Immigration | EB-5 Entrepreneur Immigration | Direct EB-5 Investment | EB-5 Regional Center Affiliated Investment | Non-Immigrant Visas

NON-IMMIGRANT VISAS

L-1 Visa (Intracompany Transferees)

  • An L-1 visa allows foreign workers (Managers/Executives/Specialized knowledge skill), to transfer from the foreign Co. and work in the U.S. company temporarily. The capacity must be either: a) manager/executive (L-1A), or b) specialized knowledge (L-1B).
  • The L-1 visas are issued for a maximum of 5(L-1B) or 7(L-1A) years.
  • Foreign entity needs to be established for at least 24 months.
  • Beneficiary must have been employed abroad continuously for one year by the parent, branch, affiliate, or subsidiary of the U.S. petitioning company, within three (3) years preceding application for admission under the L visa.
  • The foreign worker must have been working in a managerial/executive or specialized knowledge capacity in the foreign company.
  • The U.S. company can either be a start-up Company or an existing Company.
  • Must be qualifying relationship (control/ownership) between the Foreign Company & U.S. Company.
  • Parent and subsidiary companies don’t have to be in the same type business.
  • Both the U.S. and foreign company must be active. The key personnel can come into the U.S. operation (providing always that there is a nexus between the US Corporation and the foreign entity).
  • L-2 visa classification for Dependents (spouse and children under 21 years) are eligible to work in the U.S. for any employer and thus can apply for Employment Authorization (EAD), allowing unrestricted employment in the U.S.
  • L visas can be filed with USCIS either via premium processing (I-907) or regular processing. Premium processing means once the package is filed with Immigration, it will be adjudicated within 15 days; regular processing will take at least 90 days to be adjudicated.
  • You can apply for your lawful Permanent Residence (Green Card application) under the L visa. If in L-1A status you don’t have to file a Labor Cert thus expediting how long it takes you to obtain your green card/LPR status.

H-1B Visa (Specialty Occupation)

  • Practical experience along with at least a bachelor’s degree or its equivalent is required for this US working visa. The H-1B visa is also used for fashion models of distinguished merit ability.
  • Initially get three (3) years a total of six (6) years under the H-1B visa.
  • Cap of 65,000 H-1B visas per year (an additional 20,000 if you have a Master’s degree). Exceptions apply where Cap is not counted.
  • The employee must have at least a bachelor’s degree, or its equivalent in foreign studies or work experience or a combination of both. If the education was obtained abroad, or if the equivalent is obtained through work experience, the applicant must obtain an Equivalency Evaluation Report conducted by an evaluation company that is recognized by Immigration.
  • H-4: Dependents -Wife and children(under 21 years), cannot work – No EAD; but they may attend school, will be able to get drivers license).
  • May apply for Permanent Residence (Green Card) with same or different sponsoring company. No dual intent problem.
  • Can work for concurrent employers under the H-1b visa(work two different H-1B jobs).
  • Can work either full or part time under the H-1B visa.

E-1 (Treaty Trader)

  • The E-1 visa is for a national of a country with which the United States (U.S.) maintains a treaty of commerce and navigation who is coming to the U.S. to carry on substantial trade, including trade in services or technology, principally between the U.S. and the treaty country, or to develop and direct the operations of an enterprise in which the national has invested, or is in the process of investing a substantial amount of capital, under the provisions of the Immigration and Nationality Act.

E-2 (Treaty Investors)

  • Person can enter U.S. for an indefinite time based on treaty of friendship, commerce and navigation between the U.S. and country of applicant’s nationality (Treaty countries included but NOT limited to: Ireland, United Kingdom, Denmark, Belgium, Canada, Croatia, Czech Republic, Finland, France, Germany, Greece, Italy, Jamaica, Latvia, Mexico, Norway, Netherlands, Poland, Spain, Switzerland, Turkey, Ukraine, Tunisia, Trinidad&Tobago, Thailand, Singapore, Romania, Luxemburg, Japan, Israel, Grenada).
  • Dependents (Spouse and children under 21 years, can obtain a work authorization EAD).
  • The investor must be coming to the U.S. solely to develop and direct enterprise. If the applicant is not the principal investor he must be employed in a supervisory/executive/or highly specialized skills capacity.
  • Up to five (5) years granted at the consulate, up to two (2) years granted inside the U.S. Can renew visa indefinitely.
  • Amount of investment is proportional to the type of company being set up. Person is entering solely to carry on substantial trade which is international in scope principally between U.S. and the foreign state of which he/she is a national.
  • Quasi Dual Intent is permitted under the E-2 visa.
  • Unlike L-1 visa an E-2/E-1 employee can be a new hire and need not have worked for the company previously. There is no requirement of a foreign Company for this visa, only the U.S. company.
  • The U.S. Company can be either a start-up company or existing company. If a start-up company our Law Office can guide you with incorporating the new business, lease set-up, and business plan development etc.
  • Premium processing is available for this type of visa, thus ensuring an adjudication in fifteen days from receipt of the application.

Student Visa Types
F-1 Visa (Academic Visa) – Foreign Students:

  • F-1 – most commonly used visa for foreign students.
  • Key Terms:
    • DS = Designated School Official
    • SEVP = Student and Exchange Visitor Program
    • SEVIS = Student/Exchange Visitor Information System
  • Admitted for D/S + 60 day grace period following completion of course or practical training.
  • Authorized student employment permitted.
  • New OPT rules extend application period for OPT to include 60 days after program end date.
  • OPT automatically extended for “cap-gap” students whose H-1B Petitions were selected in lottery – to 10/01.OPT may be extended for up to 17 months for students not awaiting H-1B.
  • Permit to change into and out of F-1 within U.S.

M-1 visa (Non-academic Visa)

  • If a foreign student wishes to pursue a course of study which is not principally academic in nature at an established vocational or other recognized nonacademic institution such as a post-secondary vocational or business school, he or she can apply for an M-1 visa.
  • Holders of M-1 visas may only engage in employment if it is a required part of their practical training. As a holder of an M-1 visa you may remain in the United M-1 Visa Non-Academic / Vocational Students.
  • Not valid for online courses with no classroom participation.
  • Admitted for time necessary to complete course of study, or one year, whichever is less, plus 30-day grace period.
  • Extension of status in up to one-year increments for maximum of 3 years.
  • Only post-completion practical training permitted.

B-2 Tourist Visa:

  • For recreational activities incl. tourism, visiting friends/ relatives, medical/health reasons, fraternal/ social conventions, amateur arts/athletics.
  • visa required, unless eligible for Visa Waiver.
  • requires proof of non-immigrant intent, foreign residence w/ intent to return, “ties” to home country.
  • Consulates have non-reviewable discretion to deny visa if doubts exist regarding immigrant intent.
  • Period of admission up to six months.
  • Can apply for Extension of status/change of status, unless admitted as VWP (visa waiver program).

B-1 Business Visa:

  • To be eligible for a B-1 visa, a foreign national must have a residence in a foreign country which he or she has no intention of abandoning and must be visiting the U.S. temporarily for business or pleasure. The foreign national must meet the following 3 general criteria:
    (a)He or she must intend to leave the U.S. at the end of his or her temporary stay.
    (b) He or she must have permission to enter a foreign country at the end of the temporary stay.
    (c) Adequate financial arrangements must have been made to enable him or her to carry out the purpose of his or her visit and depart from the United States.

  • The foreign national must also be coming to engage in legitimate “business” activities defined as follows:
    (a) “Business” in immigration terms means attending conventions, conferences, meetings, negotiation of contracts, litigation, discussions and other legitimate activities of a commercial or professional nature, serving on the board of directors of a U.S. Corporation, seeking entry to the U.S. as an investor seeking to make an investment in the U.S.

    (b) “Business” in immigration terms does not include entering the country to perform building or construction work, whether on-site or in-plant. However, a foreign national may be qualified for a B-1 visa if he or she is coming to the U.S. to supervise or train others who are engaged in building or construction work. “Business” in immigration terms also does not include “labor for hire.”

    (c) The foreign national must not receive any remuneration from a U.S. source.
    (d) Will initially get up to six (6) months and can extend for a further six (6) months.

O-1 Alien of Extraordinary Ability:

    Establishing Eligibility for the 0-1 Category:

  • Extraordinary ability in the sciences, arts, education, business or athletics which has been “demonstrated by sustained national or international acclaim”.
  • The definition of “extraordinary ability” varies depending on the type of beneficiary. Specifically, the law enacts three different standards.
  • 0-1 category:
    • (1) the most exacting standards apply to aliens in the sciences, education, business, and athletics;
    • (2) a much less rigorous standard applies to individual aliens in the arts; and
    • (3) an intermediate standard applies to aliens of extraordinary achievement in the motion picture or TV industries. However, all beneficiaries petitioning under the 0-1 category must be able to demonstrate their extraordinary ability through extensive documentation.

P-1/P-2/P-3 (Artists, Athletes & Entertainers):

  • P-1 visa status is available to an alien who is coming to the U.S. to perform services as an internationally recognized athlete, individually or as part of a group or team, or to a member of an internationally recognized entertainment group.
  • P-2 status is available to an artist or entertainer who is coming to perform under a reciprocal exchange program.
  • P-3 status is available for an individual who is coming to perform, teach or coach under a program that is culturally unique.

Family Immigration Services
We offer experienced and effective legal help in a wide range of family-related immigration and non-immigration matters. For example:

  • Spouses, fiancées and children: Our lawyers help foreign nationals who are the fiancée, spouse or child of a U.S. citizen to obtain K visas, which provide entry into the U.S. and work permission, in advance of obtaining permanent residence. We also help foreign nationals who are in the United States on a temporary basis, bring their spouse or children to the U.S. with various non-immigrant visas meant specifically for the children and the spouses of these foreign nationals.
  • Parents and siblings: If you have completed the naturalization process and are now a U.S. citizen, you also may petition your parents to live and work permanently in the United States.
  • Immediate relatives include, but are not limited to, spouses of US citizens, unmarried children under 21 of US citizens, and parents of US citizens, provided the citizen petitioner is at least 21 years of age. It is important to note that there are no derivative beneficiaries of immediate relatives. This means that our immigration lawyers Bradenton FL would need to file a for each immediate relative.
  • Certain other relatives fall within a family immigration preference category. First preference are unmarried sons or daughters of US citizens i.e. those who are 21 years of age or older; second preference are spouses or children of aliens lawfully admitted for permanent residence, or unmarried sons or daughters of aliens lawfully admitted for permanent residence; third preference are married sons or daughters of citizens of the United states; and fourth preference are brothers or sisters of citizens of the United States, if the citizens are at least 21 years of age. But, as opposed to immediate relatives, derivatives (such as children of beneficiaries) are not required to file a separate petition.
  • If a green card is granted within 2 years of the date of marriage, conditions are imposed on the status of permanent residence. In order to remove the conditions, it will be necessary to submit an I-751 petition prior to two years after the issuance of the green card. It may also be necessary to attend another interview and demonstrate the US citizen continues to support the petition, unless the foreign national is able to self-petition.

Marriage Petitions:

Each year, over 160,000 citizens of the United States marry foreign-born persons and petition for them to obtain permanent residence in the U.S. Spouses of U.S. citizens are considered “immediate relatives” under the immigration laws, and are exempt from all numerical quota limitations. In other words, marriage to a U.S. citizen is the fast lane to a green card.

Marriage to a permanent resident is very problematical and often results in the recently- married spouses living apart for many years.

It is also possible for a U.S. citizen to obtain a temporary visa for a fiancee and get married once he or she arrives in the U.S.

IF THE MARRIAGE OCCURS IN THE U.S.
Procedurally, the process works like this. The U.S. citizen must submit a visa petition to appropriate USCIS Service Center to prove that the marriage is bona fide, that is, entered into for love rather than simply for the foreign-born spouse to obtain a green card.

Simultaneously, the foreign-born spouse should submit an application for adjustment of status which is an application for a green card. Items which may accompany the green card application include green card photographs, an application for employment authorization, an application for a travel permit and numerous other INS forms.

IF THE MARRIAGE OCCURS OUTSIDE THE U.S.

The process is roughly the same except that the foreign-born spouse usually must remain in his or her country until he or she obtains a green card.

The process begins when the citizen spouse submits a visa petition to either the USCIS office which has jurisdiction over his residence or directly to the U.S. Embassy or Consulate in the country where the foreign-born spouse resides.

Once the visa petition is approved, the foreign-born spouse will receive a packet from the National Visa Center (NVC) located in Portsmouth, New Hampshire. The packet informs the foreign-born spouse of the various documents which must be presented at the immigrant visa interview abroad (e.g., passport, police clearances, results of medical examinations, etc.). The packet includes certain documents requesting biographic data which must be completed, signed and forwarded to the U.S. Embassy or Consulate abroad.
Usually, the foreign-born spouse is interviewed and granted an immigrant visa within three to six months.

Sometimes, in order to avoid a lengthy separation, the spouses return to the U.S. after the marriage and proceed to file the necessary applications once they are both in the U.S. USCIS usually takes a dim view of this practice. It is not uncommon for the INS to stop the foreign-born spouse at the border and exclude him or her from the U.S. as an intending immigrant. If the foreign-born spouse is able to enter the U.S., USCIS will not deny his or her application for a green card simply because he or she entered the U.S. on a non-immigrant visa when his or her real intent was to remain permanently in the U.S. However, any false representations made by the foreign spouse in applying for the non-immigrant visa, e.g. tourist visa before entering the U.S. can be used against the foreign spouse in the adjustment of status process.

CONDITIONAL RESIDENCE
If the marriage is less than two years old when the foreign-born spouse becomes a permanent resident, the green card will expire after a two-year period. Both spouses must submit a joint petition to remove the two-year condition within the 90-day period immediately preceding the end of the two year period.
If the marriage has terminated by reason of divorce, death of the citizen spouse or spousal abuse, the foreign-born spouse may apply for a waiver of the joint petition requirement.

A permanent resident is given the privilege of living and working in the United States permanently. However, a person’s permanent residence status will be temporary or conditional if it is based on a marriage that was less than two years old on the day he or she was given permanent residence. A new permanent resident’s status is conditional, when based upon a recent marriage because the USCIS wants the new immigrant to prove that he or she did not get married solely to evade U.S. immigration laws.

What and When to File To Remove Conditional Residence:

If you are a conditional resident, your residence will expire two years after issuance. The law states that such Conditional Residents must jointly file with their spouse, a form I-751 within the 90 days preceding the expiration date on the conditional permanent residence card.

When filing a form I-751 jointly with your spouse, you both must complete the form, sign it, and send it to the USCIS with the appropriate filing fee. It is also a good idea to attach to the petition evidence of the validity and continuing existence of your relationship such as joint tax returns, joint bank accounts, bills, joint property, or other evidence showing cohabitation.

It is very important to file the I-751 within the correct window of time, and be sure not to file it before the 90-day window. If you file it too early, the USCIS will reject the petition. If you file it after the expiration of your conditional residence, the USCIS may deny the petition and revoke your permanent residence. If this happens your residence will be terminated and the USCIS may commence removal (deportation) proceedings against you.

Please note that you will NOT be sent any reminder to file this petition from USCIS. You must make sure to calendar the expiration of your residence and file your petition in a timely manner.

What If You Are Divorced?

If you are no longer married to your spouse when your conditional residence is about to expire, you still must file the form I-751, but this time you file it alone. U.S. Immigration Law permits a divorced or widowed conditional resident to self-petition for removal of conditional residence. To do so you must show:

  • 1. Proof of termination of your marriage.
  • 2. Proof of the validity of your marriage and proof with appropriate evidence that it was not entered into solely to evade immigration laws of the U.S.

How If Your Spouse Refuses to Sign the I-751?

If you are still married but your spouse refuses to cooperate or you are separated but not divorced you still must file the I-751. You have several choices under these circumstances:

1.File a self-petition as a married spouse and argue that you would suffer extreme hardship if the petition is not granted and you had to return to your home country. (This grounds for filing an I-751 is often difficult to prove and can result in a denial of the petition in many cases.)

2. Divorce your spouse and file a self-petition as set forth above proving that the marriage was legitimate.

3. File a self-petition as an abused spouse who suffered physical or mental abuse at the hands of the U.S. citizen or permanent resident spouse.

What Happens After Filing the I-751?

In most cases where the couple files a joint petition to remove conditional residence, the USCIS will adjudicate the petition without an interview of the parties provided evidence is submitted proving the validity of the marriage. Processing times vary but adjudications are usually completed in six months or less.

In cases where the conditional resident files a self-petition, the adjudication process is slower and often times an interview is required to give the applicant an opportunity to prove the validity of the marriage. Sometimes these interviews can be quite involved and can take more than an hour of questioning. It is always advisable to be prepared for the interview, have your documents with you ready to present, be ready to explain why your marriage was valid and why you are divorced. An attorney is permitted to attend these interviews with the applicant and having an attorney present often makes the process less stressful and more organized.

What Happens During the Pendency of the I-751?

After filing an I-751 either jointly or individually, the USCIS will promptly mail the applicant a receipt showing that his or her permanent residence has been extended during the pendency of the petition process. The applicant can have his or her passport stamped with a temporary evidence of permanent residence in order to work or travel.

What Happens if the Petition is Denied by the USCIS?

Decisions by the USCIS on I-751 petitions are not appealable. This means if the petition is denied by the USCIS the only place to renew the petition is before an immigration judge while in removal (deportation proceedings.) The applicant will be given a chance to appear before a judge and reapply. He or she can produce preponderance of evidence to prove that the marriage through which residency was received was legitimate and not a sham or fixed marriage. During these hearings, the applicant may have an attorney of his or her choice present at the applicant’s own expense. Witnesses can be called to testify and the applicant can also testify in his or her own behalf. The immigration judge has the power to reinstate the permanent residence that the USCIS denied.
It is always recommended that persons seeking removal of conditional residence be sure to do so in a timely manner and seek the advice of a competent immigration lawyer if questions or problems arise.
When a petition is approved and a visa number is available, the approval is forwarded to the National Visa Center (NVC), which reviews documentation and sends out an information package to the Consulate designated on the petition. The applicant must prove to the Consulate that

  • he/she is documentarily qualified
  • he/she is not subject to the three or ten year bars due to previously accrued unlawful presence in the United States, and
  • he/she is not inadmissible on any INA §212(a) grounds

Once the Consulate issues the visa, the applicant must enter the United States within six months of the visa’s issuance. When the applicant enters the United States, the visa is reviewed. If there are no problems, the applicant’s passport is stamped to indicate he/she is a lawful permanent resident.

Inadmissibility Issues

Within the U.S. immigration laws is a long list of things that make a person “inadmissible” to the United States. What that means is that, despite the person being otherwise eligible for a visa or green card, the U.S. government will not allow it to that person based on the person’s history of criminal convictions, security, immigration violations, commission of fraud, high-risk health problems, and need for financial support from the government.
For example, a foreign-born person who marries a U.S. citizen is, in theory, eligible for a green card. But that person could be found inadmissible and denied the green card for having a violent crime on his or her record, appearing likely to need public assistance (often called welfare), or having entered the United States without inspection and remained here for six months or more.

*Disclaimer*
This publication is intended to be informational only and not a substitute for legal advice. Future changes in immigration laws and USCIS policy procedures cannot be predicted, and statements in this publication are based solely upon the laws in force on the date of publication. We highly recommend that you consult with a qualified immigration attorney for specific advice regarding your immigration matters.