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On August 2nd, USCIS has announced and outlined a series of policy, operational, and outreach efforts to promote the US economy and investment by attracting foreign entrepreneurial talent of exceptional ability or someone who can create jobs, form startup companies, and invest capital in areas of high unemployment.

This initiative mainly covers four parts below practically:

1. This initiative will expand the EB-2 category to include entrepreneurs who create jobs in both traditional PERM and NIW.

The EB-2 classification is applicable to foreign workers with advanced degrees and individuals of exceptional ability in the arts, sciences, or business. Specifically,

An entrepreneur can qualify as a member of a profession holding an advanced degree if the:

1. Entrepreneur will be working for a U.S. employer who files a petition on the entrepreneur’s behalf.
2. Entrepreneur is a member of the profession holding an advanced degree or foreign equivalent degree.
3. Underlying position requires, at a minimum, a professional holding an advanced degree or the equivalent.
4. Petitioning employer has received an individual labor certification from the Department of Labor; and
5. Entrepreneur meets all the specific job requirements listed on the individual labor certification.

Generally, EB-2 petition needs a permanent job offer and approved Labor Certification (LC) which will require the traditional PERM process. However, under the existing law, if the petitioner can demonstrate that the approval of the EB-2 visa will be in the national interest of U.S., the requirements of job offer and thus LC can be waived through National Interest Waiver petition (NIW).

Although there is no definition about “national interest” in the statute or the regulations, USCIS issued a three-prong standard in precedent decision about NIWs which is Matter of New York State Dept. of Transportation case known as NYSDOT.

The three prongs about NIW are:

1. The waiver applicant must seek employment in an area that has substantial intrinsic merit.
2. The waiver applicant must demonstrate that the proposed benefit to be provided will be national in scope.
3. The waiver applicant must demonstrate that it would be contrary to the national interest to potentially deprive the prospective employer of the services of the waiver applicant by making available to U.S. workers the position sought by the waiver applicant.

That is to say, the petitioner for NIW must demonstrate the entrepreneur will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications.

In detail, to satisfy these three prongs, the entrepreneur has to:

Firstly, seek employment in an area which has substantial intrinsic merit, which means the employment is close-related to the professional he is good at.

Secondly, demonstrate that his/her enterprise will create jobs locally as well as other parts of the nation or creates jobs locally which has national impact.

At last, demonstrate his/her enterprise will benefit U.S. national interest in a greater degree than the work of others in the same field.

Entrepreneurs, if they qualify, can obtain a waiver of the job offer and thus LC requirements if it is in the national interest.

For more information about NIW, please visit our website: http://www.hooyou.com/niw/index.html

2. The initiative will make EB-5 case process more liberal and active by making fundamental enhancement to it.

This enhancement will conclude three fundamental changes:

1. USCIS proposes to accelerate its processing of applications for job-creating projects that are fully developed and ready to be implemented. USCIS will also give these EB-5 applicants and petitioners the option to request Premium Processing Service (talk about later in this article), which guarantees processing within 15 calendar days for an additional fee.
2. USCIS proposes the creation of new specialized intake teams with expertise in economic analysis and the EB-5 Program requirements. EB-5 Regional Center applicants will be able to communicate directly with the specialized intake teams via e-mail to streamline the resolution of issues and quickly address questions or needs related to their applications.
3. USCIS proposes to convene an expert Decision Board to render decisions regarding EB-5 Regional Center applications. The Decision Board will be composed of an economist and adjudicators and will be supported by legal counsel.

This proposal was online from May 19, 2011 to June 17, 2011, for public comment—providing stakeholders an opportunity to offer feedback on the proposed changes to the administration of the EB-5 Program. After reviewing stakeholder feedback on the proposal, USCIS is developing a phased plan to roll out these enhancements and is poised to begin implementing the first of these enhancements within 30 days.

For more information about EB-5, please visit our website:
http://www.hooyou.com/eb-5/index.htm

3. The initiative will expand the Premium Processing Service to immigrant petition for multination executives and managers (EB-1(c))

The Premium Processing Service provided by USCIS will significantly shorten the processing time for the immigrant petitioner down to 15 calendar days. That means when the Form I-907, Request for Premium Processing Service, is received by USCIS at the correct filing address noted on the form, USCIS will issue and serve on the petitioner or applicant an approval notice, a denial notice, a notice of intent to deny, a request for evidence or open an investigation for fraud or misrepresentation within the 15 calendar day period.  If the petition or application requires the submission of additional evidence or a response to a notice of intent to deny, a new 15 calendar day period will begin upon receipt by USCIS of a complete response to the request for evidence or notice of intent to deny.

Otherwise, USCIS will refund the Premium Processing Service fee.  If the fee is refunded, the relating case will continue to receive expedited processing.

For more information about EB-1(c), please visit our website. http://www.hooyou.com/eb-1c/description.html

4. The initiative will enable the owner of the company to apply for H-1B.

USCIS has updated the FAQs to clarify an H-1B beneficiary who is the sole owner of the petitioning company may establish a valid employer-employee relationship for the purposes of qualifying for an H-1B nonimmigrant visa. That is to say, a sole owner of a company may apply for H-1B visa for him/herself.

For more information about H-1B, please visit our website. http://www.hooyou.com/h-1b/index.html

If you want to read the original announcement released by USCIS, please click the following link:
http://www.dhs.gov/ynews/releases/20110802-napolitano-startup-job-creation-initiatives.shtm

If you are interested in contacting us for a free consultation about any topic mentioned above, please call our offices at 1-800-230-7040 or email us at info@hooyou.com.

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Founded in 1996, Zhang & Associates, P.C. offers legal services to clients nationwide in all aspects of U.S immigration law. We have successfully handled thousands of immigration cases.

At Zhang & Associates, P.C., our attorneys and supporting professionals are committed to providing high-quality immigration and non-immigration visa services. We specialize in NIW, EB-1, PERM, and I-485 cases. In the past fifteen years, we have successfully helped thousands of clients get green cards. If you plan to apply for a green card, please send your CV to Attorney Jerry Zhang (info@hooyou.com) for a free evaluation.

Zhang & Associates, PC.

Silicon Valley • New York • Los Angeles • Chicago • Houston • Austin

Tel:	1-800-230-7040, 713-771-8433
Email:	info@hooyou.com
website:	http://www.hooyou.com

 

(08/05/2011)