H.R. 3012: "Fairness for High-Skilled Immigrants Act": Bill passes House by a 20 to 1 margin; moves on to Senate

Update: There is no news on H.R. 3012, the High Skilled Immigrants Act, which was put on hold by Senator Charles Grassley (R-IA).  But even without H.R. 3012, the January 2012 Visa Bulletin showed the China and India EB-2 category (for aliens with advanced degrees or equivalent, or in the national interest (NIW) advancing more than 9 months from 3/15/08 to 1/1/2009.  This rapid advancement demonstrates that demand for green cards amongst advanced degree professionals from countries other than India and China is decreasing, so unused green cards are being granted to those seeking immigration from China/India. 

More on H.R. 3012.  On 12/15/11, in order to release his hold, Senator Grassley offered an amendment that would make dramatic changes to the bill including elimination of family per country limit increase and reducing the employment based per country limit to 15%.  The amendment would also eliminate the diversity visa program and add provisions that would increase enforcement and U.S. worker protections to the H-1B and L-1 visa programs.

Senator Grassley's amendment was objected to, therefore THE HOLD ON THE BILL REMAINS.

As reported in the New York Times yesterday the House of Representatives voted to pass H.R. 3012, which stands to reallocate available visas, and speed up the green card process for professional Indian and Chinese foreign nationals. 

THIS BILL IS NOT YET A LAW.  See an old School House Rock video to learn more about how a Bill Becomes a Law.  Further, some colleagues I have spoken with feel the chances of a law which gives more green cards to Indian and Chinese nationals, while at the same time, decreasing the amount given to foreign nationals from, ahem, some of the “whiter” countries, and especially in light continued unemployment issues here in America - are slim.

It is worth noting that H.R. 3012 would not increase the number of available employment based green cards. It would eliminate the per country limit, which should provide historically backlogged countries, such as India and China, with a window of opportunity to apply for or secure their green cards, while  creating backlogs for foreign nationals from other countries, where historically, no backlogs existed.  

From AILA:

H.R. 3012, the Fairness for High-Skilled Immigrants Act was introduced on September 22, 2011 by Rep. Chaffetz (R-UT). The proposed legislation eliminates the employment-based per-country cap entirely by fiscal year 2015 and raises the family-sponsored per-country cap from 7% to 15%.

On October 27, 2011, the House Judiciary Committee held a markup and H.R. 3012 was reported favorably out of committee by a voice vote. An amendment from Rep. Lofgren (D-CA) that would make adjustments to the three year phase-in period was accepted. H.R. 3012 must next be scheduled for House floor debate which may occur in the next few weeks.

On November 29, 2011, the House passed H.R. 3012, the Fairness for High-Skilled Immigrants Act by a vote of 389-15 with no additional amendments. The measure now moves on to the Senate for consideration.

How This Affects You

It is important to plan I-140 and I-485 Adjustment of Status timing and processing for those who may suddenly be impacted by a backlog, or finally allowed to file a green card applications, after years of waiting.  If you have questions about your specific case, you should contact your company’s immigration counsel, or the attorneys at Ryvin Wallace Group.

House Hearing on Foreign STEM Graduates

On October 5, 2011, the House Committee on the Judiciary, Subcommittee on Immigration Policy and Enforcement held a hearing  to discuss whether the U.S. should reform its immigration policies to retain more foreign graduates of American universities’ advanced degree programs in the “STEM” fields of science, technology, engineering and math.    

Inside Higher Ed’s article, “Reverse Brain Drain,” provides coverage of the hearing:  

...foreign students are dramatically outpacing their American counterparts in the STEM fields.  In 2009, half to two-thirds of all Ph.D.s in related fields and almost half of all engineering and computer science master’s degrees awarded by American colleges were earned by foreign students...

Because only 140,000 total employment-based immigrant visas are available each year, with only 7% of that number available to each country, the United States is not absorbing these foreign graduates into its workforce.  Backlogs have grown to the point that some green card seekers could spend a lifetime waiting for permanent residency.  According to the article:

...a skilled Indian immigrant seeking a green card in the United States could wait up to 70 years to actually receive one.  Indian and Chinese immigrants are far likelier than are their peers from other countries to earn advanced degrees in STEM fields in the United States.  This disparity makes it incredibly difficult for students from those countries to stay in the United States to live and work.  Instead, Lofgren said, they are forced back to their home countries where they end up competing with American companies.

At the hearing, B. Lindsay Lowell, B. Lindsay Lowell, Director of Policy Studies at the Institute for the Study of International Migration, drew several conclusions from the data on foreign graduates in STEM fields.  Below is an excerpt from his testimony:

H.R. 3012: "Fairness for High-Skilled Immigrants Act"

Reforming the per-country limits on employment and family-based visas are both up for consideration this week in the House. The purpose of "HR 3012" is to amend the Immigration and Nationality Act to eliminate the per-country numerical limitation for employment-based immigrants, to increase the per-country numerical limitation for family-sponsored immigrants, and for other purposes.

Please find the actual bill here and note the following update from AILA's Director of Advocacy, Greg Chen:

On Thursday and Friday this week, the House Judiciary committee is scheduled to markup a series of bills including H.R. 3012, the "Fairness for High-Skilled Immigrants Act". Congressman Jason Chaffetz (R-UT) along with Chairman Lamar Smith (R-TX) are the sponsors of H.R. 3012, a measure that would eliminate the current per country cap limits of 7% on all employment-based (EB) green card categories over a three year transitional (phase-in) period leading to a strictly "first in, first out" (based on priority dates) system within the existing employment-based green card system. The measure would immediately increase the family-based per country cap from 7% to 15%. Also, the offset created by the Chinese Student Protection Act of 1992 is eliminated under the bill.

During the three year phase-in of the "first in, first out" employment based system- no group of applicants from a single country may receive more than 70% of employment based visas. In FY 2012, "first in, first out" applies to 85% of available EB visas; for FY 2013, "first in, first out" applies to 90% of available EB visas and for FY 2014, "first in, first out" applies to 90% of available EB visas for those visas not subject to "first in, first out". In other words, in FY 2012, 15% would be set-aside and 10% for the next two fiscal years. No group of applicants may receive more than 25% of the total set-aside during the 3 year phase-in period.

H.R. 3012 is the last measure on the list of bill scheduled to be addressed so there is a chance the committee will not get to it this week. In any case, we will provide additional updates as they occur.

USCIS Announces "Entrepreneurs in Residence" Initiative

Agency focuses on fully realizing the job-creating potential of current immigration law

Released October 11, 2011

WASHINGTON - U.S. Citizenship and Immigration Services (USCIS) Director Alejandro Mayorkas joined the President’s Council on Jobs and Competitiveness in Pittsburgh to announce “Entrepreneurs in Residence.” This new innovative initiative will utilize industry expertise to strengthen USCIS policies and practices surrounding immigrant investors, entrepreneurs and workers with specialized skills, knowledge, or abilities. Mayorkas announced the initiative at the Jobs Council’s High Growth Entrepreneurship Listening and Action Session at AlphaLab in Pittsburgh before the Council’s quarterly meeting with President Obama.

“This initiative creates additional opportunities for USCIS to gain insights in areas critical to economic growth,” said Director Mayorkas. “The introduction of expert views from the private and public sector will help us to ensure that our policies and processes fully realize the immigration law’s potential to create and protect American jobs.”

USCIS will launch the “Entrepreneurs in Residence” initiative with a series of informational summits with industry leaders to gather high-level strategic input. Informed by the summits, the agency will stand up a tactical team comprised of entrepreneurs and experts, working with USCIS personnel, to design and implement effective solutions. This initiative will strengthen USCIS’s collaboration with industries, at the policy, training, and officer level, while complying with all current Federal statutes and regulations.

The initiative builds upon USCIS’s August announcement of efforts to promote startup enterprises and spur job creation, including enhancements to the EB-5 immigrant investor visa program. Since August, USCIS is:

• Conducting a review of the EB-5 process
• Working with business analysts to enhance the EB-5 adjudication process
• Implementing direct access for EB-5 Regional Center applicants to reach adjudicators quickly; and
• Launching new specialized training modules for USCIS officers on the EB-2 visa classification and L-1B nonimmigrant intra-company transferees.

For more information on USCIS and its programs, please visit www.uscis.gov or follow us on Twitter (@uscis), YouTube (/uscis) and the USCIS blog The Beacon.

Link to USCIS Press Release.

USCIS Q & A re: National Interest Waivers for Entrepreneurs

Link to USCIS Q & A covering National Interest Waivers for Entrepreneurs

Here is the relevant text:

NATIONAL INTEREST WAIVER

Q11. Is there a “national interest waiver” (NIW)? And if so, what is it? Can an entrepreneur qualify for a NIW?
A11. Yes. A NIW exempts the petitioner from the normal requirement of a job offer, and thus from obtaining a labor certification from the U.S. Department of Labor. Entrepreneurs, if they qualify, can obtain a waiver of the job offer requirement if it is in the national interest.


Q12. If an entrepreneur wants to file for a NIW, does he or she still have to be a member of the profession holding an advanced degree or an individual of exceptional ability?
A12. Yes. The entrepreneur must first demonstrate that he or she is either a member of the profession holding an advanced degree or an individual of exceptional ability.


Q13. If an entrepreneur wants to file for a NIW must he or she have an actual employer in the United States?
A13. No. Pursuant to INA 203(b)(2)(B), an entrepreneur does not need to have an actual job offer from a U.S. employer if he or she qualifies for a NIW. In other words, an entrepreneur may be able to petition for him or herself and fill the role of both the petitioner and beneficiary. The law provides that the Secretary of the Department of Homeland Security may, if he or she deems it to be in the national interest, waive the requirements that an individual’s services in the sciences, arts, professions, or business be sought by an employer in the United States.

Q14. Is there a definition of “national interest”?
A14. The term “national interest” is not defined in the statute or the regulations, and Congress did not specifically define the phrase in the relevant legislative history. However, USCIS issued a precedent decision concerning NIWs, Matter of New York State Dept. of Transportation, 22 I&N Dec. 215 (Comm. 1998) (NYSDOT).
While NYSDOT does not involve an entrepreneur, the decision contemplates that entrepreneurial or self-employed beneficiaries may qualify for the NIW under limited circumstances. Footnote 5 in the decision states:

"The Service acknowledges that there are certain occupations wherein individuals are essentially self-employed, and thus would have no U.S. employer to apply for a labor certification…[T]he petitioner still must demonstrate that the self-employed alien will serve the national interest to a substantially greater degree than do others in the same field."

NYSDOT lays out a three pronged test for NIW applicants to qualify for a waiver of the job offer requirement.

Q15. What are the three prongs laid out in the NYSDOT decision?
A15.

1. The waiver applicant must seek employment in an area that has substantial intrinsic merit.

2. The waiver applicant must demonstrate that the proposed benefit to be provided will be national in scope.

3. The waiver applicant must demonstrate that it would be contrary to the national interest to potentially deprive the prospective employer of the services of the waiver applicant by making available to U.S. workers the position sought by the waiver applicant.

Stated another way, the petitioner, whether the U.S. employer or the NIW applicant, must establish that the entrepreneur will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications.

Q16. How does the first prong of NYSDOT relate to entrepreneurs?
A16. Under the first prong of the NYSDOT test, the entrepreneur must seek employment in an area that has substantial intrinsic merit. It is important for the entrepreneur to focus on the proposed employment rather than the entrepreneur’s qualifications. In NYSDOT, the beneficiary was a structural engineer working on highway bridges. This activity was found to have substantial intrinsic merit.

Q17. How does the second prong of NYSDOT relate to entrepreneurs?
A17. The second prong of the NYSDOT test requires that the entrepreneur demonstrate that the proposed benefit to be provided will be national in scope. For example, the entrepreneur might be able to demonstrate that the jobs his or her business enterprise will create in a discrete locality will also create (or “spin off”) related jobs in other parts of the nation. Or, as another example, the entrepreneur might be able to establish that the jobs created locally will have a positive national impact. As described below, and as the law contemplates, USCIS will give due consideration to entrepreneurs who establish that their entrepreneurial enterprise will serve the national interest to a substantially greater degree than the work of others in the same field.

Q18. How does the third prong of NYSDOT relate to entrepreneurs?
A18. NYSDOT’s third prong is best understood in light of the labor certification process and the assumed benefit that it provides to the United States. An individual seeking an exemption from this process must present a national benefit so great as to outweigh the national interest inherent in the labor certification process. NYSDOT’s third prong requires that the entrepreneur “present a significant benefit to the field of endeavor.” The field should be the same as that identified in prong one of the analysis and the entrepreneur must document how the entrepreneurial enterprise will benefit that field.

NYSDOT states:

“In all cases, while the national interest waiver hinges on prospective national benefit, it clearly must be established that the beneficiary’s past record justifies projections of future benefit to the national interest. The petitioner’s subjective assurance that the beneficiary will, in the future, serve the national interest cannot suffice to establish prospective national benefit if the beneficiary has few or no demonstrable achievements.”

The entrepreneur who demonstrates that his or her business enterprise will create jobs for U.S. workers or otherwise enhance the welfare of the United States may qualify for an NIW. For example, the entrepreneur may not be taking a job opportunity from a U.S. worker but instead may be creating new job opportunities for U.S. workers. The creation of jobs domestically for U.S. workers may serve the national interest to a substantially greater degree than the work of others in the same field.

Michael Ryvin, Partner
Ryvin Wallace Group
1-415-765-0679
michael@ryvinlaw.com

USCIS Director Alejandro Mayorkas Blog Post: Encouraging Entrepreneurs and High Skilled Workers to Bolster the U.S. Economy and Spur Job Growth

Below please find a link to a blog post from the USCIS Director Alejandro Mayorkas, and some relevant excerpts, which discuss this current administration’s efforts to attract and retain high-skill entrepreneurs.

http://blog.uscis.gov/2011/08/encouraging-entrepreneurs-and-high.html

As part of the Administration’s comprehensive effort to attract and retain high-skill entrepreneurs, USCIS announced today [8/2/2011] that it will:

• Clarify that immigrant entrepreneurs may obtain an employment-based second preference (EB-2) immigrant visa if they satisfy the existing requirements, and also may qualify for a National Interest Waiver under the EB-2 immigrant visa category if they can demonstrate that their business endeavors will be in the interest of the United States;

• Expand the Premium Processing Service to immigrant petitions for multinational executives and managers;

• Clarify when a sole employee-entrepreneur can establish a valid employer-employee relationship for the purposes of qualifying for an H-1B non-immigrant visa;

• Implement fundamental enhancements to streamline the EB-5 process based directly on stakeholder feedback;

• Launch new engagement opportunities to seek input and feedback on how to address the unique circumstances of entrepreneurs, new businesses and startup companies.

Of course, these efforts are more than welcome. But, I am approaching the same with a healthy degree of skepticism, considering USCIS continues to make questionable [am being polite here] decisions on visa matters involving highly-skilled foreign nationals with legitimate U.S. job offers. 

Michael Ryvin, Partner
Ryvin Wallace Group
1-415-765-0679
michael@ryvinlaw.com

WSJ: U.S. to Assist Immigrant Job Creators

Wall Street Journal
By Miriam Jordan
August 2, 2011

As part of the new initiatives, foreign entrepreneurs will be eligible for a so-called EB-2 immigrant visa without a specific job offer, as long as they demonstrate that their business endeavors will be in the U.S. national interest.

The government is also seeking to bolster use by foreign entrepreneurs of H-1Bs, which are temporary work visas for foreign workers in a specialty occupation.

The H-1B program has been a mainstay of software companies and other businesses that seek foreign nationals to fill certain jobs, and an employer-employee relationship has generally been a prerequisite for qualifying.

As part of the new measures, a sole entrepreneur can qualify for an H-1B if the individual’s employment is decided by a corporate board or shareholders of the start-up company.

Mr. Mayorkas will also unveil enhancements to the EB-5 investor program, which enables foreign investors and their families to qualify for green cards if they invest at least $500,000 in a U.S. project that generates at least 10 jobs.

His agency is also seeking to speed up the approval process by hiring additional adjudicators to evaluate applications and enabling petitioners to make their case before an expert panel should their application require further evidence or be denied.

The moves come as demand for H-1B visas has fallen. As of July 22, USCIS had received approximately 21,600 H-1B petitions out of 65,000 available for the 2012 fiscal year. The agency had received approximately 26,000 such applications for the same period last year.

Link

New US Visa for Start Ups?

Courtesy of BBC News:

Over a year ago he started to apply for a visa to allow him to carry on working in the Valley, but he soon encountered problems.

In the end, Mr. Diep decided to base himself in his native Canada and travel back and forth to Silicon Valley.

The start-up visa is aimed at streamlining the country's EB-5 visa system which was initially introduced in 1990 to attract foreign capital to the US.

Each year 10,000 EB-5 visas are available but to get one, applicants need to invest $1m and create 10 full-time jobs.

Mr. Polis said he wants "a new class of eligibility" with the start-up visa. It would be granted to foreign entrepreneurs if their business plan attracts either $250,000 from a venture capital operating company that is primarily US based or $100,000 from an angel investor.

They must also show that the business will create five to ten jobs or generate a profit and at least $1m in revenue.

Some of these requirements may well be changed when the bill goes to committee in the new year.