What's New


V VISAS FOR SPOUSES OF PENDING LAWFUL PERMANENT RESIDENTS WAITING 3+ YEARS

A new temporary "V" non-immigrant status is available to the spouses and minor children of lawful permanent residents waiting more than three years for an immigrant visa based upon an immigrant petition filed on or before December 21, 2000. Persons granted "V" status would receive employment authorization and are protected from removal.

back to top

K VISAS FOR FIANCES AND SPOUSES OF U.S. CITIZENS LIVING ABROAD

K is a nonimmigrant classification reserved primarily for those aliens who enter the United States to marry United States citizens and reside here. The K-1 visa is an interim visa granting an alien 90 days to enter the United States, be married, and apply for permanent resident status through his or her United States citizen spouse. The K-3 visa may be granted to aliens who have already married a United States citizen abroad. The K visa categories are:

  • Fiances of United States Citizens who are outside the United States (K-1)
  • Spouses of United Sates Citizens who are outside the United States (K-3)
  • Children of such Fiances or Spouses, unmarried and under age 21, who will accompany their parent to the United States (K-2 or K-4, respectively)
back to top

TRAVEL RULES FOR H-1 AND L-1 VISA HOLDERS WHO HAVE APPLIED FOR AN ADJUSTMENT

The U.S. Citizenship and Immigration Services now permits H-1 and L-1 visa holders who have applied for adjustment of status to travel without advance parole.

Adjustment of status is the last step in the process towards permanent residency. Obtaining adjustment of status may take well over one year. Prior to the new rule, an adjustment applicant was unable to depart the U.S. temporarily without first seeking advance parole. If a person left without advance parole, the application would be deemed abandoned.

The new USCIS policy allows a non-immigrant on an H-1 or L-1 visa who is in the U.S. temporarily to maintain such status while an application for permanent residency is pending. The law already permits people on H-1 and L-1 visas to maintain a "dual intent" with respect to their stay in the U.S. The bottom line is that the new rule exempts H-1 and L-1 non-immigrants remaining in valid status with a pending adjustment of status application (as well as their dependent family members remaining in valid status) from having to obtain advance parole prior to traveling outside the United States. Such individuals can be re-admitted on the H-1 and L-1 visas (or the dependent visas).

H-1 and L-1 visa holders have the option of applying for "general" employment authorization upon applying for adjustment of status. General employment authorization allows the adjustment applicant to work for another employer. Please note that if an individual chooses to work for employers not authorized by the H-1 or L-1 visa terms, however, and thereafter wishes to travel, advance parole will be required, and the applicant would no longer be considered to be in valid H-1 or L-1 status.

back to top

CHILD CITIZEN ACT OF 2000

On October 30, 2000, President Clinton signed into law the Child Citizen Act of 2000. The new law permits foreign born children (including adopted children) to acquire citizenship automatically, if they meet certain requirements. The law became effective on February 27, 2001.

To be eligible, a child must:

  • Meet the definition of "child" for naturalization purposes under immigration law (see § 101(c) of the Immigration and Naturalization Act, which is on the USCIS web site);
  • Have at least one U.S. citizen parent (by birth or naturalization);
  • Must be under 18 years of age;
  • Be currently residing permanently in the U.S. in the legal and physical custody of the U.S. citizen parent;
  • Be a lawful permanent resident (have green card); AND,
  • If adopted, meet the requirements applicable to adopted children under immigration law (see 101(b)(1) of the Immigration and Naturalization Act).

The new law is not retroactive. Beginning February 27, 2001, parents of children who meet the conditions above may apply for a Certificate of Citizenship for their child with the USCIS AND/OR apply for a passport from the Department of State.

CALL TODAY IF YOU HAVE QUESTIONS! (619) 235-8811

back to top

E-2 VISA INFORMATION

The E Visa category was established to honor treaties between the U.S. and other countries. The foreign national's country must have a treaty with the U.S. that allows for E-2 Treaty Investor Visas. As you may already know, it is possible to enter the U.S. with a B1 Visa and transfer to an E-2 Visa without leaving the United States.

If the E-2 visa is granted, it is granted for an initial 2 year period. This period can be extended indefinitely - so long as the person affirms that he will leave the U.S. when the period of authorized stay ends. The purpose of the Visa is to oversee your investment in the U.S. Because this Visa is a "nonimmigrant" visa, there is no "green card" (permanent residence status) granted with this visa.

Application for an E category visa can take one month through application at a U.S. Consulate (Embassy) abroad, or 30-90 days through the California USCIS Service Center located in Laguna Niguel, California. New filing procedures for E Visas went into effect in December of 1998, so care must be taken to follow the new regulations.

E category visa holders do not need to maintain a foreign residence during their stay in the U.S., so long as they affirm their intention to leave the U.S. when their period of stay expires. As discussed above, the E-2 visa is renewed every 2 years with a limitless number of extensions allowed.

The E visa category can be used by you, your family members, and for employees you bring with you. You must fulfill a key role with the company (either as the person who develops and directs the investment, or as a "qualified manager" or "specially trained employee"). However, the USCIS expects the investment to also create job opportunities for U.S. workers - U.S. workers should be hired within 1 year of your admission to the U.S.

The investment may involve either:

  • Creation of a new business;
  • The purchase of an existing business; or
  • The continuation of an existing business.
  • The U.S. company, if new, may not yet be in operation,but must be "active."

For example, uncommitted funds in an American bank account do not represent an "active" investment unless enough other evidence of business activities exist to show that the funds are to be used in the routine operation of the business (payment of bills, purchase of inventories, or purchase of equipment).

Even when an investment has occurred, only those transactions in which you are personally at risk (in the event of a business failure) can be counted. For example, "qualifying investments" include loans secured by the investor's house, unsecured loans granted on the basis of the investor's signature, and the value of purchased equipment, inventory and property.

The USCIS has recently confirmed that there is no minimum dollar amount necessary in order for the investment to be considered "substantial." In order for an investment to be considered "substantial" it must meet one of two tests:

  • It must be proportional to the total value of the particular enterprise in question; or,
  • It must be an amount normally considered necessary to establish a viable business enterprise of that type.

In other words, there are many new cases and tests the USCIS utilizes to measure "substantial."

For example, an investment of well under $50,000 to open a service business (automotive design firm that supplied skilled designers to U.S. auto manufacturers on a consultant basis) was recently approved. The E visa is clearly open to investments in businesses requiring very little capital for start up expenses, since the principal investment is the knowledge and skill of the employees.

One of the tests utilized by the USCIS is based on a sliding scale. Under that scale, the larger the total value of the business or the cost to start up the business, the smaller the percentage of the total investment the investor must put up to meet the "substantiality" requirement. For example:

Total Value of Business
(or Cost of Start Up)		 Minimum Percentage
of Investment
Less than U.S. $500,000 75%
U.S.$500,000 to $3,000,000 50%
More than U.S. $3,000,000 30%

Many investors come to the U.S. on a B1 (business start up) visa to set up the business. You cannot be paid by the new U.S. company while you are on the B1 visa. You may be granted extensions of the B1 visa in increments of 6 months at a time.

back to top

L-1 VISA INFORMATION

What is the nature of the L-1 visa? How long is it valid?
The L-1 visa facilitates the transfer of key employees (and their family members) from a foreign corporation to a U.S. branch, parent/subsidiary or affiliated entity. The purpose of the visa, also known as the intra-company transferee visa, is to give U.S. corporations the ability to bring top level managerial or specialized employees into the USA.

The entity in the USA can be a branch office of a foreign company, or it could be a parent/subsidiary. To establish the parent/subsidiary relationship one entity must own more than 50% of the shares of the other, and must also be able to control it. The U.S. and foreign entity can also be siblings (or affiliates), i.e., they are owned by the same owner or same group of owners in similar proportions. The employee being transferred to the U.S. branch office must have worked in an executive, managerial or specialized knowledge capacity for the foreign entity for at least one year in the past three years and must be sponsored to work in the same capacity for the U.S. entity.

The executive or managerial L-1 visas is valid for seven years and it is convertible to permanent residence before this time period expires. The specialized knowledge L-1 visa is valid for only five years, and cannot be converted to permanent residence. However, a person under the specialized knowledge L-1 visa would still be able to obtain permanent residency through other avenues.

For new entities, the L-1 visas is issued for one year and then the petitioning entity must again re-apply for another two years.

What is the minimum investment requirement?
There is no minimum investment requirement. However, there must be enough revenues to pay the salary of the company's officers and to support a lease and other expenses. Essentially, the U.S. entity must be able to support the employee in a managerial/executive or specialized knowledge capacity and provide evidence that the company has enough money to pay the salary.

What kind of company can open a branch of subsidiary in the USA under the L-1 visa?
Any type of corporate organization is recognized, so long as the qualifying relationship is created.

What is the time-frame for establishing a branch or subsidiary and obtain the L-1 visa?
These can be organized in a week. The L-1 visa takes about two months or longer to be approved after it is filed with the USCIS.

What is the nature of the business that is legally permissible under the L-1 visa?
All kinds of businesses are permissible, so long as they are not illegal. The U.S. entity does not even have to be in the same line of business as the foreign entity.

Does the L-1 visa enable the principal applicant to bring his family members into the U.S. under this visa?
The principal applicant's spouse and minor children can accompany the principal on L-2 dependent visas. An individual in L-2 status can study or work in the U.S. as a dependent.

How long does the company/firm have to be in business in the country of origin?
At least one year, to establish that the applicant has worked in the qualifying capacity for one year.

What is the documentation requirement for L-1 applications?
It should be shown that the foreign company is a viable entity. Its memorandum/articles of association or partnership deed, recent balance sheets, tax filings, payroll evidence, brochures, government permits for exports are essential. There is also a need to establish the existence of a qualifying entity in the USA. Therefore a branch, subsidiary or parent should be organized in the USA. The company's representative should have done this, as well as acquired a lease for business premises. It is essential to show imminent business activity. A description of the representative's job duties in the foreign company and prospective duties in the USA is also required.

Do I need to obtain the help of other professionals?
It is imperative for the foreign national to seek the advice of corporate counsel and seek tax advise from a certified public accountant. The U.S. entity should be structured so as to minimize tax liabilities in the U.S. and foreign country. After the corporation is established, it must also file periodic reports with the IRS and file federal, state and local taxes.

back to top

EMPLOYMENT-BASED IMMIGRATION

The employment-based immigration categories are referred to as such because they are based on a foreign worker's particular occupation and skills. The employment-based categories consists of five preference categories, each of which are subject to visa waiting lists similar to those discussed in the context of family immigration. The first preference consists of priority workers, the second preference consists of professionals holding advanced degrees and persons with exceptional ability and the third preference consists of professionals, skilled workers and other workers. The fourth preference consists of special immigrants not discussed here and the fifth preference consists of the immigrant investor category which is discussed in a separate article. Employment-based categories are subject to annual visa limits. This means that there are waiting lists in many of the categories. Available visas are issued to beneficiaries in order of their priority date (the date of filing of the labor certification, if one is necessary, or the date of filing the I-140 petition).

The First Preference (EB-1)
The first preference category requires no labor certification as a condition of visa issuance. In other words, persons falling under the first preference category are not required to establish that there are no qualified U.S. workers available for the proposed position.

The first preference consists of three subgroups, each with different requirements for eligibility:

(a) persons of extraordinary ability;
(b) outstanding professors and researchers; and,
(c) multi-national executives and managers.

The basic requirements of each are as follows:
Persons applying under the first subgroup are not required to have a job offer but must possess extraordinary ability in the sciences, arts, education, business or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation.

Persons applying under the second subgroup must be internationally recognized as outstanding in their specific academic area, have a minimum of three years of experience in teaching or research in the area and be entering the U.S. in a tenure or tenure track teaching or comparable research position at an institution of higher education.

Persons falling under the final subgroup must have been employed as a manager or executive outside the United States for the same U.S. employer, subsidiary or affiliate of the U.S. employer for at least one year within the last three. They must also be entering the United States to work as a manager or executive of the U.S. employer.

The Second Preference (EB-2)

The second preference category includes:

(a) members of the professions holding advanced degrees; and
(b) aliens who, because of their exceptional ability in the sciences, arts or business, will substantially benefit the national economy, cultural, or educational interests or welfare of the United States.

To qualify as a member of the professions the alien must have an advanced degree, which the USCIS takes to mean "any United States academic or professional degree or a foreign equivalent degree above that of baccalaureate.'' This essentially means a United States masters degree or above. The USCIS has indicated that a U.S. or equivalent foreign baccalaureate followed by at least five years of progressive experience in the specialty will be the equivalent to a masters degree. If the profession requires a degree higher than a masters, the alien must have that degree.

The word "exceptional" in the context of this category means that the individual must have a degree expertise significantly above that ordinarily encountered. To qualify as an alien of exceptional ability for the purpose of second preference classification, the individual must have a degree of expertise significantly above the ordinary as shown by evidence satisfying at least three of the following criteria which appear at 8 CFR § 204.5(k)(3)(ii):

  • An official academic record showing that the alien has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability;
  • Evidence in the form of letter(s) from current or former employer(s) showing that the alien has at least ten years of full-time experience in the occupation for which he or she is being sought;
  • A license to practice the profession or certification for a particular profession or occupation;
  • Evidence that the alien has commanded a salary, or other remuneration for services, which demonstrates exceptional ability;
  • Evidence of membership in professional associations; or,
  • Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.

Under 8 CFR § 204.5(k)(3)(iii), if the above standards do not readily apply to the beneficiary's occupation, comparable evidence may be submitted to establish eligibility.

Under this category, the foreign worker must have a job offer and obtain a labor certification for the proposed position. However, it is possible to avoid the requirement of a labor certification or job offer in certain cases. The alien may seek an exemption in two ways. The first exemption from the labor certification requirement (but not the job offer requirement) is sought under the Schedule A, Group II of the Department of Labor regulations (called Schedule A Precertification).

Alternatively, if it can be shown that the alien's admission would be in the national interest, it is possible to obtain a national interest waiver of both the job offer requirement and the labor certification requirement.

The Third Preference (EB-3)
The third preference consists of skilled workers, professionals and "other workers." Skilled workers are those whose positions require a minimum of two years of training or experience. Professionals must possess a bachelor degree in the field and must establish that a bachelor degree is the normal requirement for entry into the profession. The final category of "other workers" means essentially unskilled workers.

Professionals and skilled workers are placed on the same waiting list for available visas. However, "other workers" are placed on a separate waiting list. Given the fact that backlog for "other workers" is effectively twenty years, the filing of such a petition for an unskilled worker is not recommended.

Third preference workers must have a job offer and obtain a labor certification. However, where Schedule A precertification applies, the alien will be exempt from the labor certification requirement.

"Portability" of Labor Certifications and Immigrant Petitions
Until recently, a labor certification and employment based petition was considered specific to the petitioner. If the alien changed jobs or employers, the labor certification and petition were no longer considered valid.

AC21 now provides that an immigrant petition for an individual shall remain valid with respect to a new job if the individual changes jobs or employers. However, the alien's application for adjustment of status must have been filed and remained unadjudicated for 180 days or more. The new job must also be in the same or a similar occupational classification as the job for which the petition was initially filed. This "portability provision" does not apply to beneficiaries of EB-1 extraordinary ability petitions, most likely because Congress assumed that such petitions already are portable.

back to top

CALL TODAY TO SEE IF YOU QUALIFY FOR THESE BENEFITS! (619) 235-8811