New Report

Immigrant Entrepreneurship
Stalled for First Time in Decades

For almost two decades, immigrant-founded start-up companies — especially high-tech firms in Silicon Valley — have represented slightly more than a quarter of all such entrepreneurships in the United States and have been an important source of economic growth in our country. However, a new study from the Kauffman Foundation reports that immigrant-founded companies nationwide have slipped for the first time in decades, and its authors believe that the United States' unwelcoming immigration system has created a "reverse brain drain."

The report, The Immigrant Exodus: Why America Is Losing the Global Race to Capture Entrepreneurial Talent, evaluated the rate of immigrant entrepreneurship from 2006 to 2012 and updated findings from the period between 1995 and 2005. Immigrant founders, who are most likely to start companies in the innovation/manufacturing-related services (45 percent) and software (22 percent) industries, employed about 560,000 workers and generated an estimated $63 billion in sales from 2006 to 2012, underscoring the continuing importance of high-skilled immigrants to the United States. The report provides detailed statistical data on immigrant start-ups by region, nationality, and sector.

While the downward trend is still slight nationwide, the report confirms that the U.S. must embrace immigrant entrepreneurs to maintain a dynamic economy:

"The U.S. risks losing a key growth engine just when the economy needs job creators more than ever." Yet, "[t]he U.S. can reverse these trends with changes in policies and opportunities, if it acts swiftly. It is imperative that we create a startup visa for these entrepreneurs and expand the number of green cards for skilled foreigners to work in these startups. Many immigrants would gladly remain in the United States to start and grow companies that will lead to jobs."

We couldn't agree more.

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Reentry Permit Applicants Under Age 14 or Over 79
Need Not Appear for Biometrics Appointment

When a lawful permanent resident (LPR) plans to depart the U.S. temporarily and does not expect to return to the United States for a year, often he or she is advised to obtain (before departing the U.S.) a Reentry Permit. A Reentry Permit is a travel document that helps to protect an individual from inadvertently abandoning permanent resident status. To obtain the Reentry Permit travel document, the individual must apply while in the U.S. and obtain biometrics (fingerprints and a digital photograph) prior to departing the States . Once the biometrics have been taken, the individual can leave the U.S. and the travel document can be mailed to him or her abroad. The rules regarding fingerprints and photographs have been confusing for those under age 14 or over 79 because these individuals are not required to pay a biometrics fee or have their fingerprints taken. They are, however, being notified by USCIS that they are to appear at application support centers for biometrics. Just recently, however, USCIS has advised that such individuals are not required to attend a biometrics appointment. Instead, applicants under the age of 14 or over 79 can submit two passport-style photographs when applying for the Reentry Permit (in addition to all other required documentation), and USCIS will issue the travel document without requiring the applicant to attend an appointment.

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Adjudications Begin for DACA
(Deferred Action for "Childhood Arrivals")

It has been almost two months since eligible individuals brought to the U.S. as young children began requesting "deferred action for childhood arrivals" (DACA) relief. To date, USCIS reports that almost 180,000 cases have been accepted for processing and about 4,600 approved. As many as 1.76 million undocumented immigrants are estimated to qualify. (Of the first 80,000-plus cases filed, more than half were from Mexican nationals, 4,000 from El Salvador, and 2,800 from South Korea.)

DHS has been proactive in reaching out to the community to provide guidance on the program and documentary requirements, and has issued a number of FAQs to address the various questions that have arisen since the program started, another round of FAQs is expected shortly. One particularly vexing issue is whether a well-intentioned employer who gains knowledge about an employee's lack of work authorization through the employee's request for DACA documentation will become liable for employer sanctions penalties. While recent FAQs from DHS state that employers may provide individuals requesting DACA with documentation that verifies employment and that this information will not be shared with ICE for civil immigration enforcement purposes unless there is evidence of egregious violations or widespread abuses, greater assurances are needed — especially since FAQs do not have the force of law or regulation and can be withdrawn at any time. We hope these and other kinds of issues will be addressed squarely.

In addition to FAQs, DHS announced that it expects to process the initial group of DACA deferred action requests within four to six months of filing; biometrics appointments will be scheduled about one month from filing. USCIS also advises that it will first issue grants of DACA relief, then will process employment authorization applications. Where requests are not approved on the initial submission, USCIS intends to send either a Request for Evidence (RFE) or Notice of Intent to Deny (NOID). Outright denials will occur only where the individual is clearly ineligible, such as when the individual was born in 1972 or later.

As the program picks up, we hope too that DHS can provide leadership and guidance to federal and state agencies about what DACA means. For example, will a state's document requirements for a driver's license be satisfied with a grant of deferred action, documents obtainable through a grant of deferred action, and other documents that DACA beneficiaries are likely to have? Arizona Governor Jan Brewer has already issued an executive order barring those individuals eligible for DACA from obtaining driver's licenses or other state benefits. We hope other states do not follow suit.

Mark Murov has joined other volunteers working with the University of Texas Law School's Immigration Law Clinic to assist qualified applicants on a Pro Bono basis at clinics held twice each month.

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3-Year Extension of EB-5, E-Verify, Religious Worker,
and Conrad State 30 J-1 Visa Waiver Programs

On September 28, President Obama signed into law a bill that extended several immigration provisions for three years. They are: (1) the EB-5 Regional Center program, which permits immigrant investors to invest $500,000 in certain regional programs and obtain, if approved, conditional residency; (2) E-Verify, the Internet-based system operated by USCIS in partnership with the Social Security Administration (SSA), which allows participating employers to electronically verify the employment eligibility of their newly hired employees; (3) the Religious Worker program, a immigrant "green card" visa category for nonminister special immigrant religious workers; and (4) the Conrad State 30 J-1 Waiver program, which authorizes each state to request waivers of the two-year home residency requirement to certain foreign medical graduates in change for providing primary patient care for three years in medically underserved areas. While a more ideal outcome for all programs would have been making them permanent, the three-year extension gives important peace of mind to those in process and involved with these programs.

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An Update on B-1 in Lieu of H-1B Visa

The Department of State has recently sent a cable to its visa-issuing posts around the world that supersedes its June 21, 2012 cable on the continued validity of the B-1 in lieu of H-1B visa. The new cable reminds consular officers that although the visa is still under interagency review, they should not hesitate to issue it in appropriate circumstances. This cable emphasized the requirement that applicants must have either a bachelor's degree in a specialty field, or the equivalent experience, and the activities to be undertaken must also be of H-1B caliber.

Murov & Ward, L.L.C. cautions clients about the use of this category, except in very limited circumstances where it can be useful.

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Joint U.S.–Canada Entry/Exit Pilot Begins

The Department of Homeland Security (DHS) and the Canada Border Services Agency (CBSA) have jointly announced that they have begun Phase I pilot of the Entry/Exit program, as outlined in the Beyond the Border Action Plan.

Routine biographic information will be collected under the pilot until January 31, 2013. In October, both agencies began exchanging this information so that recording an entry into one country becomes a record of exit from the other country. The pilot will not affect regular port operations in any way.

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Four States Expand
E-Verify Beginning in 2013

E-Verify is an Internet-based database run by DHS, designed to allow employers to verify whether an employee is legally authorized to work in the United States (in theory, and assuming the employee is who she says she is). Its actual benefit to employers has always been questionable, but growing numbers of employers now participate.

Georgia, North Carolina, Pennsylvania, and Tennessee have all passed mandatory E-Verify laws, the final provisions of which take effect in 2013:

• Georgia: Larger employers already must use E-Verify, but a provision of the bill (HB 87) requires all Georgia employers with more than 10 employees to use E-Verify by July 1, 2013.
• North Carolina: Similarly, larger employers already must use E‑Verify; the law (2011-263) becomes applicable on January 1, 2013, for employers of 100 to 499 people, and on July 1, 2013, for any employer with 25 or more employees.
• Pennsylvania: Effective January 1, 2013, a newly enacted provision (SB 637) requires contractors and subcontractors performing public works projects for Pennsylvania worth at least $25,000 to use E-Verify for newly hired employees.
• Tennessee: A provision of HB 1378, which already requires the use of E-Verify (or otherwise verify the work authorization of new hires) for all public employers and for private employers of 200 or more persons, will, on January 1, 2013, extend to employers with 6 to 199 employees.

It is not front-page news that E-Verify is "here to stay" and that the program has now morphed from one of voluntary participation into one in which all employers will eventually be required to participate, regardless of action or inaction by Congress on this matter (or immigration reform, generally.)

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Three-Year Multiple Entry Visas for
Russian B-1/B-2 Visitors Now the Norm

As of early September, Russian and American travelers for business or tourism will be eligible to receive three-year multiple entry visas under a new bilateral agreement between U.S and Russia. This is the new standard for U.S. citizens visiting Russia and Russian citizens visiting the United States. Also, no formal invitation will be required to apply for a business or tourism visa, although applicants seeking Russian tourist visas must continue to hold advance lodging reservations and arrangements with a tour operator. The agreement also simplifies and eases visa processing time for travelers from both countries, including a commitment to keep standard visa processing times under 15 days. In addition, the United States has reducing the fee charged to Russians for business or tourist visas to $20. (The $160 DS-160 nonimmigrant visa application fee still applies, and validity and fees for other visa types do not change.) For U.S. travelers, the agreement lifts the previous restriction limiting stays in Russia to 90 days within any given 180-day period. In addition, "exit visas" will no longer be necessary in the case of U.S. citizens who lose their passports while in Russia. U.S. citizens with current Russian visas are reminded that they are still subject to the terms and dates of the visas already in their possession. For more details, see http://moscow.usembassy.gov/russian-visas.html and http://www.ustraveldocs.com/ru/.

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IRS Now Requiring Original Documentation for ITINs,
Certain Nonresident Foreign Nationals Exempted

From now until the end of the year, the IRS will no longer accept notarized or other copies of documentation (such as passports and birth certificates) for issuing individual tax identification numbers (ITINs) in an effort to "to strengthen and protect the integrity of the ITIN process while minimizing the impact on taxpayers." During this interim period, people who need ITINs can do so by submitting original documentation (or certified copies by the issuing agency) by mail or at IRS walk-in sites. The IRS specifically states that apostille documents will not be accepted. The new rules specifically exempt military personnel and their families, as well as "nonresident aliens" who are applying for ITINs for the purpose of claiming tax treaty benefits or who are subject to third-party withholding for various income (such as certain gaming winnings or pension income, or otherwise need an ITIN for information reporting purposes). The IRS advises that while existing documentation standards will be maintained for these applicants, scrutiny of the documents will be heightened. ITIN applications by nonresident aliens that are accompanied by a U.S. tax return will, however, be subject to these new interim document standards. The IRS advises that it will return original documents within 60 days.

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NEWS IN BRIEF

EB-2 Visas; Haitian TPS; Visa Waiver for Taiwanese;
Consulate Re-openings / Closings; Employee Rights Toolbox

Worldwide EB-2 Becomes Current in November: The worldwide employment-based second preference category (advanced degree/exceptional ability) becomes current again in November, as announced in the Visa Bulletin. The category became oversubscribed in July.

TSP Extended for Haitians: DHS has extended the designation of Haiti for temporary protected status (TPS) for 18 months from January 23, 2013 through July 22, 2014. The 60-day re-registration period begins October 1, 2012, and will remain in effect until November 30, 2012. DHS also announced the extension of the suspension of regulatory requirements so certain Haitian F-1 students experiencing severe economic hardship may obtain employment authorization.

Taiwan Designated for Visa Waiver Program (VWP): Effective November 1, 2012, eligible Taiwan passport holders are able to use the streamlined visa waiver program. Taiwan joins 36 participants in the VWP, which permits visa-free travel to the United States for ESTA-approved travelers visiting the U.S. for 90 day or less for business or tourism.

Recent Consulate Re-openings / Closings: The Consular Section at the U.S. Embassy in Khartoum, Sudan, was recently closed indefinitely, and consular services in Cairo, Egypt and Tripoli, Libya, also have been suspended. The Consular Section at Tunis, Tunisia, was reopened on October 9, 2012. For more information on nonimmigrant and immigrant visa processing for nationals under the jurisdiction of these posts, see the individual websites.

Employee Rights Toolbox: USCIS has released an online resource page on its website to increase awareness about employee rights during the employment eligibility process, containing a variety of educational materials.

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