the E-2 visa does not require a labor certification from the Department of Labor, USCIS does take into consideration the availability of U.S. workers when determining the degree of specialization and essentiality of the employee to the business. For example, an individual bringing a new technology to the U.S. may have specialized skills directly relating to the manufacturing, sales, and distribution of that technology, qualifying him or her for an E-2 visa. Additional evidence to support this narrative could be requested from U.S. labor organizations, industry trade groups, local or state chambers of commerce or other organizations with access to data on labor availability. It is important to note that there is no regulatory requirement that an essential employee have previously worked with the E-2 treaty enterprise. The only instance that previous employment has an affect on the application, is if the claim is being made that the necessary skills can only be obtained through that particular employment.

Short Term vs. Long Term Essentiality

When crafting the narrative of your E-2 visa application, we will consider your intended involvement in the ongoing operations of the U.S. entity. There may only be a need for the E-2 employee to come to the U.S. for a short period of time to direct the start-up operations or to train and supervise employees with specialized functions. For a short term need, the application might demonstrate that an employee is essential based on his or her knowledge with overseas operations or technologies. Evidence should demonstrate that these short-term employees are initially involved in the effort to train U.S. workers within a year or two as their own replacements.

The E-2 visa can be granted at a maximum initial stay of two years, but is renewable in various time increments depending on the nature of the underlying treaty with the country of the visa holder. Since there is no maximum limit to the number of extensions that can be granted, many business owners utilize the E-2 for a longer-term stay to continue to direct the enterprise. As long as the application demonstrates the individual has special qualifications that require his or her continuous presence in business activities, such as product development or providing a service not commonly available from U.S. workers, there is no requirement for training a U.S. worker replacement.

Case Study: Matter of Walsh and Pollard

In the 1980s, General Motors needed automotive engineers to design a new fleet of vehicles. After first attempting to meet their labor needs within the U.S., the company realized an additional need for engineers and turned to overseas for help. A British contractor made an investment as part of a strategy to open a U.S. office and then funnel designers for GM’s temporary labor needs using E-2 visas and establishing the designers’ essential skills. After the visas were approved, the then-INS (Immigration and Naturalization Service, now part of USCIS or United States Citizenship and Immigration Services) denied the engineers when they attempted to enter the U.S. The case made it to the Board of Immigration Appeals (BIA), which ruled on two key aspects of the E-2 visa:

  1. A small investment does not preclude the issuance of an E-2 visa as long as it is sufficient to “establish a viable enterprise of the nature contemplated” and
  2. The applicants whom were “highly trained, specially qualified, and essential to the corporation’s efficient operation” were qualified for the E-2 visa despite the fact they were not involved in “developing and directing the qualifying investment.”

The BIA determined that the automotive engineers had essential skills necessary to the long-term success of the enterprise and that the employees were not replacing U.S. workers in the near future, due to the extensive training that would be required to match the designers’ level of specialized skills.

Substantiality of the Business

The Foreign Affairs Manual points out some key aspects of the case when determining whether the business might meet the substantiality test, stating that “sometimes an investment of only a small amount of money might meet the requirement.” There is no standard investment amount, but the investment must meet the following:

(1)  Substantial in a proportional sense, as determined through the application of the proportionality test outlined below;

(2)  Sufficient to ensure the treaty investor’s financial commitment to the successful operation of the enterprise; and

(3)  Of a magnitude to support the likelihood that the treaty investor will successfully develop and direct the enterprise.

Proportionality of the Business

               The substantiality of the business is partly determined by using the proportionality test by weighing the amount of funds invested against the total cost of the business. The Foreign Affairs Manual describes the appropriate investment as an inverted sliding sale, with lower cost business requiring a higher percentage of the investment and a higher cost business requiring a lower percentage of qualifying investment. The manual also defines the cost of an established business as its purchase price and the cost of a new business is the sum of costs required to establish an operational business. When applying for the E-2 visa, this figure includes the investments already made and the estimates for the additional assets needed to run the business.

Marginality of the Business

The EB-5 visa clearly outlines the required job creation for visa attainment, but the E-2 visa applicant must prove that the investment is not in a “marginal” enterprise, i.e. the business must have the present or future capacity to generate income above that for the treaty investor and his or her family. This capacity to make a “significant economic contribution” should be “realizable within five years from the date the alien commences normal business activity of the enterprise,” according to the Foreign Affairs Manual.

Contributions of E-2 Visa Holders

As with any nonimmigrant or immigrant visa, the fundamental premise of the E-2 visa is that individuals who are granted these visas will provide value to the United States. For investment-type visas, often this value is quantified by the number of jobs created or the monetary contribution to the U.S. economy. While there are no specific numeric requirements for job creation or continued investment levels, an E-2 renewal application that demonstrates these accomplishments is more likely to establish the essentiality of not only the employee to the enterprise, but of the enterprise to the continued economic health and growth of the United States economy.

Request a copy of the E-2 qualifying countries by emailing us at info@challalaw.com.