Immigration Law

Non Immigrant Visa

NIV Visas Overview/Introduction

Non-immigrant visas are for a specific purpose and a specific time. They allow the foreign national to present himself to US Customs and Border Protection (CBP) at the Port of Entry (POE) so that the CBP officer can allow them to enter for a specific time as per the visa stamped in foreign national’s passport.

Non-Immigrant Intent

One requirement of all non-immigrant visas is that the petitioner have and demonstrate non-immigrant intent. Non-immigrant intent is the intent of the foreign national to return to their home country following the expiration of the period of stay for which the foreign national was admitted. This is unless the foreign national obtains permission to stay in the United States permanently and adjust status to that of a Lawful Permanent Resident (LPR) through marriage or employment or “other reliefs.”

Temporary Visas

B-1- NIV Visa: Temporary Business Visitor

The period of stay is 1 to 6 months; Six months is the maximum. An extension is possible: Up to 6 months; The maximum total amount of time permitted in B-1 status on any one trip is generally 1 year.

Productive work is disallowed. This includes activities by a B1 visa holder that would be performed by a US worker and would result on gain for a US employer. Allowed activities include:

Consulting with business associates
Traveling for a scientific, educational, professional or business convention, or a conference on specific dates
Settling an estate
Negotiating a contract
Participating in short-term training
Looking at investment opportunities – later we will cover E-2 or EB-5 so remember this category

B-1 vs. Visa Waiver Program Advantage

The B1 has a longer stay period than the Visa Waiver program. Furthermore, a B1 visa holder can change status to another NIV category while a member of the Visa Waiver program cannot do the same.

B-1 in Lieu of H-1B

A U.S. employer can bring a foreign employee/affiliate to the U.S. for a short-term commitment. This will directly benefit from the overseas employer.

Requirements for B1 in Lieu of H1B:

The visa holder should be an employee of a foreign subsidiary;
The Employee should have the US equivalent of a bachelor’s degree;
The kind of work involved should fall under the ‘specialty’ occupation, meaning that it requires theoretical and practical application of a body of highly specialized knowledge;
The work should be performed within a short duration;
The employee should maintain permanent employment with the foreign employer.

B2- Tourism or Family Visit Visa

B-2 visa status is granted to aliens traveling to the US as tourists or to visit family or friends. The period of stay is 1 to 6 months; six months is the maximum. An extension of up to 6 months is possible. The maximum total amount of time permitted in B-1 status on any one trip is generally 1 year.

The following activities are allowed:

Medical Reasons: Aliens coming to the US to receive medical treatment are eligible for B-2 visa status.
Participation in Social Events: Aliens may travel to the United States under B-2 visa status to participate in conventions, conferences, or convocations of fraternal, social, or service organizations.
Armed Forces Dependents: B-2 visa status can be granted to dependents of an alien member of any branch of the US Armed Forces temporarily assigned for duty in the United States.
Dependents of Crewmen: B-2 visa status can be granted to alien dependents of D visa crewmen who are coming to the US for the sole purpose of accompanying the principal D visa holder.
Aliens Attending a Short Course of Study: Aliens coming to the US primarily for tourism are also allowed to partake in a short course of study.
Amateur Entertainers and Athletes: An amateur is by definition not a professional in their activity. Therefore, an amateur is someone who normally performs the activity without payment. An amateur (or group of amateurs), who will not be paid for any performances they make, may perform in the US for social/charitable reasons or as a competitor in a talent show, contest, or athletic event under B-2 visa status.

Study Visas

Study Visas: F1 & M1- Academic and Vocational School

The F1 and M1 provide student and vocational school visas, respectively. They require:

Admission to an educational institution before you can submit a visa application (this school must be on the list of schools provided by the Student Exchange Visitor Program (SEVP), which also manages the Student Exchange Visitor Information System (SEVIS), which is a database used to track student information, such as enrollment, graduation, changes to programs, and maintenance of required course load).
Proof of relevant educational qualifications
A course load of a minimum of 12 credit hours
Proof of sufficient funds for the stay (tuition, room and board)
Participants must possess nonimmigrant intent (i.e. the intention to depart the US at the conclusion of their course of study).
Form 1-20 Certificate of Eligibility of Nonimmigrant Student Status, obtained from their chosen school
Consular processing of Form DS-160 Online Nonimmigrant Visa Application
Proof of payment of visa application fee

Employment

Unlike the visitor visa classification, which strictly forbids employment, some students are able to work. There are several types of employment:

On-campus: this allows for 20 hours weekly, except during periods without study, in which case 40 hours are allowed. No special permit is required.

Off-campus: Available only after the first year is completed and is based on demonstration of severe economic necessity. This requires application for and Employment Authorization Document (EAD- I-765). This work does not count against the Optional Practical Training Period.

Post Completion Optional Practical Training (OPT): Available after graduate with approval of both Congress and Executive branch. This is viewed as a key feature of the educational process.

Curricular Practical Training (CPT): Training closely associated with one’s chosen course of study. Consists of industry internship. An EAD is not necessary. All one has to do is get a suitable job and have the Designate School Official (DSO) annotate the Form I-20, Certificate of Eligibility for Nonimmigrant Student status. If one exceeds 364 days of CPT employment, s/he cannot also receive Optional Practical Training.

Spouses and Dependents

Spouses and children can get F-2 and M-2 visas by applying, using a SEVIS Form I-20, Certificate of Eligibility for Nonimmigrant Student Status, listing her or him as a dependent. The dependent must establish that the principal foreign national is in valid student status, using a current copy of the Form I-20, along with proof of the familial relationship. They may not work. They can undertake a less than full-time course of study, or full time (if they are minor children). If the spouse (or a minor child) wants to engage in a full-time course of study, they must apply for their own F-1 visa.

Work Visas (E-2 and Intracompany)

Work Visas

E-2 Non-Immigrant Investor

E-2 8 INA 101(a)(15)(E); 8 C.F.R. §214.2(e)

The E-2 nonimmigrant classification allows a foreign national of a treaty country (a country with which the United States maintains a treaty of commerce and navigation) to be admitted to the United States when investing a substantial amount of capital in a U.S. business.

https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/fees/treaty.html

This visa allows non-immigrant investors to live and work in the U.S. based on a qualifying Investment. It requires an E-2 treaty between U.S. and the home country, allowing investors or their managers or essential employees to work in the U.S.

The investor or employee must be a citizen of a country with an E-2 Treaty.
U.S. company must be at least 50% owned by foreign nationals or company with nationality from the treaty country. Co-owners who are LPR’s, or US citizens with dual nationality don’t count towards the 50%.
The investment must be substantial — $150K minimum but varies based on the needs of the company.
The U.S. business must be up and running or close to opening its doors.
The U.S. business must show a business plan to hire U.S. workers over time. No quota on the number of U.S. workers is required.
A visa from the U.S. Consulate is usually for 3 to 5 years, based on reciprocity agreement.
US Custom Border Protection (CBP) gives an I-94 at port of entry for 2 years at a time. There are no quotas and no limit on renewals.
An E-2 visa spouse can apply for an Employee Authorization Document (EAD).

You can morph an E-2 into an EB-5 if, over time, you have a cumulative investment of $1M and 10 new full-time jobs. Or you can do it with $500K/10 new full-time jobs, if the job creating enterprise is in a Targeted Employment Area.

L-1 Intra-Company Transferee (L-1A Intracompany Transferee Executive or Manager) L-1B: Intracompany Transferee Specialized Knowledge)

An L-1 visa is used to transfer a key employee from the overseas company to a U.S. parent, subsidiary, or affiliate.

An L-1A visa is for an executive or high-level manager – 7 years maximum for L-1A. An L-1B visa is for a specialized knowledge worker whose skills and knowledge about company operations cannot be easily found in the U.S. – 5 years maximum for an L-1B.
For both the L-1A and L-1B visas, the foreign national must have worked for overseas affiliate for at least 1 year during the last 3 years
The foreign national must show that the foreign company owns at least 51% of the U.S. company or vice versa or that a common owner controls both. Control is key.
An L-2 spouse can apply for an EAD.
A foreign national with an L-1A visa can apply for I-140 EB-1 multinational manager after one year, if strong merits present. Then they can file for an Adjustment of Status. Concurrent filing is not recommended.

Business Relationship

For purposes of L classification, ownership and control are the factors for establishing a qualifying relationship between business entities. The United States and foreign businesses must be legal entities.

In the United States, a business is usually in the form of a corporation, partnership, or a proprietorship.

Ownership. Ownership means the legal right of possession with full power and authority to control.
Control. Control means the right and authority to direct the management and operations of the business entity.

Qualifying Organizations For an L-1 Visa

The petitioner is required to identify each of the qualifying organizations as one of the following business entities:

(A) Parent. Any business entity which has subsidiaries is a parent. However, a subsidiary may own other subsidiaries and also be a parent, even though it has an ultimate parent.

(B) Branch. An office or operating division of the same employer which is merely housed in a different location and is not established as a separate business entity is considered a branch.

(C) Subsidiaries. The Service recognizes only three situations to constitute a subsidiary relationship:

(1) Where a parent directly or indirectly owns more than half of the entity and has control;

(2) Where a parent directly or indirectly owns 50% of a 50-50 joint venture and has equal control and veto power. The 50-50 joint venture can be owned and controlled by only two legal entities. All other combinations of a joint venture are not qualifying as a subsidiary;

(3) Where a parent directly or indirectly owns less than half of the entity, but has control because the other stock is widely dispersed among minor shareholders. This can happen, for example, when an individual or company acquires sufficient shares of a publicly-held company to be able to nominate and elect the board of directors.

(D) Affiliate. Subsidiaries are affiliates of each other. The affiliate relationship is due to the ownership and control of both subsidiaries by the same legal entity. Affiliation also exists between legal entities where an identical group of individuals own and control both businesses in basically the same proportions or percentages. Associations between companies based on factors such as ownership of a small amount of stock in another company, exchange of products or services, licensing or franchising agreements, membership on boards of directors, or the formation of consortiums or cartels do not create affiliate relationships between the entities for L purposes.

L-1 Intra-Company Transferee (L-1A Intracompany Transferee Executive or Manager)

General Qualifications of the Employer and Employee

To qualify for L-1 classification in this category, the employer must:

Have a qualifying relationship with a foreign company (parent company, branch, subsidiary, or affiliate, collectively referred to as qualifying organizations); and
Currently be, or will be, doing business as an employer in the United States and in at least one other country directly or through a qualifying organization for the duration of the beneficiary’s stay in the United States as an L-1. While the business must be viable, there is no requirement that it be engaged in international trade.
Doing business means the regular, systematic, and continuous provision of goods and/or services by a qualifying organization and does not include the mere presence of an agent or office of the qualifying organization in the United States and abroad.

To qualify for an L-1 the named employee must also:

have been working for a qualifying organization abroad for one continuous year within the three years immediately preceding his or her admission to the United States; and
be seeking to enter the United States to provide service in an executive or managerial capacity for a branch of the same employer or one of its qualifying organizations.

Executive capacity generally refers to the employee’s ability to make decisions of wide latitude without much oversight.

Managerial capacity generally refers to the ability of the employee to supervise and control the work of professional employees and to manage the organization, or a department, subdivision, function, or component of the organization. It may also refer to the employee’s ability to manage an essential function of the organization at a high level, without direct supervision of others. See section 101(a)(44) of the Immigration and Nationality Act, as amended, and 8 CFR 214.2(l)(1)(ii) for complete definitions.

– https://www.uscis.gov/working-united-states/temporary-workers/l-1a-intracompany-transferee-executive-or-manager

Period of Stay for an L-1A Classification

Qualified employees entering the United States to establish a new office will be allowed a maximum initial stay of one year.
All other qualified employees will be allowed a maximum initial stay of three years.
For all L-1A employees, requests for extension of stay may be granted in increments of up to an additional two years, until the employee has reached the maximum limit of seven years

L-1B: Intracompany Transferee–Specialized Knowledge

The L-1B classification is for specialized knowledge worker whose skills and knowledge about company operations cannot be easily found in the U.S. It has a maximum of 5 years.

Specialized knowledge refers either to special knowledge possessed by an individual of the petitioning organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization’s processes and procedures (See 8 CFR 214.2(l)(1)(ii)(D)).

L-1B

Blanket Petitions

Certain organizations may establish the required intracompany relationship in advance of filing individual L-1 petitions by filing a blanket petition. Eligibility for blanket L certification may be established if:

The petitioner and each of the qualifying organizations are engaged in commercial trade or services;
The petitioner has an office in the United States which has been doing business for one year or more;
The petitioner has three or more domestic and foreign branches, subsidiaries, and affiliates; and
The petitioner along with the other qualifying organizations, collectively, must meet one of the following criteria:

o Have obtained at least 10 L-1 approvals during the previous 12-month period;

o Have U.S. subsidiaries or affiliates with combined annual sales of at least $25 million; or

o Have a U.S. work force of at least 1,000 employees.

In order to qualify under the blanket petitioning process, the employee having specialized knowledge must also be a professional. See 8 CFR 214.2(l)(1)(ii)(E).

Period of Stay L-1B

Qualified employees entering the United States to establish a new office will be allowed a maximum initial stay of one year. All other qualified employees will be allowed a maximum initial stay of three years. For all L-1B employees, requests for extension of stay may be granted in increments of up to an additional two years, until the employee has reached the maximum limit of five years.

Family of L-1 Workers

The transferring employee may be accompanied or followed by his or her spouse and unmarried children who are under 21 years of age. Such family members may seek admission in L-2 nonimmigrant classification and, if approved, generally will be granted the same period of stay as the employee.

If these family members are already in the United States and seeking change of status to or extension of stay in L-2 classification, they may apply collectively, with fee, using Form I-539, Application to Extend/Change Status.

Spouses of L-1 workers may apply for work authorization by filing a Form I-765, Application for Employment Authorization with a fee. If approved, there is no specific restriction as to where the L-2 spouse may work.

Non-Immigrant Visas (NIV Visas)

WhendoinganNIVanalysis,beveryintunewiththeindividual’snationality.Somevisas are specifically tied to that: i.e. TN (Canada/Mexico), H-1B1 (Singapore/Chile), E-3 (Australia), E-2 (select countries), WT/WB (visa waiver),etc.

H-1B

This is a work authorization for certain college-degreed professionals, who must have college degree in a field related to the job offer. The position must include practical application of theoretical knowledge, also known as a “specialty occupation.” Common H-1B occupations include software developers, engineers, scientists, and financial analysts.

The employer:

Must comply with Department of Labor (DOL) prevailing wage and pay same wages as U.S. workers receive or prevailing wage, whichever is higher. The “required wage” is the higher of the DOL prevailing wage or the actual wage paid to other U.S. workers doing the same job at the company.
Mustplacepostingnoticeintwoplacesintheworkplaceforatleast10business days and file a Labor Condition Application (LCA) with DOL.
Must maintain a public access file with the signed LCA and employer attestations of H-1B employer obligations in a file cabinet for the entire H-1B period and then for 1 additional year. The foreign national can only work for sponsoring employer, but can transfer employment with new H-1B visa petition.

The visa is good for 3 years and renewable for 3 additional years, for 6 years maximum.

The visa can extend beyond Year 6 if PERM labor cert pending more than 1 year (by the end of the 6-year H-1B clock) or has an approvedI-140.

AC-21 7-year extension – allows 1-year increments with PERM pending

AC-21 3-year extensions – if have approved PERM and approvedI-140

H-1B visa filings are subject to an annual quota of 85,000 visas, and the quota is quickly used up each year. U.S. Masters has slightly higher chance of getting into quota since 20,000 visas set aside for them and then will also be considered for regular H-1B quota of 65,000 as well.

Exemptions from quota include extensions with same company, the transfer to another company, and petitions filed by universities, nonprofit organizations affiliated with a university and non-profit research organizations.

For the first H-1B petition, file on April 1 for a start date of October1.

A company can sponsor one of its major shareholders for anH-1B if the company has a Board of Directors with authority to terminate the shareholder’s employment. They need to show bona fide employer – employee relationship.

H-1B Portability: For someone already in H-1B status, new employer can file petition and foreign national can start once an I-797 receipt notice has been received

If employer will move employee to another location outside the Metropolitan Statistical Area (MSA), must file a new LCA and an amended petition.

H-4spouse cannot apply for an EAD if PA has approved an I-140 or if the PERM is pending more than a year.

If employer terminates the H-1B employment early, must offer return airfare back to their home country.

Layoff: H-1B has no official grace period once laid off, but USCIS uses 30-day unofficial grace period in granting Extension of Status (EOS)or else it will require consular processing.

H-1B1: H-1B1Singapore/Chile Free Trade Agreements

Singapore and Chile citizens can obtain work authorization with a U.S. company. The criteria are the same as for H-1B specialty occupation, college degree, etc. Admission is for 1 year at a time. There is no limit on renewals. The annual quota is never reached. Be careful to track LCA expiration, I-94 expiration, and visa expiration. Must have valid LCA to work. The H-1B1 spouse not eligible for a work permit.

E-3 Australians

This visa allows Australian citizens to obtain work authorization with a U.S. company. The criteria is the same as for H-1B specialty occupations, college degree, etc. Applicants apply at AMCON in Australia. Don’t file with USCIS as it has no Premium Processing and the 240-dayautomaticextensionofworkauthorizationdoesn’tapply. The visa is valid for 2 years. There is no limit on renewals. Be careful to track the Labor Condition Application (LCA) expiration, I-94 expiration, and visa expiration. Must have valid LCA to work. Spouse can obtain an EAD.

TN Visa: NAFTA Agreement with Canada and Mexico

The foreign national must have Canadian or Mexican passport. This is based on North American Free Trade Agreement (NAFTA) between U.S., Canada and Mexico. The occupation must be on the NAFTA list. Common TN occupations include computer systems analysts, engineers and management consultants.

Canadians apply at U.S. border or can apply with USCIS and then show I-797 to CBP and receive I-94. Canadians receive three yearI-94.

Mexican citizens apply at AMCON in Mexico and receive 1 year visa. But CBP can issue 3-yearI-94. There is no limit on extensions. The TN spouse (TD) cannot work.

USICS I-9 Issues/Audit

Form I-9 was created as part of IRCA in1986. You can only give to an employee after they accept a job offer (otherwise potential discrimination issue). The employee must fill out and sign Section 1 on or before first day of hire. The employee must show the employer original work authorization documents. Employee gets to select work authorization documents – one from List A, or one from List B and List C.

The work authorization documents must be valid at the time of hire.

The employer fills out Section 2 and signs by Day 4 (best if Day 1). It must be same person who viewed original work authorization documents.

It is recommended that the employer photocopy work authorization documents and attach them to I- 9, but not required.

For USC’s and LPR’s, if documents subsequently expire, don’t need to re-verify as long as valid at time of hire.

For foreign nationals working with EAD or work visa, must re-verify on or before expiration date. Re-verify in Section 3.

Employer self-audit: Only the employee can amend Section 1. Only the employer can amend Section 2 or 3.

Technical errors – In audit, ICE will give employer opportunity to fix.

Substantive errors- typically $1,000 fine per I-9.

Statute of Limitations: employer liable for substantive errors for 5 years after correction.

Retention Period: Keep I-9’s throughout employment and for 3 years after termination.

Social Security mis-match letter from any government agency: Puts employer on constructive notice that employee may not be work-authorized. Employer should investigate and absent typo, send employee to SSA to get SSN verification letter.

InCalifornia,ifemployeewasworkingwithfalsedocumentsandhassincelegalized with EAD or LPR status, then employer cannot terminate for the prior mis-representation of name, SSN, and documents.

E-Verify

E-Verify: optional unless employer is a federal contractor or a State mandates it for employers within that State.

E-Verify is only for new hires, unless the employer is a federal contactor, then can useonexistingemployeesworkingonthecontract,orallexistingemployees.

Change of Status Vs. Consular Processing

Pros of Consular Processing

Free to travel.
Travel stamp in passport.
Appear for the interview.
Can speak with the adjudicating officer directly.

Cons

No appeals process if denied.
Some applicants/clients are intimated by interviews.
If denied can only re-apply.
Discretion- consular discretion is a huge factor. If they like the applicant, well and good- no appeal process for lack of favorable discretion.

Change of Status: Consider the Following Factors

New 90-Days Rule:

In September 2017, the U.S. Department of State (DOS) made a significant change to its Foreign Affairs Manual (FAM).

The purpose of the 90-day rule is to trigger, under specified circumstances, the presumption that an alien is inadmissible under section 212(a)(6)(C)(i) because of the alien’s “misrepresentation of a material fact” to obtain a benefit or visa under the INA.

The DOS states that the issue arises most often in cases where the nonimmigrant:

i. Applies for adjustment of status; or
ii. Fails to maintain nonimmigrant status (e.g., by engaging in unauthorized study or employment).

The new 90-day rule are binding on the USCIS. However, the USCIS takes the rule under advisement, and it has been referred to in a multitude of unpublished decisions of the Administrative Appeals Office (AAO).

A dual intent visa allows a foreigner to enter the United States as a nonimmigrant but retain the option to adjust status to a permanent resident at some point in the future. For example, a foreign national can who is fiancé to a USC uses a K-1 fiancé visa to enter the U.S. and marry a U.S. citizen. Likewise, employers will routinely sponsor a foreigner worker for an H-1B visa and later sponsor the nonimmigrant for a green card. The most common dual intent visas are:

– E-, H-, K-, L-, O-, and P-type visas are dual intent visas.

Visas for Artist, Athletes and Those at the Top of Their Field (O, P)

Visas for Artists, Athletes and Those Top of their Field

O-1A

This work authorization is for an individual who has demonstrated extraordinary ability in his/her field. They must be at the top of their field. It is valid for 3 years and renewable without limits. O-1 status doesn’t mean automatic eligibility for EB-1 extraordinary ability. EB-1 has a higher bar. This visa has a high bar. The foreign national must have national or international acclaim and provide evidence of awards and publicity. This visa is frequently used by top actors, musicians, and scientists.

P-1 Visa for Entertainment and Athletic Groups: P-1, P-2 and P-3

For both P-1A and P-1B, the foreign national can bring essential support personnel as well (P-1S).

The Process

Your U.S. employer must submit a Form I-129, Petition for a Non-Immigrant Worker accompanied by the appropriate fee and supporting documentation.

Supporting Documents

Form I-129 must include the following documents:

Written consultation from an appropriate labor organization regarding the nature of the work to be done or a statement proving that the group has been established and performing regularly for a period of at least one year. (If no appropriate labor organization exists, this requirement is excused.)
Itinerary with the dates and locations of the performances
A copy of the contract between the petitioner and the beneficiary or summary of terms of the oral agreement under which the beneficiary will be employed
Evidence that your group has been established and performing regularly for at least one year
Statement from the petitioner listing each member of the group and the exact dates for which each member has been employed on a regular basis by the group
Evidence that your group is internationally recognized as outstanding in the discipline for a sustained and substantial period of time as demonstrated by evidence of your group’s receipt of, or nomination for, significant international awards or prizes for outstanding achievement in the field, or evidence of at least three of the following:

o Your group has performed and will perform as a starring or leading entertainment group in production or events which have a distinguished reputation as evidenced by critical reviews, advertisements, publicity releases, publications, contracts, or endorsements;

o Your group has achieved international recognition and acclaim for outstanding achievement in its field as evidenced by reviews in major newspapers, trade journals, magazines or other published material;

o Your group has performed and will perform services as a leading or starring group for organizations and establishments that have a distinguished reputation as evidenced by articles in newspapers, trade journals, publications, or testimonials;

o Your group has a record of major commercial or critically acclaimed successes, as evidenced by indicators such as ratings, box office receipts, record, cassette or video sales, and other achievements as reported in trade journals, major newspapers or other publications;

o Your group has received significant recognition for achievements from critics, organizations, government agencies or other recognized experts in the field;

o Your group has commanded and will command a high salary or other substantial remuneration for services comparable to others similarly situated in the field, as evidenced by contracts or other reliable evidence.

Period of Stay/Extension of Stay

Initial Period of Stay	Extension of Stay
Time needed to complete the event, competition or performance, not to exceed 1 year	Increments of up to 1 year in order to continue or complete the event, competition or performance.

Temporary Nonimmigrant Religious Workers: R-1

An R-1 is a foreign national who is coming to the United States temporarily to be employed as a minister or in another religious vocation or occupation at least part time (average of at least 20 hours per week) by:

A non-profit religious organization in the United States;
A religious organization that is authorized by a group tax exemption holder to use its group tax exemption; or
A non-profit religious organization which is affiliated with a religious denomination in the United States.

This visa program is intended for religious workers whose lives are dedicated to religious practices and functions, as distinguished from secular members of the religion.

To qualify, the foreign national must have been a member of a religious denomination having a bona fide non-profit religious organization in the United States for at least two years immediately before the filing of the petition.

Religious occupations are defined as occupations whose duties must:

Primarily relate to a traditional religious function;
Be recognized as a religious occupation within the denomination; and
Be primarily related to, and clearly involve, inculcating or carrying out the religious creed and beliefs of the denomination.

Process:

1. A prospective or existing U.S. employer must file Form I-129, Petition for Nonimmigrant Worker, on behalf of foreign nationals seeking to enter the United States as a nonimmigrant minister, or a religious worker in a religious vocation or occupation.

An R-1 visa cannot be issued at a U.S. Embassy or Consulate abroad without prior USCIS approval of Form I-129. This process allows USCIS to review the petition to determine whether the petitioning organization and the beneficiary have met their respective eligibility requirements for this nonimmigrant classification.

2. Upon approval of the petition, the consular post then determines whether the foreign national is eligible to receive the R-1 nonimmigrant visa. As with all individuals who appear at ports of entry, U.S. Customs and Border Protection (CBP) determines whether the beneficiary may be admitted to the United States.

3. Visa exempt workers must present the original Form I-797, Notice of Action, at a port of entry as evidence of an approved Form I-129 R petition.

4. Along with Form I-129, the petitioner must include evidence of eligibility for the classification sought. Both the petitioning organization and the religious worker must satisfy certain requirements, which are discussed below.

Petitioner Requirements- these pieces of evidence that must be submitted to establish eligibility to file Form I-129 for an R-1 nonimmigrant.

A bona fide non-profit religious organization and has its own individual Internal Revenue Service (IRS) 501(c)(3) letter
Proof of salaried or non-salaried compensation: Religious workers generally must be compensated. Compensation may include either salaried or non-salaried compensation.

Beneficiary to be eligible as an R-1 nonimmigrant.

Proof of membership (for all cases): Provide evidence that the religious worker is a member of a religious denomination having a bona fide non-profit religious organization in the United States for at least two years immediately before the filing of Form I-129.

On-Site Visits by USCIS

Under the regulations at 8 CFR 214.2(r)(16), USCIS may conduct a pre-approval inspection in any case. If USCIS decides to conduct a pre-approval inspection, satisfactory completion of the inspection will be a condition for approval of any petition.

A physical address where constituents generally congregate to worship must be provided in order for USCIS to conduct a pre-approval site inspection, even if that address is not the same as the mailing address. During a site inspection, USCIS must verify that the place of worship/congregation actually exists.

In addition, a post-adjudication inspection may be completed on the beneficiary’s work location to verify the beneficiary’s work hours, compensation and duties.

A post-adjudication inspection may also be conducted in cases of suspected fraud or where the petitioning entity has undergone substantial changes since its last filing. USCIS closely monitors the site visit program to ensure that it does not cause substantial delays in the adjudication process.

Period of stay

USCIS may grant R-1 status for an initial period of admission for up to 30 months. Subsequent extensions may be granted for up to an additional 30 months. The religious worker’s total period of stay in the United States in R-1 classification cannot exceed five years (60 months).

Family

An R-1 religious worker’s spouse and unmarried children under the age of 21 may be eligible for R-2 classification. An R-2 dependent is not authorized to accept employment based on this visa classification.

Changes in location of employment may constitute material changes to the terms and conditions of employment as specified in the original approved R-1 petition. If there is a material change in the terms or conditions of employment (or the beneficiary’s eligibility), the petitioner may be required to file an amended petition and receive an approval prior to the beneficiary’s move to a location of employment other than that listed on the original approved R-1 petition.

Road to Green Card

R-1 visa holders who are currently working in the U.S. as ministers or in a religious vocation or occupation have a fairly simple route to obtaining a green card to become U.S. lawful permanent residents.

– We will discuss this in employment-based petitions

The H-2A program allows U.S. employers or U.S. agents who meet specific regulatory requirements to bring foreign nationals to the United States to fill temporary agricultural jobs

– Employer files I-129 form w/ USCIS

To qualify for H-2A nonimmigrant classification, the petitioner must:

Offer a job that is of a temporary or seasonal nature.
Demonstrate that there are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work.
Show that employing H-2A workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.
Generally, submit a single valid temporary labor certification from the U.S. Department of Labor with the H-2A petition. (A limited exception to this requirement exists in certain “emergent circumstances.” See e.g., 8 CFR 214.2(h)(5)(x) for specific details.)

Process

Step 1: Petitioner submits temporary labor certification application to the U.S. Department of Labor (DOL). Before requesting H-2A classification from USCIS, the petitioner must apply for and receive a temporary labor certification for H-2A workers from DOL

see the Foreign Labor Certification, Department of Labor Web page.

Step 2: Petitioner submits Form I-129 to USCIS. After receiving a temporary labor certification for H-2A employment from DOL, the petitioner must file Form I-129 with USCIS.

Step 3: Prospective workers outside the United States apply for visa and/or admission. After USCIS approves Form I-129, prospective H-2A workers who are outside the United States must:

Apply for an H-2A visa with the U.S. Department of State (DOS) at a U.S. Embassy or Consulate abroad and then seek admission to the United States with U.S. Customs and Border Protection (CBP) at a U.S. port of entry; or
Directly seek admission to the United States in H-2A classification with CBP at a U.S. port of entry, if a worker does not require a visa in cases where an H-2A visa is not required.

Waivers

Non-Immigrant Visa Waiver

The waiver allows an NIV applicant to overcome the grounds of inadmissibility and be granted a NIV visa. It is adjudicated at the Consulate abroad. If the consular officer recommends the Waiver for approval- the case is sent to Admissibility Review Office in Washington D.C. for a final decision.

The Hranka Waiver (see also Inadmissibility, Deportation and Waivers)

The Hranka Waiver INA §212(d)(3) is an immigration court case- Matter of Hranka. It dictates the sets of 3 factors that immigration authorities must consider when deciding whether to grant the waiver:

1. the risk of harm to society if a waiver applicant is admitted to the U.S

2. the seriousness of an applicant’s prior criminal or immigration violations, if any, and

3. the nature of the applicant’s reason for wishing to enter the U.S.

Immigrant Visa

• Family-Based Immigration
• Employment-Based Immigration

Family Based Immigration

Introduction/Overview

Quotas
Each fiscal year 226,000 annual visas are available for family-based sponsorships by United States Citizens (USCs) and Lawful Permanent Residents (LPRs). Each country receives 7% of the total annual family-sponsored and employment-based immigrant visas to be allocated. This gives rise to the preference categories- see:
https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin.html

Chargeability and Cross-Chargeability

Country of Chargeability

For the purposes of the allocated visas, the country of chargeability is used. The country of chargeability is the country of birth, not of nationality/citizenship. For example, if you are born in the Phillipines, your country of chargeability is the Phillipines and your visa comes from those allocated to that country. Children may be charged to their parents’ country if accompanying or following to join (FTJ), INA §§203(d), 216(g), 22 CFR §42.12(b); 9 FAM 42.12 N3. The spouse may be charged to the spouse’s country, if accompanying or FTJ, INA §§203(d), 216(g), 22 CFR §42.12(c).

Cross-Chargeability

Cross-chargeability is when you use the nationality of the dependent spouse/child to get a benefit in the country quota allocation system even though the derivative may NOT be the principal beneficiary of the IV application.

Immediate Relatives

Immediate Relatives (IR) – Preferential Treatment

Immediate relatives of US citizens get preferential treatment. They are not subject to INA§203 visa preference categories (such as F1, F2, etc.). Immediate relatives do not have to wait in the Visa wait line like other relatives do.

Immediate relatives are:

1- Spouses of citizens,
2- Children (under 21 years of age and unmarried) of citizens, and
3- Parents of citizens (21 years or older USC).

No visa quota numbers apply to Immediate Relatives; therefore, they can do Adjustment of Status in the country (even if out of status as long as they were admitted to the United States in lawful status).

Example: A child can age out of immediate relative status. For example, if you have a child of a USC- over 21 now- unless CSPA protected them- they will now be an F1 (visa preference category) and will not be an immediate relative. Now he/she must wait in the visa wait line and it affects whether a person qualifies at all.

• If this child was also an entry without inspection, then they are an EWI and an F1 (an INA§203 preference category) hence NOT qualified for Adjustment of Status within the country unless grandfathered in by 245 i. (At 18.5 years a child starts accruing unlawful status.)

Whom a USC and Whom an LPR Can Sponsor

United States Citizens (USCs) and Lawful Permanent Residents (LPRs) can sponsor and bring their relatives from abroad to join them in the United States by filing an I-130 (Petition for Alien Relative). This is just the first step of the sponsorship process. In this section we will educate you on the relative categories that can be sponsored and the timelines for their immigration process.

USCs can sponsor:

Parents
Spouses
Fiancés
Children (married and unmarried)
Siblings

LPRs can sponsor:

Spouses
Children (under 21, but if over 21, they must be unmarried)

Children

Children- INA §101(b)

Biological Child:

Unmarried under 21 years of age
The child must either be born in wedlock, or a stepchild- only where the marriage occurred before the child turned 18. If they are from an out of wedlock birth to a USC mother or father, you need to show a birth certificate to establish the biological relationship PLUS show a bona fide parent-child relationship (through financial support, school records).

Adoptive Children

The adoption must have been entered into before the child turned 16. There has to be legal custody and the child has to have resided with adoptive parents for 2 years. Exception: If the child was battered by parent or another member of the household. The adoptive child cannot ever petition for natural parents. Their siblings could be adopted for family unity.

Orphans:

In Non-Hague Convention Countries

You are a U.S. citizen.

If you are married, your spouse must also sign Form I-600, Petition to Classify Orphan as an Immediate Relative and must also adopt the child. If you are not married, you must be at least 25 years old when you file your Form I-600 petition.

You must establish that:

You will provide proper parental care to the child.
The child whom you have adopted or plan to adopt is an “orphan” as defined in U.S. immigration law.
Either: (1) You (and your spouse, if married) have adopted the child abroad, and that at least 1 of you personally saw and observed the child before or during the adoption proceedings OR (2) You will adopt the child in the United States after the child arrives in the United States (you must have permission to bring the child out of his or her own country and to the United States for adoption).

Hague Convention Countries Only

This is for home study abroad. You choose a Hague Accredited Adoption Service Provider (ASP) (and perhaps also an immigration attorney). You must:

Obtain a home study from someone authorized to complete a Hague adoption home study.
Apply to USCIS before adopting a child or accepting a placement for a determination that one is suitable for intercountry adoption.
Once USCIS approves the application, work with the adoption service provider to obtain a proposed adoption placement.
File a “petition” with USCIS, before adopting the child, to have the child to be found eligible to immigrate to the United States based on the proposed adoption.
Adopt the child, or obtain custody of the child in order to adopt the child in the United States.
Obtain an immigrant visa for the child.
Bring the child to the United States for admission with the visa.

Child of an LPR

If the child of an LPR is over 21, they are F2b; However, if they get married, then there is no more IV for them, no category at all. You can’t recapture the time they were waiting- must be qualified at the time of receiving their green card.

If a child of a USC- who is in category F1 – then they get married, now they are F3 (with Adjustment of Status or 245i).

Children of those under INA § 203 category (preference categories) have derivative relatives.

Immediate relatives have NO derivatives so an individual petition is needed for each person, e.g. LPR naturalizes- their child upgrade category- can OPT out of automatic upgrade.

Letter to resist moving from F2B to F1 (204K) and if they want to switch the category back they need to write another letter.

Child Status Protection Act (CSPA), PL 107-208, 116 Stat. 927 (Aug. 6, 2002): INA§§ 201(t) and 203(h)

This act applies to children who turned 21 after August 6, 2002. It only applies to these children and is NOT retroactive! It also only applies to IV petitions, petitions filed or approved on or after August 6, 2002.

ADJUSTMENT OF STATUS/visa application pending on or after August 6, 2002

For a visa petition approved before August 6, 2002 but no final decision on ADJUSTMENT OF STATUS/visa application before then- “final decision” includes court litigation/appeals, Memo, Williams, Ex. Assoc. Comm. Office of Field Operations, INS, HQADN 70/6.1.1 (Feb. 14, 2003).

Aged-out children will have petitions automatically converted to another preference category, and retain the priority date, INA§203(h)(3); this applies to derivative beneficiaries in the F2 category.

Must Do Adjustment of Status or Consular Processing Within ONE Year of Visa Availability

“Available” means the first day of the applicable visa bulletin month- per United States Citizenship and Immigration Services (USCIS) and Department of State (DOS).

There is an opt-out provision for conversion upon naturalization of a petitioning parent, §204(k)(2);

The conversion from F2b toF1 is problem for some countries because of the backlog.

CSPA Formula

To apply the statute INA §203 (h), subtract the current age at the time the visa is current – minus the number of days that visa is pending -age at the time of I-130 approval, then that age is protected (MUST have sought to acquire the visa within ONE year of the visa becoming current). If after formula the child is still over 21 then INA§203 h3 applies.

Statute INA §203 h (3) only applies to F2As that go to F2Bs!narrowly applied e.g. child of LPR- 21 retains priority date as long as he or she does not get married.

Form I-130, Petition for Alien Relative

This form is used to petition for a relative who is either an immediate relative (child, spouse, parent), or has a certain preference category (brother or sister, for example). While US citizens can petition for siblings as well as children over 21, married or single, an LPR can only petition for a spouse and unmarried children of any age. While blood relatives need only provide birth certificates to prove relationship, spouses must provide evidence of the bona fides of the relationship, so as to combat marriage fraud (marriage for the purpose of citizenship).

If the petition (Form I-130, Petition for Alien Relative) was filed by a U.S. citizen parent for his or her child, the beneficiary’s age “freezes” on the date of filing.

If the petition (Form I-130) was filed by a permanent resident parent and the parent naturalizes before the beneficiary turns 21, the beneficiary’s age “freezes” on the date the petitioner naturalized.

CSPA allows the time a visa petition was pending to be subtracted from the beneficiary’s biological age at the time of visa availability, so that the applicant is not penalized for the time in which USCIS did not adjudicate the petition.

Marriage Cases

Both USCs and LPRs can petition for their spouses abroad- the following complications may arise before they live happily ever after in the United States.

Good Faith Marriage (GFM)

This is hard to prove. The process is designed to prevent marriage fraud. This is a big issue. One case in which GFM would need to be proved would be that of an LPR petitioner who obtained LPR status through a prior marriage petition INA§204(a)(2)(A). Also, if you got a green card and then got married to someone else from home country within the past 5 years of dissolution, there is a very high burden of proof on you to prove that this is a GFM.

INA§ 204(c) Prohibition for prior marriage fraud committed by beneficiary: INA§ 204(c)

Polygamous marriages are NOT recognizable in the USA. If a polygamous marriage exists the Petitioner can only bring the first wife to the USA, since this is the only marriage considered legal in the U.S.

Proxy Marriages

This is when one of the contracting parties is not present for the marriage ceremony. A proxy marriage is only recognized for the US Immigration when consummated.

Marriage During Removal Proceedings: Must Demonstrate Bona fide per INA§204(g) and245(e)

While getting married to a USC while in deportation-seeking Adjustment of Status in front of EOIR judge, the Burden of Proof is the clear and convincing standard. That is, the Burden of Proof is clear and convincing evidence that this is a Good Faith Marriage. There is a higher burden of proof to overcome the presumption that this marriage was entered into to avoid/get relief form removal. INA§24(e)- a waiver that requires a person in removal to leave the US for 2 years must be referenced at the time if filing the family-based petition in removal.

Widows/Widowers: INA§ 20 l(b)(2)(A)(I)- Must file within 2 years of death of the USC/LPR sponsoring spouse.

Immigration and Defense of Marriage Act (DOMA)/Same-Sex Marriages:

USCIS and the Department of State have indicated these marriages will be treated the same as a heterosexual marriage, citing SCOTUS U.S. v.Windsor.

Determining Whether Preference Petition Is Current

Country of Chargeability

This is the country of birth, not nationality/citizenship.

Children may be charged to the parents’ country, if accompanying, or following to join – INA §§203(d), 216(g), 22 CFR §42.12(b); 9 FAM 42.12 N3

Spouse may be charged to spouse’s country, if accompanying, or FTJ – INA §§203(d), 216(g), 22 CFR §42.12(c)

Processing and Procedures

Obtaining the Green Card (I-485 or Consular Processing)

Procedures: Obtaining the Green Card

(Adjustment of Status Under §245 a, c, k, i)

To be able to do ADJUSTMENT OF STATUS a person must have been “Inspected and admitted or paroled,” which includes:

Waved through at the border
If fraudulent documents are used at entry, you need a 212i to waive misrepresentation at the border crossing- there has to be affirmative misrepresentation waiver to waive the fraud.

The Adjustment of Status Application

The following forms and exhibits are required:

• Form G-28, Notice of Entry of Appearance of Attorney or Accredited Representative
• Form I-485, Application to Register Permanent Residence or Adjust Status

Form G-325, Biographic Information, which gathers biographical information about the applicant only
Evidence of lawful entry into the US, either through a Form I-94 Arrival/Departure Record or passport stamp
Birth Certificate of applicant, with notarized translation, if applicable
Results of medical examination, on I-693, which is prepared by the civil surgeon and place into a sealed envelope that must remain unopened
Form I-864, Affidavit of Support, with supporting documents
If applicable, certified dispositions of any arrests
Form I-765, Application for Employment Authorization Document, if desired
Form I-131, Application for Travel Document, if needed
Form I-797, Approval Notice for previously approved Form I-130 petition or, if the beneficiary is an immediate relative filing concurrently, the petitioner’s Form I-130 application with all supporting documentation
Immigration Filing Fees (Checks or money order made out to DHS)
Two passport photos

Adjustment of Status Plus I-131

The Adjustment of Status applicant must remain in the US until green card (I-485 Adjustment of Status application) is adjudicated/granted otherwise the Adjustment of Status application is considered abandoned if they leave while it’s pending.

But if they have an urgent need to travel, they must obtain an Application to Travel Document permit (via I-131) so that they can leave temporarily and come back to resume the processing of their Adjustment of Status.

Consular Processing – Through NVC

File Form I-824: Request for Action File this form to start your case with NVC if the priority date is current. Beneficiary can abandon/lose this Visa available if:

No action taken within 1 year of Visa becoming available
Fees aren’t paid in a timely manner
Petitioner withdraws the visa applications
Beneficiary dies – terminates the benefits for the derivative

File form DS 260 and fee

Waiver:

If beneficiary is present in the US unlawfully- 601= waived fraud waiver based on hardship to parent/spouse who is LPR or USC- people who would trigger the 3 or 10- year bar if they leave the US before leaving the US. You must notify NVC about any 601 Waiver. (See Inadmissibility, Deportation and Waivers.)

I-864 Affidavit of Support

Adjustment of Status and Consular Processing- Immigrant Visa Beneficiaries NEED I-864

The “Affidavit of Support” (I-864) is a signed form by a USC that tells USCIS that a USC would take financial responsibility for sponsored beneficiary of an IV who is seeking a green card. The person signing this Affidavit of Support becomes the “financial sponsor.” Therefore, in the future, after getting a green card, if the sponsored alien goes on to receive means-tested befits- the US government reserves the right to sue the financial sponsor to reimburse the government for the benefits that the sponsored alien took from the means tested benefits. The financial sponsor does NOT have to be the same person that sponsored the foreign national. If sponsoring spouse does not have adequate income- then they will need a co-sponsor for I-864 – can be ANYONE age 18 and a USC with sufficient income- see https://www.uscis.gov/i-864p. This obligation does not end until: • The sponsored alien becomes a United States Citizen. • Financial sponsor dies • The sponsored beneficiary dies • The sponsored beneficiary completes 40 qualifying quarters of Social Security benefits in the US (i.e. has worked in the US for 10 years and basis federal taxes)

K-Visa

A K-Visa is for a foreign national who is not yet married but who is engaged, who may not know where they will live after marriage or who may want to marry in the United States. You cannot be sponsored by an I-130 since you are not married. But you can enter the USA on a K-1 visa, along with any unmarried children under 21 (on K-2 visas), as long as sponsored by a USC (not an LPR). The desired form is the Form I-129f, Petition for Alien Fiancée. For the couple to be eligible for this kind of sponsorship they must be able to show that they met within 2 years of filing the form, unless they can show cultural exceptions. They also must also marry within 90 days of entry on the K-Visa.

Conditional Lawful Permanent Resident Status

The Conditional Lawful Permanent Resident (LPR) statute applies to those cases in which the marriage is less than 2 years old at time of adjudication of application or entry into US. An applicant can file removal of conditions (Form I-751) up to 90 days prior to termination of 2-year conditional period. I-751 must be filed jointly by spouses.

Exceptions to Joint Filing for Conditional LPRs
Exception: INA §216(c)(4) – allows applicant to apply for waiver:
• A good faith marriage ended through divorce or annulment,
• Foreign national will experience extreme hardship if not allowed to remain in US, or
• Foreign national was battered/extreme cruelty by USC or LPR spouse

Abandonment of LPR Status

Suppose the LPR left the U.S. for 1 year, did he abandon his LPR? If there is an absence of more than 1 year, the LPR is deemed abandoned. If gone less than one year, she or he still needs to show intent not to abandon. If they leave for more than 6 months, the presumption is that they abandoned status of LPR. The burden of proof is on the LPR to show they did not mean to abandon their status – e.g. maybe they could show dying parents outside the US etc. but show ties to country (continuous intent to not abandon their green card).

Our experienced immigration attorneys are here to assist you in your family-based application.

Employment-Based Immigration

Introduction to Employment-Based Immigration

Employment-Based Immigrant Visas

Employment-based visas are based on employment rather than on family relations.

First Preference EB-1

First Preference EB-1- [INA §203(b), 8 CFR § 204.5]

• PRIORITY WORKERS / NO LABOR CERTIFICATION REQUIRED
1. EXTRAORDINARY ABILITY (8 CFR § 204.5(h))
2. Outstanding professors and researchers
3. Certain Multinational Managers or Executives

First Preference EB-1-A
The EB-1(A) category applies to persons of extraordinary ability in the sciences, arts, education, business, or athletics through sustained national or international acclaim.
Kazarian v. USCIS, 596 F.3d 1115 (9th. Cir. Mar. 4, 2010) increased the level of scrutiny by adding a second prong review. Three out of 10 criteria must be met. An overarching standard applies.

No labor certification or job offer required.

Federal Court decision in Kazarian v. USCIS, 596 F.3d 1115 (9 Cir. 2010).

USCIS now follows Kazarian’s two-step test:
(1) Determine whether the petitioner has submitted evidence that meets the standards
stated above; and
(2) Determine whether the evidence submitted is sufficient to demonstrate that the beneficiary or self-petitioner meets the required high level of expertise for the extraordinary ability preference category during a final merits determination.

Extraordinary Ability (EOA): meet 3 of the 10 criteria* below, or provide evidence of a one-time achievement (i.e., Pulitzer, Oscar, Olympic Medal)
1. Evidence of receipt of lesser nationally or internationally recognized prizes or awards for excellence
2. Evidence of your membership in associations in the field which demand outstanding achievement of their members

3. Evidence of published material about you in professional or major trade publications or other major media
4. Evidence that you have been asked to judge the work of others, either individually or on a panel
5. Evidence of your original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field
6. Evidence of your authorship of scholarly articles in professional or major trade publications or other major media
7. Evidence that your work has been displayed at artistic exhibitions or showcases
8. Evidence of your performance of a leading or critical role in distinguished organizations
9. Evidence that you command a high salary or other significantly high remuneration in relation to others in the field
10. Evidence of your commercial successes in the performing arts

First Preference EB-1 Examples
• Example 1: Highly cited Scientist discovers a natural cure for acne, has results published in prominent journals, wins highest awards in the field and is asked to speak at international conferences.
• Example 2: Recognizable voice actor whose work in TV and film has gained widespread commercial success.
• Example 3: Geology student develops iPhone app that can predict earthquakes within one hour of occurrence and wins Nobel Prize.

EB-1(B): Outstanding Researcher/ Professor (8 CFR § 204.5(i))
• The EB-1(B) category covers researchers and professors with international recognition for their outstanding achievements.
• Requires full-time job offer from U.S. petitioner.

• Candidates must have at least 3 years of research or teaching experience in the field.
• Must be offered tenure track or permanent position. Private companies require division or group with at least 3 full-time researchers and documented
accomplishments in the field to be eligible to sponsor. Must meet 2 out of 6 criteria. Overarching standard.
• No labor certification BUT job offer required.
• 2 out of 6 criteria. Overarching standard.
• Evidence of receipt of major prizes or awards for outstanding achievement
• Evidence of membership in associations that require their members to demonstrate outstanding achievement
• Evidence of published material in professional publications written by others about the alien’s work in the academic field
• Evidence of participation, either on a panel or individually, as a judge of the work of others in the same or allied academic field
• Evidence of original scientific or scholarly research contributions in the field
• Evidence of authorship of scholarly books or articles (in scholarly journals with international circulation) in the field
Example: While working towards PhD, researcher discovers a faster way for databases to communicate with each other. After graduation and published results in prominent journals, is offered a job with an IT company. Also asked to be on peer-review panel for a prestigious conference, and invited to join a prestigious organization that requires outstanding achievements by its members.

EB-1(3): Multinational Executive and Managers (8 CFR § 204.5 (j))
The EB-1(3) category applies to persons who have been employed abroad for at least 1 year in the preceding 3 years in a managerial or executive capacity and are entering the U.S. to perform managerial or executive duties for the same company, affiliate, branch parent or subsidiary. Note the functional manager who may oversee an essential function of a company but not have any direct subordinate reports. Requires full-time job offer by U.S. petitioner.
• No labor certification BUT job offer required.

Example 1: Automobile manufacturer needs to transfer a Senior Engineer in charge of their German-based Anti-Crash Safety Division to their new U.S. based Hybrid Facility in Mojave, California on a full-time and permanent basis.
Example 2: Small Italian Company that develops niche motorcycle accessories wants to send their VP to the U.S. to lead U.S. based sales and marketing operations.

Second Preference EB-2

[INA §203(b), 8 CFR § 204.5 (k) Advanced Degree]
1. Advanced Degree
2. Exceptional Ability
3. National Interest Waiver

This situation requires labor certification and a full-time job offer. (See National Interest Waiver (NIW) exception to labor certification below.) This requires the U.S. employer to offer a permanent full-time position that requires at least a U.S. Master’s degree or foreign equivalent degree and the foreign national (FN) possesses the degree. A Bachelor’s degree followed by 5 years of progressive experience in the field is also considered an advanced degree.

• The job you apply for must require an advanced degree and you must possess such a degree or its foreign equivalent (a baccalaureate or foreign equivalent degree plus 5 years of post- baccalaureate, progressive work experience in the field). You must meet any other requirements specified on the labor certification as applicable.
• Documentation, such as an official academic record showing that you have a U.S. advanced degree or a foreign equivalent degree, or an official academic record showing that you have a U.S. baccalaureate degree or a foreign equivalent degree and letters from current or former employers showing that you have at least 5 years of progressive post-baccalaureate work experience in the specialty.

https://www.uscis.gov/working-in-the-united-states/permanent-workers/employment-based-immigration-second-preference-eb-2

• Requires labor certification and full-time job offer. (See NIW exception to labor certification below.)
• Requires the U.S. employer to offer a permanent full-time position that requires at least a:

o U.S. Master’s degree or foreign equivalent degree and the FN possesses the degree. OR a
o A Bachelor’s degree followed by 5 years of progressive experience in the field is also considered an advanced degree.

Example 1: Software Company seeks a computer programmer with a Master’s degree who is capable of developing mobile applications on android and iOS platforms.
Example 2: Investment Bank seeks Economist with a Master’s degree in Finance or Economics and two years in debt restructuring.
Exceptional ability – EB-2

Defined as a degree of expertise significantly above that ordinarily. Encountered in the sciences, arts, or business. Standard not as high as EB-1(1) and EB-1(2).

Petitioner must be able to show exceptional ability in the sciences, arts, or business. Exceptional ability “means a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.” You must meet any requirements specified on the labor certification as applicable.

Must meet 3 of the below criteria:
1. Official academic record showing that you have a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to your area of exceptional ability
2. Letters documenting at least 10 years of full-time experience in your occupation
3. A license to practice your profession or certification for your profession or occupation
4. Evidence that you have commanded a salary or other remuneration for services that demonstrates your exceptional ability
5. Membership in a professional association(s)
6. Recognition for your achievements and significant contributions to your industry or field by your peers, government entities, professional or business organizations
7. Other comparable evidence of eligibility is also acceptable.

Second Preference EB-2- Exceptional Ability (Paired with NIW)
Aliens seeking a national interest waiver are requesting that the Labor Certification be waived because it is in the interest of the United States.

Those seeking a national interest waiver may self-petition (they do not need an employer to sponsor them) and may file their labor certification directly with USCIS along with their Form I-140, Immigration Petition for Alien Worker.

In addition to providing evidence of an advanced degree or exceptional ability (described in the slides under Exceptional Ability EB-2) Petitioner must also meet the 3 National Interest Waiver criteria below** in order to demonstrate that it is in the national interest that USCIS waive the requirement of a job offer, and thus the labor certification.

NIW – Matter of Dhanasar, 26 I&N Dec. 884. (AAO 2016)
Under Dhanasar, the new test is as follows:

1. The proposed endeavor has both substantial merit and national importance;
2. The foreign national is well positioned to advance the proposed endeavor; and
3. On balance, it would be beneficial to the U.S. to waive the requirements of a job offer and thus of a labor certification.

The term “national interest” can include a number of factors:

1. Improving the U.S. economy.
2. Improving the wages and working conditions of U.S. workers.
3. Improving education and training programs for American children and under-qualified workers.
4. Improving health care.
5. Providing affordable housing.
6. Improving the environment.
7. The request of an interested agency within the U.S. government.

The petition must provide persuasive evidence that the individual’s contribution would be significant enough that the national interest would be harmed if the petitioner were forced to undergo through the usual requirement of a labor certification.

Third Preference EB-3

Third Preference EB-3 INA §203(b), 8 CFR § 204.5 (l)

For this category, a permanent job certification by the Department of Labor is required, along with a job offer, and a 4-year degree.

1. Skilled Workers

Labor certification and a permanent, full-time job offer required.

2. Professionals

Labor certification and a permanent, full-time job offer required

3. Unskilled Workers (Other Workers)

Labor certification and a permanent, full-time job offer required

EB-3 Professional
The US Employer must offer a full-time job that requires at least a U.S. Bachelor’s degree or foreign equivalent degree. It also requires labor certification.

Example: U.S. Software Company seeks a Software Engineer with a degree in Computer Science or Engineering to develop mobile applications for the latest smartphones.

The employee (foreign national) must:

be able to demonstrate that she or he possesses a U.S. baccalaureate degree or foreign degree equivalent, and that a baccalaureate degree is the normal requirement for entry into the occupation. (Education and experience may not be substituted for a baccalaureate degree.)
be performing work for which qualified workers are not available in the United States.

EB-3 Skilled Labor
Requires labor certification. The employer must offer a full-time job that requires at least 2 years of experience or training. Example: Oil and Gas Service Engineering Company seeks welder with at least 5 years of experience in the field.

EB-3 Unskilled Labor
Requires labor certification. The employer must offer full-time job that can require less than 2 years of experience. Example: Restaurant seeks a cook with at least one year of experience cooking traditional Caribbean and Central American dishes. Suppose that they can’t find a minimally qualified USC/LPR Asylee or refugee for this job.
• The employer must prove that they cannot find a minimally qualified USC/LPR Asylee or refugee for this job
Schedule A, Group I/II
• Schedule A occupations are pre-certified occupations such that the Department of Labor (DOL) has already determined that there are not sufficient U.S. workers who are able, willing or qualified and wages and working conditions of U.S. workers will not be adversely affected.
• Group I covers physical therapists and registered nurses.
• Group II covers aliens of exceptional ability (as defined by DOL not to be confused with EB-2 exceptional ability). DOL Exceptional Ability.

Schedule A, Skip the PERM Requirements
For a few occupations, however, the Department of Labor (DOL) has made a blanket determination that sufficient numbers of U.S. workers are unavailable, and that the hiring of non-U.S. workers will not negatively affect U.S. wages.

These occupations are listed on DOL’s “Schedule A”, and employers hiring non-U.S.
workers for these occupations can skip the PERM process (save up to 6 months- a year of process before filing of I-140, Immigration Petition for Alien Worker)

Schedule A, Group I Occupations and Processes

This applies to:

Physical therapists who possess all the qualifications necessary to take the physical therapist licensing examination in the state in which they propose to practice physical therapy; and
Professional nurses who are licensed and meet certain educational qualifications.

A US employer only performs 3 steps in connection with seeking approval to hire a non- U.S. worker under Schedule A
1. Applying for a Prevailing Wage Determination from the Labor Department;
2. Providing notice to employees of that the employer intends to file a petition seeking to hire a non-U.S. worker into a Schedule A qualifying position; and
3. Filing the I-140 petition with USCIS.

Schedule A, Group II
(Group II) standard is high – close to EB1(1) standard. Must meet 2 out of 7 requirements. Must have widespread acclaim and international recognition. See 20 CFR § 656.15.

Documentary evidence showing the widespread acclaim and international recognition accorded the individual by recognized experts in the beneficiary’s field; and
Documentation showing the individual’s work in that field during the past year did, and the individual’s intended work in the United States will, require exceptional ability; and
Documentation about the individual from at least two of the following seven groups:

1. Receipt of internationally recognized prizes or awards for excellence in their field;
2. Evidence of membership in associations in the individual’s field which require outstanding achievements of their members;
3. Copies of publications from professional publications relating to the individual and their work;
4. Evidence of the individual’s participation as a judge of the work of others in the same field;
5. Evidence of the individual’s original contributions of major significance to their field;
6. Evidence or authorship of published scientific or scholarly articles in international professional journals or professional journals with an international circulation; and
7. Evidence of display of the individual’s work in artistic exhibitions and showcases in more than one country.

Exceptional Ability Comparison between EB-1, EB-2 and Schedule
A Group II

Schedule A, Group II	EB-2	EB-1
exceptional ability in the sciences or arts	exceptional ability	extraordinary ability
“wide-spread acclaim and international recognition accorded the alien by recognized experts in the alien’s field”	“a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business”	“one of that small percentage who have risen to the very top of the field of endeavor”

Fourth Preference EB-4 (Special Immigrants and Special Immigrant Juvenile (SIJ))

Fourth Preference EB-4

[INA §203(b), 8 CFR § 204.5]

You may be eligible for an employment-based, fourth preference visa if you are a special
immigrant. The following special immigrants are eligible for the fourth preference visa:

• Religious Workers
• Special Immigrant Juveniles
• Broadcasters
• G-4 International Organization or NATO-6 Employees and Their Family Members
• International Employees of the U.S. Government Abroad
• Armed Forces Members
• Panama Canal Zone Employees
• Certain Physicians
• Afghan and Iraqi Translators
• Afghan and Iraqi Nationals Who Have Provided Faith Service in Support of U.S. Operations
• Source:
• https://www.uscis.gov/working-united-states/permanent-workers/employment-based-immigration-fourth-preference-eb-4

Special Immigrants (SIV)
Examples of this include: Special Immigrant Juveniles (SIJ); Certain Panamanians; Armed Forces Members; Religious Workers; Afghan/Iraq translators who supported U.S. troops. Applications are filed on Form I-360.

Special Immigrant Juvenile (SIJ)

If a minor is in the United States and needs the protection of a juvenile court because they were abused, abandoned, or neglected by a parent, they may be eligible for Special Immigrant Juvenile (SIJ) classification. The SIJ category helps non-US citizen children in the US who have been harmed physically or mentally by one or both parents. If SIJ classification is granted, then the minor may qualify for lawful permanent residency.

The child first needs a guardianship order and then an approved I-360 form. Once these two are obtained, these children can then live and work permanently in the US. This classification allows the child to remain in the country under the care and custody of the court while applying for a green card.

In order to apply for Special Immigrant Juvenile status, a child must be under the age of 21 when they file a Form I-360 Petition. The child must also be unmarried and currently inside the US at the time the petition is submitted.

Applying for a Green Card
Once a child has met all eligibility requirements for SIJ status, it is necessary to establish eligibility for a green card. There are various reasons that cause an applicant to be ineligible for a green card but some of these do not apply to SIJ applicants including:

The child cannot financially support himself or herself.
The child is unlawfully present in the US.
The child entered the US by hiding on a boat, airplane, or through other transportation.
The child does not have a proper visa or passport.

Fifth Preference EB-5

Fifth Preference EB-5 [INA §203(b), 8 CFR § 204.6]

Direct Investment EB-5
Requires capital investment in new commercial enterprise (created after 11/29/1990) that creates/saves 10-full time jobs for U.S. workers. Capital can mean cash, equipment, and inventory and must be from a demonstrably lawful source.

One million dollars is the required amount unless the new commercial enterprise is located in a targeted employment area, where it is reduced to $500,000. In practice, tracing and documenting the funds is key to showing lawful source regardless if it was earned via employment, lent, or gifted.

If invested in a business created before 11/29/1990, the infusion of capital must restructure or reorganize into a new commercial enterprise or expand investment so that 40% increase in net-worth or employees occurs.

The foreign national must manage operations either day-to-day or through policy formulation. At least 10 full-time jobs must be created for U.S. workers. Full-time is defined at 35 hours per week.

A troubled business which is at least 2 years old and incurred a loss of 20% of net worth in 12-24 months before filing, can qualify if the investment saves existing jobs.

EB-5 Regional Center – Now Expired
Regional Center (pilot program) allows job creation to be based on reasonable methodologies (econometric report). This usually requires a $500,000 investment + subscription fee to a regional center. Direct and indirect jobs can be included in the job count. Investments are usually pooled into a pre-designated project – e.g., new hotel, shopping mall, etc.
EB-5 Immigrant Investor Regional Center Program expired at midnight on June 30, 2021.
https://www.uscis.gov/working-in-the-united-states/permanent-workers/eb-5-immigrant-investor-program

EB-5 Removal of Conditions- 8 CFR § 216.6
The removal of conditions within 90-days of grant of conditional residence is required. It cannot materially change the investment. The key is to substantially achieve everything stated in the initial I-526 petition, Immigrant Petition by Alien Entrepreneur. This application is filed on Form I-829, Petition by Investor to Remove Conditions on Permanent Resident Status.

PERM Labor Certifications (EB-2 and EB-3)

Perm Labor Certifications (EB-2 and EB-3)- 20 CFR § 656

Program Electronic Review Management (PERM) requires a full-time job offer. It is a test of the local labor market for qualified, willing and able U.S. workers. For this the employer must conduct recruitment including prevailing wage determination.

The PERM Process: Step I:

To obtain a Prevailing Wage Determination (PWD) from the Department of Labor (DOL) in order to determine the approximate proffered wage level, use the hyperlink: http://www.flcdatacenter.com/OesWizardStart.aspx . File the PWD online.

Recruitment Process: Step II:

Mandatory: Notice of Filing posting (internal job posting): Department of Labor (DOL) regulations require an employer to post a notice of the job opportunity (“Job Posting Notice”) as part of the Permanent Employment Certification recruitment process. The job must be posted in a conspicuous location at the place the employee will work for a minimum of 10 consecutive business days. AND There must be a State Workforce Authority (SWA) posting (job order) and 2 Sunday advertisements in a newspaper of general circulation in the area of intended employment. Professional positions also require 3 out of 10 additional recruitment steps: The following ten options are available to the employer (must choose 3): 1. Place an advertisement on the company’s website: fairly easy and inexpensive to carry out. 2. Job search website other than the employers. This must be documented by providing dated print outs of the first and last day. 3. Recruit applicants at a job fair: For example, if the employer is seeking to fill a doctor’s position, it should not recruit at a computer tech job fair. 4. Engage in an employee referral program that provides incentives to current employees for recruiting new hires for the company. Typically, this consists of a company-wide email or notice explaining the job opportunity and the benefits that a current employee will receive for referring a candidate. 5. On-campus recruiting at a local college: if the job requires several years of experience, this option will not be appropriate. 6. Place an advertisement with a job-search website other than the employer’s website: free and easy. 7. Place a radio/television advertisement: expensive. 8. Place an advertisement with the campus placement office of a local college. This option is a more passive form of recruitment. 9. Place an ad with a trade/professional organization: only available to employers of industries have a professional organization. For example, the American Medical Association places an advertisement with a local or ethnic newspaper, a method that is typically less costly. 10. Place an advertisement with a private employment firm. Notably, there is no time requirement for the three additional recruitment steps. For example, an employer could place an ad on its website for just one day, or for fifteen days. Or, an employer could place an ad to run in the local newspaper for just one day, or for a full week.

The PERM Process: Step III:

At the close of the recruitment period, the employer completes (PERM) ETA Form 9089 and submits it electronically to the DOL. The ETA Form 9089 requires information about the employer’s recruitment procedure, information about the foreign worker’s education and work experience, and information about the job opportunity such as requirements, duties, position title, and so forth.

The PERM Timeline:

The job order must run for 30 consecutive calendar days (and weekends are included in the 30-day count). Because of the importance of this time frame, it is highly recommended that employers let their job orders run for longer than 30 days, such as for 35 or 36 days, to make absolutely sure to comply with the 30-day rule.

The Recruitment RULE: 30 days for State Workforce Authority and 30 days cool-off time period While the advertisements are running, the employer must review all of the resumes received for the job opportunity. If the employer cannot disqualify a candidate based upon the candidate’s resume alone, the employer must contact the person for an interview. The employer must keep detailed records of all resumes received, interviews conducted, and reasons for rejecting all applicants. Once PERM is approved…The employer files the I-140 Petition to sponsor the foreign national for the position that the DOL has approved the PERM for! Once the I-140 is approved the FN (sponsored employee) can apply for his/her green card along with family (children under 21 only and unmarried can be added as beneficiaries).

Employment Based Adjustment of Status or Consular Processing

Employment Based Adjustment of Status and Consular Processing-

INA § 245 / 8 CFR § 245 / 9 FAM § 42

Adjustment of Status usually requires legal admission and maintenance of status.

1. Employment-based cases are usually handled at Service Centers unless assigned to the District Office for interview, or

2. Consular Processing (CP) requires application to be filed with National Visa Center who acts as the middleman and compiles the required documentation before sending the case to a Consulate abroad where FN will attend IV interview.

You can switch (port) employers to the same or a similar job if Adjustment of Status has been pending more than 180-days and the I-140 was approved. AC21/INA 204(j). Watch for the FN who ports before 180-days and or before the I-140 is approved. The I-140 must have been approvable when filed or the port may fail.

Consular Processing (CP) requires application to be filed with National Visa Center, which acts as the middleman and compiles the required documentation before sending the case to a Consulate abroad where the FN will attend an Immigration Visa interview.

The selection to file for adjustment or to employ consular processing is made on the Form I-140, Immigration Petition for Alien Worker.

Visa Bulletin and Priority Dates

Published monthly by the State Department, the Visa Bulletin summarizes the availability of immigrant visa numbers subject to the quota system. The INA sets an annual quota on certain preference categories.

If oversubscribed (e.g., EB-2/3 for FN born in India or China PRC), a waiting line ensues. Visa numbers are only available to applicants whose priority dates are earlier than the cut-off date. The priority date is acquired when the labor certification or immigrant preference petition is filed. Once an immigrant petition is approved, the FN can generally retain the priority date for subsequent immigrant petition filings. See 8 CFR
§ 204.5 (e).

Diversity Immigrant Visa Program

The Diversity Immigrant Visa Program

The Diversity Immigrant Visa Program (DV Program) makes up to 50,000 immigrant visas available annually, drawn from random selection among all entries to individuals who are from countries with low rates of immigration to the United States. The DV Program is administered by the U.S. Department of State (DOS).

Most lottery winners reside outside the United States and immigrate through consular processing and issuance of an immigrant visa. To learn more, visit the U.S. Department of State’s website.

Eligibility Criteria
For an applicant to adjust status under the DV Program, you must establish that you:

Have been selected for a diversity visa by DOS’s lottery;
Have an immigrant visa immediately available at the time of filing an adjustment application (Form I-485, Application to Register Permanent Residence or Adjust Status); and
Are admissible to the United States.

Diversity Visa- Ineligible Countries
Those born in any territory that has sent more than 50,000 immigrants to the United States in the previous five years are not eligible to receive a diversity visa. For DV-2020 (the most recent lottery, with entry period in 2018), natives of the following nations are ineligible:
1. Bangladesh,
2. Brazil,
3. Canada,
4. China (mainland-born),
5. Colombia,
6. Dominican Republic,
7. El Salvador,
8. Haiti,
9. India,
10. Jamaica,
11. Mexico,
12. Nigeria,
13. Pakistan,
14. Peru, Philippines,
15. South Korea, United Kingdom and its dependent territories (except Northern Ireland), and
16. Vietnam

Asylum and Removal Defense

• Asylum
• Immigration Court and Relief from Removal

Naturalization and Citizenship

Inadmissibility, Deportation and Waivers

• Inadmissibility and Deportation
• Waivers

VAWA and Victims of Crimes and Trafficking

• Violence Against Women Act (VAWA)
• Deferred Action Against Children Act (DACA)
• Central American Minors (CAM) Refugee and Parole Program

Immigration Law

Moving or travelling to United States can be challenging and time consuming. Immigrants deal with many logistical costs and personal, professional and emotional hurdles in order to migrate to U.S.

Millions of immigrants enter the U.S.A. every year for a variety of reasons. Some enter as immigrants with intent to stay while others enter the U.S. on as non-immigrants such as foreign students. Yet many others enter the U.S. as professionals to establish a business or with the intent to practice their profession.

Immigration Law is complex as the numerous visa categories are contained in different statutory codes, subject to different legislation, documentation and fees requirement. Crimmigration Inc. is dedicated to help you determine which type of immigration relief and category you might be eligible for and to facilitate your way through the process.

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