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Family Services

Spouse

Bringing a spouse to the US to be a permanent resident can be an extremely daunting process as many factors can come into play.  Is your spouse still living abroad or are you both in the United States?  Did your spouse come here on a visa?  Has he/she overstayed their visa?  Did they come undocumented?  All of these factors affect how the United States Citizenship and Immigration Service (USCIS) processes your case. Is the Petitioner/Sponsor a U.S. Citizen or a Legal Permanent Resident (LPR)? Both the Petitioner and the Beneficiary (foreign spouse) must establish their eligibility before USCIS as their status affects how the foreign spouse’s green card is processed.

Visa Preference: IR-1, F-2

Same-Sex Couples

A person who is married to a U.S. citizen or LPR of the same-sex can qualify for immigration as an immediate relative of a U.S. citizen or LPR, regardless of the place of marriage or current place of residence. Under federal guidelines, USCIS will honor the ‘place of celebration’ when determining eligibility for immigration benefits for same-sex couples; meaning that so long as the marriage was solemnized in a country where such a marriage is legal, USCIS will honor such marriages as valid.

Removing Conditions on Green Card

When you become a permanent resident due to your recent marriage to a U.S. citizen or LPR, you will get a “conditional” green card that expires in two years. Within 90 days of this expiration date, you and your spouse are expected to jointly file Form I-751, Petition to Remove the Conditions of Residence, with U.S. Citizenship and Immigration Services (USCIS). Doing so will allow you to remain in the United States. After your application is approved, your conditional resident status will be converted to permanent residence.

What USCIS is looking for is that you have a “bone fide marriage.”  This can be established by providing a solid evidentiary history by providing documents and photographs proving your marriage is “real.”

However, filing this petition and gaining this approval can be difficult if your spouse is physically or emotionally abusive – especially if he or she is using your immigration status, and his or her cooperation in obtaining a green card, as a way to control you. The good news is that the law offers a way to deal with this situation. After your I-751 is approved and you become a permanent resident, your right to live and work in the U.S. cannot be taken away based on you no longer being with your spouse.

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Fiance

The Fiancé(e) or K-1 visas is for U.S. Citizens ONLY who meet and wish to marry a foreign national.  This is a complicated.  A small mistake in your paperwork could cause long delays in the processing of your paper.  For starters the Fiancé(e) visa is only available to petitioners who are U.S. Citizens.  You must also prove to USCIS that you intend to marry within 90 days of the alien Fiancé(e) arriving in the United States.  You will have to prove that you are involved in a bone fide relationship.  USCIS will review all the documentary evidence you provide them up to and including social media.

 

Visa Preference: IR-1

Same-Sex Couples

A person who is married to a U.S. citizen of the same-sex can qualify for immigration as an immediate relative of a U.S. citizen, regardless of the place of marriage or current place of residence. Under federal guidelines, USCIS will honor the ‘place of celebration’ when determining eligibility for immigration benefits for same-sex couples; meaning that so long as the marriage was solemnized in a country where such a marriage is legal, USCIS will honor such marriages as valid.

Removing Conditions on Green Card

If you become a U.S. resident due to your recent marriage to a U.S. citizen, you will get a “conditional” green card that expires in just two years. Within 90 days of this expiration date, you and your spouse are expected to jointly file Form I-751, Petition to Remove the Conditions of Residence, with U.S. Citizenship and Immigration Services (USCIS). Doing so will allow you to remain in the United States. After your application is approved, your conditional resident status will be converted to permanent residence.

But filing this petition and gaining this approval can be difficult if your spouse is physically or emotionally abusive – especially if he or she is using your immigration status, and his or her cooperation in obtaining the green card, as a way to control you. The good news is that the law offers a way to deal with this situation. And after your I-751 is approved and you become a permanent resident, your right to live and work in the U.S. cannot be taken away based on you no longer being with your spouse.

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Children

When bringing Children, Sons and Daughters to live in the United States as Permanent Residents the age and marital status of your children are critical factors in the immigration process. For immigration purposes, a “child” is defined as being unmarried and under 21, whereas if a person is married and/or over 21, that person is defined as a “son” or “daughter”.

 

Visa Preference: IR-2, IR-3, IR-4, F-1, F-3

If you are a United States Citizen, you may petition for:

  • Children (unmarried and under 21) (IR-2)
  • Unmarried sons and daughters (21 or over) – Your son or daughter’s child(ren) may be included on this petition. (F-1)
  • Married sons and daughters (any age) – Your son or daughter’s spouse and/or child(ren) may be included on this petition. (F-3)

If you are a Legal Permanent Resident (Green Card Holder), you may petition for:

  • Children (unmarried and under 21) – Your child’s child(ren) may be included on this petition.
  • Unmarried sons and daughters (21 or over) – Your son or daughter’s child(ren) may be included on this petition.

Unmarried Adult Children

The only distinction in eligibility between a child in this category and a child of an “immediate relative of a U.S. citizen” is that the child in this category is over 21 years old. That means to qualify as a “child” in this category, the person must be the son or daughter of a U.S. citizen, who is unmarried and over the age of 21.

An adopted child qualifies as long as the adoption was finalized before the child’s 16th birthday, the adoptive parents have legal custody of the child for two years (before or after the adoption), and the child resides with the adoptive parents for two years (before or after the adoption).

A stepchild qualifies as long as the marriage occurred before the stepchild’s 18th birthday.

Immediate family members of the unmarried alien child may also apply for a green card with the child.

The annual visa allotment available for this preference is 23,400, plus any visas not used by the fourth preference.

Married Adult Children of U.S. Citizens

This category is designed for the married children of U.S. citizens regardless of his or her age. That means to qualify as a “child” in this category, the person must be the son or daughter of a U.S. citizen, who is married.

Adopted child qualifies as long as the adoption was finalized before the child’s 16th birthday, the adoptive parents have legal custody of the child for two years (before or after the adoption), and the child resides with the adoptive parents for two years (before or after the adoption).

A stepchild qualifies as long as the marriage had occurred before the stepchild’s 18th birthday.

Immediate family members of the married alien child can also apply for a green card with the child.

The annual visa allotment available for this preference is 23,400, plus any visas not used by the first and the second preference.

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Parents

The Parents of U.S. citizens are eligible to apply for permanent residency as immediate relatives if the petitioning citizen is 21 years of age or older.

To qualify, the parent of a U.S. citizen must meet the same eligibility requirements as for a child of a US Citizen, except that the petitioning citizen can be married.

Visa Preference: IR-5

Adopted Parents

If the U.S. citizen is adopted, the adoption must have been finalized before the child’s 16th birthday, the parent must have had physical custody of the child for two years (before or after the adoption), and the child must have resided with the adoptive parent for two years (before or after the adoption).

If the U.S. citizen is a stepchild of the alien parent, the current marriage must have taken place before the child’s 18th birthday.

Step-Parents

If the stepparent and parent are no longer together, as long as the relationship between stepparent and stepchild had continued even after the divorce, the stepparent is still eligible for applying as an immediate relative.

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Siblings

To apply for a green card for a brother or sister, the petitioner must be a US Citizen and 21 years of age or older. Furthermore, to qualify as a brother or sister of a U.S. citizen, both the brother or sister and the U.S. citizen must have at least one parent in common.

Visa Preference: F-4

Sibling’s immediate relatives.

Immediate family members (Spouse and minor children) of the brother or sister may also apply for a green card with the brother or sister of a U.S. citizen at the same time.

The annual visa allotment available for this preference is 65,000, plus any visas not used by the first three preferences.

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U.S. Citizenship

Naturalization

Naturalization is the process by which U.S. citizenship is granted to a foreign citizen or national after he or she fulfills the requirements established by Congress in the Immigration and Nationality Act (INA).

Filing for U.S. Citizenship can be a long, complicated process but the benefits are worth it. Know that USCIS will reinvestigate your immigration history. You will be questioned about all trips abroad, so it is important that you come prepared with the documentation that will support why you left the US. Above all else, be truthful to USCIS, if any fraud is detected, not only will USCIS deny your citizenship application but you could be stripped of your green card and deported.

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- Benefits & Requirements

Benefits

  • Have the right to vote
  • Able to run for public office (except president and vice president)
  • Eligible for federal employment/benefits
  • Able to travel abroad indefinitely
  • Cannot be deported for any reason (unless information for green card/citizenship was falsified)
  • Able to sponsor parents/siblings for green cards
  • US Passports, can enter 174 countries visa-free
  • Can omit renouncing of other citizenship to have dual-citizenship (If country of origin allows dual citizenship as well)

Requirements

  • You are at least 18 years old
  • You have lived in the U.S. as a lawful permanent resident for at least 5 years unless you are the spouse of a U.S. citizen, refugee, or obtained your LPR through political asylum.
  • You have been present in the U.S. for at least half of the past five years
  • You have not spent more than a year at a time outside of the U.S.
  • You do not have a primary home outside the U.S.
  • You are of good moral character
  • You can read, write and speak English (There are some exceptions to this requirement)
  • You must pass a U.S. history and government test.
  • You must be willing to affirm that you believe in the principles of the U.S. Constitution and will be loyal to the U.S.
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- English Proficiency

The English proficiency test is composed of reading, writing and speaking. At the time of your interview, the USCIS officer will determine your English proficiency. To prove reading proficiency, you will be require to read one of three sentences correctly. The writing test requires that you write out one of three sentences correctly.

Because of their age and time in the United States, certain applicants are exempted from the English Requirements and can take the civics portion of the test in the language of their choice.

  • If you are age 50 or over at the time you filed for naturalization and have lived as a permanent resident for 20 years (this is referred as the 50/20 rule) or
  • If you are age 55 or older at the time you filed for naturalization and have lived as a permanent resident in the United States for 15 years (this is referred as the 55/15 rule)
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- Naturalization Exam

The prospective citizen must have knowledge and understanding of the fundamentals of U.S. history and government. This is determined by the administration of a multiple choice test. In general, those exempt from the English requirement must still meet this requirement. Exceptions are those who are mentally and physically impaired and special considerations can be given to those who are exempt from the English requirement based on age and length of stay. Those special considerations are usually a test in modified form.

If you meet the English requirement exemption, you will be allowed to take the Civics portion of your test in the language of your choice. However, you must provide your own interpreter and they must be fluent in both English and your native language. If you are over 65 and have been a permanent resident for at least 20 years when you filed for naturalization, you will be given special consideration with regard to the civics requirement.

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Citizenship through Parents

A person is a citizen at birth when born outside the U.S. under the following circumstances:

  • Both parents were U.S. citizens when the person was born and at least one of the parents lived in the United States at some point in their life. The record of birth abroad, if registered with a U.S. consulate or embassy, is proof of citizenship. A person in this scenario may also apply for a passport to have his citizenship recognized. If he/she needs additional proof of citizenship, he/she may file an “Application for Certificate of Citizenship” (Form N-600 for natural offspring or Form N-643 for adoptees) with the USCIS to get a Certificate of Citizenship; or,
  • One parent was a U.S. citizen when the person was born and the citizen parent lived at least five years in the United States before he was born, where at least two of the five years were after the citizen parent attained the age of fourteen. The record of birth abroad, if registered with a U.S. consulate or embassy, is proof of citizenship. A person in this scenario may also apply for a passport to have his citizenship recognized. If he needs additional proof of citizenship, he may file a Form N-600 for natural offspring or a N-643 for adoptees with the USCIS to get a Certificate of Citizenship.
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Naturalization for Military Members

If an alien served in the U.S. military for at least three years and is a lawful permanent resident, then he is excused from the regular residence requirements if an application for naturalization is filed while the applicant is still serving or within six months of an honorable discharge. To be eligible for this exemption, an applicant must:

  • have served honorably or separated under honorable conditions;
  • completed three years or more of military service;
  • be a legal permanent resident at the time of his or her examination on the application;
  • establish good moral character if service was discontinuous or not honorable.
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Work Visas

H1-B

The H1B visa classification permits a foreign national to work in the United States for a temporary period. It is available for offers of employment that are in a specialty occupation*. A person may hold H1B status for a maximum of six years, and it may be issued in increments of up to three years by the USCIS. An employee may receive extensions of H1B status beyond six years in certain circumstances, if they are in the process of applying for employment-based permanent residence (commonly referred to as the “green card”). H1B visas are numerically limited, with a total of 85,000 visas available each fiscal year (20,000 of these visas are restricted to individuals who have received master’s degrees or higher from colleges or universities). This limitation is referred to as the H1B cap.

*The H1B visa is also available for offers of employment as a fashion model of distinguished merit and ability.

- Application

The qualifications for an H-1B visa are:

  • A Bachelor’s degree or Masters Degree (or the foreign equivalent degree from your Country), OR
  • 12 years work experience, OR
  • A mix of further education + work experience
  • For a specialty occupation H1B petition, the employee must have a bachelor’s degree or the equivalent experience.
  • The employer for the H1B petition must obtain a Labor Condition Application (LCA) from the U.S. Department of Labor before filing the H1B petition with the USCIS.
  • An employee who has previously received an H1B visa, or been granted H1B status is generally exempt from the numerical limitations.
  • An employee who is presently employed in H1B status may utilize the portability provisions of the American Competitiveness in the Twenty-First Century Act (AC21) to transition their H1B to a different employer.
  • The spouse and minor child(ren) of an H1B employee are authorized to live and study in the United States with an H-4 status, but are not permitted to work.
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- Transfer

If the person is currently working on an H-1B Visa for one employer (or has worked in the recent past), and when such person changes jobs to another employer, the employer has to file a new H-1B petition for the employee.

Many people, including some immigration attorneys, call this process an “H1 transfer”. Even in this document, we refer to the new petition by the new employer as an “H-1B transfer”, solely for the ease of describing it. It is very important to understand that there is really no concept of “transfer”. Nothing gets transferred from one employer to another employer, except the employee itself. The previous employer does not have to “transfer” something to the new employer, the previous employer does not even have to know about the new employer.

Therefore, when people say “H1 transfer”, it is actually just a new H-1B petition, all over again, without the restriction of the H-1B cap.

When the new petition is filed by a new employer, it may generally be with a request to extend the H-1B status. As nothing gets transferred, neither the new employer nor the employee needs to take any permission from the previous employer to file a new H-1B petition.

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- Extension/Renewal

An H-1B visa is normally issued for the period of validity of the approved H-1B Petition (maximum of three years).

The H-1B visa may be extended for another three years. Therefore, the H-1B worker is likely to need a renewal of his visa if he or she intends to remain in the United States up to the six-year maximum period of eligible stay. If the H-1B worker never leaves the U.S. during the six-year period, a new visa is not required. If, however, the worker needs to travel abroad after expiration of his or her original H-1B visa, a new visa must be obtained in order for the H-1B worker to re-enter the U.S.

Please note that the H-1B visa must initially be issued at a consular office abroad. (Therefore, e.g., a “change of status” from B-1 or B-2 or F-1 to H-1B requires the beneficiary to obtain the initial H-1B visa at a consular office abroad in order to re-enter the U.S.)

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L-1

The L-1 visa is a temporary non-immigrant visa which allows companies to relocate foreign qualified employees to its U.S. subsidiary or parent company. The qualified employee must have worked for a subsidiary, parent, affiliate or branch office of the company for at least one year out of the last three years. The U.S. company must be a parent company, child company, or sister company to the foreign company. The L1 visa may also include non-profit, religious, or charitable organizations.

The L-1 visa is a good way for small or start-up overseas companies to expand their business and services to the United States. This is advantageous to smaller companies because it allows for the transfer of a highly proficient manager or executive who has direct knowledge of operations, allowing the setup of a new branch in compliance with the goals and objectives of the company’s main office. However, since the USCIS will scrutinize L visa petitions filed by lesser-known companies more closely, professional consultation with an experienced immigration lawyer is strongly recommended for these types of small businesses.

L1 visas can also be used by multi-national companies. When a multi-national company is developing a new market in another country, it may become necessary to have some employees with specialized knowledge work in the newly established office. Furthermore, such companies may have policies of international rotation of managerial level personnel to assure that all key personnel within a company have equal opportunity for career advancement when an appropriate position becomes open in any location around the world. Cross-fertilization of ideas among high level employees and executives enhances a company’s competitiveness; this exchange often results in innovation essential to a company’s reputation and development. A regular rotation of key personnel improves and ensures uniformity of service and procedure within the company at a global level.

To qualify for L-1 visa application, the Petitioning Employer must:

-The company must have a qualifying relationship with a foreign company, such as a parent company, branch office, subsidiary, or affiliate of the foreign company. These are collectively referred to as qualifying entities or qualifying organizations. The entities may include corporations, non-profits, religious or charitable organizations.

-The company must also 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.

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- Executive or Manager

L-1A visas are designed for intra-company executive transferees coming to work in the United States. The L-1A visa holders must have been employed in an executive or managerial capacity for the foreign company at an overseas location continuously for at least one year out of the past three years. In addition, the L-1A visa allows a company which does not currently have a U.S. office to send an executive or manager to the United States in order to establish one. L1A visa is granted initially for one year for a new company in the US or three years for a US company with more than one year in existence, with extensions available in two-year increments, with a total stay not to exceed seven years.

Requirements

The alien employee must have worked abroad for the overseas company for a continuous period of one year within the three years immediately preceding his or her admission to the United States. Any time spent working in the United States will not count toward the one year of required employment.

The employee must have been employed abroad in an executive or managerial position, otherwise known as a qualifying position. For more information on qualifying positions, Please visit qualifying positions.

The employee must be coming to the U.S. to provide service in an executive or managerial capacity for a branch of the same employer or one of its qualifying organizations.

The employee must be qualified for the position by virtue of his or her prior education and experience.

The L-1 visa holder must intend to depart the United States upon completion of his or her authorized stay.

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- Specialized Knowledge Employee

L-1B are designed for professional employees with specialized knowledge. An example of specialized knowledge personnel would be an individual who possesses proprietary knowledge about a company’s product and who travels to the U.S. to impart his or her specialized knowledge to new U.S. employees. In addition, companies who currently do not have an office in the United States can use the L-1B visa to send over an employee with specialized knowledge to help establish one. An L1B visa is issued initially for three years with one two-year extension for a maximum of five years stay.

In both cases, the U.S. company and foreign company must be related in a specific way such through a parent/subsidiary relationship or through an affiliated employer.

Requirements

The alien employee must have worked abroad for the overseas company for a continuous period of one year within the three years immediately preceding his or her admission to the United States. Any time spent working in the United States will not count toward the one year of required employment.

The employee must be seeking to enter the United States to render services in a specialized knowledge capacity to a branch of the same employer or one of its qualifying organizations.

The L-1 visa holder must intend to depart the United States upon completion of his or her authorized stay.

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O Visa

O Status is a non-immigrant status category for aliens of extraordinary ability in the sciences, arts (including the television and motion picture industry), education, business, or athletics. This is an employment related status that allows qualified aliens to live and work in the United States. O-1 petitions may only be filed by a U.S. employer, a U.S. agent, or a foreign employer through a U.S. agent on behalf of the beneficiary. The O-1 visa is a dual intent visa, meaning that the beneficiary may simultaneously seek permanent resident status while in the U.S. on O-1 without worrying about preconceived intent issues.

There are several different types of visas in the O category:

O-1A: Individuals with an extraordinary ability in the sciences, education, business, or athletics.

O-1B: Individuals with an extraordinary ability in the arts or the extraordinary achievement in the motion picture or television industry.

O-2: Individuals who will accompany an O-1 individual to assist in a specific event or performance.

O-3: Individuals who are the spouse or children of O-1s and O-2s.

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- Sciences, Education, Business, and Athletics

For these fields, the alien must show that he/she is in the top of his respective field, either in the sciences, education, business, or athletics. This can be established through evidence of receipt of a major, internationally recognized award such as a Nobel Prize. In absence of such an award one can establish himself as a qualifying alien through other types of evidence.

Requirements

In absence of an award such as a Nobel Prize, an alien can establish himself as a qualifying alien through at least three of the following types of evidence:

Documentation of receipt of lesser nationally (not necessarily U.S.) or internationally recognized prizes or awards for excellence in the field of endeavor;

Documentation of membership in associations in the field of endeavor which require outstanding achievements of their members, as judged by recognized national or international experts in their fields;

Published material in professional or major trade publication or in the major media about the alien and relating to the alien’s work in the field of endeavor;

Evidence of participation as a judge (individually or as a part of a panel) of the work of others in the alien’s field;

Evidence of scientific, scholarly, or business related contributions of major significance in the field of endeavor;

Evidence of authorship of scholarly articles in the field, in professional journals or other major media;

Evidence of performance in a critical or essential capacity for organizations or establishments with distinguished reputations;

Evidence of having commanded a high salary or other significantly high remuneration for services in relation to others; and

Other comparable evidence.

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- Arts, Motion Picture, or Television

For the arts, the alien must show that he has acquired “distinction” in his artistic field.
“Distinction” means a high level of achievement as evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that the person is described as prominent, leading, or well-known in the field of arts:

Persons in the motion picture or television industry must show a very high level of accomplishment evidenced by a degree of skill and recognition significantly above that ordinarily encountered to the extent that the person is recognized as outstanding, notable, or leading in the industry.

Under these standards the requirements under the motion picture or television industry are somewhat higher than those for the arts. In either case, the forms of evidence to be used to establish the qualification is the same. The alien may establish qualification through evidence of nomination or receipt of a major, national or international recognized award such as an Academy Award, an Emmy, a Grammy, or a Director’s Guild Award.

Requirements

In absence of an award such as a those listed above, one can establish oneself as a qualifying alien through at least three of the following types of evidence:

Having been or will be performing a lead or starring role in productions or events which have a distinguished reputation (as evidenced by critical reviews, advertisements, press releases, publications contracts, or endorsements;

Critical reviews or other published material in professional or major trade publication or in the major media by or about the alien which show that the alien has achieved national or international recognition or achievements;

Evidence of performance in a lead, starring or critical role for organizations or establishments with distinguished reputations;

Evidence of a record of major commercial or critically acclaimed successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales.

Evidence of significant recognition for achievements form organizations, government agencies, or other recognized experts in the field;

Evidence of having commanded a high salary or other significantly high remuneration for services in relation to others; and

Other comparable evidence.

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P-1

Under U.S. Immigration Law, the non-immigrant P-Visa category is reserved for aliens who wish to come to the United States to perform services as an internationally recognized athlete, entertainer, and/or performer. Additionally, spouses and minor children of a P-1, P-2 or P-3 alien may accompany them to the United States on a P-4 visa.

The following evidence is required to accompany every type of P nonimmigrant petition:

Copies of any written contracts between the petitioner and the alien beneficiary or, if there is no written contract, a summary of the terms of the oral agreement under which the alien will be employed;

An explanation of the nature of the events or activities, the beginning and ending dates for the events or activities, and a copy of any itinerary for the events or activities;

A written consultation from a labor organization; and

Any other evidence necessary for the alien’s specific P category.

The petitioner must also submit evidence that establish the alien’s ability. The necessary types of evidence that must be submitted with the P-Visa petition are as follows:

Affidavits, contracts, awards and similar documentation must reflect the nature of the alien’s achievement and be executed by an officer or responsible person employed by the institution, establishment, or organization where the work was performed.

Affidavits written by present or former employers or recognized experts certifying the recognition and extraordinary ability, or, in the case of a motion picture or television production, the extraordinary achievement of the alien, which shall specifically describe the alien’s recognition and ability or achievement in factual terms. The affidavit must also set forth the expertise of the affiant and the manner in which the affiant acquired such information.

A legible copy of a document in support of the petition may be submitted in lieu of the original.

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- Internationally Recognized Athlete

The P-1A classification is available to an alien who is an internationally recognized athlete coming to the United States temporarily to participate in a specific athletic competition, individually or as a part of a group or team. If travelling to the United States as an individual, then the athlete must be internationally recognized to have obtained a high level achievement. This must be evidenced by a degree of skill and recognition substantially above that ordinarily encountered so that the athlete is renowned, leading or well-known in more than one country.

If the alien will be travelling as a part of an athletic team to participate in team events, then that team must have achieved significant international recognition in the sport. In addition, the event in which the team is participating must be distinguished and require the participation of athletic teams of international recognition. Essential support staff for either an individual or the team may also apply for a P-1A visa.

Requirements

Just as with all P petitions, the P-1A athlete’s U.S. employer, or agent in the case

Of multiple employers, must first file a Form I-129 (Petition for a Non-Immigrant Worker) with the appropriate USCISservice center (USCIS Vermont Service Center 4 Lemnah Drive St. Albans, VT 05479-0001, USCIS Vermont Service Center 75 Lower Welden Street St. Albans, VT 05479-0001, or USCIS California Service Center P.O. Box 10825 Laguna Niguel, CA 92607), along with the $325 application fee per person, and the required supporting documentation:
A written consultation from an appropriate labor organization describing the work or services to be performed in the U.S. and the alien’s qualifications for such work. However, if no appropriate labor organization exists, then this requirement will be excused;

A copy of the contract with a major U.S. sports league or team or a contract in an individual sport commensurate with international recognition in the sport, if such contracts are normally utilized in the sport;

An explanation of the event and itinerary; and

Documentation of at least two of the following:
Evidence of having participated to a significant extent in a prior season with a major U.S. sports league;

Evidence of having participated to a significant extent in international competition with a national team;

Evidence of having participated to a significant extent in a prior season for a U.S. college or university in an intercollegiate competition;

A written statement from an official of a major U.S. sports league or an official of the governing body of the sport which details how you or your team is internationally recognized;

A written statement from a member of the sports media or a recognized expert in the sport which details how you or your team is internationally recognized;

Evidence that you or your team is ranked, if the sport has international rankings; or

Evidence that you or your team has received a significant honor or award in the sport.

Once the USCIS has approved the I-129 petition, the alien may apply at a U.S. embassy or consulate for their P-1A visa, which they will present at a port of entry to request admission into the United States.

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- Internationally Recognized Entertainment Group

The P-1B classification is designated for aliens who wish to come to the United States temporarily to perform as a member of an entertainment group that has been recognized internationally as outstanding in the discipline for a sustained and substantial period of time. In order to qualify, the entertainment group must have been established and performing for at least one year. In the case of a solo artist or entertainer who traditionally performs with back-up singers, the act can be classified as a group as long as a minimum of 75% of the members of the entertainment group must have had a substantial and sustained relationship with the group for at least one year. If they do not meet the 75% rule, however, the solo artist must qualify for an O-1 visa and the musicians as O-2s.

The individual alien’s reputation is not as important for P-1B, as what really matters is the reputation of the group overall. The entertainment group must be internationally recognized, with a high level of achievement in their field evidenced by a degree of skill and recognition substantially above that ordinarily encountered.

Requirements

As with all other P petitions, the alien’s employer or agent acting as the petitioner must submit a Form I-129 (Petition for a Non-Immigrant Worker) along with the $325 application fee and the following supporting documentation:
Written consultation from an appropriate labor organization regarding the nature of the work to be done. If no appropriate labor organization exists, then 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 the 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; and

Evidence that the group is internationally recognized as outstanding in the discipline for a substantial period of time as demonstrated by evidence of the 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:

The 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;

The 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 materials;

The 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;

The 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;

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

The 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.

Once the USCIS has approved the I-129 petition, the alien may apply at a U.S. embassy or consulate for their P-1B visa, which they will present at a port of entry to request admission into the United States.

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Student Visa

Our higher education system is one of the things that makes America exceptional.  For foreign national students wishing to come to the United States to obtain higher education, there are three types of visas, the F1 visa, J1 visa and M1 visa.  The F1 and J1 visa have the added bonus of allowing you to work in the U.S while you study.  The M1 visa does not allow for employment.  

3 Visa Types

F-1 Visa- The F1 visa is the most commonly obtained student visa in the US and is for academic study or English language program.  Students with F1 visas must be full-time students.  However, it also allows for part-time employment on campus.  Students are also allowed one year of OPT (Optional Practical Training) following completion of their studies.  However, this must be completed prior to the expiration of the I-20 visa.

J-1 Visa- Foreign nationals needing practical training to complete their academic training not available in their home country can apply for the J1 visa.  The J1 visa is similar to the F1 in that it allows the student to work with close to the same restrictions, so long as the exchange visitor program sponsor gives permission.

M-1 Visa- The M1 visa is for students enrolling in technical/vocational/nonacademic programs.  With this visa, students are not allowed to work during their studies.  A requirement of this visa is that the student show evidence that they have sufficient funds to pay for their tuition and all of their living expenses while they are here in the US completing their course of study.

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Optional Practical Training (OPT)

The authorization process can take up to 3 months. The maximum amount of time granted to work on F-1 OPT status is 12 months per degree level. F-1 students may apply to use some or all of the available 12 months of practical training during the course of study or may save some or all of the full twelve months to use after graduation.

Pre-Completion OPT

  • Pre-completion OPT:  F-1 students may apply to participate in pre-completion OPT after they have been enrolled in school for one full academic year. Students authorized to participate in pre-completion OPT must work part-time while school is in session. They may work full time when school is not in session.

Post-Completion OPT

  • Post-completion OPT:  F-1 students may apply to participate in post-completion OPT after completing their studies. Students authorized for post-completion OPT may work part-time (at least 20 hours per week) or full-time.
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EB-5

Applying for a green card typically requires having a job offer from a US sponsoring employer. However, the green card through self-petition category does not require the applicant to have a job offer from an employer. There are two classifications of immigrants who may apply for green card through self petition, which include:

Extraordinary Ability

Individuals who possesses extraordinary ability in the sciences, arts, education, business, or athletics, or who has a demonstrated record of extraordinary achievement in the motion picture or television industry and has been recognized nationally or internationally for those achievements.

General

An Alien of Extraordinary Ability, or EB-1A, classification applies to aliens who can demonstrate that they “have risen to the very top of their field of endeavor.” Such candidates may apply for EB1A petition without a labor certification or a job offer (i.e. an employer’s sponsorship). Any alien living in the U.S. or abroad may apply if he/she meets the following requirements:

  • Alien has extraordinary ability in the sciences, arts, education, business or athletics which has been demonstrated by sustained national or international acclaim.
  • Alien’s achievements have been recognized in the field through extensive documentation.

Requirements

To establish that the alien is a top member within his/her respective field, evidence of receipt of an internationally recognized award such as the Nobel Prize or an Academy Award is accepted. However, in the absence of an internationally recognized award, the alien can establish him/herself as an Alien of Extraordinary Ability by providing documentation of any three (3) of the following:

Receipt of lesser nationally or internationally recognized prizes or awards for excellence.

  1. Membership in associations which require outstanding achievements of their members, as judged by recognized national or international experts in their fields.
  2. Published material in professional/major trade publications or major media about the alien and relating to the alien’s work field.
  3. Participation as a judge (individually or as a part of a panel) evaluating the work of others.
  4. Original scientific, scholarly, or artistic contributions of major significance.
  5. Authorship of scholarly articles in professional journals or other major media.
  6. Artistic exhibitions/shows.
  7. Leading role within an organization/establishment with a distinguished reputation.
  8. High salary/compensation for services in comparison to others.
  9. Commercial success within the performing arts, as shown by either box office receipt figures or cassette, compact disk, video, or DVD sales figures.
  10. The alien must also show that his/her admittance into the United States will substantially benefit the United States in the future.
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National Interest Waiver(NIW)

To have a chance at qualifying for a NIW one of the following must be met:

  • The foreign person’s admission will improve the U.S. economy.
  • The foreign person’s admission will improve wages and working conditions of U.S. workers.
  • The foreign person’s admission will provide more affordable housing for young, aged, or poor U.S. residents.
  • The foreign person’s admission will improve the U.S. environment and lead to more productive use of the national resources.
  • The foreign person’s admission is requested by an interested U.S. government agency.

General

A National Interest Waiver (NIW) petition falls into the employment-based immigration, second preference (EB2) category (As known as EB2 NIW). Normally, a permanent job offer and an approved labor certification are pre-requisites to file an employment-based, second preference immigration petition. However, a National Interest Waiver (NIW) petition requests that the labor certification requirement be waived for the sake of the “national interest of the United States;” thus, allowing an applicant to apply for an NIW immigration petition without a labor certification or a job offer from a U.S. employer.

First, in order to be eligible to file an NIW petition, a beneficiary or applicant must have an “advanced degree” or “exceptional ability” in the sciences, arts or business. The beneficiary must also persuasively demonstrate that he/she seeks employment in an area of substantial intrinsic merit to the U.S., that the benefit from the candidate’s proposed activity will be national in scope, and that the requirement of a Labor Certification for the candidate will adversely affect the national interest. Each NIW case is adjudicated on its individual merits, but the burden of proof is always on the applicant or beneficiary to establish that exemption from the labor certification will be in the national interest of the U.S.

For an NIW, even if the beneficiary has no employer, he/she may file an NIW petition on behalf of himself/herself. A U.S. employer may also file an NIW petition on behalf of the beneficiary.

Requirements

The occupations that qualify for a National Interest Waiver are not defined by statute. However, each of these three requirements must be met to qualify for an NIW.

  • Work in an area of “substantial intrinsic merit” means work in a field that is valuable to the national interest of the U.S. Research in any scientific field, for example, can be said to have substantial intrinsic merit to the national interest of the U.S. Likewise, a sociologist studying demographic trends relating to the 2010 U.S. Census can argue that she seeks work in an area of substantial intrinsic merit; or an educational policy expert can show that his field has substantial intrinsic merit due to its capacity to improve society through education. This criterion is not difficult to meet.
  • The applicant’s work, if successful, benefits the U.S. nationally in scope, means that an applicant’s work cannot have merely a limited regional impact. An applicant who has published their research can always show that their work has a national scope since academic publications are disseminated nationally and internationally. In the absence of publications, an applicant can show that the impact of their work is national in scope. For example, a petroleum engineer can argue that her work impacts the entire U.S. in terms of energy supply and refinery safety.
  • National Interest would be adversely affected if a Labor Certification were required for the alien. USCIS interprets this to mean that the benefit of an applicant’s work to the U.S. is so great as to outweigh the nation’s inherent interest in protecting U.S. workers by requiring aliens to undergo the Labor Certification process. This is the most difficult requirement of the three to satisfy; therefore, we will discuss this in more detail below.
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Waivers

Waivers - I-601A Provisional Unlawful Presence Waiver

Applicants for U.S. green cards who are afraid to leave the U.S. for their consular visa interview because they might be blocked from return based on their past time spent in the U.S. unlawfully can apply for a “provisional waiver” (also known as a “stateside waiver”) of this unlawful presence ground of inadmissibility.

By applying for a stateside waiver, applicants can get a “yes” or “no” answer from U.S. Citizenship and Immigration Services (USCIS) before departing the U.S. for their visa interview. With a “yes” answer, they can leave the U.S., feeling fairly comfortable that the consular officer will approve the immigrant visa and allow them to return to the U.S. as permanent residents.

If the answer from USCIS is “no,” applicants will at least find out while they’re still with their family in the U.S., not trapped outside for three or ten years. They can potentially reapply. (And, the enforcement authorities have said they do not intend to use this process as a way to identify people for removal – unless they’re criminals or public safety risks.) Or they can take a chance and leave the U.S. for a consular interview and present their waiver application there. Not everyone who is eligible for a green card is eligible to for this provisional waiver, however.

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212(I) Waiver for Fraud and Misrepresentation

Applicants for U.S. green cards who are afraid to leave the U.S. for their consular visa interview because they might be blocked from return based on their past time spent in the U.S. unlawfully can apply for a “provisional waiver” (also known as a “stateside waiver”) of this unlawful presence ground of inadmissibility.

By applying for a stateside waiver, applicants can get a “yes” or “no” answer from U.S. Citizenship and Immigration Services (USCIS) before departing the U.S. for their visa interview. With a “yes” answer, they can leave the U.S., feeling fairly comfortable that the consular officer will approve the immigrant visa and allow them to return to the U.S. as permanent residents.

If the answer from USCIS is “no,” applicants will at least find out while they’re still with their family in the U.S., not trapped outside for three or ten years. They can potentially reapply. (And, the enforcement authorities have said they do not intend to use this process as a way to identify people for removal – unless they’re criminals or public safety risks.) Or they can take a chance and leave the U.S. for a consular interview and present their waiver application there. Not everyone who is eligible for a green card is eligible to for this provisional waiver, however.

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212(I) Waiver for Fraud and Misrepresentation

Under section 212(a)(6)(C)(i) of the Act, an alien who, by fraud or willful misrepresentation of a material fact, seeks to procure, has sought to procure, or has procured a visa, other documentation, or admission into the United States or other benefit provided under the Act, is inadmissible.

However, the Attorney General (the immigration service) may waive the application of section 212(a)(6)(C)(i) of the Act in the case of an immigrant who is the spouse, son, or daughter of a United States citizen or of an alien lawfully admitted for permanent residence if it is established to the satisfaction of the Attorney General that the refusal of admission to the United States of the alien would result in extreme hardship to the citizen or lawful resident spouse or parent of the alien. INA 212(i).

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212 (H) Criminal Grounds of Indismissibility Waiver

If you were denied admission to the United States because of your criminal history, you may be eligible to file a waiver application. Section 212(h) of the I.N.A. identifies certain criminal grounds that allow for a waiver application.

These include crimes of moral turpitude, prostitution, and a single offense of possession of 30 grams or less of marijuana. Waivers are not allowed for murder, torture, aggravated felonies or for violations of any other law regarding controlled substances.
If your criminal ground of inadmissibility allows a waiver application, you are eligible if one of the following applies to you:

  • More than 15 years has passed since you committed the crime and applied for admission to the United States; or
  • You have a U.S. citizen or lawful permanent resident spouse, fiance, child, or parent who will experience extreme hardship if you are denied admission.

If you are applying for a waiver based on the passage of 15 years, you will need to demonstrate that you are not a threat to U.S. safety, security, or welfare, and that you have rehabilitated. The officer will have discretion in deciding upon these factors. Your chances of success will be greater if you have not committed any other crimes in your home country during the 15-year period and you actively participated in and completed programs specific to rehabilitation.

If you are applying based on the hardship to a qualifying relative, the factors will be the same as those for waivers of unlawful presence and misrepresentation. The only difference is that U.S. citizen or lawful permanent resident children count as qualifying relatives for criminal grounds of inadmissibility.

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212(C) Waiver

If you are a legal permanent residence of the United States and have been placed in removal proceedings due to criminal activity, you could seek a waiver of your convictions and avoid deportation. Your eligibility to apply for a waiver is based on the type of crime you committed and the date on which you were convicted. Certain lawful permanent residents can apply for discretionary relief under section 212(c) of the Immigration and Nationality Act.

The requirements to apply for and receive a 212c waiver include:

  • You pled guilty to the crime prior to April 1, 1997
  • You have been a lawful permanent resident for at least 5 years
  • You are returning to a lawful, unrelinquished residence of at least 7 consecutive years
  • You are not subject to deportation or removal on the grounds of terrorism or national security
  • You are not unlawfully in the US due to a previous immigration offense
  • You have not been convicted of a firearms offense or an aggravated felony offense for which you served over 5 years

You are ineligible to receive a 212c waiver if you have departed and are currently outside the US, you have illegally returned after deportation or removal, or you are present in the US without having been admitted or paroled.

It is important to note that the 212c waiver is a discretionary. Therefore, even if you are eligible to apply for a 212c waiver, the Immigration Judge will decide on a case-by-case basis whether or not to grant you this relief. The Judge will look closely at the balance of positive factors versus negative factors in your application. Positive factors include family ties in the US, long time residence in the US, hardship to you and your family if you were deported, property ownership, business ties, demonstrated value and service to the community, genuine rehabilitation and evidence that you are person of good character Negative factors can include the nature, seriousness and recency of your criminal record and evidence that you are a person of bad moral character.

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Deportation Defense

Asylum

Those present in the United States who have suffered harm, or fear that they will suffer harm upon return to their home country, may be eligible for asylum, withholding of removal or relief under the Convention Against Torture.

Applicants must show that the harm they suffered or fear they will suffer rises to the level of “persecution” and that harm is based on one of the following:

  • Race
  • Religion
  • Nationality
  • membership in a particular social group
  • or an (actual or imputed) political opinion.

Important Notes for Asylum Applicants

  • If denied for asylum as an Out-Of-Status or Undocumented Immigrant, you will be referred to deportation proceedings immediately
  • You will be barred from applying for an asylum visa if you have already filed once before and were denied unless you can demonstrate that there are changed circumstances which materially affect your eligibility for asylum.
  • You must file all the necessary documentation within one year of entrance to the United States or of the expiration of your permitted U.S. stay.
  • Applying for an asylum visa may impact future visa applications such as an Optional Practical Training (OPT) Visa, or a H-1B Visa, as applying for an asylum visa portrays an intent to stay/ not return to country of residence which are key points to obtaining any temporary visa.
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U-Visa

Certain victims of crimes who are helpful in an investigation of the crime may apply for U visa status and obtain work authorization in the United States. 

If the U visa is approved, removal proceedings can be terminated. In some circumstances, removal proceedings can be administratively closed while the U visa is pending.

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Cancellation of Removal of Non-LPR

In order to successfully win a deportation case based on Cancellation of Removal for Non-Legal Permanent Resident you must prove the following:

  • Continuous physical presence in the U.S. for 10 years
  • Qualifying relatives: a child, spouse, parent that is either a US Citizen or Legal Permanent Resident
  • Good moral character
  • Exceptional and Extremely Unusual Hardship to your qualifying relative
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Cancellation of Removal of LPR

Under section 240(a) of the Immigration and Nationality Act (INA), you may qualify for cancellation of removal for legal permanent residents if you can prove to the Immigration Judge the following:

  • You have been a permanent resident for at least five (5) years
  • You have at least 7 years of continuous physical presence in the US after having been admitted under any status
  • You have not been convicted of an aggravated felony
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Administrative Closure

In some circumstances, the government attorney may exercise his or her discretion and close or terminate removal proceedings against an individual. The best practice is to request Prosecutorial Discretion in writing with evidence to the Department of Homeland Security. 

In some cases, a person will be eligible for work authorization even after a case is closed, but this depends on other applications on file.

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Violence Against Womans Act (VAWA)

Victims of certain crimes involving domestic violence may be eligible for relief under the Violence Against Women Act. These applications can serve as a defense to deportation.  VAWA allows for victims of domestic violence, child abuse or elder abuse to “self-petition” for lawful permanent residence without the cooperation or knowledge of the abusive spouse, partner, parent or adult child.  A blanket of confidentiality is provided to the applicant during the process thus allowing to stay until lawful permanent status is reached and they can leave their abuser.  Once approved, the VAWA self-petition provides the applicant with work authorization, deferred action and allows the applicant to apply for lawful permanent residency.  VAWA applicants are subject to the family preference system and any backlogs that could exist depending on their domestic situation.  However, there is no limit to the number of VAWA self-petitions that can be filed per year.  

Who qualifies for VAWA?

  • Spouses and former spouses of abusive U.S. citizens or lawful permanent residents.  If filed within 2 years of the termination of a marriage and if the termination is as a result of domestic violence, a divorced spouse can also file for VAWA.
  • Children under age 25 of abusive U.S. Citizens or lawful permanent residents.
  • The immigrant parent of an abused immigrant child, even if the parent themselves did not suffer abuse.
  • Non-citizen spouses whose children are abused by the child’s other U.S. citizen or lawful permanent resident parent.

To support the VAWA petition, in addition to proving abuse, the self petition must provide the following evidence:

  • Marriage was entered in good faith
  • The relationship with the abuser
  • The immigration status of the U.S. citizen or LPR spouse, parent or child.
  • Good moral character.
  • Resides with the abusive spouse, parent or child.
  • If the applicant is the nonabused immigrant parent, then they must prove the parent-child relationship between themselves and the abusive U.S. citizen or LPR spouse.
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Employment Based Preference

 EB Preferences

  • First:  Priority Workers
  • Second:  Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability
  • Third:  Skilled Workers, Professionals, and Other Workers
  • Fourth:  Certain Special Immigrants
  • Fifth:  Employment Creation

EB-1A Extraordinary Ability

An Alien of Extraordinary Ability, or EB-1A, classification applies to aliens who can demonstrate that they “have risen to the very top of their field of endeavor.” Such candidates may apply for EB-1A petition without a labor certification or a job offer (i.e. an employer’s sponsorship). Any alien living in the U.S. or abroad may apply if he/she meets the following requirements:

  • Alien has extraordinary ability in the sciences, arts, education, business or athletics which has been demonstrated by sustained national or international acclaim.
  • Alien’s achievements have been recognized in the field through extensive documentation.

Requirements

To establish that the alien is a top member within his/her respective field, evidence of receipt of an internationally recognized award such as the Nobel Prize or an Academy Award is accepted. However, in the absence of an internationally recognized award, the alien can establish him/herself as an Alien of Extraordinary Ability by providing documentation of any three (3) of the following:

  • Receipt of lesser nationally or internationally recognized prizes or awards for excellence.
  • Membership in associations which require outstanding achievements of their members, as judged by recognized national or international experts in their fields.
  • Published material in professional/major trade publications or major media about the alien and relating to the alien’s work field.
  • Participation as a judge (individually or as a part of a panel) evaluating the work of others.
  • Original scientific, scholarly, or artistic contributions of major significance.
  • Authorship of scholarly articles in professional journals or other major media.
  • Artistic exhibitions/shows.
  • Leading role within an organization/establishment with a distinguished reputation.
  • High salary/compensation for services in comparison to others.
  • Commercial success within the performing arts, as shown by either box office receipt figures or cassette, compact disk, video, or DVD sales figures. The alien must also show that his/her admittance into the United States will substantially benefit the United States in the future.
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EB-1B Outstanding Researcher or Professor

An “Outstanding Researcher or Professor” EB-1B immigrant visa is for aliens who are internationally recognized as outstanding in a particular scientific or scholarly field. Unlike self-petitioned EB-1A cases, EB-1B cases are employer sponsored. This means the petitioning employer must demonstrate that the alien has outstanding ability as a researcher or professor and has a permanent job offer from the employer. The outstanding researcher/professor alien must have the sponsorship of his/her employer throughout the petitioning process. The employer is the petitioner and the outstanding researcher/professor is the beneficiary for the EB-1B process.

There are three (3) main requirements for someone seeking a petition as an “Outstanding Researcher/Professor”, including:

  • International recognition for being outstanding in a specific academic field;
  • At least three years of relevant research or teaching experience: Research or teaching experience obtained while in pursuit of an advanced degree, such as a Ph.D., can be counted toward the three year requirement, but only if the alien has acquired the degree, and if the teaching duties were such that he or she had full responsibility for the class taught or if the research conducted toward the degree has been recognized within the academic field as outstanding. The alien must document his or her work history with letters from current and/or former employers describing work duties and years of employment; and
  • A job offer for a permanent research position or a tenured or tenure-track teaching position from the sponsoring employer: Generally, the job offer is given by a university or other similar academic or scientific institution, but it can also be offered by a private employer. If the offer is from a private employer, the employer must have at least three full-time researchers along with accompanying documentation supporting their accomplishments within the field.

As with all employment-based first preference petitions, no Labor Certification is required to obtain an EB-1B immigrant visa. However, the person seeking permanent resident status on the basis of an EB-1B Outstanding Researcher/Professor classification must have the requisite job offer with the sponsoring employer that is filing the petition on the alien’s behalf.

To be recognized internationally as an Outstanding Researcher or Professor in one’s field requires at least two (2) of the following types of evidence:

  • Receipt of major prizes or awards for outstanding achievement.
  • Membership in associations which require outstanding achievements of their members.
  • Published material in professional publications written by others about the alien’s work (more than merely citing the alien’s work).
  • Participation as a judge (individually or as a part of a panel) evaluating the work of others in the same field or concentration.
  • Original scientific, scholarly, or artistic contributions in the field.

Evidence of authorship of scholarly books/articles in journals with an international circulation.

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EB-1C Executive or Manager

The EB-1C immigrant category is among the other various visas in the First Preference category. A First Preference Immigration Petition (EB-1) is an employment-based petition for permanent residence reserved for those who are among the most able and accomplished in their respective fields within the arts, sciences, education, business, or sports. Immigrant visa numbers are immediately available under the EB-1 category. The first preference category is allotted 40,000 annual immigrant visas. To obtain an EB-1 status, the beneficiary may apply for Adjustment of Status, if they are already in the United States, or through consular processing at a U.S. consular office abroad.

  • The EB-1C visa is a good way for small or start-up overseas companies to expand their business and services to the United States. This is advantageous to smaller companies because its allows for the transfer of a highly proficient manager or executive employee who has direct knowledge of the company’s operations, allowing the setup of a new branch in compliance with the goals and objectives of the company’s main office.
  • The Multinational Managerial or Executive EB-1C petition allows international companies to transfer top-level executives and managers to the U.S. as permanent residents.

Requirements

Requirements for the EB-1C Employer:

  • The company must have a qualifying relationship with a foreign company, such as a parent company, branch, subsidiary, or affiliate. These are collectively referred to as qualifying entities.
  • The company must conduct business as an employer in the United States and in at least one other country directly or through a qualifying organization in the regular, systematic, and continuous provision of goods or services.
  • The company must have been in existence in the United States for at least one year.

Requirements for the EB-1C Employee:

The EB-1C candidate must have been employed for one year within the past three years by the overseas affiliate, parent, subsidiary or branch of the U.S. employer and they must work in the United States in a managerial or executive capacity.

 

The managerial capacity requirement is met if the alien can prove that he or she personally:

  • Manages the organization, department, component or function;
  • Supervises and controls the work of other supervisory, professional or managerial employees, or manages an essential function within the organization or department or subdivision or the organization;
  • Has the authority to hire and fire and make personnel decisions; and
  • Exercises direction over day-to-day operations of the activity or function.

 

The executive capacity requirement is met if the alien can prove that he or she primarily:

  • Directs management of an organization, major component, or function;
  • Establishes goals and policies;
  • Exercises wide latitude in discretionary decision-making; and
  • Receives only general supervision from higher executives, the board of directors, or stockholders.

 

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EB-2 Foreign Professional Holding Advanced Degree

The petition can be filed in this category if the job requires an advanced degree (beyond bachelor’s degree such as Master’s degree or Ph.D.) and the alien has such a degree or the equivalent (Bachelor’s degree plus five years of progressive experience in the profession. Also called BS+5.) The degree may be from U.S. or equivalent degree from a foreign country. If applying by BS+5, the experience letters from former employers showing that the alien has at least 5 years of progressive experience in the specialty after the bachelor’s degree are required. The experience from the current employer CAN NOT be used unless that experience is for a different job (different job duties, promotion to manager etc.) than for the job for which the petition is being filed.

Requirements

Following documents must be filed with the petition:

  • Approved labor certification, or a request for a waiver of a job offer because the employment is deemed to be in the national interest, with documentation provided to show that the beneficiary’s presence in the U.S. would be in the national interest.
  • An official academic record showing that the alien has a U.S. advanced degree or an equivalent foreign degree, or an official academic record showing that the alien has a U.S. bachelor’s degree or an equivalent foreign degree and letters from current or former employers showing that the alien has at least 5 years of progressive post-bachelor experience in the specialty.
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EB-2 Foreign National with Exceptional Ability in Sciences, Arts, or Business

Aliens who qualify under this classification are the ones “who because of their exceptional ability in the sciences, arts, or business will substantially benefit the national economy, cultural, or educational interests or welfare of the United States”.

Exceptional ability means having a degree and expertise significantly above that normally found within the field. Here the standard is “exceptional” and NOT “extraordinary” which comes under EB1.

Requirements

Following documents must be filed with the petition:

Approved labor certification, or a request for a waiver of a job offer because the employment is deemed to be in the national interest, with documentation provided to show that the beneficiary’s presence in the U.S. would be in the national interest.

Documentation of three of the following:

  • An official academic record showing that the alien has a degree, diploma, certificate or similar award from a college, university, school or other institution of learning relating to the area of exceptional ability.
  • Letters from current or former employers showing that the alien has at least 10 years of full-time experience in the occupation for which he/she is being sought;
  • A license to practice the profession or certification for a particular profession or occupation.
  • Evidence that the alien has commanded a salary or other remuneration for services which demonstrates exceptional ability.
  • Evidence of membership in professional associations.
  • Evidence of recognition for achievements and significant contributions to the industry or field by peers, government entities, professional or business organizations.

If the above standards don’t readily apply to the alien’s occupation, comparable evidence may be submitted to establish the alien’s eligibility.

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EB-2 National Interest Waiver

A National Interest Waiver (NIW) petition falls into the employment-based immigration, second preference (EB2) category (As known as EB2 NIW). Normally, a permanent job offer, and an approved labor certification are pre-requisites to file an employment-based, second preference immigration petition. However, a National Interest Waiver (NIW) petition requests that the labor certification requirement be waived for the sake of the “national interest of the United States;” thus, allowing an applicant to apply for an NIW immigration petition without a labor certification or a job offer from a U.S. employer.

First, to be eligible to file an NIW petition, a beneficiary or applicant must have an “advanced degree” or “exceptional ability” in the sciences, arts or business. The beneficiary must also persuasively demonstrate that he/she seeks employment in an area of substantial intrinsic merit to the U.S., that the benefit from the candidate’s proposed activity will be national in scope, and that the requirement of a Labor Certification for the candidate will adversely affect the national interest. Each NIW case is adjudicated on its individual merits, but the burden of proof is always on the applicant or beneficiary to establish that exemption from the labor certification will be in the national interest of the U.S.

For an NIW, even if the beneficiary has no employer, he/she may file an NIW petition on behalf of himself/herself. A U.S. employer may also file an NIW petition on behalf of the beneficiary.

Requirements

The occupations that qualify for a National Interest Waiver are not defined by statute. However, each of these three requirements must be met to qualify for an NIW.

  • Work in an area of “substantial intrinsic merit” means work in a field that is valuable to the national interest of the U.S. Research in any scientific field, for example, can be said to have substantial intrinsic merit to the national interest of the U.S. Likewise, a sociologist studying demographic trends relating to the 2010 U.S. Census can argue that she seeks work in an area of substantial intrinsic merit; or an educational policy expert can show that his field has substantial intrinsic merit due to its capacity to improve society through education. This criterion is not difficult to meet.
  • The applicant’s work, if successful, benefits the U.S. nationally in scope, means that an applicant’s work cannot have merely a limited regional impact. An applicant who has published their research can always show that their work has a national scope since academic publications are disseminated nationally and internationally. In the absence of publications, an applicant can show that the impact of their work is national in scope. For example, a petroleum engineer can argue that her work impacts the entire U.S. in terms of energy supply and refinery safety.
  • National Interest would be adversely affected if a Labor Certification were required for the alien. USCIS interprets this to mean that the benefit of an applicant’s work to the U.S. is so great as to outweigh the nation’s inherent interest in protecting U.S. workers by requiring aliens to undergo the Labor Certification process. This is the most difficult requirement of the three to satisfy; therefore, we will discuss this in more detail below.
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PERM Labor Certification

PERM, shorthand for Program Electronic Review Management System, was initiated by the Department of Labor to process labor certifications on behalf of U.S. employers looking to hire alien employees. The purpose of this process is to show that:

  • There are not sufficient U.S. workers able, willing, available, and minimally qualified at the time and place of an alien’s entry; and
  • The alien will not displace U.S. workers or adversely affect the wages or working conditions of U.S. workers. This is established by demonstrating that no minimally qualified, able, and willing U.S. worker is available.
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EB-3 Skilled Workers

This category is potentially more competitive that EB-1 but in a different way. Though EB-1 visas are attractive to the best, brightest, and most accomplished in their field, the number of people eligible for an EB-1 is considerably smaller than those for an EB-3. As a result, this category has a very significant backlog no matter which country the foreign national is from.

The Third Preference employment-based visa category is for other professionals, skilled workers, and other workers who fit into one of the following three sub-categories:

  • skilled workers with at least two (2) years’ experience;
  • professionals with a bachelor’s degree (or foreign degree equivalent) that is required for the job position; or
  • other workers with less than two years’ experience that is required for the position.
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EB-4 Special Immigrant Workers

The Employment-Based Fourth Preference (EB-4) category is a pathway to US permanent resident status for religious workers and other special immigrant workers who are employees of the U.S. government, Iraqi & Afghani translators in the U.S. armed forces, certain physicians, and others as listed below. Depending on the category, applicants may be self-petitioning or be required to have an employer petition on their behalf.

Who is eligible?

  • Religious Workers
  • Broadcasters
  • Iraqi/Afghan Translators (Capped at 50 per year)
  • Iraqis who have assisted the US
  • International Organization Employees
  • Physicians who have worked for the US government abroad or domestically
  • Armed Forces Members
  • Panama Canal Zone Employees
  • Retired NATO-6 employees, or their surviving spouses & children

 

Requirements For Intending Immigrant

  • Evidence that intending immigrant has been a member of the denomination for 2 years immediately prior to petition filing. Can be: religious certificates, ordinations, acceptance into the denomination, courses & education completion in the organization, transcripts, etc.
  • Evidence of the intending immigrant’s religious background, such as: certificates of ordination, or acceptance as a minister or related religious position.
  • If worker will be financially self-supporting, evidence of nature of position as to why it is not salaried, including job duties, and evidence of financial ability for worker to support themself (bank records, pay stubs, etc) is needed.
  • Evidence that the intending immigrant has been employed full-time by the same religious denomination in a religious occupation for 2 years immediately prior before filing.

 

Requirements For Non-profit Religious Organization

  • Proof of tax exempt status, usually IRS 501(c)(3) letter;
  • Proof of salaried or non-salaried compensation. Can be budget, proof of past compensation for similar position, evidence of room & board provided, W-2s, etc. If room & board will be provided as part of the compensation, documentary evidence is needed to demonstrate the organizations intent & ability to provide it.

Attestation from authorized religious official that: the religious organization is a bona fide non-profit; the intending worker has been a member of the organization for at least 2 years; the number of members of the employer’s organization; job description & number of employees at the job site; number of workers holding R-1 or special immigrant status that have worked for the organization over the past 5 years; number of R-1 or special immigrant petitions filed by the organization for the past 5 years; job title offered to intending worker; details of salaries or non-salaried compensation; that the intending worker will work 35 hours per week; the specific location of the intending employment; and that the intending worker will not engage in employment outside the religious organization.

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EB-5 Immigrant Investor Program

USCIS administers the Immigrant Investor Program, also known as “EB-5,” created by Congress in 1990 to stimulate the U.S. economy through job creation and capital investment by foreign investors. Under a pilot immigration program first enacted in 1992 and regularly reauthorized since, certain EB-5 visas also are set aside for investors in Regional Centers designated by USCIS based on proposals for promoting economic growth.

  • All EB-5 investors must invest in a new commercial enterprise, which is a commercial enterprise:
  • Established after Nov. 29, 1990, or
  • Established on or before Nov. 29, 1990, that is:
  • Purchased and the existing business is restructured or reorganized in such a way that a new commercial enterprise results, or
  • Expanded through the investment so that a 40-percent increase in the net worth or number of employees occurs

Commercial enterprise means any for-profit activity formed for the ongoing conduct of lawful business including, but not limited to:

  • A sole proprietorship
  • Partnership (whether limited or general)
  • Holding company
  • Joint venture
  • Corporation
  • Business trust or other entity, which may be publicly or privately owned

This definition includes a commercial enterprise consisting of a holding company and its wholly owned subsidiaries, provided that each such subsidiary is engaged in a for-profit activity formed for the ongoing conduct of a lawful business.

Note: This definition does not include noncommercial activity such as owning and operating a personal residence.

 

Job Creation Requirements

Create or preserve at least 10 full-time jobs for qualifying U.S. workers within two years (or under certain circumstances, within a reasonable time after the two-year period) of the immigrant investor’s admission to the United States as a Conditional Permanent Resident.

Create or preserve either direct or indirect jobs:

  • Direct jobs are actual identifiable jobs for qualified employees located within the commercial enterprise into which the EB-5 investor has directly invested his or her capital.
  • Indirect jobs are those jobs shown to have been created collaterally or as a result of capital invested in a commercial enterprise affiliated with a regional center by an EB-5 investor. A foreign investor may only use the indirect job calculation if affiliated with a regional center.

Note: Investors may only be credited with preserving jobs in a troubled business.

 

A troubled business is an enterprise that has been in existence for at least two years and has incurred a net loss during the 12- or 24-month period prior to the priority date on the immigrant investor’s Form I-526. The loss for this period must be at least 20 percent of the troubled business’ net worth prior to the loss. For purposes of determining whether the troubled business has been in existence for two years, successors in interest to the troubled business will be deemed to have been in existence for the same period of time as the business they succeeded.

 

Eligible Employees

  • A qualified employee is a U.S. citizen, permanent resident or other immigrant authorized to work in the United States. The individual may be a conditional resident, an asylee, a refugee, or a person residing in the United States under suspension of deportation. This definition does not include the immigrant investor; his or her spouse, sons, or daughters; or any foreign national in any nonimmigrant status (such as an H-1B visa holder) or who is not authorized to work in the United States.

 

  • Full-time employment means employment of a qualifying employee by the new commercial enterprise in a position that requires a minimum of 35 working hours per week. In the case of the Immigrant Investor Pilot Program, “full-time employment” also means employment of a qualifying employee in a position that has been created indirectly from investments associated with the Pilot Program.

 

  • A job-sharing arrangement whereby two or more qualifying employees share a full-time position will count as full-time employment provided the hourly requirement per week is met. This definition does not include combinations of part-time positions or full-time equivalents even if, when combined, the positions meet the hourly requirement per week. The position must be permanent, full-time and constant. The two qualified employees sharing the job must be permanent and share the associated benefits normally related to any permanent, full-time position, including payment of both workman’s compensation and unemployment premiums for the position by the employer.

 

Capital Investment Requirements

Capital means cash, equipment, inventory, other tangible property, cash equivalents and indebtedness secured by assets owned by the alien entrepreneur, provided that the alien entrepreneur is personally and primarily liable and that the assets of the new commercial enterprise upon which the petition is based are not used to secure any of the indebtedness. All capital shall be valued at fair-market value in United States dollars. Assets acquired, directly or indirectly, by unlawful means (such as criminal activities) shall not be considered capital for the purposes of section 203(b)(5) of the Act.

  • Note: Investment capital cannot be borrowed.
  • The minimum qualifying investment in the United States is $1 million.
  • Targeted Employment Area (High Unemployment or Rural Area). The minimum qualifying investment either within a high-unemployment area or rural area in the United States is $500,000.

 

Targeted Employment Area (TEA)

  • A targeted employment area is an area that, at the time of investment, is a rural area or an area experiencing unemployment of at least 150 percent of the national average rate.
  • A rural area is any area outside a metropolitan statistical area (as designated by the Office of Management and Budget) or outside the boundary of any city or town having a population of 20,000 or more according to the decennial census.
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