Visa Options for Foreign Athletes

February 5th, 2012
posted by admin at 4:11 pm

By Pam Prather

Basketball, Tennis, Hockey, Golf, Gymnastics….we American’s love sports, and sports mean competition. When it comes down to contests between the best of the best, nationality doesn’t matter.

Whether you’re a Swiss tennis player, a British football (a.k.a. soccer) player, or a Russian hockey player, at some point you’ll want to come to the U.S. to compete with the biggest names in your game.  Luckily, there are several visa options available to international sports figures.

For temporary (or “nonimmigrant”) visas, the following are possibilities.

The O-1 visa is for athletes of extraordinary ability, or those who have achieved “a level of expertise indicating that the person is one of the small percentage who have risen to the very top of the field of endeavor”.  The application for this visa must include documentation that the person has national or international acclaim, e.g. an Olympic medal for a Russian skater, a Wimbledon championship for Rafael Nadal, or a World Cup for David Beckham.

But do you really have to be at that level to qualify for an O-1 visa?

No.

But you do have to prove significant accomplishments in your sport.

If issued an O-1 visa, the nonimmigrant may live and compete in the U.S. for an initial period of three years.  The status can then be extended indefinitely in one-year increments.

A P-1 visa is more commonly used for athletes coming to the U.S. for a shorter period of time.  The standard of achievement is also not quite as high as the O-1.

The P-1 visa applicant provides evidence that he/she competes at “an internationally recognized” level of competition.  This could be appropriate for the Dominican Major League Baseball team member, or even a minor league/amateur athletic competition of some kind.

The P visa is typically issued for up to one year, but sometimes for up to five years.  One extension of up to five years is allowed.

Both the O and P visas require the sponsorship of a corporation, agent, or team.

B-1 is a business visitor visa category.  It can, however, be appropriate for those foreign athletes who support themselves on tournament prize money rather than a salary (think Italian auto racer).

He/she (or the team for which they play) must be based outside the United States.  And if it is a team, it must be part of an international sports league.

The B-1 can be issued for up to one year, and may sometimes be extended in six-month increments.

There are also several options for foreign athletes who wish to remain in the U.S. permanently.  Obtaining a Green Card, or an Immigrant Visa, requires careful planning with an experienced immigration attorney.

So if you’re a foreign athlete and need to perform at a sporting event in the U.S., or even want to permanently live here, there are various visa options available to you.  Give us a call.

 

No More H-1Bs For Fiscal Year 2012; Now What?

January 20th, 2012
posted by admin at 3:23 pm

By Pam Prather

The H-1B quota for 2012 (10/1/2011 – 9/30/2012) was met on November 22, 2011.  Although most immigration practitioners knew it was coming, it was still a disappointment to hear this news – particularly because it was given the day AFTER it happened. So, as in years past, we are again messengers of a frustrating policy to U.S. employers eager to issue job offers to foreign nationals.

Fortunately, there are some exemptions to the cap.  These should be kept in mind when strategizing a case, as it means an employer could file even after the quota has been met:

  • Extension applications for persons currently in H-1B status (and, in certain circumstances, for persons who were previously in H-1B status and seek to regain it)
  • New Employer applications for H-1B holders transferring from one employer to another
  • Applications by employers who are institutions of higher education, nonprofit research organizations, or governmental research organizations

If the cap has been met, and a case is not eligible for an exemption, what’s left to do?

In certain circumstances, there are other – some perhaps lesser known – employment visas that should be carefully explored with the employer and the employee:

  • L-1 intracompany transferees, for employees who worked for a related corporate entity abroad
  • TN (under NAFTA) for Canadians and Mexicans
  • E-3 for Australians
  • E-1 and E-2 for treaty-investor or treaty-traders (from certain countries)
  • F-1 for students of higher education who qualify for limited work authorization (and possible STEM OPT extensions)
  • O-1 for persons of extraordinary ability

In addition, there may be work authorization available to employees at certain stages of the “Green Card” process.

Federal law caps the number of new H-1Bs at 65,000 per year. Citizens of Singapore and Chile get 6,800 of those under specific trade agreements, so general availability is actually 58,200. There are an additional 20,000 for those who have achieved a U.S. Master’s (or higher) degree, a ‘gift’ bestowed by Congress in December 2004.

With the American economy slowing down as it has, last year’s quota remained open for 10 months, and this year’s remained open for almost 8 months. In past years, the H-1B quota was exhausted in one day!

Not having this vital program available to employers year-round makes obvious the point that the arbitrary quota is not sufficient to meet U.S. workforce needs.  Congress and the President should increase the quota, or in the alternative, eliminate it altogether.

Although the H-1B is by far the most commonly used temporary, nonimmigrant work visa, there are some other options to consider.  As with all immigration law, however, they are complex.  Remember to consult with a qualified immigration attorney to help you through the labyrinth of each possibility, and to ensure compliance with federal law.

 

The E-2 Visa: U.S. Misses Out on Foreign Entrepreneurs

January 16th, 2012
posted by admin at 1:51 pm

By Pam Prather

With unemployment hovering around 8.5 percent and our presidential election cycle in full swing, all we hear these days is “jobs, jobs, jobs.” You can turn on the television or browse the internet to hear the myriad of solutions people have to better our economy.  Unfortunately, what we don’t hear as often is how critical foreign entrepreneurs are to job creation in the United States.

The lack of options for foreign national entrepreneurs, particularly those from India and China, is yet another example of the serious need for immigration reform in the United States. From all angles, business immigration law is having a significant negative impact on our economy. At a time when new employment numbers are anticipated every month, and seen as one of the main indicators of our economic recovery, we must consider every possible opportunity for U.S. job creation.

According to the Kaufmann Foundation, immigrant entrepreneurs accounted for 29.5 percent of new businesses in 2010. In The “New American” Fortune 500 (June 2011), The Partnership for a New American Economy found that:

1] More than 40 percent of the 2010 Fortune 500 companies were founded by immigrants or their children. 2] The newest Fortune 500 companies are more likely to have an immigrant founder. 3] Fortune 500 companies founded by immigrants or children of immigrants employ more than 10 million people worldwide. 4] The revenue generated by Fortune 500 companies founded by immigrants or children of immigrants is greater than the GDP of every country in the world outside the U.S., except China and Japan. 5] Seven of the 10 most valuable brands in the world come from American companies founded by immigrants or children of immigrants.— Apple, Google, AT&T, Budweiser, Colgate, eBay, General Electric, IBM, and McDonald’s, to name just a few.

Vivek Wadhwa, a well-known scholar and authority on immigration matters, found that:

According to the studies, in a quarter of the U.S. science and technology companies founded from 1995 to 2005, the chief executive or lead technologist was foreign-born. In 2005, these companies generated $52 billion in revenue and employed 450,000 workers. In some industries, the numbers were much higher; in Silicon Valley, the percentage of immigrant-founded startups had increased to 52 percent. Indian immigrants founded 26 percent of these startups—more than the next four groups from Britain, China, Taiwan, and Japan combined. (emphasis added)

It is clear that Indian and Chinese entrepreneurs play an important role in founding companies and creating jobs in the U.S.  Yet these entrepreneurs were not able to immigrate to the US directly in order to start their businesses.  They had to find sponsorship through other means – usually an employer, or sometimes a family member. Only later were they able to develop the companies that create U.S. jobs.  The one visa applicable in these circumstances, the E-2, is not available to them.

The E-2 (Treaty-Investor) visa is given to individuals who have made a “substantial” investment in a new or operating business in the U.S.  It is based upon treaties we hold with the applicants’ country. Surprisingly, the U.S. does not have a Treaty with India, so its citizens are not eligible for an E-2 investor visa. Neither is China or Israel included on the list.  Therefore, Indian, Israeli and Chinese nationals cannot use the E-2 visa to start businesses in the U.S. and create jobs.

The US State Department reports that there were approximately 25,000 E-2 visas issued in 2010.  That’s 25,000 new businesses, all of which must – by law – have a positive impact on U.S. economy.  It’s a win-win situation, and a clear indication that E-2 visas are highly beneficial to the U.S. Unfortunately, the U.S. is missing out on even more impressive numbers, because there is not a simple, effective business immigration law allowing foreign nationals from India, China and other countries to come to the US to start and invest in a new business.

The Partnership for a New American Economy’s 2011 report concluded with a statement that “[t]o compete, we must modernize our own immigration system so that it welcomes, rather than discourages, the Fortune 500 entrepreneurs of the 21st century global economy. We must create a visa designed to draw aspiring entrepreneurs to build new businesses and create jobs here.”  This is from a group whose co-chairs include the CEOs of Microsoft, Disney, Marriot and Boeing, and the Mayors of New York, Los Angeles, and Philadelphia.

One simple fix would be to expand the list of countries whose nationals can benefit from the E-2 investor visa to start businesses and create jobs.  We can also pursue other immigration policies such as the Start Up Visa Act to help spur growth and innovation.  Or, to truly get creative and innovative, we can pursue both!  After all the more immigration laws we have that encourages foreign entrepreneurship in the U.S. helps job creation, our economy, and our country.

 

The Wrong Incentive for Undocumented Immigrants

December 20th, 2011
posted by admin at 3:56 pm

By Rashmi Shah

“Happy Holidays from the House of Representatives.  Please leave the tax credit for your children at the door.”

While we are busy buying our last stocking stuffers and planning our holiday feast, the House is planning to move four million U.S. children closer to poverty.

The payroll tax package, likely to pass the House this week, includes a provision prohibiting immigrant taxpayers from receiving a refundable Child Tax Credit.  The Child Tax Credit’s purpose is to keep children out of poverty.  It is one of the most effective ways to alleviate the tax burden imposed on low-income workers raising families, helping put food on the table.

The proposed provision denies taxpayers who file their taxes using an Individual Taxpayer Identification Number (ITIN) the ability to claim the Additional Child Tax Credit for their U.S. Citizen children. Undocumented immigrants are required to pay taxes and do so using an ITIN.   According to Immigration Impact, this provision will affect approximately 2 million families and up to 4 million U.S. citizen children.

Despite paying taxes, undocumented immigrants are not eligible for the vast majority of benefits their tax dollars support.  In 2010, ITIN tax filers contributed an estimated 9.2 billion dollars in payroll taxes. In other words, 10 times the amount that would be saved by eliminating the child tax credit away from the U.S. children of ITIN tax filers.

We constantly hear from the anti-immigration lobby that undocumented immigrants don’t pay taxes.  Although that is not factually true, it’s going to become a self-fulfilling prophecy if we allow policies like this to be signed into law.  When approximately 47% of the ‘legal’ U.S. population doesn’t pay Federal Income taxes, do we really need to punish those that do?

Hot Topics in Immigration Law – 2011

December 14th, 2011
posted by admin at 1:45 pm

By Pam Prather

 

Immigration remains an issue in the forefront of U.S. political and social dialogue. Many Americans assume that the primary problem is with undocumented migrants, but the fact is that our immigration laws as they relate to legal employment and family immigration need a complete overhaul.

That is still not within sight, unfortunately.

Part of this is because the issue has become so emotional, with legal and illegal immigration issues desperately entangled, that it puts politicians on thin ice with their constituents regardless of their position on the subject.  However, there have been some interesting ‘piece-meal’ bills and policy memos that have had some impact this year.

Fairness for High-Skilled Immigrants Act

Exciting news in recent weeks included the Fairness for High-Skilled Immigrants Act, which passed the House with rare bipartisan support.

One of its sponsors (Chaffetz) stated “I am committed to fixing legal immigration. By removing per country limits, American companies will be able to access the best talent. This legislation is pro-growth, pro-jobs, and pro-family. I encourage my colleagues in the House to pass this bipartisan legislation.”

The current system, where no country may be allotted more than 7 percent of employment or family visas, has long been criticized as unfair to larger, or more highly-represented countries such as India, China, Mexico and the Philippines.  The proposed bill would eliminate the limit for employment-based visas and raise it to 15 percent for family visas.

With some high-skilled workers from India and China waiting nearly a decade for a Green Card, this is a great start. Not only will it have a significant and positive impact on thousands of individuals’ lives, but many experts think it would create a boost to our economy. More visas means more workers, with more families paying US taxes and spending money at US businesses.

Unfortunately, when sent to the Senate, Senator Charles Grassley (R) put the bill on ‘hold’.  He said the bill “does nothing to better protect Americans.”

When one in four U.S. companies have a foreign co-founder, does this position really make sense if job creation is a goal?

Neufeld Memo

 

Although it took effect in 2010, this year the Neufield Memo continued to change the way H-1B applications are prepared for employee-contractors.

Employers who outsource their workers must continue to provide substantial evidence of the contractual agreements between their company and their vendor, and between the vendor and the end client.  In most cases, the end client must refer to the worker by name, and state the length of the contract as being the same as the I-129 requested validity dates.

Needless to say (although we’ll say it anyway) it is very difficult for an employer to get that kind of contract until the position is filled, and it’s difficult to get the position filled without presenting the contract to the USCIS. This vicious cycle keeps – or delays – U.S. employers from filling jobs and optimizing their business practices.

This ‘disconnect’ between government policies and common business practices does nothing to help our economy and seems, in fact, to be quite a hindrance to its recovery.

Alabama’s HB 56

 

This year Alabama passed a law making it a Class C Felony for undocumented aliens to transact business with state agencies.  As a result, at least one utility company in Alabama posted a sign informing its customers that this prohibited them from providing water service to undocumented immigrants. Since Class C felonies are punishable by up to ten years in prison, this meant an undocumented alien could be imprisoned for a decade for attempting to use water in Alabama.

Also, based on how broadly the State defines “business transactions,” it could be that any transaction, including paying State taxes, could result in imprisonment.

Alabama is one of several states that have passed their own stringent immigration laws. The Department of Justice is currently challenging state immigration laws in Utah, Alabama, Arizona and South Carolina. In addition, they are reviewing immigration laws recently passed in Indiana and Georgia.

As more and more states continue to legislate on federal immigration laws, the conflict between our federal and state governments will be interesting to watch in 2012.

DREAM Act

Late last December, the DREAM Act (the Development, Relief and Education for Alien Minors Act) bill did NOT receive enough support to pass, but it continues as a source of debate on the overall immigration issue in the U.S.  To be eligible for the act, undocumented students must have entered the country when they were 15 or younger and graduated high school or obtained a GED. To receive a green card, the bill required them to complete two years in the military or two years of college — plus a 10-year waiting period. Only six years later would they be eligible to apply for citizenship.

In response to this failing at the federal level, some states are again taking immigration law into their own hands.  Recently, Gov. Jerry Brown signed The California Dream Act, which will become effective January 2013, into law.  The law will make available state-funded financial aid to undocumented immigrant students in California.  Funds include state Board of Governors fee waivers, student aid programs administered by a college or university, state aid Cal Grants program for state universities, community colleges, and qualifying independent and career colleges or technical schools in California.

The other half of the California Dream Act was signed into law by Brown in July and allows undocumented immigrant students to receive privately funded scholarships administered at public universities and community colleges.

The California Dream Act differs somewhat from the proposed federal bill, which would have created a path to citizenship for immigrants who entered the United States illegally as children under the age of 16, had lived in the United States for at least five years, obtained a high school or General Education Development diploma, and demonstrated “good moral character,” according to a White House fact sheet.

The DREAM Act has had, at times, support from both political parties.  Unfortunately, most politicians today do not want to vote for any immigration bill for political reasons.  If you’ve read the comments after any article written on the issue, you would understand why.

Immigration is currently a highly toxic and combustible issue.

As it relates to the DREAM Act, however, people should ask themselves some very fundamental questions:  Is it right to deport someone who 1) was brought to the U.S. at a very young age through no choice of their own; 2) has lived in the U.S. their entire life, and knows no other country as home; and 3) is trying desperately to become a productive member of our society?

What Lies Ahead?

 

Immigration will continue to be a large part of the American consciousness in 2012.  Whether through pressure from the “Border States”, economists, U.S. businesses, or farmers, Congress will be forced to make decisions about legal AND illegal immigration.

We should not forget that our legal immigration system, which is a vital part of the fabric of American history and culture, can be addressed separately from illegal immigration.  The latter needs serious, reasonable discourse regarding the role we Americans want to play in this modern world – and how we want to approach the 11 million undocumented migrants in the US, and the continued flow across our borders.

But legal immigration needs smart reform NOW, whether comprehensive or ‘piece-meal’. It would spur innovation, bolster the economy, create jobs, and provide people with a better life.

Let’s make it happen in 2012.

Sometimes It Pays To Pick Up The Phone

December 13th, 2011
posted by admin at 11:55 am

By Ame Coats

SHOCKING!  Our call to the USCIS National Customer Service Center (NCSC) may have resulted in a quick approval of a National Interest Waiver (NIW) case.

Frankly, I’ve never had much faith that the NCSC has the ability to fix a problem with a case.  That said, our firm continues to place inquiries through their 1-800 number—often to document our firm’s efforts in getting a case resolved rather than expecting that our call will actually resolve an issue with a case.   A few weeks after the call, we typically receive a boilerplate USCIS letter that that they are “actively processing” the case.

Several weeks ago, as is our standard procedure, I placed an inquiry through the National Customer Service Center regarding a National Interest Waiver case that was several months overdue for a decision.    Just recently, we received email notification that our client’s NIW case was approved!

Of course, it could have been just a coincidence.   Or maybe not.

Our calls and your calls to the 1-800 may actually be worth it!

 

The Illegal Immigration Debate Erupts Like Mount Tambora

December 6th, 2011
posted by admin at 1:48 am

By Pam Prather

If you asked me what I think people will take away from the topic of “Immigration 2011”, I would have to say the overriding issue is simply emotion.

Strong emotion.

Strongly worded emotion.

Have you ever seen the Comments section after an article about U.S.  immigration?

It is an unabated flow of vitriolic lava!

We’ve learned over the past many years that the anonymity of the  internet allows for speech that would not be given – or tolerated – in a  personal conversation.  But Americans seem to want validation of  their view that illegal immigrants are ruining our country.

Of course, this sentiment is not new.

With every major wave of immigration in our country’s history, we have experienced (or exhibited) a similar reaction.  In an article by Kenneth C. Davis (July 3, 2007) he reminds us:

“A PROMINENT American once said, about immigrants, “Few of their children in the country learn English… The signs in our streets have inscriptions in both languages … Unless the stream of their importation could be turned they will soon so outnumber us that all the advantages we have will not be able to preserve our language, and even our government will become precarious.”

This sentiment did not emerge from the rancorous debate over the immigration bill defeated last week in the Senate. It was not the lament of some guest of Lou Dobbs or a Republican candidate intent on wooing bedrock conservative votes. Guess again.

Voicing this grievance was Benjamin Franklin. And the language so vexing to him was the German spoken by new arrivals to Pennsylvania in the 1750s, a wave of immigrants whom Franklin viewed as the “most stupid of their nation.”

Germans, Irish, Chinese, Italians, Catholics, Baptists – all have faced this seemingly impenetrable wall of fear and hatred.

One of our earlier immigration laws (1790) reserved naturalization to “free white persons” who had lived in the country for two years. Where would we be now if that law had not been changed?

Most of the negative comments I read or hear are based on the notion that undocumented aliens are, simply put, criminals.

Does this remind you of anything?

Perhaps Slavery? Prohibition? Women’s Suffrage? Civil Rights?

Sometimes laws are wrong, or at the very least, not enforceable, so throughout our history, we have broken them.  To make change, people have sacrificed, suffered, and even died. They may have been called criminals at the time, but in retrospect we have seen them as people who simply stood up for what was right.  We’ve called them courageous activists, and even icons of American culture and politics.

“We have to uphold our laws”, anti-immigrationists cry out in anguish.

I wonder if they have ever fudged on their taxes, driven over the speed limit, smoked marijuana, or tasted alcohol before the age of 21.

“Not the same thing”, they say.

They’re right.

They broke a law to make things more convenient, comfortable, or enjoyable for themselves.  Desperate people from other countries, who have no lawful means by which to immigrate, break the law to feed their children and provide some measure of hope for their future.

Definitely, not the same thing!

I’ve also heard many, many people say things such as “why don’t they just file their papers, pay the fine, and get legal”??!

This is a clear example of the general public’s lack of knowledge about U.S. immigration law.  In a nutshell, there is no way for them to get legal. This would be called amnesty, and there is currently no program for that.

Basically, there are only a few ways to immigrate: through family, through employment, or as an asylee/refugee.  The process has several steps, each with different hurdles.  But a person who has entered, lived, or worked in the U.S. without proper authorization is usually not eligible for to obtain a Green Card under most circumstances.

Another widely-misheld belief is the ‘Anchor Baby’ situation. This is the erroneous belief that if an alien has a baby in the US, then they’re allowed to remain in the US legally.

Not so.

A person born in the US is a US citizen, but the immigration benefits to the parents are extremely limited. Under current immigration laws, parents who enter the U.S. illegally cannot legally benefit from having a baby on U.S. soil.

Deport them all, you say?

You may not realize what that suggestion means.  Immigration and Customs Enforcement deputy director Kumar Kibble estimates that the cost to deport one person is $12,500. That means it would cost $137 billion to deport all illegal immigrants. This is simply not logistically possible or financially feasible.

So maybe we as a society could agree that undocumented immigrants are not exactly criminals, and that they have a great and desperate need to better their lives.

We know that the U.S. does not have a workable/enforceable framework for lawful immigration, and that we cannot afford to deport 11 million people. Our immigration system needs an overhaul.

We need no less than complete immigration reform, but our political machine cannot deal with this until voting Americans make room for a reasoned, practical discussion on the topic.  We as a nation have so many other things to work on, other things that need insightful consideration.

Can we start by agreeing that illegal immigration is not the root of all our problems?

 

My Ship Has Come In?

November 29th, 2011
posted by admin at 6:53 pm

By Pam Prather

Row, row, row your ship,

Gently out to sea.

Avoid, avoid, avoid, avoid,

Those nasty H-1Bs.

Yes, someone may have found a new way around an old problem – our outdated immigration system.   Although current immigration law is direly in need of reforming, U.S. companies say they cannot wait.  They need workers now.  And our economy could use the boost!

While our government does nothing to reform our broken immigration system, an enterprising group of young entrepreneurs have taken matters into their own hands!

Click HERE to read about their idea for a ‘floating incubator.’

It gives a whole new meaning to the phrase “whatever floats your boat.”

Tip of the Day: I-140 Premium Processing

November 15th, 2011
posted by admin at 12:19 pm

Q: Are there any reasons why my I-140 immigrant worker petition should not be premium processed?

For those of you who aren’t familiar with USCIS Premium Processing, this program provides a much faster processing time for certain types of employment-based petitions in exchange for an additional filing fee of $1,225. Under Premium Processing, USCIS guarantees that the petition is reviewed for adjudication within 15 calendar days. At some point within the 15 days, the petitioner will receive an approval, a denial, or a request for additional evidence. If not, the $1,225 is refunded.

Wouldn’t everyone want to premium process their case?

The answer is no.

There are a couple of reasons why premium processing might not be the best strategy for everyone.

First, if USCIS finds any issues with the petitioner’s case, there is a risk of receiving a more extensive Request for Evidence from the Premium Processing unit than the standard I-140 processing unit. It could be that the officers in the premium processing unit are under so much pressure to speed the adjudication process, that perhaps they do not always have time to review and consider all the evidence carefully within the 14 days allotted. In this case, wouldn’t it be faster and easier to send out an RFE that covers too many issues rather than spend the time to narrow it down to key issues?

Second, if the foreign national has children who might turn 21 before their green card cases are approved, premium processing may not be a good idea. The Child Status Protection Act (CSPA) protects many children from aging out of the green card process. However, part of the CSPA calculation depends upon the length of time the I-140 is pending. The longer it is pending, the more likely the child is protected. Ask your immigration attorney to analyze this issue BEFORE you file your I-140 under the Premium Processing program.

Cary Diwali 2011

November 1st, 2011
posted by admin at 12:19 pm

By Kri Kiger

A few weekends ago, my husband and I experienced the Diwali Festival. This is a five day festival that represents the start of the Hindu New Year. It begins in October or November, depending on the moon, and marks the beginning of winter.

The event took place at Cary’s Koka Booth Amphitheatre on October 22, 2011 from 11:30 am – 8:00 pm. The festival was bursting with Indian culture. There was authentic food, saris for sale, and exotic house made jewelry with large gems and shiny gold trim. The atmosphere was lively and full of celebration. Near the end of the festival, a Russian Dance Ensemble named “Mayuri” performed a traditional Indian dance. To end the day of culture and entertainment, there was a large fireworks display which brought an outstanding event to an exciting close.

Although my husband and I are not Indian, we were warmly welcomed into the festivities. Indeed, we were but one of a variety of ethnicities represented.  All appeared to thoroughly enjoy experiencing a dash of India. We’ll attend this festival again, and heartily recommend it for all.  This festival transcends borders!

Happy Diwali!