Of the 52,656,022 nonimmigrants admitted to the United States via air and sea ports of entry in fiscal year (FY) 2017, 98.67 percent departed the United States on time and in accordance with the terms of the their admission, according to a report released by the Department of Homeland Security (DHS). Of that number, 1.33 percent or 701,900 nonimmigrants, overstayed. Of these, there were 606,926 suspected in-county overstays or 1.15 percent at the end of FY 2017. This includes those who remain in the United States beyond their period of admission and for whom there is no identifiable evidence of a departure, an extension of period of admission, or transition to another immigration status.
At a Glance
Fragomen July 26,2018
Forbes Magazine, Semotiuk
Jul 12, 2018
If you are thinking of investing in a United States business, or if you are ready to expand your company and establish a new office in the U.S., then you are probably already familiar with L-1 and E-2 visas. Both work visas can be obtained within a few months - they are therefore the best to use for investors who want to immigrate quickly to the U.S. In general, although both visa classifications are intended for investors, there are some essential differences between the two classes. The best way to navigate through the L-1 and E-2 requirements is to have a clear overview of what you want to achieve. However, even if you do not have a plan yet, the following table may assist you in coming up with one.
The L-1 classification enables a U.S. employer to transfer an executive or manager from one of its affiliated foreign offices to the United States. This classification also enables a foreign company which does not yet have an affiliated U.S. office to send an executive or manager to the United States with the purpose of establishing one. The E-2 visa allows a national of a treaty country to be admitted to the United States when investing a substantial amount of capital in a U.S. business. If your country does not have an investment treaty with the U.S., unfortunately, your only option would be the L-1 visa. Even if you are eligible to apply for either visa, however, your choice will depend on the requirements involved and your intentions.
Money is not everything, but let me begin with the financial aspects. The U.S. Citizenship and Immigration Service defines an investment as placing capital, or other assets at risk to make a profit. The capital must be subject to loss if the investment fails. The treaty investor must show that the funds have not been obtained from criminal activity.
The requirements of the E-2 investor visa do not establish a minimum amount of investment. However, the amount must be “substantial” relative to the total cost of either purchasing an established company or creating a new one. It must also be sufficient to ensure the investor’s financial commitment to the success of the company. My working rule is that the minimum amount should be $ 150,000 U.S. to start in most instances.
In the L-1 visa scenario, if you open a new office in the U.S., you will need to prove that it is adequately funded so that you will be able to maintain its operation and pay employees. I use $ 175,000 U.S. per employee as my working rule. Moreover, you will be asked to show that you have physical premises for your new office so a lease agreement should be obtained.
As for how long you can stay, an L-1 intra-company transferee can initially stay for up to three years, while setting up a new office allows a maximum initial stay of one year. An extension of stay may be granted in increments of up to an additional two years until the employee has reached the maximum limit of seven years.
While the E-2 visa is usually granted by the U.S. Consulate for five years, holders of the visa can only count on the U.S. Customs and Border Protection officers at a port of entry to grant them a maximum initial stay of two years, subject to renewal. Further extensions of stay are granted in increments of up to two years on each entry, provided the visa in the passport is current. There is no maximum limit to the number of extensions for E-2 visas granted by the Consulate. Nevertheless, you need to keep in mind that extensions are not automatic.
L-1 and E-2 visas require the applicant to be involved in the business. They were not created for passive investors. In both cases, the investor will have to demonstrate that his U.S. company is an active, thriving, for-profit business. For L-1 holders it is important for their non-U.S. entity to remain in operation – it is, after all, called an intra-corporate transfer.
Holding E-2 status demands a lower level of commitment since there is no need for the investor to participate in day-to-day management. On the other hand, active management is required from an L-1 investor, and a more active presence in the U.S. is expected. L-1 visa holders must have worked abroad for the foreign company for at least one year within the last three years. In the E-2 case, no previous experience is required from the applicant. In both instances, however, proof of English language proficiency is required.
Both L-1 and E-2 visas, allow your spouse and dependent children under 21 years of age to accompany you into the United States. The L-1 visa also gives you an opportunity to apply for a green card through the EB-1 category. On the other hand, E-2 investors must demonstrate and maintain their intention to depart the U.S. when their business is completed. No green card is available that way.
The E-2 application process is generally considered to be easier than L-1, but if you have a viable foreign entity, getting an L-1 approval is not that great a challenge.
Hopefully the chart and this explanation will help you to better understand the two visas.
U.S. Immigration and Customs Enforcement (ICE) announced that it opened 3,510 worksite investigations in the past seven months, more than doubling the number of investigations opened during fiscal year 2017. The scrutiny on U.S. employers is part of ICE’s effort to create a “culture of compliance” in the business community and is expected to intensify as President Trump takes further steps to crackdown on immigration abuses.
ICE is the federal agency charged with the enforcement of the employment verification provisions enacted by the Immigration Reform and Control Act (IRCA) of 1986. Its current strategy, according to Derek N. Benner, Acting Executive Associate Director for ICE’s Homeland Security Investigations (HSI) Division, is to focus on criminal prosecutions of employers that knowingly break the law and to use I-9 audits and resulting civil fines assessed against employers as tools to encourage compliance with the law.
Considering the significant increase in enforcement since the start of fiscal year 2018, the strategy appears to be working. In the seven months between October 1, 2017, and May 4, 2018, ICE initiated a total of 2,282 I-9 audits—a number that is up 60 percent from the previous fiscal year. The agency also made 594 criminal arrests and 610 administrative worksite-related arrests, roughly four times the number of arrests made in fiscal year 2017.
According to Benner, ICE is planning another wave of I-9 audits this summer, which will likely bring the total number of investigations to more than 5,000 by the end of fiscal year 2018. The agency’s ultimate goal, if it can secure funding and support from the Trump administration, is to open as many as 10,000–15,000 audits a year and to instill in employers a “reasonable expectation” that they will be audited.
Given the agency’s goal to audit many more companies regardless of size, location, or type, now may be a good time for employers to conduct internal reviews of their I-9 files and compliance processes, train hiring personnel on proper I-9 verification, correct any compliance deficiencies to the extent possible, and make sure employers know their rights in the event of a worksite visit. Employers may also want to take proactive steps to develop policies and procedures to follow in the event of a worksite inspection so that they are better prepared to effectively assert their rights and protect their interests. Here are some considerations employers can keep in mind in the event of an ICE visit:
Ogletree Deakins, Manna and Mueller Publication May 2018
WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) today announced the launch of our Freedom of Information Act (FOIA) Immigration Records SysTem (FIRST), which will eventually allow users to submit, manage, and receive FOIA requests entirely online. Before this change, USCIS only accepted FOIA requests by mail, fax, and email, and requesters typically received their documents on a compact disc by mail.
USCIS is commencing FIRST’s digital delivery of services in phases. Initially, requesters who have an immigration court date pending and file a request for documents can create an account within myUSCIS to receive documents digitally, eliminating the time and expense associated with receiving requests by mail.
Through their account, requesters can track the status of their FOIA cases and will receive email notification when USCIS has uploaded their records. In the coming months, this digital delivery option will be expanded to all FOIA and Privacy Act (PA) requesters. When FIRST is fully operational, requesters will be able to use a completely digital FOIA/PA system, from online submission to retrieving and downloading responsive documents. USCIS will notify the public as additional services become available.
“Today marks an important step in our effort to transform outdated USCIS systems,” said USCIS Director L. Francis Cissna. “Modernizing the way we accept and respond to FOIA and Privacy Act requests is a priority. FIRST’s efficient process will reduce our FOIA backlog, eliminate errors, and speed up the delivery of documents to requesters.”
FIRST is part of the agency’s ongoing effort to move the nation’s legal immigration system away from paper-based services to digital transactions.
In December, USCIS expanded the variety of documents available in the Electronic Reading Room, disclosing cleared policy documents and external correspondence addressed to our leadership, along with their responses. This is in addition to providing access to information that had been requested at least three times and had been provided under FOIA.
FOIA provides the general public an avenue to request access to a variety of public information from federal agencies. Like all federal agencies, USCIS is required to disclose such records and information upon receiving a request.
May 23, 2018 (Fragomen)
At a Glance
USCIS received 95,885 advanced-degree H-1B cap submissions and 94,213 standard H-1B cap submissions during the FY 2019 filing period.
April 12, 2018
USCIS received 8,902 fewer H-1B cap filings than last year. The overall chance of selection in the cap lotteries for this year is approximately 45 percent.
USCIS posted an update regarding their H1B processing today:
On April 11, USCIS used a computer-generated random selection process to select enough H-1B petitions to meet the congressionally-mandated cap and the U.S. advanced degree exemption, known as the master’s cap, for fiscal year (FY) 2019.
USCIS received 190,098 H-1B petitions during the filing period, which began April 2, including petitions filed for the advanced degree exemption. USCIS announced on April 6, that it had received enough H-1B petitions to reach the statutory cap of 65,000 and the master’s cap of 20,000. USCIS will reject and return all unselected petitions with their filing fees unless the petition is a prohibited multiple filing.
USCIS conducted the selection process for the master’s cap first. All unselected master’s cap petitions then became part of the random selection process for the 65,000 cap.
USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed for current H-1B workers who have been counted previously against the cap, and who still retain their cap number, will also not be counted towards the FY 2019 H-1B cap. USCIS will continue to accept and process petitions filed to:
U.S. visa News
Marty & Ellis keeps you informed of the latest news regarding visas to the United States.