USCIS PROPOSES NEW RULE FOR ENTREPRENEURS

On Friday, August 26, 2016 the USCIS released a proposed rule which would allow certain entrepreneurs to enter the United States for a temporary period of time to start a business in the US. 

The proposed rule would allow entrepreneurs of startup entities to enter the US, if the startup will provide a significant public benefit through the substantial and demonstrated potential for rapid business growth and job creation.  Under the proposed rule, the USCIS will decide on a case-by-case basis if the entrepreneur is eligible to enter the US.  Factors to be considered are:

·         If the entrepreneur has a significant interest in the startup (at least 15%) and has an active role in the startup’s operations;

·         If the startup was formed in the US within the past three years;

·         If the startup has substantial and demonstrated potential for rapid business growth and job creation, as evidenced by:

o   significant investment of capital (at least $345,000) from US investors with record of success,

o   significant investment of capital (at least $100,000) from a US government entity(ies),

o   partially satisfying one or both of the above criteria in addition to other reliable and compelling evidence of the startup’s potential for growth and job creation.

Under this new rule, the entrepreneur may be granted up to a two year stay in the US to oversee startup.  The entrepreneur may be granted an additional three year stay, but only if the entrepreneur and the startup entity continue to meet the criteria above.

For additional information, please see the USCIS website. 

IMMIGRANTS ARE “IMPERATIVE” TO CURE US HEALTHCARE STAFFING SHORTAGES

A new report by the Institute for Immigration Research declares that immigrant labor plays an “outsized and imperative role in the US healthcare system.  The Advance Healthcare Network reports that the IIR reports these figures of the population are immigrant labor:

• 28% of physicians and surgeons
• 40% of medical scientists in pharmaceutical research and development
• 50% of medical scientists in biotechnology in states with a strong biotechnology sector
• 22% of nursing, psychiatric and home health aides
• 15% of registered nurses 

This is in spite of the fact that only 13% of the US population is foreign-born.  The IIR is funded by George Mason University. 

The AHN write-up quotes Monica Gomez Isaac, executive director of George Mason’s IIR.  Ms. Isaac is very positive about the contributions that immigrants make in these fields, but she is incorrect in this quote:  

“In the instance of nurses, the lack of an international standard for qualifying registered nurses is absent. The varying degrees of training based on the standards of individual nations make it complex to recruit and fill nursing shortages.”

This is untrue for two reasons.  First, there is an international standard for qualifying nurses.  All US nurses must pass the NCLEX-RN Exam, which is offered all around the world.  Second, the training standards are not the reason for the lack of foreign-born nurses.  Between 15-20,000 internationally-trained RNs are registering to take the NCLEX-RN exam every year.  In the mid-2000s, that number was even higher. 

The problem is the immigrant visa retrogression.  A fully-qualified nurse from the Philippines takes 3-5 to get her immigrant visa.  A fully-qualified Indian nurse takes 10+ years.  If the US Congress would update the immigration laws to allow in more nurses, the bottleneck would fade.

FORTY-SEVEN IMMIGRANT ATHLETES COMPETE FOR TEAM US IN RIO

As the Olympics in Rio come to a close, athletes for Team USA - both native and foreign born - have represented the red, white, and blue.  The US sent 555 athletes to the Olympic Games in 27 sports.  Forty-seven of Team USA’s competitors were born outside the United States!

Notable immigrant athletes on Team USA included:

• Danell Leyva (gymnastics) was born in Cuba and defected to Miami, Florida with his mom and sister when he was only two years old.  Danell won two silver medals at the Rio Olympics on the men’s parallel bars and the men’s horizontal bar.
• Meb Keflezighi (track and field) is one of the most decorated US marathoners of all time.  Born in Eritrea, he moved to the US at the age of 11.  In 2014 he won the Boston Marathon becoming the first American to do so since 1983. Meb will run in the men’s marathon on Sunday, August 21, becoming the oldest US Olympic runner of all time. 
• Nick Delpopolo (judo) was born in Serbia and Montenegro; he spent the first few years of his life in an orphanage until he was adopted by a couple from New Jersey. 
• Paul Kipkemoi Chelimo (track and field) was born in Kenya, but became a US citizen after enlisting in the US Army and being a part of the World Class Athlete Program.   Paul, along with two other foreign-born US athletes, Bernard Lagat and Hassan Mead, will run in the men’s 500m final on Saturday, August 20. 
• Kyrie Irving (basketball) was born in Melbourne, Australia while his father pursued a professional career in an Aussie league.  He holds dual citizenship and was asked to play on the Australian national team, but chose to play for Team USA.

Congratulations to all the athletes on Team USA and too all the Olympians!

MU LAW CINCINNATI SEMINAR: IMMIGRATION SOLUTIONS FOR A TIGHT LABOR MARKET

Musillo Unkenholt LLC (MU Law) is proud to co-sponsor a Cincinnati seminar with Graydon Head, Cincinnati’s premier full-service law firm.  The event will be held September 13, 2016 on the campus of Xavier University.  The program runs from 7:30 - 10:00 AM and will feature a panel of local Cincinnati business leaders.  The seminar is free to attend.

Join Graydon Head & Musillo Unkenholt as they lead an informative conversation about using immigration to solve staffing supply shortages - and the legal and practical issues that may arise. A panel of experts who have dealt with these situations will share their struggles and successes on using immigration solutions in a tight labor market.

If you are interested in attending, please RSVP to Sam Rossell, 513.629.2727 or via email. 

This program is valid for 1.5 PDCs for the SHRM-CP or SHRM-SCP. For more information about certification or recertification, please visit www.shrmcertification.org.

SEPTEMBER 2016 VISA BULLETIN

The Department of State has just issued the September 2016 Visa Bulletin.  This is the twelfth and final Visa Bulletin of Fiscal Year 2016. As the fiscal year winds down, the last few Visa Bulletins always have some surprises.  

This Visa Bulletin is no exception.  Some dates progressed favorably.  Other dates retrogressed.  Rest assured that these changes are temporary. 

Readers should rest assured that everything will go back to "normal" on October 1, 2016, the start of the next fiscal year.

September 2016 Visa Bulletin

Final Action Dates

Applications with these dates may be approved for their Green Card (Permanent Residency card).

Employ- ment based	All Charge- ability  Areas Except Those Listed	CHINA- mainland  born	INDIA	MEXICO	PHILIPPINES
1st	C	01JAN10	01JAN10	C	C
2nd	01FEB14	01JAN10	22FEB05	01FEB14	01FEB14
3rd	01MAY16	01JAN10	15FEB05	01MAY16	01JUL10

MU Law Analysis

All Other:  The EB-2 has been current for many years.  The retrogression of the EB-2 category simply means that the DOS approved more cases than it expected to in FY2016.  The EB-3 moved forward by two months.  These dates continue to be very favorable.  We expect that All Other dates will continue to be positive for the foreseeable future, starting on October 1, 2016.

China:   These dates mirror the August 2016's Visa Bulletin.  We expect positive movement in October 2016.

India:  EB-3 moved ahead by ten weeks as did EB-2.  The DOS is trying to make sure that all available Indian immigrant visas are used.  

Mexico: Mirrors All Other in all aspects.

Philippines: EB-3 moved ahead by ten months, into 2010.  This is what we have expected.  (Our note from May 2016: "MU Law believes that Philippines EB-3 will continue to steadily move forward in the coming months. We expect it to move into 2009 in the by early summer, and may reach 2010 by the end of this fiscal year.").  The Feb 2014 retrogression date for EB-2 should be of no concern for those in this category.  Philippine EB-2 will be current in October 2016.

OPT STEM EXTENSION DEADLINE AUGUST 8

Students who currently hold an OPT STEM Extension card, valid for 17 months, must apply before August 8, 2016 if the student wishes to request an additional 7 months, under the new 24 month STEM Extension Program created earlier this year.

On March 11, 2016 the USCIS published the rules of a new, expanded STEM Extension OPT program.  The new STEM Extension went into effect on May 10, 2016.  Among other changes, the program extended the length of the STEM Extension from 17 months to 24 months.  For an outline of the new requirements for students and employers under the updated STEM Extension Program, please see our previous blog post from May 4, 2016.   

The USCIS outlined a series of transition rules for three primary groups of students impacted by the implementation of the new STEM Extension Program:

1.       Students on a 17 month STEM Extension can request the full 24 month STEM extension period, if they apply for a new OPT card before August 8, 2016.  If the student elects not to ask for the full 24 month STEM extension, the student should complete the 17 month STEM OPT Period under the old rules.

2.       Students with a pending 17 month STEM Extension should receive an RFE requesting the new form I-983 Training Plan.  An RFE Response amends the application to the full 24 months STEM extension period.

3.       Students on a 12 month OPT expiring after June 1 must file the STEM Extension under the 24 month program.

Students eligible for OPT STEM Extensions are in science, technology, engineering, and mathematics fields.  Please check with your student advisor if you qualify for a STEM Extension based on your field of study. 

CLINTON ON IMMIGRATION

PART TWO OF SERIES: THE PRESIDENTIAL CANDIDATES ON IMMIGRATION REFORM

HILLARY CLINTON

Hillary Clinton’s website highlights eight key pieces of her immigration proposals.

1.       Comprehensive Immigration Reform (CIR) – Ms. Clinton promises to introduce CIR, including a pathway to US Citizenship, within the first 100 days of her presidency.

2.       End the Three/Ten Year Bar – Under current immigration law, those who overstay the end-date on their I-94 card by six months to a year are barred from returning to the US or applying for any type of visa for three years.  Those who overstay by more than a year are barred from returning to the US or applying for a visa for ten years.  Ms. Clinton seeks eliminate this penalty.

3.       Defend DACA and DAPA – President Obama’s Executive Action created the DACA and DAPA programs.  These programs allow individuals who were brought to the US as children or have US Citizen children to apply for a stay of deportation and work authorization.  Most recently, the US Supreme Court’s 4-4 tied decision left in place an appeals court ruling which blocked these programs.  Ms. Clinton believes these programs are within the President’s authority and intends to continue fighting for their implementation.

4.       Expand Deferred Action – A grant of Deferred Action is essentially a promise on the part of the US government not to deport the grantee.  Ms. Clinton intends to expand Deferred Action for those with sympathetic cases, for example: those with a history of service and contribution to their communities or those who experience extreme labor violations.

5.       Enforce Immigration Laws Humanely – Secretary Clinton states immigration enforcement should be humane, targeted, and effective.  Ms. Clinton wants to focus enforcement resources on detaining and deporting individuals who are a threat to public safety.

6.       End Family Detention – Ms. Clinton plans to end the detention of parents and children who arrive in the US fleeing desperate circumstances.  Secretary Clinton also intends to close all private (non-government) immigration detention centers.

7.       Expand Health Insurance Coverage for Immigrant Families – Secretary Clinton wants to allow individuals of any immigration status to purchase health insurance on the Affordable Care Act (Obamacare) Exchanges.

8.       Promote Naturalization – Ms. Clinton will expand fee waivers, increase English-language proficiency programs, and boost outreach and education to encourage individuals to apply for Naturalization.

Please note this post summarizes only the points available on Secretary Clinton’s website regarding immigration reform.  Speeches, interviews, or other materials are not captured here.