March 2013 Newsletter
In This Issue
USCIS Posts EB-5 Memorandum for Public Comment
On February 14, 2013, U.S. Citizenship and Immigration Services posted an updated memorandum on the EB-5 program, and is soliciting public comment. The updated memo makes various technical changes. Among other things, it clarifies that a material change after filing of an I-526 through admission as a conditional resident requires a new I-526, and that any approved I-526 will be revoked if such a change occurs. The memo also notes that if an immigrant investor is guaranteed the return of a portion of his or her investment, or is guaranteed a rate of return on a portion of his or her investment, then that portion of the capital is not at risk. If the investor is guaranteed the right to eventual ownership or use of a particular asset, then the value of the guaranteed ownership or use of such asset will be subtracted from the total amount of the investor's capital contribution in determining how much money was truly placed at risk. The memo notes that nothing precludes an investor from receiving a return on his or her capital during or after the conditional residence period, so long as the return was not previously guaranteed to the investor and so long as the funds are not a return of the investor's principal.
The memo also notes that in the case of a troubled business, job preservation is allowed in addition to, or in lieu of, job creation. In a troubled business, 10 jobs must be preserved, created, or some combination of the two. For example, an investment in a troubled business that creates four qualifying jobs and preserves all six pre-investment jobs would satisfy the statutory and regulatory requirements. "Troubled business” is defined in the memo, which quotes the regulations.
The announcement is available here.
The draft memo is available here.
H-1B Filing Starts April 1
Companies should be prepared to file H-1B petitions, and evaluate their anticipated hiring needs for H-1B professionals (specifically, those requiring initial H-1B visas) for the 12-month period beginning on October 1, 2013. That is the date on which new H-1B visas become available under the annual cap. Employers can file H-1B petitions no earlier than six months in advance of the anticipated start date, so April 1, 2013, signals the start of what has become an annual race to get petitions filed as early as possible to ensure acceptance before the cap of 85,000 visas is reached. The 85,000 cap includes the basic cap of 65,000, plus an additional 20,000 H-1B visas available to foreign nationals who have earned an advanced degree (master's or higher) from a U.S. university.
The H-1B cap for fiscal year 2013 was reached in June 2012. The pace of hiring this year means that the demand for new H-1B workers could result in the new cap being reached sometime in April. As in past years, some foreign nationals are not subject to the H-1B cap, including individuals who already have been counted toward the cap in a previous year and have not been outside the United States subsequently for one year or more. Also, certain employers, such as universities, government-funded research organizations, and some nonprofit entities are exempt from the H-1B cap. All other employers should be aware of the H-1B cap.
Hodkinson Law Group recommends that you keep us apprised of all new hires needing H-1B status before October 1, 2014. Examples would include F-1 students hired with optional practical training that expires before April 1, 2014, or current L-1B nonimmigrants who will have spent five years in that status as of any date before October 1, 2014.
New Poverty Guidelines for I-864
The Department of Health and Human Services has issued its new poverty guidelines. These will become effective for I-864 'Affidavit of Support' purposes on March 1.
New Publications and Items of Interest
iCERT system enhancement. The Labor Department's Office of Foreign Labor Certification (OFLC) has implemented an enhancement to its Labor Condition Application (LCA) Electronic Filing Module within the iCERT System that allows employers or their authorized attorneys or agents to reuse previously filed LCAs under the H-1B, H-1B1, and E-3 visa programs. OFLC said this new feature is expected to "significantly reduce the administrative time and cost of preparing and submitting the ETA Form 9035E.” A fact sheet is available here.
E-Verify survey. USCIS announced that users of E-Verify, the free Internet-based system that allows businesses to determine the eligibility of their employees to work in the United States, have given the program high marks in a recent customer survey. More than 1,300 randomly selected employers across the nation who use E-Verify evaluated key program aspects, including registration, the online tutorial, ease of use, technical assistance, and customer service. They rated the program as exceptionally high in overall customer satisfaction, with an average score of 86 out of 100 on the American Customer Satisfaction Index (ACSI) scale. The survey report is available here.
Government Agency Links
Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State's latest Visa Bulletin with the most recent cut-off dates for visa numbers:
Hodkinson Law Group News