All posts by TheVisaCoach

H-1B Visas Hard for Foreigners to get in 2017

On April 3, 2017, the annual H1B visa application season will open again with 65,000 standard visas and 20,000 US graduate degree only visas available.

The last few years after the Great Recession has seen the return of the H-1B visa lottery because of the massive (200,000+) visa petition applications received in the first few days following the April open date. This has meant both that the demands from the US economy and largely the private sector in growth areas like technology and the sciences are not being met but also that otherwise fine applications are being declined or not considered because they were just not being picked.

Well 2017 has brought a new dynamic that could bring down much of the most comprehensive professional employment visa in US immigration. President Trump and his administration have sought to undermine lawful US Immigration from the moment they have taken office with disastrous results and strong rebukes from the US Judicial system.

Unfortunately much of the US Immigration system is based on agency and individual personnel discretion. Therefore things likes denying a petition based on technicalities or just because a officer believes a petition is not “legitimate” or in the US national interest in some way. This could also be because of something obscure about the employer, the role or the foreigner can also result in denials. Additionally by slowing down the approval process itself meaning that both the foreign candidate and the employer might have to abandon the petition because of personal life circumstances and/or urgent business need.

So all of the above is already turning many employers away from hiring as well as the additional scrutiny likely coming over the prevailing wage requirement. Now the USCIS has said they are going to suspend the premium processing program which cost employers/filers an additional $1,225 USD. This program guaranteed a response one way or another 15 days following the official receipt of the H-1B petition application.

Many employers relied on this to be able to make business plans knowing that while an approval doesn’t official take effect until October 1 of the year, it meant that through programs like F-1 Visa OPT, ability to work during pending petitions with changing employers with the H-1B portability provision, during the renewal process or just general planning knowing that staff would be working soon, allowed business to continue.

Foreigners also relied on this for life certainty and then things like planning housing, children’s schooling, dealing with affairs in their previous location and just general life issues.

With the combination of longer overall processing times, extra overall scrutiny on visa petitions with roles/employers/employees, harsher interpretations of prevailing wage, the lingering uncertainty over the attempted travel and muslim bans and now this suspension of premium processing, we can expect a far worse H-1B visa season for all.

Ultimately the losers are everyone because as we have talked about before, foreigners are net positive contributors to the US economy and disproportionately are founders of the most successful US companies today as well as recipients of US graduate and PhD degrees and overall STEM degrees.

A sad time for us all …

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E-3 Visas for Self Employed or Founding a Company

The E3 visa which began in 2005 has only been increasing in demand over the years as a way for Australian citizen professionals to uniquely access the US labor market. With its own separate cap of 10,000 new annual visas, lower fees and an ability to renew indefinitely (in theory) the 2 year period visas, it has proved attractive to employers and Aussies alike.

A question that has often been asked on this site and the numerous other articles we have written over the years on all things E-3 visa, is whether it is possible to found a company or be self employed under this visa category?

The general answer we have given over the years in an ‘uncertain no’ or more aptly a ‘with great difficulty’. The main reason we have said this is that the law, like that for its H-1B visa counterpart, is written with professional employment in mind. So while no explicitly denying the ability to found a company or self employment, terms that would imply an employer-employee relationship and requirements around the soundness of the employing company’s operational history make things more challenging.

In practice this is what has played out with the majority of anecdotal stories from people showing them being denied when trying or having to jump through so many hoops to make it happen, they have given up and pursued the employee path.

Now in more recent years it seems like some have found a way to make it work. Particularly in the technology sector and with Australian companies like Atlassian recently going public on the New York Stock Exchange, the ability for the enterprising Australian entrepreneur combined with the US consular and USCIS interpretation of the law has meant some have succeeded. That said it is not easy but here is some of the major items that anyone would have to take care of if they want a chance of making it work.

1. A US incorporated entity needs to be setup and ideally with either/or; 1 year of operating history, legitimate and credentialed US based board of directors, ownership or management, be well funded and have a US office address and phone number. This could be a LLC or C-Corp but the general recommendation would be a C-Corp (equivalent to a Pty. Ltd. or private company setup in Australia)

2. That the company has all the official registration numbers like FEIN to ensure it is tax compliant and other registrations relevant to its area of operations

3. If you are the (sole or one of few) employees, even if the CEO, that a clear process is evident for you to be able to be terminated which is why the US based ownership or board of directors becomes critical.

4. The usual E-3 visa stipulations of non dual-intent and proving that you will return home, specialty occupation, bachelor’s degree minimum requirements, prevailing wage, etc. all still apply

5. Paying the E-3 visa application fee of $205 USD or $276.75 AUD (as at March 1, 2017) and likely having to do first in person consular interview at a US consulate in Australia in Melbourne, Sydney or Perth (some cases of doing it in Canada, UK, Mexico, etc. first time have succeeded)

It is important to note if you trying to transfer operations from an existing Australian entity or business to be aware of the tax implications as well as the likely relatively little regard that business history will matter given we are talking about small companies and revenues.

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