On June 20, 2008, the U.S. Department of State published in the Federal Register (Vol. 73, No. 120 [June 20, 2008]) an amendment to the J-1 visitor program adding a new J-1 visa category–College and University Student Interns. The stated purpose of the J-1 Visa Intern Program is to offer foreign students an opportunity to study in the United States at a post-secondary accredited academic institution or to participate in a student intern program.  One of the principal qualifications that needs to be met is that the foreign national be enrolled in and is pursuing a degree at an accredited post secondary academic institution outside the U.S. and is participating in a student internship that will help fulfill degree requirements. J-1 Intern programs last 12 months.  The rule also describes how “third parties,” i.e. businesses, academic institutions, non-profit corporations, etc. can serve as host organizations under the J-1 internship program. The Rule also describes the responsibilities of  sponsoring organizations to review internship programs and the qualfications of their host organizations.¼/p>

H-1B visas for members of specialty occupations is a very valuable commodity nowadays as this past season’s H-1B lottery proved. But even for lucky beneficiaries of this highly sought after visa status, there comes a time when it ends—– or does it?

H-1B visa holders can stay in the U.S. and work for up to six years, but there are situations where H-1B holders  can extend their status beyond the six year period. One way is for an H-1B to recapture time spent outside of the U.S. on business, pleasure or for personal reasons.  For example, an H-1B on assignment outside the U.S. can, in effect, recapture this time, which can be tagged on to the end of the formal H-1B period. Another way of obtaining additional time is to file and have approved an I-140 immigrant petition.  In circumstances where immigrant visa petitons are approved but a visa is not available to the beneficiary, the H-1B can seek an extension of the H-1B in increments of three year periods.  In instances where an I-140 petition or Application for Labor Cetification had been filed and has been pending for at least 365 days, H-1B visa holders can extend their status in increments of up to 1 year at a time. But what happens to the H-1B who is coming to the end of her status and has neither an approved I-140 or Labor Certification/I-140 pending for 365 days. Formerly, these individuals were out of luck: When their H-1B status expired, so did there official stay in the U.S.  To address this too frequent problem, very recently (on June 16, 2008) USCIS announced a new regulation which would allow H-1B’s to file I-140s (immigrant petitions based on employment) on an expedited basis, called premium processing.  According to the regulation, an H-1B can request premium processing in connection with an I-140 filed within 60 days of the termination of H-1B status. Under premium processing, USCIS is mandated to advise the petitioner within 15 days whether the petition is approved or not.  As previously discussed, once an I-140 is approved, the H-1B beneficiary can then apply for an extension of H-1B status for an additional three year period (if the immigrant visa applied for is not immediately available). Why should the the Immigration Service try to help H-1Bs stay in the U.S.? This is hard to answer, but the trend seems to be that in reaction to the political paralysis that has made immigration reform impossible, there is tangible effort being made to ease the burdens on skilled nonimmigrants. We saw this, for example, with the new regulation allowing beneficiaries of optional practical training to extend this training for up to 17 months [which was discussed in a prior C-G posting.  The fact of the matter is that without some tinkering by USCIS, the pressure on skilled non-immigrants is so great that many of them otherwise would likely leave the U.S. for good or never come here in the first place. We need not express further the patently stupid situation that American employers have been forced to confront as the result of this inanely counterproductive crunch on skilled immigration. ¼/p>

For businesses involved in the manufacture and sale of dual use technologies, i.e. technology that can have a military as well as a commercial use, bringing a foreign national  into the U.S., even as a business visitor, can become problematic, not because of any particular immigration law per se, but on account of Export Control Laws promulgated by the U.S. Department of Commerce and other U.S. Agencies.

Of particular significance to the immigration practitioner is the, so called, “deemed export rule”  and the existence of a Technology Alert List, which is a list of particular dual use technologies that the U.S. government is especially sensitive about. As provided under the Export Administration Regulations (EAR) an export, contrary to popular belief, does not necessarily require sending physical products outside of the U.S., but can also involve disclosing information about a technology to a foreign national while he or she is in the U.S. In the parlance of the U.S. Department of Commerce’s Bureau of Industry and Security, such a disclosure of information is, in fact,”deemed” an export event, which could make it necessary for the foreign employer to obtain an export license.  

The upshot of the “deemed export rule,” as far as immigration is concerned, is that there is a heightened risk of a violation of the rule when an alien enters the U.S. for the purpose of visiting a company in an industry that falls within the purview the Technology Alert List. Such an alien could unwittingly become the subject of an extensive security review called a Visa Mantis Security Check, which can involve the U.S. Department of State’s soliciting the views of upwards of a dozen agencies regarding the  background and bonafides of the foreign national before issuing a visa. In many cases, such reviews have taken anywhere from three to six months to complete and can result in the imposition of severe restrictions on what the foreign national can actually do in the U.S. 

For businesses involved in fields involving technologies that can potentially have military uses,  it is important to take proactive steps, even when trying to bring in a foreign national technologist as a business visitor, to arm the alien with a documentary presentation that details what the foreign national’s background is and what he or she will be doing in the U.S. According to one commentator, the foreign national may need, among other things, (1) a letter from the employer detailing its work and whether and to what extent the alien would be exposed to technical know-how; (2) documentation showing that the technology at issue is not protected and is in the public domain, (3) the resume of the foreign national and recommendation letters from U.S. sources; and (4) documentation from the Department of Commerce showing that the technology at issue is not subject to an export license. 

What is also important for businesses that operate in sensitive industries to understand  is that not only can a foreign national employee or consultant be denied a visa, but that the authorities in reviewing the immigration status of an individual alien via a Visa Mantis Security Check, may also initiate an inquiry into a host-company’s possible, previous violations of the nation’s export control laws. Like with employer sanctions in the immigration context, violations of U.S. export control laws can expose a business to significant civil and even criminal penalties. ¼/p>

Below is a list of EB-5 Regional Centers active as of October 2007. On June 9, 2008 the U.S. House of Representatives passed a Bill extending the Regional Center Pilot Program to 2013. This measure must now be addressed by the U.S. Senate. For more information on the EB-5 Immigrant Investor Category see C-G’s May 7, 2008 Post.

EB-5 Regional Centers Active as of October 2007