International Entrepreneur Rule Gets a Second Chance

On December 1, 2017, in National Venture Capital Association v. Duke the United States District Court of the District of Columbia ruled the United States Citizenship and Immigration Services (USCIS) violated the Administration Procedure Act’s (APA) notice and comment rulemaking requirements when it decided to delay the international entrepreneurial rule (IER) without giving the public adequate notice or time to comment on its decision to delay the rule.

On January 17, 2017, three days before the end of the Obama administration, the Department of Homeland Security (DHS) published the final IER rule to allow foreign nationals who meet certain entrepreneurial standards to apply for parole, which is temporary admission into the United States to grow new companies. The rule was to set to go into effect on July 17, 2017, 180 days following its publication.

A Change In Administrations

On January 25, 2017, President Trump issued an executive order that required all agencies to reexamine its parole admission policy and ensure it was not being abused. On July 11, 2017, six months after the President’s executive order and six days before the IER became effective, the USCIS announced it would be delaying the IER until March 14, 2018 to review its compliance with the President’s executive order. The USCIS did not engage in the rulemaking process when it delayed the IER.

International Entrepreneur Rule Overview

Prior to the IER, the Secretary of Homeland Security had the authority to grant parole admission into the United States on a case-by-case basis if a foreign national had been subject to a national disaster or the foreign national could provide sufficient evidence that his or her admission into the United States would provide a significant public benefit. However, Congress had never defined a “significant public benefit” and the IER established what criteria the USCIS should use in determining if an entrepreneur would be considered a “significant public benefit.”

Then, according to the National Venture Capital Association decision, meeting the requirements did not automatically grant admission to an applicant; but rather, streamlined the agency’s [DHS] treatment of entrepreneurs. In forming the IER, the DHS had initially undergone the notice and comment proceedings under the APA, made significant changes, and delayed the final implementation of the rule until July 17, 2017, to ensure the USCIS had adequate time to allocate the resources necessary to implement the new rule without sacrificing any of its current services.

However, under President Trump’s executive order IER did not go into effect on July 17, 2017, and a lawsuit followed.

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National Interest Waiver

Employment-based visas that lead to permanent residence in the U.S., or a green card, have several different preference groups with different eligibility requirements. Most of these preference groups require a foreign national to have a full-time job offer in the United States and the filing of a labor certification application with the Department of Labor to obtain an official certification from the government agency that there is a shortage in the U.S. workforce before being able to proceed with the green card process. A foreign national generally cannot sponsor themselves.  Employers may often be hesitant to sponsor a foreign national because the process can be expensive and time-consuming.

Fortunately, there are a few exceptions.  Under the second employment-based preference category, EB-2, a foreign national would not need a specific job offer or labor certification if he or she were eligible for a National Interest Waiver (NIW). To be eligible, a foreign national must demonstrate they are (1) a member of a profession holding an advanced degree (doctorate, masters, or bachelor’s degree with five years of progressive work experience); or (2) a foreign national of “exceptional ability” whose employment will be of the “national interest.”

There are evidentiary requirements for demonstrating a foreign national’s area of work will be of national interest, but neither Congress nor UCSIS has defined national interest in an attempt to allow the law to be as flexible as possible.

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Diversity Visa Lottery

Overview

The Department of State distributes 50,000 visas through a lottery system to foreign nationals from countries with historically low rates of immigration to the United States. The Diversity Visa (DV) is meant to promote a diverse immigrant population and is not available to foreign nationals from “high admission” countries. A country is considered “high admission” if 50,000 or more people born in that country have immigrated to the United States under family or employment-based visa categories in the past five years.

The Department of State divides the world into six regions: Africa, Asia, Europe, North America, Oceania, and South America, Central America and The Caribbean. Not every country within a given geographic region satisfies the DV requirements and foreign nationals should check the latest eligibility list before applying.  The Department of State’s website lists all eligible countries and any changes for each lottery cycle.

An applicant may be residing in any country, including the United States, at the time of applying for a DV. Further, foreign nationals residing in the United States under temporary immigration status are not disqualified from entering the lottery. Consequently, a foreign national residing in the United States on a temporary visa may obtain a permanent residency through the DV lottery without having to return to his or her native country.

At the time this article is written any foreign national who meets the requirements may submit an application for the 2019 DV visa between October 3, 2017, and November 7, 2017. Each year the application period occurs once a year, for a one-month period. Any applicant who submits more than one entry in a given year will be disqualified for that year.

Once the deadline has passed, a computer randomly selects 50,000 individuals from all the applicants. No single country may obtain more than seven percent of the available DVs in a given year.

While submitting an application to the DV lottery is free, if a foreign national win the lottery he or she must pay all visa application fees. If the foreign national is ineligible to enter the United States for any reason (i.e. health or security reasons) the foreign national will be denied a DV and all visa application fees will not be refunded.

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Applying for a Fee Waiver

Overview

The U.S. Citizenship and Immigration Services (USCIS) receives a substantial portion of its funding through application fees but these fees can be a substantial barrier to certain foreign nationals and permanent residents, or green card holders. The USCIS recognizes the potential hardship and offers a fee waiver for certain application fees if an individual is able to demonstrate that he or she is unable to pay the filing fee.

All applications and forms are free and made available on the USCIS’s website. Included in the forms section of the USCIS’s website is the current filing fees. Application filing fees are updated periodically and any changes will be made available on the agency’s website. The fees were last updated on December 23, 2016.

A fee waiver – Form I-912 – is currently available for 31 applications, including Form N-600, Application for Certification of Citizenship; Form N-400, Application for Naturalization; and Form I-765, Application for Employment Authorization. Form I-912 and which forms qualify for a fee waiver are made available in the instructions PDF on the USCIS’s website.

Fee Waiver Requirements

 A fee waiver is available for an eligible form if the applicant can demonstrate any or all of the following: (1) the applicant, his/her spouse, or the head of the house household is currently receiving a means-tested benefit; (2) the applicant’s household income is at or below 150% of the Federal Poverty Guidelines at the time of filing; and (3) the applicant is currently experiencing financial hardship that prevents him or her from paying the filing fee.

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MAVNI Program – Citizenship Through the Military

The Military Accessions Vital to National Interest (MAVNI) is a small, exclusive program that allows foreign nationals to gain expedited citizenship in exchange for military service. Typically, all of the United States military branches require enlistees to be permanent residents of the United States, green card holders, but the MAVNI program allows certain non-immigrants with special health care and language skills to join the military and be eligible for U.S. citizenship without first obtaining a green card.

The program began as a pilot in 2009 and was amended in September of 2016 with additional security reviews and screenings. The additional security measures have effectively placed the MAVNI program on hold and have created uncertainty among future and current MAVNI enlistees about the program’s future.

Qualifications:

To qualify for the MAVNI program a foreign national, at the time of enlistment, must:

(1) Be a refugee, asylee, of temporary protected statutes, or be a member of one of the nonimmigrant categories (E, F, H, I, J, K, L, M, O, P, Q, R, S, T, TC, TD, TN, U, or V);

(2) Have been in one of the above valid status for at least two years, however, it does not have to be the same category as the one held at the time of enlistment;

3) Not have a single absence of more than 90 days from the U.S. during that two year period; and

(4) Be a healthcare professional or expert in key languages.

The MAVNI program is open to individuals who have been granted deferred action by the Department of Homeland Security pursuant to the Deferred Action for Childhood Arrivals (DACA) process. Their applications will be reviewed on a case-by-case basis.

  1. Special Skills

To qualify for the MAVNI program a foreign national must be a member of the health care profession or be an expert in a key language. A healthcare applicant must:

(1) Fill medical specialties where the service has a shortfall;

(2) Meet all qualification criteria required for their medical specialty, and the criteria for foreign-trained Defense Department medical personnel recruited under other authorities;

(3) Demonstrate proficiency in English; and

(4) Commit to at least three years of active duty, or six years in the Selected Reserve.

Applicants who are an expert in a key language must:

(1) Possess specific language and culture capabilities in a language critical to the United States Defense Department (full list of languages here);

(2) Demonstrate a language proficiency;

(3) Meet all existing enlistment eligibility criteria; and

(4) Enlist for at least four years of active duty.

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Freedom of Information Act Request

A foreign national applying for a visa, a green card, or other immigration services may encounter delays or be denied if the U.S. immigration services rely on background information that the foreign national did not know existed. The Freedom of Information Act (FOIA) allows individuals to request information from federal agencies that may be critical to obtaining entrance into the United States. The U.S. government maintains all background information in an “A file,” which can usually be obtained in part or in its entirety with a FOIA request.

The FOIA allows any person, regardless of immigration status, to access information from a federal agency as long as he /she reasonably describes the records requested and submits the request in accordance with the agency’s rules. A person is defined as an individual, partnership, corporation, association, or public or private organization that is not a governmental agency. Therefore, an employer or attorney may request the information on a foreign national’s behalf as long as the third-party has the permission of the foreign national.

Before filing a FOIA case, the applicant should consider whether the information he/she requires is specific to them or general information about the agency. If the information is general, the agency may have proactively released the information on its website. Federal agencies are statutorily required to proactively disclose all final opinions and orders rendered in the adjudication of cases, specific policy statements, and certain administrative staff manuals. If an individual seeks additional information that is not proactively disclosed then he/she should consider submitting a FOIA request to the appropriate agency.

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International Entrepreneur Rule

The following information is no longer current.  Please review the updated article Investor Entrepreneur Rule Gets a Second Chance.

The Entrepreneur Rule that was set to go into effect on July 17, 2017, has been delayed until March 18, 2018, to allow the Department of Homeland Security (DHS) an opportunity to review the rule in light of President Trump’s Executive Order 13767, “Border Security and Immigration Enforcement Improvements.” 

President Trump’s Executive Order 13767 requires federal agencies to review any procedures for granting parole and change any procedure that proposes a threat to the United States’ security. In consideration, the DHS is taking comments from the public in consideration of whether the rule should be finalized.

Unfortunately, there is a possibility that the Entrepreneur Rule never goes into effect and because the DHS decides the rule proposes an unlawful security risk in light of Trump’s executive order.  

On July 17, 2017, the international entrepreneur rule will take effect, which permits the Secretary of Homeland Security to grant parole admission on a case-by-case basis to immigrant entrepreneurs who will increase job growth and provide a significant public benefit to the United States. The goal of the international entrepreneur rule is to allow The Department of Homeland Security (DHS) to improve start-up success by increasing and enhancing entrepreneurship, innovation, and job creation.

For a start-up to qualify it must have been founded in the last five years, must have been founded in the United States, and must demonstrate a substantial potential for growth. In addition, only three immigrant entrepreneurs may receive parole admission per company. Applicants are only eligible if their company meets the above criteria. While each applicant is reviewed on a case-by-case basis, the international entrepreneur rule established general criteria for the DHS to consider.

General Criteria

The applicant entrepreneur must demonstrate that he/she has significant ownership of the company, at least 10%, possesses critical operational knowledge that would assist growth in the United States, and the company has received a large financial investment. To demonstrate financial liquidity the applicant’s start-up have received investments of $250,000 or more from U.S. investors or have received $100,000 or more in government grants.

If an applicant does not meet one of the above requirements, he/she may still be considered for parole admission if the entrepreneur can demonstrate his/her company will offer a significant public benefit. For example, the start-up will create jobs in the United States.

The DHS reviews all parole admission in the totality of the circumstances – in light of all the applicant’s information is there reasonable certainty the applicant will provide the United States with a significant public benefit. Included in the totality of circumstances are general immigration requirements, i.e. background check, possessing good moral character, passing medical examination.

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Financial Sponsorship Requirements in Family Based Immigration

Family sponsorship is one of the most common ways a foreign national can become a permanent resident, or receive a Green Card.  The United States allows U.S. citizens or permanent residents to sponsor family members that include children, parents, spouses and siblings – and bring them into the country.

For more information on the specific visas, please see my article on Path to U.S. Citizenship.

Obtaining a visa through family sponsorship will require the sponsoring family member to complete an affidavit of support, which is a declaration of intent to financially support the immigrant family member. An affidavit of support is required because the Immigration and Nationality Act grants the Attorney General the power to deny entrance into the United States if the individual “is likely at any time to become a public charge.”  In another context, a sponsoring employer may also be required to submit an affidavit of support for a foreign national if the sponsored foreign national, or the prospective employee, is related to the employer or holds a 5% or more in ownership interest in the entity that filed the visa petition.

Therefore, whether applying to come to the United States or if already here, converting a temporary visa into permanent resident status, a foreign national must demonstrate they will not become a public charge through the filing of an affidavit of support.

 What is a Public Charge?

A public charge is an individual who is unable to support himself or herself without financial support from the government in the form of public cash or an individual who is expected to need long-term care facilities.

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Path to U.S. Citizenship

For foreign national who wishes to gain legal status and eventually citizenship in the United States, this may be achieved in a number of ways. Among the most common methods for a foreign national to achieve citizenship are either through employment or through family, including by marriage. Depending on the foreign national’s circumstances, other methods are also available.

The first step on the road to citizenship is gaining legal entry to the U.S. While foreign national may eventually become a citizen despite illegal entry, the illegality of the entry will make gaining citizenship much more difficult, not to mention having to face possible detention and removal from this country, civil or perhaps even criminal penalties if the reentry was made following an existing removal order.  One can gain entry in different ways, oftentimes using either immigrant or nonimmigrant visa categories; however, some non-immigrant visa categories may not translate to citizenship.

Next, in most cases a foreign national residing in the U.S. would have to first get permanent residency. Permanent residency, or a Green Card, can be awarded following entry with an immigrant visa or can be applied for from within the United States. A permanent resident can travel, re-enter, and work in the U.S. with fewer restrictions than someone with a non-immigrant visa.

Once permanent residence is obtained, the foreign national must live in the United States for five consecutive years before applying for citizenship, or three years if married to a U.S. citizen spouse.  In addition, a foreign national must be able to demonstrate they are of good moral character and take a U.S. history and civics test in English, unless otherwise exempted.

The remainder of this article is dedicated to the various ways one can enter and obtain permanent residency: First, the various possible visas available for temporary entry into the United States, or non-immigrant visas, which require further application for permanent residency; second, the various permanent visas foreign nationals can apply for directly; finally, special categories based on family relations and other unique situations.

<Gaining admittance to the US>:

Foreign citizens come to the U.S. for a myriad of reasons – to study, to be with family, to work, to escape persecution, or to share their culture. For every reason, there is generally a corresponding visa category. The U.S. has categories of visas for both immigrants and non-immigrants. Among the most common immigrant visas are family and employment-sponsored ones. In the non-immigrant category, there are temporary visas for those who visit for business or pleasure, treaty investors/traders, students, temporary workers, exchange visitors, those who are engaged to a U.S. citizen, intracompany transferees, those with extraordinary abilities or who are artists or entertainers, persons in religious occupations, and victims of trafficking and criminal activity. In addition, certain people may be eligible for the visa waiver program, which allows individuals from approved countries to gain entry into the U.S. without applying for a visa from their consulate, so long as they have a valid passport and pass the border inspection.

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H-1B for Nurses

Overview

Contrary to what one may believe, most Registered Nurses (RN) or Licensed Practical Nurses (LPN) are not regarded by the government as a profession that is qualified for an H-1B visa. The primary reason lies in the educational requirement for a normal RN or LPN position – typically only two years, which fall short of the four-year college degree requirement for H-1B purposes. To be considered for an H-1B visa, one requirement is that the petitioner, or the employer, must demonstrate that the position is a “specialty occupation.” (see “Basic Overview of the H-1B Visa Qualifications and Procedures”). Generally, a “specialty occupation” can be proved by requiring at least a bachelor degree in a specific field or that the industry standard requires a specific bachelor degree. Usually, nurse manager or an advanced practice positions may qualify for H-1B visas since most of these positions require a Bachelor of Sciences (B.S.) in nursing or a Master of Science (M.S.) degree. However, it may be difficult for RNs or LPNs to be considered for H-1B visas since these positions generally do not require a bachelor’s or higher degree.

Recent Developments at USCIS

In 2002, legacy Immigration Naturalization Service (INS) issued a memorandum providing guidance on this issue and essentially stated that most RN positions would not qualify for an H-1B visa unless the petitioner can establish that the job offered requires at a minimum a college degree. Then, U.S. Citizenship and Immigration Services (USCIS) issued an interim policy memorandum on July 11, 2014 that superseded the former 2002 INS memorandum. The 2014 memo that was later finalized in yet another memo in 2015 discusses the changing industry for nurses and that employers now increasingly expect nurses to have a college degree; however, the adjudicatory standard that USCIS uses to review H-1B applications for nurses has remained essentially unchanged. Currently, the requirements of H-1B for nursing are as below: 

  • The position is a specialty occupation;
  • The nurse has a degree or equivalent pursuant to H-1B regulations;
  • The nurse has passed the foreign nurses exam (NCLEX-RN); and
  • The nurse has passed the state licensure.When an applicant is required to prove a lawful employment before obtaining the license from the state or local authority, and the license is required to practice the profession, USCIS will approve a one-year H-1B petition for the applicant to work on obtaining the license. However, the request to extend the H-1B visa will be denied if the applicant is ultimately unable to obtain the license. 

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