New Rule for Parole for Startup Entrepreneurs in the US

August 31st, 2016

USCIS has proposed a new rule to allow entrepreneurs of start-up entities to obtain parole to start or grow their businesses in the US. Parole is temporary permission to remain in the US.   The new rule would grant USCIS authority to use its existing discretionary parole authority to include entrepreneurs of startup businesses whose stay in the US would significantly benefit the US by the substantial and demonstrated potential for rapid business growth and job creation.

In particular, USCIS, on a case-by-case basis, may parole eligible entrepreneurs of start-up entities:

  • Who have a significant ownership interest in the start-up entity (at least 15%) and play an active and primary role in it;
  • Whose startup was formed in the US within the past three years; and
  • Whose startup has substantial and demonstrated potential for rapid business growth and job creation, which can be shown by:
    • Receiving significant investment of capital (of at least $345,000) from certain qualified US investors with track records of success;
    • Receiving significant awards or grants (of at least $100,000) from certain  federal, state or local government bodies; or
    • Partially satisfying one or both of the above criteria along with other reliable and compelling evidence of the startup entity’s substantial potential for rapid growth and job creation.

The entrepreneur may be granted an initial stay of parole of two years to run the startup entity and a subsequent  stay of an additional three years only if the entrepreneur and the startup entity continue to provide a significant benefit as evidenced by substantial increases in capital investment, revenue or job creation.

The primary advantage of this new parole status for startup entrepreneurs, as compared to the E-2 nonimmigrant investor visa, is that there is no requirement that there be a treaty between the entrepreneur’s country of citizenship and the US.  Currently, the US does not have such treaties with many countries, including India, China, Russia, Brazil, Portugal, Hungary, Vietnam, Saudi Arabia and South Africa.  However, citizens of these countries have been able to apply for an EB-5 investor immigrant visa if they had can invest $1 million or $500,000 (for certain areas of high unemployment regions of the US).

US Department of State’s Charlie Oppenheim and Immigrant Visa Movement

August 22nd, 2016

As of August 12, 2016, according to the US Department of State’s Charlie Oppenheim, the following can be expected in the movement of immigrant visas:

  • There will be an infusion of visa numbers for FY 2017 that will make EB-4 India and EB-4 Mexico current in October;
  • The final action date for EB-4 Guatemala, El Salvador and Honduras should progress to a date sometime in the summer of 2015;
  • EB-2 Worldwide should become current again in October 2016 but EB-3 Worldwide will most likely not become current;
  • The final action date for EB-2 China and EB-3 China will remain the same through the end of this fiscal year and in October EB-2 China is expected to advance to late 2011 or early 2012 and EB-3 China’s final action should reach 2012 or early 2013; and
  • In October EB-2 India should advance to early 2007 and EB-3 India should progress slowly and is likely to remain at a 2005 date in October.

BALCA Upholds PERM Where Alternative Requirements Were Omitted from Ads

August 15th, 2016

In Cosmos Foundation, Inc., BALCA reversed the denial of the Form ETA 9089 PERM labor certification and found that the employer’s omission of the alternative experience requirements in the recruitment sufficiently apprised US workers of the open position and did not discourage potentially qualified candidates from applying. Matter of Cosmos Foundation, Inc., 2012-PER-01637 (August 4, 2016).   The CO stated that the PERM labor certification application was denied because the omission violated two provisions of the PERM regulations:  (1) not sufficiently apprising US workers of the job opportunity and (2) not having the job clearly open to US workers (656.10(c)(8)).

 

BALCA found that an Employment and Training (ETA) FAQ addresses the level of detail required in the employer’s advertisement. This states that “Employers need to apprise applicants of the job opportunity.  The regulation does not require employers to run advertisement enumerating every job duty, job requirement, and conditions of employment. . . “  https://www.foreignlaborcert.doleta.go/faqanswers.cfm (last visited May 31, 2016).  BALCA concluded that not every job requirement must be included in the ad in order to notify US workers of a job opportunity.”

 

Also, in this case, the ad stated that 24 months of experience was necessary. BALCA accepted the employer’s argument that the reasonable interpretation of the employer’s listed job experience requirement was that applicants were required to have two years of experience in a specific field versus in the particular job noted in the PERM application.   Therefore, BALCA found that the employer’s omission of the alternative experience requirement did not discourage qualified applicants’ interest in the job.