Understanding the Immigration Reform

As many of you know, last week President Obama announced his executive decision on immigration, which aimed to "fix the broken system".  Let us take a closer look at what implementation of such reform may involve.
First, who will be affected by the President's executive action?

• U.S. businesses, foreign investors, researchers, inventors and skilled foreign workers;

According to the new immigration initiative, the process of employment-based immigration will be simplified for both, the applicants and petitioners. The USCIS will remove restrictions that affect individual's job mobility and adjustment portability. In addition, the standards of eligibility for foreign investors, founders or start-up enterprises, and researchers will be clarified and defined in detail. Those individuals may be entitled to an expanded national interest waiver, which we will discuss in subsequent article.

•          H-1B Visa Holders and their spouses;

In regards to H-1B Visa holders, their spouses, who hold H-4 statuses, will be officially authorized to work in the United States under condition that their H-1B spouses commenced the process of Adjustment to the LPR.

•         Foreign Students that seek employment in the United States

The program of Optional Practical training (OPT) will be extended and expanded. However, the USCIS will work closely with Immigration and Customs Enforcement (ICE) agency to monitor and regulate OPT program.

•        Individuals with "specialized knowledge" who seek employment in the United States;

The USCIS will provide a clear definition on the meaning of “specialized knowledge” and clarify the requirements for obtaining L-1B visa.  In addition, a comprehensive guide for adjudication of the L-1B visas will be issued.

• Current DACA recipients seeking renewal and new applicants, including individuals born prior to June 15, 1981, who meet all other DACA guidelines.

The DACA program is extended to include the individuals who were born prior to June 15, 1981 and were continuously present in the USA since January 1, 2010. Moreover, the DACA recipients will be issued employment authorization effective for three years.

•         An undocumented individual living in the United States who, on the date of the announcement, is the parent of a U.S. citizen or lawful permanent resident and who meets the guidelines listed below.

The Deferred Action program shall protect the parents of the US citizens and lawful permanent residents if they have continuous presence in the USA since January 1, 2010 and, their US citizen/ Lawful permanent resident children were born on or before November 20, 2014.

• Undocumented individuals who have resided unlawfully in the United States for at least 180 days and who are:

1. The sons and daughters of U.S. citizens; and
2. The spouse and sons or daughters of lawful permanent residents.

Those individuals may qualify for a provisional waiver program if the standard of "extreme hardship" is met. Moreover, the standard of extreme hardship is furthermore defined.

•          Lawful permanent residents eligible to apply for U.S. citizenship;

Lastly, the lawful permanent residents may use credit cards to pay the application fee for naturalization. Furthermore, the basis for fee waiver eligibility is expanded.


As we can see from the list above the Executive decision affects vast majority of immigrants from DACA applicants to the foreign investors, who would like to set up their business in the United States.

The First Belarusian-American Investment Forum

I look forward to discussing investment opportunities with Prime-Minister of Belarus, Mr. Mikhail Myasnikovich, and Minister of Economy of Belarus, Mr. Nikolai Snopkov, during the First Belarusian-American Investment Forum on September 22^nd.

Belarusian delegation also includes Ms. Natalia Nikandrova, Director of the National Agency of Investment and Privatization, deputies from the Ministry of Foreign Affairs, Ministry of Finance, National Bank Board, and Chamber of Trade and Commerce.

Mr. Nikolai Snopkov, Minister of Economy of Belarus, will deliver keynote presentation on the future of economic cooperation between Belarus and the United States. Ms. Natalia Nikandrova, Director of the National Agency of Investment and Privatization, will discuss the current investment climate in Belarus.

The importance and timing of the First Belarusian-American Investment Forum cannot be understated. I am certain that the First Investment forum will have positive impact on Belarusian-American economic relations.

H-2B Cap for the Second Half of 2014

As of August 8, 2014 the USCIS receipted 26,677 H-2B beneficiaries. H-2B Program was designed for immigration of non-agricultural foreign workers. On March 14, 2014, the USCIS received a sufficient number of petitions to reach the congressionally mandated H-2B cap for the first half of Fiscal Year (FY) 2014. March 14, 2014 was the final receipt date for new H-2B worker petitions requesting an employment start date before April 1, 2014. 

The final receipt date is when the Immigration Service receives enough cap-subject petitions to reach the limit of 33,000 H-2B workers for the first half of FY 2014. This means that there are no longer any spots available from the first half of FY 2014 to carry over to the second half of FY 2014. H-2B worker who extends his/her stay in H-2B status will not be counted against the H-2B cap.  In addition, the spouse and children of H-2B workers classified as H-4 nonimmigrants are not counted against this cap.

Cap Type	Cap Amount	Beneficiaries Approved	Beneficiaries Pending	Target Beneficiaries	Total	Date of Last Count
H-2B: 2nd Half FY 2014	33,0002	25,442	1,235		26,677	08/08/2014
H-2B: 1st  Half FY 2015	33,000	1,312	950		2,262	08/08/2014

H-1B for Nurses

The USCIS’s outlook on adjudication of H-1B petitions for nursing positions is going to change radically with new policy memorandum.

Traditionally, nursing profession was not considered a specialty occupation by USCIS standards and, therefore, nurses were frequently found ineligible for H-1B visas.  This is because college degree was not a requirement for most nursing positions.  Since the last policy memorandum, published in 2002, more and more nurses have obtained college degrees.

Due to this systemic change in the market and the growing demand for qualified and skilled nursing personnel in the private sector USCIS has issued new policy memorandum on July 11, 2014.

 In the new memorandum, USCIS underlines three categories of nursing positions that from now on will be treated as a specialty occupation: nurse managers, nurses in specialized fields, and advanced practice nurses.

According to USCIS and the U.S. Department of Labor, nurses that work in specialized fields such as cardiovascular, pre-operative, addiction, pediatric, oncology, neonatology, etc. also possess specialized knowledge, skills, and appropriate educational level.

In addition, the new memorandum describes nursing specialty positions eligible for H-1B visas, such as Advanced Practice Registered Nurse, Certified Nurse-Midwife (CNM), Certified Clinical Nurse Specialist (CNS), Certified Nurse Practitioner (CNP), and Certified Registered Nurse Anesthetist (CRNA).

It is necessary to keep in mind that education requirement is only a part of the eligibility criteria that is essential for successful H-1B visa applications. Other requirements include appropriate job description, clinical experience, and training. Registered Nurses (RNs) may qualify for H-1B visas if they successfully demonstrate that above-mentioned requirements are met.

Please join us for a 

Lunch & Learn 

Build YOUR Bridge to a Financial Excellence

Success Stories: How multinational companies simplified Financial Planning in SAP

Presenter: Adrian Rochofski

Executive Vice President, KERN Americas Corp.

Mr. Rochofski is a passionate Controlling and SAP professional with a unique

ability to create sustainable solutions for critical business processes

Wednesday July 30, 2014

12:00 P.M.

Charlotte City Club

121 West Trade Street

Charlotte, NC 28202

RSVP by July 23, 2014 to events@bhlus.com

RSVP is transferable to your Finance/SAP expert

Great News for H-1B Applicants!

On July 7, 2014, U.S. Department of State announced that H-1B beneficiaries with an October 1, 2014 start of employment date may start filing their Visa applications now.

As you may already know, the H-1B program is used to employ qualified foreign workers that possess necessary professional skills and specialized knowledge. Some of the most prominent areas that often utilize       H-1Bs are biotech, science, engineering, and computer programming.

Because only 65000 H-1B visas are allowed per one fiscal year, employers must file H-1B petitions in a timely manner. As past practice shows, cap on H-1Bsb was reached on June 1^st, 2011 for FY 2012, on June 12^th, 2012 for FY 2013, and on April 5^th, 2013 for the fiscal year 2014.  

Thanks to the new procedural notes released by the Department of State, U.S. Consular posts are authorized to issue H-1B Visas 90 days in advance of the applicant’s start date of employment. In other words, starting from July 1^st, 2014 applicants whose employment starts on October 1^st, 2014 may file their visa applications to obtain H-1B visa stamp. However, applicants must remember that they can enter the U.S. only 10 days prior to the start of employment.

Our advice is to start filing visa applications early!

IS USCIS GETTING TOUGH ON EB-5s?

Recent statistics released by the US Citizenship & Immigration Services for the first two quarters of the fiscal year 2014 (from October 1, 2013 to March 2014) shows little hope for EB-5 applicants. Many EB-5 investors were denied their applications for Green Card.

Let’s compare fiscal year 2013 with 3,699 approved and 943 denied applications to the first two quarters of 2014, with 2882 approved petitions and 1068 denials.  The rate of denials increased by more than 50% from 1 in 4 applications denied in 2013 to 1 in 2.6 applications denied in 2014.

The prospects of approval of I-829 Petitions by Entrepreneurs to Remove Conditions (i.e., the extension of the temporary 2 year green card) appear to be even gloomier. To demonstrate this, for the entire year of 2013 rejection rate was at 5% level with 844 approvals and 44 denials. Unfortunately, these applications were five (5) times more likely to be denied in 2014: only 456 petitions were approved and 118 petitions were denied (4:1 or 25% denial rate).

This means that having invested between $500,000 and $1,000,000, relocated to the United States, likely having also made additional investment in real estate, etc., foreign entrepreneur, would still face a very real possibility of having to leave the US.  Unwinding EB-5 investment itself is also a significant hurdle in case of denial of I-829 Petition to Remove Conditions.

Due to the fact that the number of approved applications for EB-5 program has gone down dramatically, potential investors often ask: “What other options may be there for potential foreign investors? What is the best way to obtain a Green Card?” In my opinion, given the current regulatory environment and the way USCIS adjudicates EB-5 petitions, it is worth looking into EB-1 category for managers of foreign companies that are represented in the United States via a subsidiary or an affiliate.

Unlike Green Cards issued under the EB-5 program, Green Cards issued to managers or executives in the EB-1 category are permanent (no removal of conditions is required).  The EB-1 option may work for those who are being transferred to existing US entities, as well as for those who are coming to the United States to launch operations of a newly created subsidiary or an affiliate after the first year of operations is complete.  In the case of a new company, initial relocation is possible with L-1A non-immigrant visa. The requirements for L-1A visas are similar to many of the requirements for the EB-1 green card category.  As a temporary visa, L-1A allows time to start the operations of the newly created US entity, search for a suitable real estate options, and so on.