Is ICE being NICE? The True Impact of Obama's New Immigration Policy

Ever since the announcement by the Department of Homeland Security on August 18, 2011, that its agency, Immigration and Customs Enforcement (ICE) , will consider administratively closing some of the deportation cases, there has been confusion in the community about how immigrants without status can benefit from the new policy.

DHS to Promote Startup Businesses and Job Creation

This month, the Secretary of Department of Homeland Security (DHS), Janet Napolitano, announced various initiatives to spur investment and talent into the U.S. economy.

Although the administration has not passed a significantly new immigration law this year, the initiative focuses on utilizing the existing employment-based and entrepreneurial classifications to grow the economy.

"Current immigration laws support foreign talent who will invest their capital, create new jobs for American workers, and dedicate their exceptional talent to the growth of our nation's economy," said Alejandro Mayorkas, Director of the United States Citizenship and Immigration Services (USCIS). "USCIS is dedicated to ensuring that the potential of our immigration laws is fully realized, and the initiatives we announce today are an important step forward."

As a result, the USCIS will lax some of its requirements.  For example, previously USCIS restricted a sole owner of a company from becoming the employee-beneficiary of an H-1B visa. However, under the recent initiative, the USCIS has stated that the beneficiary who is the sole owner of the petitioning company may actually establish a valid employer-employee relationship for the H-1B nonimmigrant visa. (The H-1B is used by a U.S. business to employ foreign workers in specialty occupations, i.e. fields requiring a minimum of a bachelor's degree or equivalent. )

Moreover, the EB-5 immigrant investor program, a type of employment-creation permanent residency visa, is being further enhanced to streamline the process. These include, continuing to make premium processing for certain EB-5 petitions and even allowing applicants an interview with a USCIS panel of experts to resolve any issues in an application.

Thus, the immigration lawyers community welcomes the recent initiatives by USCIS to loosen the restrictions for businesses.

New Legislation: Comprehensive Immigration Reform Act of 2011

On June 22, 2011, various senators, including Senators Robert Menendez (D-NJ), Harry Reid (D-NV), Patrick Leahy (D-VT), Richard Durbin (D-IL), and Charles Schumer (D-NY), introduced a new bill entitled, "Comprehensive Immigration Reform Act of 2011." The bill aims to balance the competing interests of enhanced enforcement, including an E-verify program, with the need to find a solution for the undocumented, yet productive and non-criminal immigrants in America.

This bill has not been passed into law yet.

The Progress of EB-2 Chinese and Indian Employment Petitions

According to the Department of State's monthly visa bulletin for June 2011, the backlogged cases for China and India did make some advances. Specifically, under the second preference category for Professionals of Advanced Degrees and for Persons of Exceptional Ability, China advanced by about 2 months and thus is processing visas with the priority date for October 2006; India advanced by about 3 months and is also processing visas with the priority date for October 2006.

Background: The U.S. Immigration law sets annual quotas for the number of immigrant visas that may be issued each year. Applicants of certain countries, China, India, Mexico and Philippines, often face greater backlogs for exceeding the limits and the resulting proration of visa numbers.

The L-1 Visa: Transferring from your foreign business to a U.S. Office

Foreign Business Owners: U.S. Immigration law provides an avenue for foreign business owners to transfer their employees to the United States.

The L-1 Visa is one of the most common non-immigrant work-related visas. The L-1 Visa is available for foreign national executives, managers and other persons with specialized knowledge who have been working for a non-U.S. company and that may be transferred to a U.S. company. The U.S. company must be the parent company, subsidiary, branch, affiliate or joint venture partners of the foreign company but does not have to engage in the same line of business than the foreign company. The L-1 visa is typically approved for an initial period of three years with the possibility of subsequent extensions later on. A petition for a new U.S. office is approved for one year with the possibility of subsequent extensions later on.