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Going, going gone: USCIS no longer accepting H-1B visa petitions for FY21

The registration and random selection period for new H-1B visas under the fiscal year 2021 quota limitation is over.

On March 31, 2020, the US Citizenship and Immigration Services (USCIS) completed the random selection of new H-1B registrants and updated their online database for employers and attorneys listing selections.

USCIS now needs to receive, starting April 1, 2020, the Department of Labor certified labor condition application and visa petition for each selected registrant within 90 days or less. The agency has not announced any extension of this deadline in response to COVID-19 pandemic. While USCIS has announced extensions of deadlines in many other situations and there remains the possibility that this deadline too might be extended in the future, it is best to prepare and file well before the current deadline.

H-1B quota background

The H-1B is one of the most commonly used visas for US employers of foreign professionals. In 1990, the US Congress, for the first time, imposed quota limits on the number of new H-1B visa petitions that the government would grant each fiscal year, setting the number at 65,000. 

Quota limits were not reached in the years immediately after 1990, but began to be a problem in the mid-90’s as the US economy expanded and the demand for foreign professionals by US employers increased. Congress increased the supply of new H-1B visa petitions to meet the country’s needs, but only temporarily. By the time the temporary increase expired, the US economy was suffering from the tech bubble burst of 2000 and the aftermath of September 11, 2001. New H-1Bs remained readily available.

However in 2004 quota limits on new H-1Bs began to be a problem again. On October 1, 2004, the very first day of fiscal year 2005, the FY05 quota was exhausted.  Congress responded by creating an additional 20,000 slots but limited their availability to those with graduate degrees from US universities.

The increase helped, but was insufficient to meet the needs of US employers. In each of the subsequent fiscal years, the quota was exhausted more and more quickly.  For fiscal year 2008, more petitions were received on the first day than the quota permitted, and the same was true in fiscal year 2009.

Fiscal years 2010, 2011 and 2012 broke with the historical pattern. Although the quota was used up, the same economic climate that limited job opportunities generally also impacted job opportunities for H-1B workers.  As a result, for those fiscal years, USCIS continued to accept new H-1Bs until December, January and November, respectively. 

By fiscal year 2013, the historical pattern resumed and US employer demand for new H-1B workers far outstripped the limited supply allocated by Congress. For many years now, the number of petitions received in the first five business days was so much greater than the quota that the likelihood of selection was less than 50 percent, making it hard for employers and foreign professionals to plan for the future.

For fiscal year 2021, USCIS implemented a new registration system that required employers and attorneys to create accounts and register prospective H-1B employees in March 2020. The agency’s random selection was done from this pool of registrants.

The limited supply of new H-1B visas is inadequate to meet demand. The problem that we have experienced for more than a decade continues to this day, with Congress failing to take the action needed to increase the number of new H-1B visa petitions to meet the needs of American employers. The result has been a shifting of many jobs to other countries, with resulting loss of revenue and business opportunity for the US.

What to do now

Although no new H-1B petitions will be accepted, there are still a number of solutions available to employers and foreign professionals. 

‘Old’ H-1Bs are quota-exempt

Note that only new H-1B petitions are subject to quota limits. A foreign professional granted H-1B status under the quota already is generally exempt from quota limits. This can be true if changing employers or changing from other visa status. For example, a former H-1B visa worker attending US university on F-1 student visa status may be eligible to return to H-1B status without being subject to new quota limits.

Exempt employers

Petitions by some employers are exempt. These are generally government, academic institutions and related research organizations.

Other visas available

There are a number of other visas that US employers may consider as alternatives to the H-1B. 

  • F-1 STEM OPT.  Some foreign students may be able to extend their pre- or post-graduation employment authorization. The list of STEM degrees that offer the chance of an additional 24 months of post-graduation employment authorization beyond the normal 12 months was recently expanded. 
  • Free Trade Agreement TN/H-1B1/E-3.  Citizens of Canada, Mexico, Chile, Singapore and Australia may want to consider free trade visa benefits available by treaty only to citizens of those countries.
  • H-3/J-1.  Training visas are a solution for some. While H-3 authorize only incidental productive work for what is primarily classroom-type training, the J-1 permits on-the-job training involving regular productive work.
  • Extraordinary-Ability Nonimmigrants.  For individuals who can document their extraordinary ability and have job offers using those skills, the O-1 visa is not subject to numerical limitations.
  • EB1A Extraordinary-Ability Immigrants.  Similar to the O-1, but without the requirement of a sponsoring employer. 
  • EB1B Outstanding Professors and Researchers Immigrants. Universities use this to sponsor qualified professors and researchers to immigrate. Other employers use this for qualified researchers.
  • EB2 and EB3 Professional Immigrants.  This is how employers sponsor most professionals to immigrate to the US.

There are many other nonimmigrant and immigrant visas that may be available.  Immigrant visas are subject to quota limits based in part on place of birth, with people born in mainland China and India often experiencing longer waiting times. The requirements for each solution vary from the H-1B, so employers and foreign nationals are well advised to consult their Dentons attorney to determine eligibility for these benefits.

Other countries

Quota limits in past years have driven the jobs offered by many employers offshore and this year is no exception. A number of the countries around the world where our law firm and clients do business have rules for the employment of foreign nationals that are as or even more generous than those offered by the US. 

Employing a candidate abroad, rather than losing a needed skill set, is an option for many employers. Where proximity to a US facility is desired, employers often consider near-shoring in Canada or Mexico.  Dentons is the world’s largest law firm and our global network of offices uniquely positions us to help guide employers through all of the options.

Next fiscal year

And there is always next year when the USCIS will begin to accept new H-1B registration for jobs starting October 1, 2021, under the fiscal year 2022 quota.

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Going, going gone: USCIS no longer accepting H-1B visa petitions for FY21

DOS suspends routine visa services at all US Embassies and Consulates worldwide

In response to the worldwide outbreak of COVID-19, the State Department is suspending routine visa services at all US Embassies and Consulates.  All routine immigrant and nonimmigrant visa applinets will be canceled as of March 20, 2020.  These embassies will resume service as soon as possible but are unable to provide a specific date at this time. Clients are advised to check the website of the embassy or consulate for its current operating status. 

This suspension of service does not affect the visa waiver program. 

Applicants with a need to travel immediately or other urgent matter may be able to request an emergency appointment following guidance provided at the Embassy’s website. 

More information can be found at the US Embassy website.

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DOS suspends routine visa services at all US Embassies and Consulates worldwide

Coronavirus US arrival restrictions: US entry will be denied to non-US citizens who were in China within the past 14 days

Effective February 2, 2020, new restrictions apply to all flights from the People’s Republic of China and all passengers who have traveled to the PRC, excluding Hong Kong and Macau, within the 14 days prior to admission to the United States. The US consular posts in China have canceled visa appointments, effective February 3.

President Trump issued a proclamation on January 31 suspending the arrival of immigrants and nonimmigrants who pose a risk of transmitting the coronavirus.

Restrictions on US citizens and returning US residents

US citizens, returning US residents and certain others (see “Exemptions” section below) who have been in the PRC’s Hubei province within 14 days of their return will be subject to up to 14 days of mandatory quarantine to ensure they are provided proper medical care and health screening.

Those who have been in other areas of mainland PRC within 14 days of their return will be required to undergo proactive entry health screening and up to 14 days of self-quarantine with health monitoring to ensure they have not contracted the virus and do not pose a public health risk.

Restrictions on citizens of other countries

The Department of Homeland Security (DHS) announced that foreign nationals who have traveled in the PRC within 14 days of their arrival (other than immediate family members of US citizens, permanent residents and flight crew) will be denied entry into the US.

Exemptions

Entry will not be denied, but the quarantine process described above will apply, to: US permanent residents, the spouses of US citizens or permanent residents, the parents/guardians of US citizens/residents (if the citizen/resident is unmarried and under 21), and certain others.

Restrictions apply to all parts of the US

The restrictions apply to travel to all 50 states of the US, the District of Columbia, and territories and possessions of the US, including Puerto Rico, the Virgin Islands, American Samoa, the Northern Mariana Islands, the Trust Territory of the Pacific Islands, and Guam.

Other countries with arrival restrictions

Similar arrival restrictions were announced by a number of other countries around the world, including Australia, India, Iraq, Israel, Italy, Japan, Kazakhstan, Mongolia, New Zealand, North Korea, South Korea, Philippines, Russia, Singapore, Uzbekistan and Vietnam.

The full text of the proclamation can be found here. Click here for DHS’s arrival restrictions.  And the DHS press release is available at the DHS website

Please contact your Dentons lawyer for further assistance.

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Coronavirus US arrival restrictions: US entry will be denied to non-US citizens who were in China within the past 14 days

US Travel Ban 2020: What does the latest presidential proclamation mean?

Effective February 21, 2020, a proclamation issued by President Trump on January 31 imposes certain visa and travel restrictions on citizens from six countries not already listed in the President’s three previous travel ban proclamations.

The six countries with new travel restrictions are:

Burma Nigeria
Eritrea Sudan
Kyrgyzstan Tanzania

No Diversity Visa for Sudanese and Tanzanians

With respect to two of the above-listed countries—Sudan and Tanzania—the President only removed their passport holders’ eligibility to apply to immigrate to the US through the Diversity Visa Program (aka green card lottery). 

Immigrant visa restrictions

For the other four countries—Burma, Eritrea, Kyrgyzstan, and Nigeria—the President imposed travel restrictions on immigrant visas. The Department of Homeland Security (DHS) reports that the President’s proclamation applies only to intending immigrants abroad who have not yet received an immigrant visa.

Exceptions

DHS reports that the proclamation imposes no restrictions on nonimmigrant visas for citizens of any of these countries. B-2 tourists, F-1 students, H-1B workers and all other nonimmigrant visa holders are not banned from travel to the US.

DHS further reports that intending immigrants abroad who have a valid immigrant visa but have not yet entered the US may still do so and that lawful permanent residents already granted green card status are not impacted by the proclamation. 

It is unclear from the proclamation or DHS’s clarifying remarks how the proclamation will impact prospective immigrants already living in the US on nonimmigrant visas. Prior travel ban-related proclamations were later interpreted by DHS as not applying to foreign nationals who had already entered the US prior to said proclamation.

The full text of the proclamation can be viewed here. DHS’s travel and visa restrictions prepared remarks can be found at DHS website

For further information, please contact your Dentons lawyer.

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US Travel Ban 2020: What does the latest presidential proclamation mean?

H-1B: The Buck Stops Where?

Who can pay the cost of the H-1B is a recurring question. And the US Department of Labor provides the answer.

The short answer is: the employer. However, like most legal questions, the more detailed answer is more complicated.

It is that time of year again—H-1B filing season. Employers, recent graduates, and professionals overseas are starting to prepare for the annual filing of new H-1B visa petitions to authorize professionals from other countries to be employed in the US.

The process is expensive. There are government filing fees and attorney’s fees, charges for expert evaluations of foreign education and/or experience and charges for translations. For some, there may also be costs associated with relocation, transportation, accompanying family members, etc. Even generous employers often question whether some of the expenses can be lawfully paid the employee himself or herself, or which of the expenses the employer may recoup if the employee leaves employment.

The DOL’s Wage and Hour Division issued Fact Sheet #62H, “What are the rules concerning deductions from an H-1B worker’s pay?,” in 2009. The DOL’s position is that there are certain expenses that can never be deducted from an employee’s pay. In pertinent part, these include:

  • The US Citizenship and Immigration Services training and processing fee;
  • The USCIS fraud protection and detection fee;
  • The USCIS optional premium processing fee;
  • A penalty for the workers failure to complete the full employment period authorized by the approved H-1B;
  • Any expenses, including attorney fees, directly related to the filing of the Form ETA 7035E labor condition attestation; and
  • Any deduction that would reduce the worker’s pay below the required wage rate, which is stated on the Form ETA 7035E.

The DOL does identify some expenses that can be paid by either the employer or the employee. Of course deductions required by law (e.g., income tax) can be made. Deductions authorized by the employee also are permissible, but only if:

  • There is a voluntary, written authorization by the employee;
  • For a matter principally for the benefit of the employee, such as reimbursement for travel to the United States or payment for food and lodging that was not incurred while traveling on the employer’s business;
  • For an amount that does not exceed the fair market value or the actual cost (whichever is lower) of the matter covered; and
  • The amount does not exceed the limits for garnishments set by the Consumer Credit Protection Act.

It is important to note that the US Citizenship and Immigration Services guidance in this area is much less comprehensive than the DOL. USCIS provides clear guidance on their position with respect to the various USCIS filing fees. While some may consider the differences as creating a grey area to justify allocating certain expenses to employees, conservative employers will want to minimize exposure to potential liability and the specter of a government enforcement action or civil suit by a disgruntled employee. Following the DOL’s guidance is the best practice.

Employers should review their employee handbooks, employment agreements, offer letters and collateral materials to ensure that they are in compliance with the DOL framework.

The full text of Fact Sheet #62H is available on the DOL website.

For more information about H-1B visa requirements or other questions regarding hiring the best and brightest from around the world, please contact the authors or your regular Dentons lawyer.

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H-1B: The Buck Stops Where?

New important dates for H-1B employers: March 1, 20 and 31

The US Citizenship and Immigration Services agency announced on January 9, that the initial H-1B petition registration period will be from March 1 to March 20, 2020, and that USCIS expects to notify employers whose registrations have been selected no later than March 31, 2020. The agency also provided new information about the H-1B cap-subject petition registration process.  

Petitioners must register using an online account. As of this writing, USCIS has not provided any details regarding the registration portal or ways to register an account, but has indicated that it will post the date employers may start setting up accounts on its website. 

Petitioners must electronically submit a separate registration request for each individual it seeks to petition for a cap-subject H-1B. No more than one registration may be submitted for the same individual by the same petitioner, or all registrations for that individual will be disregarded. 

USCIS will deliver lottery results by sending notices electronically and inform petitioners to file an H-1B cap-subject petition on behalf of the named individual within the filing period indicated on the notice. The notifications will be added to the registration accounts, and the account holders will receive notification via email or text message stating that an action has been added to their account. 

Petitioners should start the preparation process now by evaluating potential H-1B candidates to make sure that they are qualified to receive the visa if selected. Please contact your Dentons lawyer if you have any questions. 

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New important dates for H-1B employers: March 1, 20 and 31

New H-1B Registration Starts March 1, 2020

Hire American/Buy American policy used to benefit the government

In a move under the Hire American/Buy American Executive Order touted as aiding US employers, the US Citizenship and Immigration Services in November actually placed an extra burden on US employers sponsoring H-1B professional workers. The only real winner from this change is the US government—not American employers or workers.

The old rule

In the past, employers filed H-1B petitions with filing fees and the USCIS would then randomly select petitions up to the limited quota available. The agency had to deal with more than twice as many petitions as the quota allowed. It took the USCIS three months on average to return unselected petitions and the filing fees paid by employers, at considerable expense to the government.

The new rule

Under the new rule, the USCIS has increased both the fees employers pay and the steps employers must take. Now employers seeking to file H-1B, cap-subject petitions for the 2021 fiscal year will be required to first register and pay a non-refundable $10-per-petition registration fee.

A separate registration must be submitted for each H-1B requested. The registration must be completed between March 1 and March 20, 2020. Petitioners will receive electronic notification that USCIS has accepted the registration for processing. As before, employers are not permitted to submit more than one registration for a single employee in a fiscal year.

The USCIS will then run a random selection process on the registrations received and will notify petitioners whose registrations were selected. The petitioner will then have up to 90 days to file a full petition with supporting documents and all of the usual filing fees.   

Dentons insights

Imposing additional fees and procedures on US employers benefits no one but the government.

While employers will find out sooner than under the old rule if an employee’s petition is selected, that is no guarantee the petition will be ultimately granted. To the contrary, the increasingly conservative positions being taken by USCIS adjudicators in evaluating petitions—a process without legislative or regulatory approval—make denial more likely than ever.

And early notice of selection for the lucky few means earlier notice of non-selection for the majority of registrations. That is particularly bad news for most F-1 visa foreign students.

The old rule allowed continued employment of certain F-1 students whose authorization otherwise ended. Known as a “cap-gap extension,” this rule provided that a pending H-1B petition for a foreign student with OPT or STEM OPT ending before September 30 acted to extend employment authorization until September 30 or the date that the employer receives notice that the H-1B petition is not selected, whichever is earlier. Such rejection notices were usually not received until mid-June or later, which benefited many employers and students. Under the new rule, unselected registrations will not enjoy cap-gap benefits and employers will lose more workers sooner.

We also expect that US employers will see even longer USCIS-processing times for selected H-1B petitions.

In the past, the USCIS began processing petitions after the selection process was completed—usually mid-April—yet the agency would still be sending out petition approvals and denials into October. Under the new process, the USCIS says registrations will be selected by the beginning of April and employers will have 90 days to file. With some petitions filed as much as three months later under the new rule, it seems likely employers will sometimes see USCIS processing completed in December, or 90 days later than now.

The government claims this new registration process will dramatically streamline processing by reducing paperwork and data exchange, and will result in an overall cost savings to US employers. In fact, the real beneficiary of the new process is the agency itself.

By limiting the number of petitions eligible to file, the USCIS reduces its own workload. It will not have to deal with sending out rejection notices and returning unselected petition packages. Government efficiency is a good thing, but better without the pretense that the change helps Americans.

US employers will continue to bear the cost of recruiting and making offers to more prospective hires than they will ultimately be allowed to employ. They will still have to pay lawyers to evaluate jobs offered and candidate qualifications to make sure registrations are only done for qualified cases. The fact that some forms will not need to be typed or documents copied will save employers some money, but only on the clerical aspects of the process.

As with any new rule, there are clouds of uncertainty. Employers, candidates and lawyers must be prepared for last-minute process changes. The USCIS already announced that it will soon release more information regarding the new registration. And there is always the possibility that a court decision will ban the implementation of this new process and we will have to revert back to previous practices.

Dentons will continue to monitor this issue. Please contact your Dentons lawyer if you have any questions.

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New H-1B Registration Starts March 1, 2020

US green card waiting times lengthen for many

The US State Department predicts longer green card waiting times for many immigrants. Charlie Oppenheim, chief of the department’s Visa Control and Reporting Division, recently shared his analysis of current trends and future prospects with respect to immigrant visa supply and demand.

EB1—Extraordinary ability; outstanding professors/researchers; multinational managers/executives

The employment-based first preference category is not expected to become currently available again for any country of birth. While people born in most countries are predicted to see movement of up to three months per month, Indian-born can anticipate little if any movement. India and China both have waiting times that are years longer than other countries.

EB2—Advanced degree; exceptional ability

EB2 is expected to remain currently available for all countries of birth, except mainland China and India, but that could change, as it did in the current fiscal year. The demand for Indian-born is so great that the predicted movement is only up to one week per month, while China is predicted to move up to two months per month.

EB3—Professionals; skilled workers; unskilled/other workers

The prediction for EB3 is similar to EB2, but with slow and irregular forward movement likely for China and the Philippines. India is predicted to show little to no movement until January 2020. The more limited supply of the “other workers” category makes it likely that it will not remain currently available for the entire fiscal year.

EB4—Religious workers; special immigrant juveniles

The prediction is for EB4 to remain currently available for most countries of birth. El Salvador, Guatemala and Honduras are likely to see little if any movement because of the large demand in the special immigrant juvenile category. Mexico is predicted to see movement of up to four months.

EB5—Immigrant investors

The EB5 category is expected to remain currently available for most countries of birth; mainland China, Vietnam and India will continue to experience longer waiting periods. Mr. Oppenheim did not predict availability.

Note that the October 2019 Visa Bulletin’s EB5 Regional Center final action date is reported as unavailable because Congress and the administration have not yet extended that program. This program has always been temporary in nature and the government always has extended it, often after expiration. In contrast, traditional EB5 remains available.

Family-based preference categories

There are no limits on US citizens sponsoring their spouse, parents and unmarried children under age 21, so these are not reported in the Visa Bulletin.

For October, the F2A (family second preference) category for green card holders sponsoring their spouse and unmarried children under age 21 is reported as current across all countries of birth. Mr. Oppenheim predicted that demand will increase in late 2019 or early 2020, and the category can expect a Final Action Date by February 2020.

Background

The Department of State’s monthly online Visa Bulletin reports on the current wait times for the US immigrant visas (green cards) that are subject to numerical limits. The date the government receives an immigrant visa petition is considered the priority date. The immigrant’s country of birth is another factor impacting how long it takes to immigrate, although a married couple immigrating together can use either spouse’s country of birth for the entire family.

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US green card waiting times lengthen for many

Final rule amending regulations governing EB5 program increases minimum investment amounts, gives USCIS sole authority to designate targeted employment areas

USCIS has issued new regulations that makes changes to important provisions of the employment-based fifth preference (EB5) immigrant investor visa program. The changes will require that ongoing EB5 investment projects review, and likely modify, their business plans, economic analyses and legal documents (e.g., private placement memoranda, subscription agreements) to reflect the new requirements.

Effective date

The new regulations apply to all EB5 petitions received by USCIS on or after November 21, 2019. There is expected to be a rush of new EB5 investments and petitions filed with USCIS before November 21, 2019, as petitioners seek to avoid the increased investment requirement.

Required investment will increase

The minimum investment required to qualify for EB5 will generally increase to $1.8 million from $1 million. The required minimum investment required for investments made in targeted employment areas will increase to $900,000 from $500,000.

In addition, the required minimum investment will increase in future years to adjust for inflation.

This change will decrease the number of immigrant investors interested in investing in America. The number of new jobs created through EB5 for American workers will decrease by at least 50%. American businesses seeking financing through EB5 will find it harder to obtain such investment, but will need to attracted fewer individual EB5 investors to raise the same amount of investment.

As noted above, the increased investment requirement apply only to EB5 petitions received by the USCIS on or after November 21, 2019. There is no increase for individuals, whose petitions are approved, or pending, prior to that date.

Changes to targeted employment areas

Under current law, the power to designate targeted employment areas (TEAs) is held by each state. The new regulations will strip the states of this power and give USCIS sole authority to designate a TEA. This change is likely to (1) increase the time it takes to receive a TEA designation and (2) decrease the likelihood of receiving a TEA designation. 

Under current regulations, TEAs must be comprised of census areas that are contiguous to each other. Under amended regulations, all of the census areas must be directly contiguous to the census area where the EB5 job creating business is located. The impact of this change will be to greatly restrict the number of locations that qualify as a TEA.

As a result of this change, it will be harder for projects in the US to attract EB5 investors and fewer parts of the US will be able to create jobs for American workers using EB5 funds.

A TEA is a census area whose rate of unemployment exceeds the US national average by 150 percent or more. In addition, two or more contiguous areas whose combined unemployment rate hits that benchmark can be designated a TEA. The latter is affected under the new rule, which takes the authority to designate that group away from the state government and gives it to USCIS, while at the same time limiting what census areas can be combined into the group.

Priority date retention

US law limits the number of people who can immigrate each year through EB5. The limited supply of EB5 visas is allocated in part based on the date the EB5 petition was received (priority date). Under current regulations, if an EB5 investment materially changed or an immigrant wanted to change investments after the petition was granted, the immigrant investor might lose that priority date and their immigration would be delayed. The new regulations preserve the original priority date for investors with multiple approved EB5 petitions.

This is a positive change that will help a small subset of EB5 immigrants to avoid even longer immigration waiting times when their investment plans change over time.

In general

The EB5 immigrant investor program was created in 1990. EB5 grants resident status to investors and their accompanying immediate family members, provided they satisfy a number of requirements which, for the most part, remain unchanged by the new regulations. The final rule does not, for example, change the requirements that:

  • An EB5 investor create at least 10 full-time equivalent (FTE) jobs for US workers.
  • The jobs must either be created before the petition is filed or the investor must submit a comprehensive business plan that shows the jobs will be created before the conditional basis of resident status is removed.
  • The investor show that the source of the invested funds is “lawful.”
  • The invested funds be at risk in an active commercial business located in the US.

For more information

The full text of the final rule was published in the Federal Register and is available online, click here to read.

For more information, please contact your lawyer at Dentons or the authors.

Matt Schulz and Mengci Shao are members of Dentons Global Mobility Practice and are based in the firm’s Silicon Valley office.

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Final rule amending regulations governing EB5 program increases minimum investment amounts, gives USCIS sole authority to designate targeted employment areas

New Zealand citizens may now pursue E1/E2 visas


Citizens of New Zealand and the United States making a business investment in the other country or engaging in trade between the two countries are now eligible for new immigration benefits. On June 10, 2019, US consular officials in New Zealand began processing E-1 treaty trader and E-2 treaty investor visa applications filed by New Zealand citizens. 

These visas are allowed under the Knowledgeable Innovators and Worthy Investors (KIWI) Act, which was signed into law by President Trump in August 2018.

To qualify for E-1 classification, the applicant must:

  • Be a citizen of New Zealand and the US business must be at least 50 percent owned by citizens of New Zealand;
  • Carry on “substantial trade,” as measured by a history of continuous flow of sizable international trade items involving numerous transactions over time;
  • Carry on “principal trade,” meaning at least 50 percent of the business’s international trade is between the US and New Zealand; and
  • Develop and direct the enterprise through either (i) at least 50 percent ownership of the enterprise or (ii) employment in a supervisory capacity or where the applicant brings essential skills. 

To qualify for E-2 classification, the applicant must:

  • Be a citizen of New Zealand and the US business must be at least 50 percent owned by citizens of New Zealand;
  • Invest substantial capital in an active, commercial enterprise in the US at a level that is above that which could merely support the applicant and his or her accompanying family members; and
  • Develop and direct the enterprise through either (i) at least 50 percent ownership of the enterprise or (ii) employment in a supervisory capacity or where the applicant brings essential skills. 

Successful applicants will be issued a multiple-entry visa, valid for up to five years and be allowed an initial stay of up to two years, with extensions available. There is no limit on the total time spent on E-visa status, but E- visa holders must be able to prove their intention to depart the US at the end of their authorized stay, whether through status expiration or termination. The applicant’s spouse and unmarried children under 21 are eligible for the same visa and period of stay. The spouse also may apply for an employment authorization document and family members may attend school.

Although the KIWI Act is not a bilateral treaty extending equivalent benefits to US citizens. For Americans interested in New Zealand, it should be noted that New Zealand already has an immigrant investor visa, an entrepreneur visa and a global impact visa that collectively offer broader benefits to citizens of the US and other countries than the KIWI Act provides New Zealanders.

The visa benefits for citizens of New Zealand and the US are a welcome addition that will benefit both countries. Please contact Dentons for more information.

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New Zealand citizens may now pursue E1/E2 visas