New Immigration Policies and Options for Entrepreneurs

A bill in the U.S. House of Representatives, “The America Competes Act 2022” proposes incentives for nonimmigrant entrepreneurs to start-up businesses in the United States to make the United States more competitive by encouraging some of the best and the brightest to bring their entrepreneurial talent into the country. The bill proposes a “W” visa that would cover an alien classified as a nonimmigrant entrepreneur with an ownership interest in a start-up business, an alien who is or will be an essential employee of the start-up, and the spouse and children accompanying the entrepreneur and/or essential employee.

To achieve this status, the alien must possess an ownership interest in the start-up of not less than 10%, play a central and active role in the management or operations of the start-up, and possess the knowledge, skills, or experience to substantially assist the start-up with the growth and success of the business. The previous 18 months prior to the alien filing a petition for W status the start-up business must have received at least $250,000 in qualifying investments from one or more qualified investors, and at least $100,000 in qualifying government awards or grants.

The status granted under a W visa is valid for an initial period of three years, with the option for an extension. The nonimmigrant can apply for an additional three-year period if the alien possesses an ownership interest of not less than 5% in the start-up that formed the basis of the initial petition and will continue to play a central and active role in the management or operations of the start-up. In addition, the start-up must have received at least $500,000 in additional qualifying investments from one or more qualified investors, qualifying government awards or grants, or a combination of such funding, created at least five jobs, and have generated not less than $500,000 in annual revenue and averaged 20% in annual revenue growth.

After the first six years on a W nonimmigrant visa, the alien can extend the W visa in two one-year increments for a total of eight years. It appears that USCIS recognizes building a business takes some time and has allotted eight years for this process. Once a nonimmigrant entrepreneur has achieved at least $1,000,000 in revenue for two consecutive years a nonimmigrant holding a W visa can then petition for lawful permanent residence.

For the nonimmigrant entrepreneur in W status to adjust status to obtain lawful permanent residence the nonimmigrant entrepreneur in W status must be present in the United States and have maintained status as a nonimmigrant. The nonimmigrant entrepreneur must have maintained an ownership interest in the start-up business since its founding, and the nonimmigrant entrepreneur must play an active and central role in the operations of the start-up business. The start-up business must have created at least ten qualified jobs, received not less than a total of $1,250,000 in qualifying investments, qualifying government grants or awards, or a combination of such funding, and have generated no less than $1,000,000 in annual revenue in the two years preceding the filing of the petition.

USCIS Updates Expedite Request Policy

On Monday, January 25, 2022, USCIS issued a Policy Alert updating the requirements to obtain an expedite. USCIS updated its policy guidance to clarify the criteria and circumstances that may warrant
expediting the adjudication of a benefit request as well as explaining how USCIS assesses expedite requests. This update, contained in Volume 1, Chapter 5 of the USCIS Policy Manual, is effective immediately. The guidance contained in the Policy Manual is controlling and supersedes any related prior guidance.

The main changes to the Expedite Request Policy is in the clarifications.

Severe Financial Loss as a Basis for Expedited Treatment

“A company can demonstrate that it would suffer a severe financial loss if it is at risk of failing, losing a critical contract, or required to lay off other employees. For example, a medical office may suffer severe financial loss if a gap in a doctor’s employment authorization would require the medical practice to lay off its medical assistants.”

This is a significant change. Many individuals waiting for their EAD are critical to research grants and contracts, if the delay in the EAD would create a risk of losing or seriously affecting a grant or contract. A letter from the employer explaining the risk and critical nature of the employees’ contributions should suffice under the new standard.

“Job loss may be sufficient to establish severe financial loss for a person, depending on the individual circumstances. For example, the inability to travel for work that would result in job loss might warrant expedited treatment. The need to obtain employment authorization, standing alone, without evidence of other compelling factors, does not warrant expedited treatment.”

This is also a major change. For the first time, USCIS has specifically stated that “Job loss” is a basis of claiming severe financial loss. Despite this change, it is still determined on a case by case basis and is still discretionary with the adjudicating officer. However, the language itself is encouraging and can be used along with additional evidence of financial impact to request an expedite. Additionally, the “inability to travel for work” indicates that USCIS may consider an expedite of both the Employment Authorization and Advance Parole where an individual needs to travel for work but would not otherwise be able to, putting their job at risk. A letter from the employer would be required in this circumstance.

Expedited Treatment Based on Emergency or Urgent Humanitarian Reason

“In the context of an expedite request, humanitarian reasons are those related to human welfare. Examples may include, but are not limited to, illness, disability, extreme living conditions, death in the family, or a critical need to travel to obtain medical treatment in a limited amount of time. An emergency may include an urgent need to expedite employment authorization for healthcare workers during a national emergency such as the COVID-19 pandemic… A benefit requestor’s desire to travel for vacation does not, in general, meet the definition of an emergency.”

This clarifies what is needed for an expedite of advance parole, and is now clearly setting out in writing what the general understanding has been regarding what is needed to successfully request advance parole. To obtain advance parole through the expedite process, supporting evidence such as a letter from a treating physician is typically necessary. The advance parole expedites can be done at a local USCIS office. The additional language related to healthcare workers under Emergency or Humanitarian Reasons is extremely important. The recent directive related to EAD expedites for essential workers was limited to EAD renewals. This language indicates that the same directive can be argued for the expediting of the initial EAD. As with the EAD renewal expedite, a letter from the employer will be necessary to support the request.

With the new guidance, we are hopeful that USCIS will at least request and review the evidence supporting an Expedite Request and not continue to summarily deny them without reviewing the supporting evidence. If you require assistance with an EAD or AP expedite, please feel free to contact our office.

White House Announces Actions to Attract STEM Talent

On January 21, the White House issued a Fact Sheet outlining actions that the U.S. Government is undertaking to attract STEM talent to come to and remain in the United States. Important changes to the different visa types are outlined below:

J1 Visas – In support of the recent Joint Statement of Principles in Support of International Education, the U.S. Department of State’s Bureau of Educational and Cultural Affairs announced the Early Career STEM Research Initiative. Under the new Opportunity for Academic Training Extensions for J-1 College and University Students in STEM Fields, Undergraduate and Pre-Doctoral J-1 students who have recently completed STEM-related studies are now eligible for a maximum of 36 months of academic training. This new initiative will run for the next two academic years 2021-2022 and 2022 and 2023.

F1 OPT – In order to attract STEM talent to the United States, the Department of Homeland Security has included 22 new fields of study to the list of STEM programs eligible for the 24 month OPT STEM extension. The added STEM fields include areas of study that are in new multidisciplinary and emerging fields which are vital to supporting the U.S. economy and technological competitiveness. The 22 new fields that have been added are listed in the Federal Registry’s Update to the Department of Homeland Security STEM Designated Degree Program List.

O-1A – U.S. Citizenship and Immigration Services issued a Policy Alert announcing an update to the USCIS policy manual related to “extraordinary ability” (O-1A) nonimmigrant status. The update provided new policy guidance related to the adjudication of O-1A nonimmigrant visas. O-1 beneficiaries who possess a STEM degree. The new update provides examples of evidence that may satisfy the O-1A evidentiary criteria and discusses considerations that are relevant to evaluating such evidence, with a focus on the highly technical nature of STEM fields. Additionally, it provides examples of possible comparable evidence that may be submitted in support of petitions for beneficiaries working in STEM fields. The guidance, contained in Chapter 4 of Volume 2 of the USCIS Policy Manual is effective immediately.

National Interest Waivers – The USCIS also issued a Policy Alert clarifying how the National Interest Waiver can be used by STEM graduates with an advanced degree. the policy update clarifies how the national interest waiver can be used for persons with advanced degrees in STEM fields and entrepreneurs, as well as the significance of letters from governmental and quasi-governmental entities. Of note is the guidance states that “(t)he mere possession of a degree, diploma, certificate or similar award from a college, university, school, or other institution of learning is not by itself considered sufficient evidence of exceptional ability.” To qualify for a National Interest Waiver the petitioner must still meet the requirements set forth in the Matter of Dhanasar. The guidance contained in USCIS Policy Manual Volume 6, Part F, Chapter 5 is effective immediately.

The changes announced by the White House and implemented by the Department of State, Department of Homeland Security and the Department of Education are very important and demonstrate the recognition by the Federal Government of the need to attract and maintain top talent to meet the high demand for STEM educated workers in the U.S. While there are still complex hurdles that need to be cleared to successfully obtain an O-1A or an NIW, the government has for now helped clarify how the USCIS will adjudicate STEM related petitions and has provided Immigration Attorneys additional tools to craft successful arguments to help STEM graduates remain in the U.S.

Please feel free to contact us for a free consult to see how we can help you obtain an O-1 or an NIW under the new USCIS guidelines.

EAD Renewal Expedite Now Available For Essential Healthcare and Public Health Workers

USCIS recently issued an ALERT that they will process EAD expedite requests on EAD renewals that are pending for Essential Healthcare and Public Health Workers. To be eligible to expedite your EAD renewal your current EAD must be set to expire within 30 days or have already expired. Also, you must be an Essential Healthcare […]

USCIS Waiving 60-day Rule for Medical Exam Filing

USCIS announced on December 9th that they are temporarily waiving the requirement that the I-693 Report of Medical Examination and Vaccination Record be filed within 60 days of being signed by a Civil Surgeon. The policy is effective immediately and is in effect until September 30th, 2022. The waiver applies to all pending cases, regardless of when the application was submitted or when the Form I-693 was signed. Previously, in August, USCIS extended the validity of the I-693 Medical Exam from two years to four years. These actions on the part of USCIS show that they are making efforts to overcome some of the challenges brought on by the pandemic.

Recapturing of Unused Green Cards

It appears that there is a provision in the proposed spending bill presently before Congress which proposes to recapture more than 400,000 unused green cards. It is estimated that there are approximately 224,000 green cards that were allocated during the period from 1992 to 2019 which were never issued. Additionally, in 2020 there were 200,000 green cards that went unissued. It is safe to assume with the pandemic and the delays that exist in the processing of green cards that there will be many more green cards that go unused for 2021. If this bi-partisan proposal is included in the spending bill, then it is great news for persons from countries facing long delays due to extended priority dates. If recaptured the green cards will be used for individuals who already have an approval under either a family or employment based case.

While the possibility of recapturing 100,000+ of unused green cards is exciting news, it will not come without a cost. In order to claim one of the recaptured green cards the USCIS fee will be $5,000. If passed this could potentially generate $2,000,000,000 in revenue for USCIS. That kind of additional funding should allow USCIS to increase staff and resources to further alleviate the current delays and backlogs. Should the backlog clear significantly, it should allow individuals from India and China to timely obtain a green card through the NIW process. For further information on the recapture please see the Axios news report.

I-485 Processing Times

An I-485 lawsuit was recently rejected by U.S. Federal Court. A group of I-485 petitioners recently filed suit against USCIS because of what they felt was an unacceptable delay in the processing of their green cards. The petitioner requested injunctive relief asking the Court to order USCIS to adjudicate their pending I-485 Adjustment of Status to permanent residence by October 31, 2021.  Citing Bian v. Clinton605 F.3d 249, 255 (5th Cir. 2010) the Court was not persuaded that the I-485 applicants possessed “a ‘clear and certain’ right to have [their] I-485 application[s] adjusted within [a certain number of days] of [the application’s] filing-or that the USCIS has a ‘plainly prescribed’ duty to process the application within [a set] time frame.”  Consequently, the court denied the plaintiffs’ claim in Kivlekar v. U.S. Citizenship & Immigration Servs., 3:21-cv-2576-B-BN, (N.D. Tex. Oct. 28, 2021).  Unfortunately, this decision means if you are experiencing a delay in reference to your I-485 Adjustment of Status filing you will need to be patient. Cases are being approved on a regular and, in most cases, timely manner and many green cards are still being issued without interviews. As a sign that things are looking up, we just had an I-485 approved within 41 days – filed on 9/27/2021 and approved without an interview on 11/7/2021.

COVID TRAVEL RESTRICTIONS TO BE LIFTED

The White House just announced that it will lift COVID related travel restrictions effective November. Although a specific date has not been given, it is anticipated that it will be in early November. While this is good news for those who have valid visas, it does not change the waiting times to obtain visas at a U.S. Embassy or Consulate abroad. With U.S. Embassies and Consulates still not working at full capacity, and with little sign of the COVID pandemic letting up anytime soon, it is highly advised that persons not travel internationally without having a valid visa in their passport or advance parole.

COVID VACCINATIONS TO BE REQUIRED FOR GREEN CARD APPLICANTS

The CDC recently set forth new “Requirements for Immigrant Medical Examinations: COVID-19 Technical Instructions for Civil Surgeons.” Beginning October 1, 2021 persons applying for permanent residence will be required to provide proof that they have been vaccinated against the COVID-19 virus at the time of their medical exam or receive the vaccinations before the medical exam can be completed. The proof of vaccination will be part of the required medical examination. The addition of the COVID-19 vaccination is not surprising and joins a long list of other required vaccinations (tetanus, polio, measles, influenza, etc.). The COVID-19 vaccination requirement will differ from previous requirements in that the entire vaccine series (1 or 2 doses depending on formulation) must be completed. It is not specified which vaccines will be acceptable, however only an official vaccination record or a copy of a medical chart stating that the individual has received the full complement of doses will be accepted as proof.

There are exceptions to the COVID-19 vaccination requirement, the same as for the other required vaccines, including persons who are too young or have contraindications or other health based reasons to not receive the vaccine. There is also a waiver for individuals in countries with no or limited COVID-19 vaccine supplies.

We strongly recommend that anyone who is scheduling a medical exam to be sure they are fully vaccinated for COVID-19 before doing so and that they request the civil surgeon to acknowledge the COVID-19 vaccination in the medical record. While the CDC recommends that civil surgeons should accommodate applicants if they want to complete the remaining components of the exam after they are fully vaccinated against COVID-19, there is no guarantee that the physicians will agree to this accommodation. Additionally, it appears USCIS will require medical exams submitted after October 1 to contain the COVID-19 vaccination confirmation. Cases pending prior to that date should not be affected.

Pilot NIW Green Card Rumor

There appears to be a rumor that the U.S. government has made it easier for pilots to obtain a green card through the NIW process. As respected leaders in helping pilots obtain green cards, we have been getting several inquiries from pilots and even other immigration attorneys inquiring about how pilots can obtain a green card under the rumored new immigration initiative. We have not seen anything substantive from the U.S. government to indicate that the standards required for pilots to obtain a green card have changed. For a successful NIW pilot case, in addition to having an advanced degree or the equivalent (e.g., bachelor’s degree plus five years of progressive experience, or ten years of documented experience and meeting other strict requirements), it is helpful to have significant flight experience and a demonstrated background in accident investigation and/or flight testing and/or flight instruction.  If you feel you are qualified, please provide us with a detailed CV, and we will be happy to review your case. Please monitor our blog as we will update it when and if anything substantive changes related to pilot-based NIW green cards.