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L A W L E R & L A W L E R    N E W S L E T T E R [ March 2010]

It is H-1B Time

We are now preparing H-1B visa petitions for filing on April 1, 2010.  We recommend all petitions be filed on that date to ensure capturing a visa number.  There are two groups -- general with 65,000 visa numbers and U.S. advanced degree (Master's and Ph.D., etc.) holders with 20,000 visa numbers.  The year before last, many more petitions were received than general group numbers were available.  Last year, the visa numbers were available until Christmastime. 
 
Even if one obtains an H-1B visa number in April, one cannot begin H-1B status until October 2010.  Exempt from the numbered cap, however, are those sponsored by certain research organizations, U.S. universities and certain related organizations, and those who already have an H-1B.  There are also visa numbers set aside for citizens of Chile and Singapore.  Australians have a similar E-3 visa. 

Visas For Company Owners

USCIS has for decades recognized that a corporation is a separate legal entity from its owner(s) and thus, if otherwise qualified, could sponsor the company's owner(s) for an H-1B (specialist), L-1 (intracompany transferee), O-1 (extraordinary ability), or E-3 (Australian specialist) visa, each of which requires an employer sponsor.
 
With no warning, on January 8, 2010, USCIS issued a new memo and amended its field guide stating essentially that there is no employer-employee relationship between a corporation and its sole owner.  There are reports of denials of temporary worker petitions for corporate owners even when they are not the sole owner.
 
We are working on a few strategies for visas for company owners.  There are regulations for L-1 and O-1 visas providing for sole owners, but the new policy is still a concern for these visas as well.

This policy is detrimental to entrepreneurs forming startups which create employment in the U.S.  The American Immigration Lawyers Association has protested this policy and is advocating for revocation. 

EB-5 Investor Visas

One investing $500,000 in a business creating 10 jobs can apply for an EB-5 green card.  The whole process usually takes about 7 to 12 months. "Regional Centers" provide projects for groups of investors - i.e., limited partners. While other green card application processes may take many years, the EB-5 is a quick way for many to achieve a green card.  For more information on EB-5 visas, see my web page, www.aboutvisas.com, and click on "investors."