IMMIGRATION LAW:

– Family Immigration

Lawful Permanent Resident is a foreign national who has been granted the privilege of permanently living and working in the United States. For someone to become a LPR, they must have a relative who is a citizen of the United States, or have a relative who is a lawful permanent resident, and must go through a multi-step process.

The USCIS must approve an immigrant visa petition. This petition is filed by the relative (sponsor) and must be accompanied by proof of a valid relationship between the U.S. citizen or lawful permanent resident and the relative being sponsored for permanent residence. The Department of State must determine if an immigrant visa number is immediately available to the foreign nation, even if they are already in the United States. When an immigrant visa number is available or check at this site, it means they can apply to have one of the immigrant visa numbers assigned.

U.S. Citizen may sponsor their parents, spouses or children under age 21 for immigrant visas for permanent residence.  This category is known as “immediate relatives,” and there is no limit on how many immigrant visas can be issued.

The following are immediate relatives:

  • Spouse of U.S. Citizens:
  • Children of U.S. Citizens, if the child is unmarried and under 21; and
  • Parents of U.S. Citizens, if the child has attained the age of 21.

U.S. Citizen files a petition to establish the relationship. Then the foreign relative applies for permanent residence at either a U.S. Citizenship and Immigration Services office (in the U.S.) or at an American consulate abroad.

Furthermore, even under the tough new adjustment laws, a United States citizen may petition for his or her immediate relative even if that relative has fallen out of status. The immediate relative must have entered the United States legally however.

If an individual is not an immediate relative, then the individual must be in one of the specified family relationships to immigrate. Not all family relationships serve as a basis to immigrate. The following are other relative who are allowed to immigrate:

  • Fist preference (FB-1): Unmarried adult (over 21) sons and daughters of U.S. citizens;
  • Second preference (FB-2A and FB-2B): Spouses and unmarried minor (under 21) children of permanent residents
  • Third preference (FB-3): Married adult (over 21) sons and daughters of U.S. citizens; and
  • Fourth preference (FB-4): Brothers or sisters of U.S. citizens.

If the number of applicants exceeds the number of immigrant visas available under a particular category, that category is considered oversubscribed. As a result, the applications will be processed and visas issued in the chronological order in which the petitions were filed until the numerical cap has been reached. The filing date of the petition is called the applicant’s “priority date”. An immigrant visa cannot be issued until the priority date is reached. This means that there may be a lengthy waiting period. Sometimes that period may exceed several years. These waits are unpredictable, and can change from month to month, since the waiting line depends upon the number of people with earlier priority dates on their approved application who actually complete the process when the time comes that the visa is available.

If their priority date is current, then the foreign relative applies for permanent residence at either a U.S. Citizenship and Immigration Services office (in the U.S.) or at an American consulate abroad.

– Employment Immigration

EB-1 
(1) Multinational Managers and Executives

To qualify under the Multinational Manager and Executive priority worker category, the worker must have worked for the petitioner (or a subsidiary of affiliate of the petitioner) outside the U.s. for at least one year of the previous three. If the worker is already in the U.S., the required one year of employment in the past three will be determined by looking at the three years prior to the workers entry into the U.S. in nonimmigrant status. This work outside the U.S. must have been in an executive or managerial capacity, and the worker must be coming to the U.S. to fill an executive or managerial job. The U.S. business must have been established for at least one year before filing the petition. First line supervisor do not necessarily count as managers even if they are directly managing the work of other employees. To qualify, the manager must be supervising other professional.

(2) Outstanding Professor and Researcher Petitions

To qualify in the Outstanding Professor and Researcher priority worker category, the applicant must be internationally recognized for his or her outstanding achievement. In this category, the worker must have a job offer, but no labor certification is required.

The outstanding professor or researcher must demonstrate two of the following criteria:

  • Receipt of a major prize or award for outstanding achievement in the academic field;
  • Membership in associations that require outstanding achievements of their members;
  • Published material in professional publications written by others about the applicant’s work;
  • Participation as a judge of the work of others in the field;
  • Original scientific or scholarly contributions in the field; or
  • Authorship of scholarly books or articles in journals with international circulation.

(3) Extraordinary Ability Petitions

The Extraordinary Ability priority worker category does not require a job offer. This means that either an employer may petition for an EB-1 extraordinary worker or the worker may petition for himself or herself. If the worker self-petitions, he or she must show evidence of contracts or prearranged commitments for future employment or a description of how he or she will continue to be gainfully employed in the U.S.

USCIS regulations define extraordinary ability as a “level of expertise indicating that the individual is one of a small percentage that has risen to the very top of the field of endeavor.” The statutes state that this level of ability must be demonstrated by sustained national or international acclaim and by recognition in the field by extensive documentation. USCIS will look for evidence that the work the individual will perform will substantially benefit the U.S.

In order to demonstrate extraordinary ability, the applicant must show that his or her ability has been recognized in the field of endeavor through sustained acclaim. This can be shown through a single major internationally recognized achievement such as a Nobel Prize, Pulitzer Prize or an Academy Award. Alternatively, the applicant can demonstrate three of the following ten criteria:

  • Receipt of lesser national or international prizes or awards for excellence in their field of endeavor;
  • Membership in associations in the field of endeavor that require outstanding achievements of their members as judged by recognized national or international experts;
  • Published material about the alien and his work in professional journals, trade publications, or the major media;
  • Participation, either in a group or alone, as a judge of others in the same or a similar field;
  • Original scientific, scholarly, or artistic contributions of major significance in the field of endeavor;
  • Authorship of scholarly articles in the field, published in professional journals or the major media;
  • Display of the alien’s work at artistic exhibitions or showcases in more than one country;
  • Performance in a lead, starring, or critical role for organizations with a distinguished reputation;
  • Commanding a high salary compared to others in the field; or
  • Commercial success in the performing arts, as shown by box office receipts and sales.

Realizing that these ten categories of evidence do not encompass all the evidence that could be presented to show extraordinary ability, USCIS also allows for any other comparable evidence.

EB-2
(1) Advanced Degree Professionals

The second preference employment category is reserved for two types of workers: (1) workers who are members of professions holding advanced degrees or their equivalent and (2) workers with exceptional ability in the sciences, arts, or business who will substantially benefit prospectively the national economy, cultural or education interests, or welfare of the U.S. As a general rule, a labor certification is required, although in some cases a national interest waiver is available.

A profession is an occupation in which a baccalaureate degree is the minimum requirement for entry level. An advanced degree is any academic or professional degree above the level of a baccalaureate degree. The individual seeking EB-2 classification must be entering a job that requires an advanced degree and the individual must either possess an advanced degree or a baccalaureate degree plus five years of progressive experience in the field to substitute for the advanced degree.

Labor certification is required for EB-2 Advanced degree professionals unless a National Interest Waiver is obtained.

(2) Exceptional Ability in the Sciences, Arts or Business

An individual can obtain EB-2 classification for exceptional ability in the fields of art, sciences or business. Athletics are considered an art for purposes of EB-2 classification. Exceptional ability is limited to aliens in the fields of arts, science and business.

USCIS requires at least three of the following six types of evidence to show exceptional ability:

  • For advance degree EB-2s, official record of a degree from a college, university or other learning institution related to the field in which the alien claims exceptional ability;
  • For exceptional ability EB-2s, evidence of ten years of full time experience in the field in which employment is sought (typically in the form of letters from past employers);
  • A license to practice or certification if required in the occupation;
  • For exceptional ability cases, evidence of a high salary or other form of payment that indicates exceptional ability;
  • For exceptional ability cases, evidence of membership in professional associations; and
  • For exceptional ability cases, evidence of recognition by peers or professional associations for achievements and contributions to the field.

For exceptional ability EB-2 cases, labor certification is required unless a national interest waiver is obtained.

(3) National Interest Waiver Petitions

The EB-2 classification requires a labor certification by the petitioning employer unless a national interest waiver is obtained. To obtain a national interest waiver the applicant must demonstrate that granting the EB-2 petition is in the national interest.

There are two kinds of national interest waiver applications available. One type is for physicians and the other type is for all other cases. The Administrative Appeals Office has established seven main factors that are considered in determining whether a particular job is in the national interest:

  • Improvement of the U.S. economy;
  • Improvement of the wages and working conditions for U.S. workers;
  • Improvement of educational and training programs for U.S. children and under-qualified workers;
  • Improvement of health care;
  • Provision of more affordable housing for young, aged, or poor U.S. residents;
  • Improvement of the U.S. environment and more productive use of the national resources; and
  • Admission is requested by an interested U.S. government agency.

More recently, the Administrative Appeals Office has focused on three factors:

  • The worker seeks employment in an area of “substantial intrinsic merit;”
  • The proposed benefit the worker will provide is “national in scope;” and
  • The national interest would be adversely affected if labor certification were required. In other words, the national benefit provided by the worker is so great as to outweigh the national interest in the labor certification process.

A physician national interest waiver is different from a standard national interest waiver. To be eligible for a physician national interest waiver, the foreign physician must:

  • Agree to work full-time in a clinical practice for five years unless the immigrant visa petition was filed prior to November 1, 1998, in which case the period of required service is 3 years;
  • Work in one of the following medical specialties: family or general medicine, pediatrics, general internal medicine, obstetrics/gynecology, and psychiatry;
  • Serve either in a Health Professional Shortage Area (HPSA), Mental Health Professional Area (MHPSA – for psychiatrists only), Medically Underserved Area (MUA), or a Veterans Affairs facility; and
  • Obtain a determination from a federal agency or a state department of health that has knowledge of the physician’s qualifications, which states that the physician’s work is in the public interest.

A period of service in an underserved area can affect a physician’s ability to apply to adjust status. A physician can simultaneously file for adjustment of status when filing the I-140 petition unless green card numbers are not immediately available based on backlogs in the EB-2 category.

By applying for adjustment of status, the physician can also obtain an employment authorization document. This relieves the physician of having to maintain any type of valid nonimmigrant status. However, the physician may have an independent requirement to maintain H-1B status as part of a J-1 waiver service obligation.

While USCIS will allow the physician to apply for adjustment of status and obtain work authorization, USCIS will not make a final determination on any adjustment of status application submitted by a physician who is seeking a national interest waiver until the physician has practiced medicine full-time in a medically underserved area for an aggregate of 5 or 3 years, depending on the application filing date.

Upon receipt of the adjustment application on Form I-485, USCIS will note the date the physician began medical service, provide the physician with a list of evidence that must be submitted after the required period and provide the physician with a timeline by which the physician must send evidence to USCIS.

EB-3 (Skilled Workers, Professionals holding basic degrees)

This category is for individual workers who are 1) “Skilled”; A skilled worker is one who has at least two years of experience in the job offered by the sponsoring employer, 2) “Professionals” in that they have at least a Bachelors degree and will be working in a professional position for their employer, 3) other workers, including those with un-skilled jobs are also included in this category.

The individual worker will be required to have an employer offer permanent sponsorship. The individual worker will be required to show the law of U.S. worker availability via the Labor Certification process. The Labor Certification process is the prerequisite to filing with the USCIS for an immigrant benefit. The Labor Certification process is an expedited PERM process.

Once PERM is approved, the individual worker can proceed with the immigrant petition or adjustment of status. When the USCIS approved the petition and applicant’s visa priority date is available, the applicant can pursue permanent residency by either adjustment of status in the US or by consular processing at a US Consulate in their native country.

EB-4  (Religious Workers)

To be eligible for lawful permanent residence as a religious worker, you must be a religious worker for the past two years has been a member of a religious denomination which has a bona fide nonprofit, religious organization in the United States; and who has been carrying on the vocation, professional work, or other work described below, continuously for the past years; and seeks to enter the U.S. to work solely as a minister or priest of that denomination, in a professional capacity in a religious vocation or occupation for that organization and in a religious vocation or occupation for the organization or its nonprofit affiliate.

The EB-4 special immigrant process does not require a labor certification.

–        Investment Immigration

EB-5 Investment

The EB-5 Investment based immigration program is designed for those investors with sufficient resources to petition themselves and their families for Permanent Residency.

The U.S. Government has consistently supported the EB-5 program in its ability to add to the U.S. economy both financially and in terms of job creation.

The EB-5 immigrant investor visa category is for immigrants seeking to enter the U.S. to engage in a commercial enterprise that will benefit the U.S. economy and create at least 10 full-time jobs. There are 10,000 visas available in the category each year, 3,000 of which are reserved for people who participate in a Pilot Program option designed for targeted investments in approved regional areas.

There are four basic requirements for the EB-5 visa. They include:

  • The individual must establish a business or invest in an existing business that was created or restructured after November 19,1990;
  • The individual must have invested $1 million unless the investor is investing in a “targeted employment area,” in which case the investment may be $500,000;
  • The business must create full-time employment for at least 10 U.S. workers; and
  • The EB-5 investor must be engaged in the management of enterprise either through day-to-day managerial control or through policy formulation. A purely passive role is not permitted.

There are three types of qualifying business enterprises for EB-5 purposes. They include:

  • New commercial enterprises;
  • Purchased existing business with simultaneous restructuring or reorganization such that a new commercial enterprise results; and
  • Expanded existing businesses created after November 1990 through the investment of the required amount and the creation of ten new jobs.

Any for-profit business entity that conducts lawful business may serve as a qualifying business enterprise. The business can be a sole proprietorship, partnership, holding company, joint venture, corporation, etc. A holding company with its subsidiaries would also qualify if each subsidiary is engaged in the active conduct of business. Passive investments do not qualify.

An investor can show the capitalization of the enterprise by making an investment in the form of cash, supplies, equipment, inventory, tangible property, cash equivalents and indebtedness secured by assets owned by the investor provided that the investor is personally and primarily liable for the debts and assets and the assets of the new commercial enterprise are not used to secure any of the indebtedness.

Multiple investors may establish a new commercial enterprise; however, each investor applying for the classification must meet the requirements for the EB-5 classification separately. For example, each investor must create 10 jobs for U.S. workers.

The basic investment amount required to be an EB-5 investor is $1 million.

Regional Center Program

3,000 of the 10,000 visas are reserved for people who participate in a Pilot Program option designed for targeted investments in approved regional areas.

The required investment is $500,000 for a business established in a “targeted employment area.” Targeted employment areas include:

  • Rural areas, defined as any area other than one within a metropolitan statistical area or within the boundary of a city or town with a population of 20,000 or more; and
  • Areas having an unemployment rate that is at least 150% of the national average.

For a Pilot Program investment, the threshold is a $500,000 capital contribution to a designated regional center which allocates portions of the capital in the form of business loans to small business within the targeted area.

For the purposes of the Pilot Program, any economic unit, public or private, involved with the promotion of economic growth of a particular region may qualify as a Regional Center.

The investment must create at least 10 full-time jobs for U.S. citizens, lawful permanent residents or other immigrants lawfully authorized to be employed in the U.S. Full-time employees are defined to include workers working at least thirty-five hours per week. This does not include nonimmigrants. In calculating the required number of employment positions, the investor may not include spouses or children, but may include other family members who are employed by the business.

The 10 full-time employees do not have to be in jobs directly related to the company, and it is possible to show that the 10 full-time jobs are created indirectly through job creation as a result of improving the economy in the regional center. A Conditional Permanent Residency will be issued to the investor, spouse and children under 21.

 

–        Non-Immigrant Visas

A citizen of a foreign country who seeks to enter the United States generally must first obtain a U.S. visa, which is placed in the traveler’s passport, a travel document issued by the traveler’s country of citizenship. Certain international travelers may be eligible to travel to the U.S. without a visa if they meet the requirements for visa-free travel.

The type of visa you must obtain is defined by U.S. immigration law, and related to the purpose of your travel. There are two main categories of U.S. visas: 1) Nonimmigrant visa: for travel to the U.S. on a temporary basis 2) Immigrant visa: for travel to live permanently in the U.S.

E-1/E-2 Visa (Treaty Trader/Treaty Investor)

The E-1 Visa designed to advance trade and investments between the United States and foreign nations with which the U.S. has signed treaties, the E-visa category has been established to facilitate the temporary work authorization of aliens for the purpose of enterprise. Investors, business owners, managers and essential employees are able to obtain a Trade Investment Visa and perform work here in the United States. The goal of these visas is to effect reciprocal economic benefits for the U.S. and treaty signing countries. Providing a means for substantial investors to establish businesses in the United States creates a continuous exchange of goods and/or services between the U.S. and foreign nations. Aliens who are citizens of treaty signing nations (Treaty Foreign Nationals) are eligible to receive an E-1 or E-2 visa, allowing that individuals to live and work lawfully in the United States for an extended period of time.

The two most common uses of the E-2 visa are for:

  • Investors
  • Employees, Executive, Supervisors and Essential employees.

As an investor, the Foreign National applicant will generally be required 1) to purchase an existing business or enterprise, 2) to invest into an existing business or enterprise 3) invest into a new business enterprise.

Where the E-2 Visa applicant is an employee rather than an investor that employee must be of the same Nationality of the investor OR Company/Enterprise that has majority ownership of the Business/enterprise. The Employee can be a Manager/supervisor or a worker with special skills making him or her essential to the running of the business.

  1. A supervisory position grants the employee ultimate control and responsibility for a large proportion of the enterprise’s operations or a major component of the enterprise. It does not involve the supervision of low-level employees. The supervisory element of the employee’s position must be a principal and primary function, and not an incidental or collateral function.
  2. The essential nature of an alien’s “special skills” is determined by assessing the degree of proven expertise of the alien in the area of specialization, the uniqueness of the specific skills, the length of experience and training with the firm, the period of training needed to perform the contemplated duties, and the salary the special expertise commands.

Unlike the H1B, there is no Quota on the number of employees permitted. The E-2 employee visa can be filed directly at the Consulate of the Home Country of the applicant without the prior approval of the USCIS or can be filed as a change of status if the applicant is in the United Sates. The E-2 Visa can be approved in a matter of a few weeks if the applicant is filing under premium processing in the United States. The Spouse of the E-2 Investor is eligible for an employment Authorization Card, (Work Permit) allowing the spouse the ability to work legally in the United States at any legal job. The E-2 Visa must be extended every Five (5) years however there is NO limit in extensions and an applicant may remain in E-2 Visa for an indefinite time, as long as the investment enterprise is ongoing.

F-1 Visa (Student)

An alien who has a residence in a foreign country which he/she has no intention of abandoning, who wishes to come to the United States to pursue a course of study at an academic institution accredited by the USCIS, may qualify for an F-1 visa. The alien must have a valid educational purpose for coming to the United States, and must be able to support himself or herself while in the United States without working.  All students are given permission to be in the United States for “duration of status”, that is for the period of time needed to complete the educational program plus 60 days. At the end of the course of a period of work authorization may be requested for the purpose of gaining experience in the field of study, known as “practical training.” If qualified, the student may also change non-immigrant status to a temporary non-immigrant work visa or adjust status to a permanent resident visa.

H-1B Visa  (Professional Occupations)

The H1B Professional Work Visa is available to foreign national workers whose position requires at least a Bachelor’s degree (or its equivalent) to perform. The lack of a college education does not necessarily preclude the applicant; however he or she does need to show a combination of work and experience that would be considered equivalent to a Bachelors degree in order to qualify. Skilled professional that work in specialty occupations such as accounting, computer programming, web designing, engineering, doctors, nurses, scientists, lawyers and architects are eligible to apply for an H1-B Visa. A maximum of 65,000 such visas are issued each year so it is critical to submit one’s application in a timely manner. In the event that the H1-B quota has been reached, the applicant must wait for the next fiscal year to begin (October 1st) for his or her application to be considered; however, the USCIS will allow you to file as early as April 1st of that same year.  University employees, non-profit entity workers, some researchers, and government agents are exempt from the quota and may still apply even after 65,000 visas have been issued.

The maximum duration of this type of work visa is 6 years. However, H1-B holders who have a Labor Certification application pending for over 365 days or have approved immigrant visa petitions can stay beyond the 6 year limit. Unlike other non-immigrant visa, the H1B is a “dual intent” visa, meaning that it will not be denied simply because the applicant has applied for permanent residency. A spouse or unmarried child of an H1-B visa holder is entitled to an H-4 visa, allowing them to remain in the U.S. for the same length of time as the principal. These dependents cannot accept employment but may attend school in the United States.

 J-1 Visa  (Academic Trainee)

Eligibility for a “J” Visa requires an applicant to be a bona fide trainee. The applicant must be a student, professor, research scholar, on-academic specialist, foreign physician, teacher, counselor, au pair or summer student in a travel/work program. The applicant must be entering the U.S. to participate in an exchange visitor program that has been designated by the U.S. Information Agency and whose participation includes such purposes as teaching, studying consulting, training. Certain J Visa holders as subject to a requirement that they must return to their home country of last residence for a two year period upon completion of their training in the U.S. Applicant may apply for a waiver of this 2-year home residence requirement.

K-1 Visa (Fiancé)

The K-1 visa is a hybrid visa that enables to a U.S. citizen to bring their fiancé to the U.S. with the intention of getting married and pursuing permanent residence. The K-1 Fiancé Visa allows a U.S Citizens only (not Legal Permanent Residents) to apply for permission with a U.S Consulate abroad to allow his or her Fiancé to enter the U.S with a Fiancé visa. The U.S Consulate abroad will only review this application after there has been an approved petition by the USCIS which must be applied inside the United States by the US Citizen on behalf of his or her fiancé.

The marriage must take place within 90 days of the fiancé entering the United States. If the marriage does not take place within 90 days or the fiancé marries someone other than the U.S. citizen filing USCIS Petition for Alien Fiancé, the fiancé will be required to leave the United States. Until the marriage takes place, the fiancé is considered a nonimmigrant. A nonimmigrant is a foreign national seeking to temporarily enter the United States for a specific purpose. A fiancé may not obtain an extension of the 90-day original nonimmigrant admission.

If the marriage does not occur, the beneficiary must leave the U.S. within their 90-day period of authorized admission. If they fail to leave within this time, they become subjected to deportation.
You may also apply to bring the fiancé’s unmarried children, who are under age 21, to the United States.

K-3/K-4 Visa (Spouse and Unmarried Minor Children of U.S. citizens)

Often, the process of immigrating based on a marriage to a U.S. citizen spouse can take quite some time. In an effort to shorten the proves of family unification, USCIS will grant a K-3 and K-4 visa. The spouse and children of a U.S. citizen may be admitted to the U.S. as K-3 and K-4 nonimmigrants to complete their process for permanent residence.

Once in the U.S., the K-3 or K-4 nonimmigrant must file the application to adjust status to lawful permanent residence. These applications are submitted once the I-130 visa petitions have been approved by USCIS.

L-1A/L-1B Visa (Intra-company Transferee Executive or  
Manager/Specialized Knowledge)

L-1 intracompany transfer visas are for individuals who are working for multinational companies and are coming to the U.S. to work for a company in the U.S. that has a legal relationship to a company abroad. The L-1 category offers a number of advantages over other visa categories. First, there is no annual limit on the number issued. Second, it is a dual intent visa which means that one may pursue permanent residency without affecting the ability to enter on or extend the L-1 visa. Third, for L-1A managers and executives there is an easier path to lawful permanent residency.

To qualify for L-1 status, the applicant must have been continuously employed abroad for one out of the three previous years for a foreign company that has a qualifying legal relationship to a company in the U.S.

The qualifying legal relationship can be a parent, affiliate, subsidiary or branch of the U.S. company. The employer may be a company or other any other legal entity including a for-profit, non-profit, religious, or charitable organization. Both the U.S. and the foreign company must have common majority ownership, or, where there is less than majority ownership, common control by the same person or entity.
For L-1A visas, the applicant must be coming to the U.S. as a manager or executive.  For L-1B visas, the individual must be coming to the United States because he or she possesses specialized knowledge. “Specialized knowledge” means that the applicant has a special knowledge of the company’s products, specialized skills, or particular knowledge about the application of the product in world markets. Specialized knowledge can also include an advanced or proprietary knowledge of the company’s processes or procedures.
An L-1 visa applicant must intend to depart the U.S. when his or her stay is over. Despite this requirement, however, the L-1 visa is a dual-intent visa. This means that the applicant may also pursue permanent residency simultaneously without a negative impact on the ability to keep or extend the L visa.

If the L-1 applicant is coming to open a new office, the examiner will require information about the new office including proof that office space has been obtained, that the applicant is qualified to open a new office and that the foreign company will remain in existence during the full period of the applicant’s transfer to the U.S. If the company wants to have the L-1 visa extended beyond the initial year, it will have to demonstrate at the time of extension that it has proceeded with the plans outlined in the initial petition.

Executives and managers may stay in L-1A status for up to seven years. Specialized knowledge employees may stay in L-1B status for up to five years. Persons coming to open up a new office in the U.S. will initially be granted a one-year stay in the U.S.

There are special procedures that make it easier for companies with large numbers of multinational employees to obtain L-1 visas for their employees. Companies that qualify can receive a “blanket approval” for all of their L-1 employees rather than having to apply individually for each employee. To qualify for a blanket petition, the company must show:

  • That the U.S. and foreign offices are engaged in commercial trade or services;
  • That the employer’s U.S. office has been in business for at least a year;
  • That the employer has at least three domestic or foreign branches, subsidiaries, or affiliates; and
  • That the employer has:
  • Had at least ten L-1 visas approved in the last year; or
  • The company had U.S. sales of at least a million dollars; or
  • The U.S. work force numbers over 1,000 workers.

A key difference between blanket L-1 employees and regular L-1 employees is that the employee need only work for six months outside the U.S. for the company rather than a year.

A new office L-1 visa is valid for one year. For an employee with specialized knowledge working for a Company that has been in business in the United States for one year or longer, the initial visa validity is up to three year with a two-year extension, for a total of up to five years, and up to seven years for an Executive or Manager transferee.

The spouse and children of the L-1 alien are eligible for L-2 status. L-2 spouses can obtain independent employment authorization pursuant to their L2 status.

O-1 Visa (Individuals with Extraordinary Ability or Achievement)

The O-1 non-immigrant visa category applies to aliens of extraordinary ability in the arts, athletics, sciences, education, business or the motion picture or television industry who are coming to the United States to perform temporary services relating to an event or events. It is also available to accompanying aliens who are coming to assist in the artistic or athletic performances of an alien or extraordinary ability.

An O-1 visa may be valid for the period necessary to accomplish the event or activity, but must not exceed three years. A spouse and unmarried minor children of an alien who holds an O-1 visa are eligible for O-3 visas. They may not accept employment while in the United States while on an O-3 visa.

P-1A/B Visa (Internationally recognized athlete/entertainment group)

Artists and athletes are an essential portion of healthy cultural exchange. The global community benefits greatly from the work of each country’s greatest thinkers and performers. P1 visas are issued to entertainers, circus artists, and athletes who wish to work in the U.S. Outstanding athletes may apply for this visa in order to compete in the U.S., either as individuals or as members of an internationally recognized athletic team.

Entertainment groups with an outstanding international reputation can be granted P-1 classification as a unit; however individual entertainers within these groups cannot apply for separate visas.

P-2 Visa  (Individual Performer)

Artists and athletes are an essential portion of healthy cultural exchange. The global community benefits greatly from the work of each country’s greatest thinkers and performers. P2 Visas are issued to troupes or bands entering the U.S. as a part of an exchange program. There should be two organizations involved in this exchange program: one in the US and one abroad.

P-3 Visa  (Artist or Entertainers)

The P-3 visa is for artiest or entertainers, individually or as a group, who are coming to the U.s. for developing, interpreting, representing, coaching or teaching a unique or traditional ethnic, folk, cultural, musical, theatrical artistic performance or presentation.

R- 1 Visa  (Religious Worker)

This R-1 religious visa applies to individuals who, for at least two year immediately preceding the time of application for admission, have been a member of a religious denomination having a bona fide, nonprofit religious organization in the United States, may be admitted temporarily to the United States to carry on the activities of a religious worker. The Religious Organization must be a bona fide Religious nonprofit organization in the U.S., the Organization may show tax exemption under the IRS 501(c)(3). The Applicant will need to document that he or she was a member in the same religious denomination as the sponsoring organization for a two-year period immediately preceding the application.

Q Visa  (Cultural Exchange)

The Q-1 nonimmigrant visa is designed for foreign nationals who are coming to the U.S. to participate in an international cultural exchange program. Under the Q-1 visa, the foreign national can engage in practical training and employment which is related to sharing the history, culture and traditions of their home country.

The exchange program must meet the following requirements:

  • It must take place in a public area such as a school, museum, business, or similar location so that the public can be exposed to aspects of a foreign culture;
  • The program must include a cultural component as an essential part of the cultural visitor’s employment or training; and
  • The program cannot provide for employment or training independent of the cultural component.

The program employer must designate a management level employee to administer the program and act as a liaison to USCIS.

The employer must be engaged in the active conduct of business in the U.S., and must agree to pay the foreign national the same wage as similarly employed U.S. workers and that the employer has the ability to pay the wage.

Also, applicants who have previously been granted Q-1 status must remain outside the U.S. for one year before again being granted Q-1 status.

The Q-1 program designation is approved either for the length of the program, or 15 months, whichever is shorter. The person is also given 30 days after the expiration of the visa in which to make travel plans for their departure from the U.S.

TN Visa  (NAFTA Professionals)

NAFTA is the North American Free Trade Agreement. It creates special economic and trade relationships for the United States, Canada and Mexico. The nonimmigrant NAFTA Professional (TN) visa allows citizens of Canada and Mexico, as NAFTA professionals to work in the United States. Permanent residents, including Canadian permanent residents, are not able to apply to work as a NAFTA professional. Self-employment is not permission on a TN visa, except in the management consultant category. However, the TN visa holder can work for a company in which they have an ownership interest, even a controlling interest.

Canadian citizens can apply for the TN visa at a port of entry or pre-flight inspection at a Canadian airport. If approved, the Canadian will be given an I-94 valid for multiple entries over a three years period.

Mexican citizens may apply for the TN directly at a U.S. consulate in Mexico and do not need prior approval from USCIS. Mexicans may not apply for a TN at pre-flight inspection.     Spouses and children of TN visa holders are given TD visas. Dependents do not have to be citizens of Mexico or Canada. Work is not authorized for TD visa holders, but TD visa holders may attend school.

The maximum period of admission into the U.S. is one year. The US Citizenship and Immigration Services (USCIS) grant extensions of stay in time amounts of one year. There is no limit on the number of years a TN visa holder can stay in the United States. However, the TN visa status is not for permanent residence.

V-1 Visa  (Spouses and Unmarried Minor Children of Lawful Permanent Residents)

The backlog and wait times in the family based second preference (FB-2) category for spouses and unmarried minor children of lawful permanent residents can last several years. The V visa is designed to reunite spouses and minor children of lawful permanent residents with their families while their visa applications are processed. The V visa allows the visa holder to be lawfully employed in the U.S., and, in some cases, to travel outside the U.S.

To qualify for a V visa, the applicant must be the spouse or unmarried child under 21 of a permanent resident for whom an application for immigration was filed on or before December 21, 2000. The application for immigration must have been pending for three years at the time of the application for the V visa.

–        U.S. Citizenship

U.S. citizenship gives a person all the rights that the U.S. has to offer; for example, the right to vote, to petition for family members to immigrate, and to live abroad without losing your right to return. For these reason, citizenship is not easily obtained.

Naturalization is the process of obtaining United States Citizenship. One can obtain naturalization automatically, by operation of law, or through a process of affirmative application through United States Citizenship and Immigration Services (USCIS).

 (1) Automatic Citizenship

Individuals who are born in the U.S. are automatically citizens upon birth. There are limited exceptions for those who are born to foreign heads of state or on foreign vessels in U.S. Waters.

In addition, certain individuals born abroad to a U.S. citizen parent or parents may be citizens at birth. The rules for automatic citizenship for those who are born abroad are extremely complicated and vary depending upon the year in which the individual seeking citizenship was born.

(2) Derivation of Citizenship by Naturalization of One or Both Parents

Children born outside the U.S. who have not acquired citizenship at birth may still derive citizenship when one or both parents naturalize.
Under current law, a child derives citizenship if one parent is a U.S. citizen by birth or naturalization, and the child is under 19, is a lawful permanent resident, and is residing in the U.S. in the legal and physical custody of the U.S. citizen parent. Stepchildren do not qualify under these provisions.

(3) Citizenship through Military Service

Members of the Armed Forces are allowed to naturalize under liberalized rules. To qualify the applicant must have served honorably for three years in any branch of the U.S. Armed Forces.

(4) Naturalization through Affirmative Application

All individuals applying for citizenship through an affirmative application for naturalization must first have a “Green Card” (permanent residence) and then meet other requirements, listed below.

  • Must be at least 18 years old;
  • Have continuously resided in the U.S. for five years after becoming a permanent resident (three years if married to a U.S. citizen);
  • At least half of the permanent residency time must have been spent physically in the U.S.;
  • Must have lived for at least three months in the jurisdiction where the application will be filed;
  • Must demonstrate good moral character for the entire period of residence required (5 or 3 years);
  • Must be able to speak, read, and write in English;
  • Must be able to pass t test covering U.S. history and government; and
  • Must be willing to take the oath of citizenship.

Certain individuals are not eligible for citizenship even if they have met the above requirements. These include people who have held certain ideological beliefs and people who have deserted the U.S. military. While criminal offenses do not of themselves preclude a person from being naturalized, people with aggravated felony convictions after 1989 are unable to show good moral character.

–        Violence Against Women Act (VAWA)

Unfortunately, some U.S. citizens and Legal Permanent Residents misuse their control of this process to abuse their family members, or by threatening to report them to the USCIS. As a result, most battered immigrants are afraid to report the abuse to the police or other authorities.

Under the Violence Against Women Act (VAWA) passed by Congress in 1994, the spouses and children of United States citizens or lawful permanent residents (LPRs) may self-petition to obtain lawful permanent residency. The immigration provisions of VAWA allow certain battered immigrants to file for immigration relief without the abuser’s assistance or knowledge, in order to seek safety and independence from the abuser.

In November 2000, the Violence Against Women Act II was passed into law. Among other things, this law made changes to previously existing immigration laws that had allowed abused immigrant women and children to seek legal residency in the US independently of their abusers.

The law allows women to petition for adjustment of status for themselves and exempts them from section 245(c) of the Immigration and Nationality Act, which prohibits immigrants who have engaged in unauthorized employment, those who have failed to maintain valid immigration status and a number of others from applying for adjustment of status. Under the revised VAWA, applicants no longer have to show that they would face extreme hardship and they are also allowed to apply for permanent residence from outside the US, if they can demonstrate that they were the victims of domestic violence in the US.

To be eligible for adjustment of status under the VAWA II, the woman must show one of the following:

  • Their marriage was ended within the past two years for reasons connected to domestic violence;
  • The abuser lost his or her immigration status within the past two years for reasons related to domestic violence;
  • If a US citizen, the abuser died within the past two years; or
  • The abuser was or is a bigamist

The VAWA II also created a new category of non-immigrant visa. To be eligible for this “U” visa, the applicant must have suffered “substantial physical or mental abuse” because of a variety of crimes, including domestic abuse and involuntary servitude. The applicant must have information relating to this crime that would be of assistance to law enforcement in investigating or prosecuting it. There is an annual limit of 10,000 U visas. U visa holders are work authorized, and are able to apply for adjustment of status after three years.

One of the eligibility requirements is that a self-petitioner must demonstrate that he/she is a person of good moral character. A VAWA-based self-petition will be denied or revoked if the record contains evidence to establish that the self-petitioner lacks good moral character. The inquiry into good moral character focuses on the three years immediately preceding the filing of the self-petition, but the adjudicating officer may investigate the self-petitioner’s character beyond the three-year period when there is reason to believe that the self- petitioner may not have been a person of good moral character during that time. A self-petitioner’s claim of good moral character will be evaluated on a case-by-case basis taking into account the provisions of section 101(f) of the Act and the standards of the average citizen in the community.

Other provisions in the VAWA II allow people who have adjusted status under it to apply for naturalization in three, rather than five years.

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