Kerry and Lugar Push Startup Visa Act

Senators John Kerry and Richard Lugar have introduced The Startup Visa Act in Washington today.

In a nutshell this bill will create a new type of visa that will allow foreign entrepreneurs to set up their company in the US providing they secure a certain amount of investment and produce a certain amount of revenue or job positions.

In a letter meant to circulate to other senators, they highlight the example of a Canadian company who couldn’t set roots in the US and eventually moved to Montreal:

Vanilla (http://www.vanillaforums.com) is an example of a type of company this visa would apply to. Vanilla has two founders, both Canadian. They spent the summer in Boulder, Colorado as part of the TechStars accelerator program getting advice, help, and mentorship from over 50 U.S. based entrepreneurs and investors. Numerous investors were interested in funding Vanilla and helping them to grow their company from Boulder; however neither founder was able to give investors comfort that they could get an appropriate visa to stay and work in the US. Since then, the founders have relocated to Montreal, raised $500,000, and started their company in Canada. Today, they are adding three people to their team, all based in Montreal. If successful, they will add many more people to the team over the next few years.

You can read a letter from the Senators describing the act here.

USCIS General Inquiry Mailbox – A Useless Experience

I blogged a few weeks back about a new email address created by USCIS that Canadians can use to ask general immigration questions. I sent an email asking for clarification on some scenarios regarding Canadians speaking at conferences in the US. And then I waited.

And waited.

And waited.

I checked this morning and noticed that I got a response 23 days after my initial email (so last Wednesday)! Finally, here would be the answers I was looking for! I opened the email and saw this:

Thank you for your e-mail.

You need to contact the nearest US Consulate and/or US Customs and Boarder Protection.

Regards,

USCIS/pfcg

Are you kidding me?! Now, let’s play devil’s advocate here and assume my questions were beyond what’s considered “general inquiry”. If so, why not at least state that? “Sorry, your questions are beyond the scope of this service. I must refer you elsewhere.”

And why not provide the contact information for the US Consulates in Canada, or a link to a website with their collective contact info?

And seriously, US Customs and Border Protection? Where do I call for that? The local border office? And seriously…its spelt “Border” not “Boarder”.

So what we have with the USCIS email box is just another tool to confuse and misdirect those that are trying to get straight answers about US immigration.

How disappointing.

H-1B – The Right to Control

According to some online sources, including Cyrus Mehta (a US Immigration lawyer), the following occurred:

On one fateful day, January 11, 2010, when Continental Airlines Flight 49 landed in Newark from Mumbai, India, we know that [a CBP officer] and his colleagues, hunted through the lines for Indian H-1B workers even before they showed up for primary inspection. Their minds were made up. No detailed questions were asked. The moment they found Indian H-1B workers who uttered that they were working at a client site in the IT field, their fates were sealed. They were subjected to expedited removal orders and sent back to India. Some were luckier and escaped the ER order, but still had to withdraw their applications for admission to the U.S. Nevertheless, they were all coerced into making statements under threat of being detained. CBP officials also made remarks as to why the H-1B workers, singled out for deportation, earned more than U.S. workers and should not be paid so much.

What would instigate such severe scrutiny of Indians holding US-approved visas in their passports? And why should other countries care?

On January 8, 2010, a memorandum was sent from Donald Neufeld, Associate Director for Service Center Operations within the USCIS. You can read a copy of the memorandum here.

The purpose of the memo was…

…intended to provide guidance, in the context of H-1B petitions, on the requirement that a petitioner establish that an employer-employee relationship exists and will continue to exist with the beneficiary throughout the duration of the requested H-1B validity period.

I’ll provide links at the end of this post to some articles that go in depth to explain the contents of the memorandum, but in a nutshell it was directing officers to scrutinize whether an H-1B’s petitioner truly has the right to control and that an employer-employee relationship exists.

The straight-forward situation is between an employer and employee: a company wants to sponsor a foreign worker for an H-1B visa, and that worker will become an employee of the employer.

But there’s another situation that involves three parties instead of two:

Petitioner – This is usually the employer of the individual who will actually hold the visa.

Beneficiary– The individual who will be performing work, an employee of the Petitioner.

Client – The entity that has made an agreement with the Petitioner to have the Beneficiary come and perform work at their location.

In this scenario, the Client is not the employer of the Beneficiary. Even if the Beneficiary is going to be working as part of a team made up of people from the Client, its the Petitioner that ultimately has control over the Beneficiary. And thus lies the problem: since the Petitioner isn’t overseeing the day to day work of the Beneficiary, the Petitioner does not have the right to control over when, where, and how the Beneficiary performs the job. For the H-1B to be valid, the Petitioner’s right to control must be established.

The memorandum I linked to above contains examples showing  what would/would not present a valid employer-employee relationship, but I want to briefly mention the ones that don’t apply:

Self-Employed Beneficiaries
The thought here is that if you are your own boss, nobody *really* has any control over you while you’re in the US; you can’t be your own master.

Independent Contractors
Just because you’re contracted to one organization doesn’t mean you couldn’t also be contracted to another. Ergo, the Petitioner doesn’t have the right to control you.

3rd Party Placement/ “Job Shops”
A company needs a software developer for a project their working on. Your company contracts you out to them to fill the need. While you’d you be working there, you’d report to the client’s project manager and they would be directing you in your day to day working tasks. You see where this is going: the client is exercising the right to control, not your employer (who would be the petitioner as well).

Interesting spins on foreigners working in the US isn’t it?

But it begs the question: with the US placing more restrictions on foreign workers and with harsh punishments that unknowing employees could be subject to (that “expedited removal” process mentioned earlier carries with it a 5 year ban on entering the US), what incentive is there for us to even try?

Reference Links

Cyrus D. Mehta Blog

Nation of Immigrators Blog

Jan 8 2010 USCIS Memorandum

USCIS General Inquiry Mailbox – Still Waiting

I posted a few weeks back about a general inquiry email address setup for Canadians to submit questions to the US Citizenship and Immigration Services department.

On January 25th I submitted an email to them asking for clarification on the rules surrounding Canadians wishing to speak at conferences in the US. A week went by and I heard nothing…not even a “Thanks for your inquiry, here’s the expected timeframe to receive an answer.” So I emailed them again on February 1st asking for verification of receipt and whether I could get a time frame for the response.

Crickets.

So tomorrow will be two weeks since my initial email and I haven’t heard anything. It’s one thing to set up a service and tout how great it is that Canadians have this new avenue for getting info, but its totally another to make it useful and provide value.

I’ll keep watching the inbox, but I’m not holding my breath.

Buy American Deal – Much Speculation

Tomorrow we should receive official details on the new agreement between Canada and the USA regarding easing the “Buy American” provisions in the US stimulus program.

Until then, we have a number of different views, reports, and speculation being fed by numerous “sources”.

From CTV:

CTV's Ottawa Bureau Chief Robert Fife said the deal will be announced Friday at 8:00 a.m. EST. It will allow Canadian firms a chance at what's left of the $900 billion in stimulus spending that Washington announced last year.

Canadian firms will be exempted from "Buy American" restrictions under seven of the stimulus programs, in 37 U.S. states that signed on to the World Trade Organization. Those states will be able to use American stimulus money to buy Canadian manufactured goods.

From The Vancouver Sun:

According to informed sources, the deal would grant Canadian exporters access to procurement markets in the 37 U.S. states covered under the World Trade Organization agreement on government tenders. Further, Canadian companies are freed from Buy American restrictions as they relate to funds remaining in seven programs under the stimulus legislation. In turn, the provinces would agree to open up their procurement markets, roughly valued at $22 billion.

However, sources say what U.S. companies can bid on will be limited, as certain sectors — such as health care, education and correctional facilities — are off limits. The two sides are said to have agreed to continue negotiations on a broader deal governing procurement.

While these stories suggest that this deal presents some measure of progress, whether Canada can take advantage of it now or as a basis for future Buy American-type programs, the CBC dropped a bombshell on The National tonight with their intel on the agreement.

According to the CBC’s report, this “agreement” isn’t really an agreement at all. Instead, Ottawa is signing a WTO agreement. Obama was quoted earlier on in this Buy American fiasco as suggesting that the Canadian provinces were not WTO signatories, and that becoming signatories would allow them to bid for the work. So if this is what the federal government has done then there really isn’t any compromise on the US side…Canada has just rolled over.

Worse yet, signing the WTO agreement means that we’ve now opened up provincial markets to more than 30 other markets that are part of the WTO! So now not only do Canadian firms need to compete against American ones, they also need to compete with firms from Britain, Germany, China, and Japan among others!

If what the CBC is reporting is true, then this has the potential to be a horrible deal for Canada: short term opportunities (if even that) and long term increased competition.

But again, we don’t have the actual deal in hand…these are all speculations from information fed by sources. Still, there’s enough here that we should be nervous about how much we’ve left on the table compared with the Americans…and the WTO countries which might be the biggest beneficiaries of all.