When a person applies for a visa at an Embassy or Consulate abroad, the Consular Officer can issue the visa at, or soon after, the visa interview. However, the Consular Officer can also issue a notice, sometimes referred to as a 221(g) notice, declining to issue the visa and sending the case for further review. That further review is sometimes referred to as “Administrative Processing.” When an applicant’s visa application is selected for administrative processing, they will be notified with a letter stating the case is on hold until eligibility can be determined. Sometimes – but not always – the letter instructs the visa applicant to provide additional information or documentation which will help the consular official make a decision. Processing times are unpredictable. According to the U.S. Department of State, most administrative processing cases conclude 60 days or less after the visa interview. However, the average wait time for administrative processing can vary depending on where the consulate is located. Administrative processing wait times can also be impacted by the individual circumstances surrounding the visa applicant’s case.
Case Status Online If you have a receipt number for a case sent to USCIS, you can enter it into this website for an update on the cases status. https://egov.uscis.gov/casestatus/landing.do Visa Bulletin At the site below you can access the most recent and upcoming visa bulletins, summarizing the availability of immigrant visas during the listed month for Application Final Action Dates (dates when visas may finally be issued) and Dates for Filing Applications (earliest dates when applicants may be able to apply). https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin.html Online Processing Times To check processing times at USCIS, go to the website below. You will need to enter the form number and the field office or service center where it is currently pending. https://egov.uscis.gov/processing-times/ Call USCIS If you need to talk to a representative for a reason that cannot be addressed online, you can call the USCIS Contact Center from within the U.S. or U.S. territories at 800-375-5283 (for people who are deaf, hard of hearing, or have a speech disability: TTY 800-767-1833). You will need your receipt number. If you are outside the United States or a U.S. territory, you can call 212-620-3418.
Premium Processing Premium processing provides expedited processing for certain I-129 and I-140 petitions. USCIS guarantees processing within 15 days to those who choose to pay the fee to use this service, or they will refund the premium processing service fee and will continue the case. Expedited Processing All expedite requests are considered on a case-by-case basis. Documentation is required to support the request and USCIS has the sole discretion to decide whether to grant or deny a request. You can generally request expedited processing by contacting the USCIS Contact Center at 1-800-375-5283 (TTY for the deaf, hard of hearing, or those having a speech disability: 1-800-767-1833) after you have obtained a receipt notice. The USCIS Contact Center will not be able to refer the expedite request to the appropriate office without a receipt number. When you call to request expedited processing, the USCIS Contact Center creates and forwards a service request to the office with jurisdiction over your application or petition. USCIS may consider an expedite request if it meets one or more of the following criteria: • Severe financial loss to a company or person, provided that the need for urgent action is not the result of the petitioner’s or applicant’s failure to: • File the benefit request or the expedite request in a reasonable time frame, or • Respond to any requests for additional evidence in a reasonably timely manner; • Urgent humanitarian reasons; • Compelling U.S. government interests (such as urgent cases for the Department of Defense or DHS, or other public safety or national security interests); or • Clear USCIS error. All expedite requests claiming severe financial loss, regardless of the immigration benefit sought and regardless of whether the claimed loss is to a company or a person, must be documented to establish the loss and that the requestor is not able to withstand the temporary financial loss that is the natural result of normal processing times. After receiving the service request, the reviewing office may request additional documentation to support expedited processing. A decision on an expedite request is not an approval or a denial of the underlying benefit request. The expedite decision simply informs the requestor whether USCIS will take the benefit request out of date order and issue a decision (approval or denial) faster than the normal processing time. Service Request If your case is outside the published processing times, you can file a Service Request by calling USCIS, or by completing the Service Request form online. https://egov.uscis.gov/e-request/Intro.do Written Correspondence If your case is outside the published processing times, you may write a letter to USCIS, in order to request an update on the case status. InfoPass If you are inside the United States, you can no longer schedule an appointment online using InfoPass for domestic offices, but you can call the USCIS Contact Center at 1-800-375-5283 to potentially be scheduled for an in-person meeting at a USCIS field office. At this meeting you can request processing to be sped up. Alternatively, you can submit a request online for an in-person meeting at my.uscis.gov/help/schedule. A USCIS official will review the online request and call you back to schedule an appointment if they decide its needed. If you are outside the U.S., an appointment can be scheduled online to request processing be sped up. https://my.uscis.gov/en/appointment/v2 Ombudsman Request If you are unable to get an issue resolved with USCIS, you can submit an online request or complete Form DHS-7001, found at www.dhs.gov/cisombudsman, to allow the Ombudsman to share your confidential information with USCIS. The Ombudsman reviews individual cases to provide assistance by examining facts, reviewing relevant data systems, and analyzing applicable laws, regulations, policies and procedures. Congressman If your case is taking longer than USCIS’ published processing times or DOS common processing times, a member of the U.S. Congress may be willing to inquire with U.S. Citizenship and Immigration Services (USCIS) and/or the U.S. Department of State (DOS), however USCIS or DOS will not expedite a case solely on the basis of a congressional inquiry. You need to seek assistance from one of the members of Congress who represents you, which is either of the state’s Senators or the member from the House of Representative where you live. Their website will likely have a privacy form to be signed by you and a form for you to fill out, describing what kind of help you are seeking. You also have the option to call the person’s office and tell them you have an immigration-related problem and that you live in their district. Note, an attorney cannot assist in this process. Writ of Mandamus If your case has had an unreasonable delay, you can have an immigration lawyer file a Petition for a Writ of Mandamus in federal court to force the USCIS make a decision in your pending case. An important aspect of this is that you MUST have an immigration case pending. In order to get a mandamus issued, you and your lawyer must generally show the court that: • You have a clear right to have a final determination on your case; • USCIS has a clear duty to make a final determination on your case; and • You do not have any other adequate remedies available because you have tried everything listed above
Inter-filing involves substituting (or transferring the basis of) an underlying petition. There is no guarantee USCIS will grant a request to transfer the basis of an I-485 application, but there is no harm in making the request. In inter-filing request can be done by moving from EB-3 to EB-2, or from EB-2 to EB-3. The process of making an inter-filing request is done by mailing a request to USCIS – typed, signed and dated. The Applicant should include in their cover letter a clear request to inter-file a specific petition (i.e. “I am requesting that my I-485 be inter-filed with the attached EB-2 I-140 petition”). Be sure to include the following evidence: I-485 receipt notice, EB-2 I-140 approval notice and EB-3 I-140 approval notice. Note that USCIS has the discretion to grant an inter-filing request, and USCIS will not send a receipt notice or a decision on the request to inter-file. If you’re inter-filing request is successful, then USCIS will eventually approve the I-485.
The prevailing wage is set by the Department of Labor at the PERM Labor Certification stage. Since the I-140 is for a future prospective job, the employer is required to prove that it has the “ability to pay” the prevailing wage at the I-140 stage. Finally, the employer is required to pay the employee (at least) the prevailing only once the employee becomes a permanent resident.
There is not an amount of time specified by law that you need to remain with the employer who sponsored the green card, once you receive it. However, moving to a new job not long after receiving the employer sponsored green card may be seen by USCIS as evidence that you never intended to remain in the position, calling into question the validity of the green card. The green card could be revoked if USCIS believes there was no intention to remain in the sponsored job, but the card can usually only be revoked within 5 years of being issued. Most of the time USCIS doesn’t learn that the green card holder quickly changed employers until the person applies for citizenship, which is usually more than 5 years after the green card was issued. A good rule of thumb is to remain in the sponsored employment for 6-12 months after receiving the green card, to show good faith. If there is a change in circumstance requiring a job change sooner, evidence showing a compelling reason should be kept.
Not all immigration practitioners agree that AC21 applies to EB-1C petition, but our office has seen I-485’s approved by USCIS when the beneficiary ports under AC21 with an EB-1C I-140 approval. According to USCIS, “The portability provisions of the American Competitiveness in the Twenty-First Century Act (AC21) allow certain adjustment applicants with approved I-140 petitions in the 1st, 2nd, and 3rd preference categories to change jobs and employers if the adjustment application has been pending for 180 days or more, provided that the applicant’s new job offer is in the same or similar occupational classification as the job for which the petition was initially filed.”
Yes, staying outside the U.S. for more than 6 months but less than one year is allowed while a permanent resident. It does not result in an abandonment of your permanent residency status. However, it may lead to additional questioning at the port of entry, and it may delay your eligibility for naturalization (continuous presence requirements). If the permanent resident plans to stay outside the United States for a year or more they will need a Re-entry Permit, which should be applied for before leaving the U.S. The Reentry Permit is good for up to 2 years.
To qualify as a joint sponsor, there are four basic requirements. A joint sponsor must: 1. Be a U.S. citizen or legal permanent resident 2. Be at least 18 years old 3. Be living in the U.S. 4. Have an annual income of at least 125% of the federal poverty level (see Form I-864P, HHS Poverty Guidelines for Affidavit of Support) Oftentimes, the main discussion regarding sponsorship focuses on whether a joint sponsor’s income is sufficient, specifically, whether it’s 125 percent of the FPL. This is dependent on two primary factors: • Household size • Income
The first step of the green card process for foreign nationals seeking permanent residence through their employment is PERM, the process for obtaining labor certification. To get an approved PERM Labor Certification, the employer must prove (through recruiting methods) that they were unable to recruit a qualified U.S. worker for a certain position. Requirements for PERM: • The employer plans to hire the foreign worker on a full-time and permanent basis. • There must be a real job opening that is available to U.S. workers. • The job requirements should be similar to what is ordinarily required for the occupation in the U.S., and not unduly restrictive or based off the worker’s qualifications unless there is a demonstrable business necessity. • The prevailing wage for the occupation in the area where the employment will be must be the minimum payment from the employer. After the Department of Labor (DOL) certifies the PERM application, the employer will then file an I-140 Immigrant Worker Petition with the USCIS. The PERM is only valid for 6 months, so the petition needs to be filed during that time. Requirements for I-140: Employer has the ability to pay the wage offered. The foreign national has the education, experience, and skills required in the PERM application. Work is available for the foreign national (PERM). When the I-140 is approved, if a visa is immediately available, the employee can then begin the adjustment of status process if in the U.S., or consular processing, if outside the U.S. Category: Immigrant Visas (Permanent Residency)
When determining the “ability to pay” at the I-140 stage, USCIS considers first primary evidence. Here are examples of primary evidence that USCIS can consider: • Annual tax returns: Here, USCIS considers the net taxable income, and whether the assets exceed the liabilities • Annual reports: Issued in the case or large companies • Audited financial statements: Should be audited by a CPA firm If the primary evidence does not meet the prevailing wage requirements, you must still provide it, and then also include secondary evidence, which USCIS can consider as a matter of discretion. Here are examples of secondary evidence that USCIS can consider: • A letter from the employer attesting to its ability to pay the prevailing wage (only in cases of over 100 W-2 employees) • Unaudited financial statements, such as a P/L statement and balance sheet • Monthly company bank statements • W-2’s and pay stubs of beneficiary • 941’s • Net current assets that can reasonably be expected to be converted to cash or a cash equivalent within the year Note that USCIS does not have to consider secondary evidence, and they have the discretion in applying the weight they find appropriate, to the secondary evidence provided.
An experience letter should include the following: • Letterhead • Typed • Signed – Note, the author of the letter should be from the HR department, Legal department, President or VP • Dated • Job title • Dates of employment • Full time or part time • Detailed list of duties If an experience letter is not available, then USCIS can consider secondary evidence, as a matter of discretion. Secondary evidence can include things like: • Your own affidavit confirming your employment • Affidavits from former colleagues or managers confirming your employment • Job offer letter • Employment contract • Company ID • Promotion letter • Annual wage statements • Termination letter • Business card
If the family member needs to come to the U.S. temporarily to seek treatment, they can consider a B-2 visitor visa, or humanitarian parole. There is no permanent residency visa category specifically designated for disabled or handicapped people, nor is there a special rule requiring immigrant petitions be expedited on the basis of the disability. Therefore, the regular family or employment sponsorship routes to a green card would need to be pursued and may be limited by quotas. Unfortunately, many of these needs may make it more difficult for this family member to be granted legal permanent resident status, as they may be found to be inadmissible. Mental conditions that could be interpreted as a mental disorder could potentially trigger a finding of inadmissibility. Additionally, someone who has a condition that requires continued treatment may be seen as a public charge, or someone who is not able to provide for themself and likely to “become primarily dependent on the government for subsistence.” This could also prevent them from being granted a visa.
If you have filed an I-485 application, then you should have also filed an I-131 request for advanced parole. It’s a free application, there are no USCIS fees. International travel will not result in the denial of a pending I-485, if the alien has obtained a valid, unexpired I-131 advanced parole travel document before departing. However, the general rule is that if you depart the US while your I-485 is pending, and before your I-131 advanced parole travel document is approved, your I-485 will be denied for abandonment. The exception to that rule is if you are inside the U.S. in lawful L-1, L-2, H-1B, H-4, K-3, K-4, or V status, and you are coming to resume employment with the same employer for whom you have previously been authorized to work as an H-1 or L-1 non-immigrant. In this case, your departure from the U.S. will not impact your pending I-485, and you would remain eligible for that status upon returning to the U.S., assuming you have a valid visa in your passport. However, your I-131 will be denied, and when you return in valid non-immigrant status, you can file a new I-131. If you return to the U.S. using your valid advanced parole travel document, you will become a “parolee,” but you can still use your valid non-immigrant status to work upon your return, and to file an extension, as long as you come back to work for the same H-1B or L-1 employer for which you have a valid I-797 approval notice. If you have the I-131 receipt notice, and documented evidence of your emergency need to travel (e.g. death certificate, doctor’s letter, medical reports, etc.), then you can call USCIS and request an InfoPass Appointment in order to request an emergency parole stamp in your passport. If you are outside the U.S. and you receive your biometrics appointment, but cannot return to the U.S. in time, you can request that it be rescheduled. While outside the US, you may receive an appointment for biometrics or interview, or you may receive an RFE, so continue to track your case online, ensure someone is checking your mail, or stay in touch with your attorney. While outside the US, and while your I-485 is pending, you should return to the US before your advanced parole travel document expires. We would advise that you not stay outside the US for over 6 months.
Family U.S. immigration law allows certain aliens who are family members of U.S. citizens and lawful permanent residents to become lawful permanent residents based on specific family relationships. The family-based green card category is broadly grouped into two categories, the immediate relative category and the family preference category. Applications for each of these two groups are treated differently, but both begin with the U.S. Citizen or LPR relative sponsor filing the I-130 petition with USCIS, along with accompanying documentation. Immediate family members (spouse, parent, child of a U.S. citizen) do not have to wait for a visa number because they are not subject to the immigrant visa annual cap. If the immediate family member is already in the U.S. in legal status, there is an option to file the application for adjustment of status to permanent resident (I-485) concurrently with the I-130. For non-immediate relatives there are a limited number of immigrant visas issued out to alien relatives each year. After the I-130 is approved, the Department of State will determine if an immigrant visa number is immediately available to the beneficiary (even if they are already in the U.S.). Once an immigrant visa number becomes immediately available, the relative can apply to have one of the immigrant visa numbers assigned to them and begin the process described above. You can check the status of a visa number in the Department of State’s Visa Bulletin. Employment An employer can sponsor its employee’s permanent residency through the PERM/Labor Certification/I-140 process. EB2: This includes people with advanced degrees (beyond a bachelor’s degree), or a bachelor’s degree plus 5 years of experience. EB3: This includes professionals or people with 2 years of training/experience Self-Petition (EB-1A, NIW) You may self-petition, without the PERM process, to become a permanent resident if you qualify under either of the following categories: You are a Person of Extraordinary Ability in the arts, education, business, science or athletics (EB-1A) You are eligible for National Interest Waiver (EB-2) Asylum You must be inside the U.S. in order to apply for asylum, and you must meet the definition of a refugee, namely, you must be a person with well-founded fear of persecution for reasons of race, religion, nationality, political opinion, or membership in a particular social group, who has been forced to flee his or her country because of persecution, war, or violence. Generally, there must be a nexus between the government and the persecution that you face. Also, you need to apply within 1 year of your entry into the U.S., unless there is an extraordinary circumstance that prevented you from applying within 1 year of entry. Once you file your asylum application, you will receive a fingerprint appointment notice, and then eventually an interview at the regional asylum office. The interview may come within a couple of months, or it may take several years. You must file your asylum application from the place where you physically reside. EB-5 The Employment-Based Fifth Preference Category (known as “EB-5”) allows you to obtain lawful permanent residency through investment in a new, for-profit commercial enterprise. To meet EB-5 investor visa requirements, foreign investors must make an “at risk” capital investment in a for-profit U.S. business entity. The required investment amount is either $900,000, if you invest in a targeted employment area, or $1.8 million, if you invest elsewhere. EB-5 investments must lead to the creation of 10 fulltime U.S. jobs for at least two years. Many EB-5 investors receive their permanent residency through an investment made in a “Regional Center,” which is a specific entity focused on stimulating economic activity through EB-5 investment. Each Regional Center has received approval and licensure from USCIS following a rigorous application process and must undergo annual compliance procedures. There are over 800 approved Regional Centers listed on the USCIS web site. There are 3 steps to getting an unconditional green card through the EB-5 process. The first step includes submitting Form I-526, including an EB-5 compliant business plan, supporting documentation showing that qualifying job creation is more likely than not to occur, and evidence of the lawful source(s) of the capital investment. Only after this petition is approved can you either apply for adjustment of status, if you are already in the U.S., or consular processing if you are outside the U.S. If approved, this will result in 2-year Conditional Permanent Residence. Within 90 days of the expiration of the Conditional Green Card, an investor and associated family members must file Form I-829 to remove conditions. In this petition, the investor must present evidence that (1) a new commercial enterprise was established; (2) the investor invested or was in the process of investing the required capital; (3) that the enterprise and capital investment was sustained during the period of conditional residency; and (4) that the requisite jobs were created or can be expected to be created within a reasonable time. Once approved, a full 10-year green card will be issued. DV Lottery The Diversity Immigrant Visa Program (DV Program) makes up to 50,000 immigrant visas available every year. They are drawn from random selection among all entries, for individuals who are from countries with low rates of immigration to the U.S. This program is administered by the U.S. Department of State. Your country of birth determines your eligibility. Most lottery winners reside outside the United States and immigrate through consular processing and issuance of an immigrant visa. There are, however, a small number of lottery winners each year who are residing in the United States in a nonimmigrant or other legal status. For these winners USCIS processes I-485 adjustment of status applications. https://travel.state.gov/content/travel/en/us-visas/immigrate/diversity-visa-program-entry/diversity-visa-instructions.html U Visa, VAWA To be eligible for a U visa, you must: Be the victim of a qualifying crime. Assist law enforcement in the investigation or prosecution of that crime, and obtain form I-918B. Have suffered substantial harm as a victim of the crime Multinational Manager The EB-1C employment-based immigrant preference category was specifically created for multinational executives and managers. Foreign companies can use this visa category when expanding their business into the U.S. to transfer executives and managers to the company’s operations. Category: Immigrant Visas (Permanent Residency)
Options: 1. Go to your local CBP office with your I-797 approval notice, I-94, old and new passports, and proof of your U.S. address, and the CBP officer may correct your I-94, if they choose to do so. They may not. 2. Leave the country and immediately return. When returning, present your new passport, and the old passport that contains the valid visa. This is called an “around the pole.” 3. File for an extension of status with USCIS before your I-94 expires.
For immigration purposes, US immigration authorities MAY consider any position, if normally occupied by a paid employee or worker, as “employment,” even if uncompensated (Matter of Hall, 18 I & N Dec. 203 (BIA 1982)). In Matter of Hall, 18 I&N Dec. 203 (BIA 1982), the BIA held that a B-2 nonimmigrant who worked as a missionary while only receiving money for room, board, other essential needs, and pocket change, had worked without authorization. The guide for determining if someone is a volunteer is the US Fair Labor Standards Act of 1938, as amended. The US Department of Labor uses Section 3(e)(4) of the FLSA to determine what constitutes a volunteer. The following guidelines/factors apply when determining if the work is that of a volunteer: • Are the services performed for civic, charitable or humanitarian purposes? • Are the services entirely voluntary, with no direct or indirect pressure by the employer, with no promise of advancement and no penalty for not volunteering? • Are the activities predominately for the individual’s own benefit? • Does the individual impair the employment opportunities of others by performing work that would otherwise be performed by regular, paid employees? • Does the volunteer provide services that are the same as services provided by a paid employee? • Is there no expectation of compensation either now or in the future for these services? • Do the activities take place during the individual’s regular working hours or scheduled overtime hours? • Is the volunteer time insubstantial in relation to the individual’s regular hours?
Someone on F-1 has a 60-day grace period after the completion of their program of study or Optional Practical Training (OPT) to remain in the U.S. This grace period is intended for students to prepare for departure or take care of things like transferring schools, changing visa status, or to start a new program.
Nonresident alien students, scholars, professors, teachers, trainees, researchers, and other aliens temporarily present in the United States in F-1, J-1, M-1, or Q-1/Q-2 nonimmigrant status are exempt from Social Security/Medicare Taxes on wages paid to them for services performed within the U.S. as long as such services are allowed by the US Citizenship and Immigration Services (USCIS) for these non-immigrant statuses, and such services are performed to carry out the purposes for which they were admitted into the United States. Exempt Employment includes: • On-campus student employment up to 20 hours a week (40 hrs during summer vacations) • Off-campus student employment allowed by USCIS • Practical Training student employment on or off campus • On-campus employment as professor, teacher or researcher Limitations on exemption: The exemption does not apply to spouses and children in F-2, J-2, M-2, or Q-3 nonimmigrant status. The exemption does not apply to employment not allowed by USCIS or to employment not closely connected to the purpose for which they were admitted into the United States. The exemption does not apply to nonimmigrants in F-1, J-1, M-1, or Q-1/Q-2 status who change nonimmigrant status to a status which is not exempt or to a special protected status. The exemption does not apply to nonimmigrants in F-1, J-1, M-1, or Q-1/Q-2 status who become resident aliens for tax purposes. https://www.irs.gov/individuals/international-taxpayers/aliens-employed-in-the-us-social-security-taxes Category: Other Non-Immigration Visas What is “Nunc Pro Tunc” (NPT), and how do I apply for it? “Nunc pro tunc” translates from Latin to “now for then.” In immigration, nunc pro tunc is used to correct late filings. An application filed nunc pro tunc is requesting that USCIS forgive any mistakes that caused the late filing and file it as if it was timely filed. USCIS may use their discretion to approve the request. To apply for an application “nun pro tunc” a request should be made with the application demonstrating that the applicant meets the criteria. When deciding whether to grant the request nunc pro tunc, the USCIS primarily considers four main criteria: • The reason(s) for late filing must have been due to extraordinary circumstances beyond the applicant’s control. • The applicant must not have violated their status in any other way. • The applicant must be a bona fide nonimmigrant. • The applicant must not be in removal proceedings. If the request is granted, the status will be effective as of the requested date, eliminating any previous time out of status.
The investment must be a “substantial” investment to qualify for an E-2. There is no set dollar amount to be considered substantial, but an applicant should generally be prepared to invest at least $100,000 in the enterprise in order to create a strong case. To determine if the investment is substantial, the following things will be considered: Is the amount proportionally substantial when you weigh the amount of qualifying funds invested against the total cost of purchasing or creating the enterprise? (Proportionality test) Is the amount normally considered sufficient to ensure the investor’s financial commitment to the successful operation of the enterprise? Is the investment of a magnitude to support the likelihood that the investor will successfully develop and direct the enterprise? When determining if the amount is proportionally substantial, the proportionality test is applied to assess the percentage of the investment in relation to the cost of the business. If the investor invested 100% of the needed funds, investment is per se substantial. For example, an investment of 100% in a small business of only $100,000 or less automatically qualifies. The lower the cost of buying or creating a business, the higher proportionally the percentage of investment into the business is required to be considered substantial. On the other hand, a $10 million investment in a $100 million business would likely qualify because of the magnitude of the investment. The amount of the investment required is also determined by the nature of the business, as the business’s value or cost depends on the nature of the business. As long as all other requirements for E-2 status are met, the cost of the business per se is not independently relevant or determinative of qualification for E-2 status. 9 FAMe 402.9-6(d)(e). For example, the cost to establish a service business is often much lower than the cost to establish a business requiring large equipment. Therefore the “amount necessary to establish a viable enterprise” will be considered. Matter of Walsh & Pollard, 20 I&N Dec. 60 (BIA 1988). If an investment is proportionally substantial in relation to the business cost, ensures the investor’s financial commitment to a successful business, and is of a magnitude to show the investor will successfully direct and develop the business, it will be considered a substantial investment for E-2 purposes.
Yes, you can. U.S. immigration laws do not apply to people who are physically present outside the U.S. However, you may have tax liability, depending on where you perform your work, and for that you will want to discuss your tax situation with a CPA or Accountant.
There is no clear answer on this, and immigration practitioners differ in their opinions. Those that believe that it is not permissible rely on 8 CFR 214.1(e), which states that any non-immigrant who is physically present in the U.S. may not engage in any employment, while in the U.S., unless it is specifically authorized.
A passive investment requires no work on the part of the investor, just their financial investment. The role of the “passive investor” must be clearly defined in the operating agreement. A passive investor cannot: • Have a title such as: o Member o Manager o Owner o President • Have a company E-mail ID • Be a signatory on the company bank account • Participate in the management of the company • Have policy making ability • Have managerial control • Have voting rights
Yes, this is permissible, as long as you continue to maintain your non-immigrant status, and you pay taxes on your earnings. Investment in this case would not be considered employment.
Rental income is considered passive income for tax purposes, as long as you do not set up a separate company to manage your properties, but instead, they are reflected on your personal tax returns.
Yes, you can file an extension of your B-2 stay before your I-94 expires. Your unlawful presence will not be accrued while it is pending. Extensions filed after the I-94 has expired will be considered and discretion will be used when deciding whether to excuse the delay in filing. The length of delay must be commensurate with the circumstances. The petitioner or applicant must submit credible evidence to support their request, which USCIS will evaluate on a case-by-case basis.
E-2 (Essential Employee) Treaty investors, nationals of foreign nations with whom the U.S. has commerce and navigation treaties in place, who wish to make a significant investment in the U.S can be admitted to this country through an E-2 visa. A chef may qualify for an E-2 visa as either the primary investor in the business or as an essential employee of a treaty investor. To qualify as an essential employee, the chef must be of the same nationality as the treaty investor, meet the legal requirements of an employee, and be employed as an executive, supervisor or have special qualifications. L-1 L-1A visas are available for chefs with significant management responsibilities employed by multinational companies. If they have a specialized knowledge as a chef, it may also be possible the chef or cook could obtain an L-1B visa. H-1B Chefs employed by a 5-star restaurant where they will manage a team of chefs and other restaurant staff may qualify for an H-1B. H-2B Chefs and cooks may qualify for temporary positions during seasonal, intermittent or peak load times. O-1 A chef who has received significant national or international recognition as a chef may qualify for an O-1 visa to work in that area of expertise.
B-2 The B-2 visa allows domestic employees who have been with their current employer for at least 6 months to accompany their employers who are traveling temporarily to the U.S. from abroad. The B-2 domestic worker must work for an employer who is a U.S. citizen subject to frequent international travel. The B-2 domestic worker must present the contract with the U.S. citizen, and (like most non-immigrant visa applicants) must show that he or she has a residence abroad with no intention of abandoning it. PERM/Labor Certification/I-140 If there is an employer inside the U.S. that wants to sponsor the domestic worker, they can undergo the PERM labor certification process, which includes a test of the labor market. This process eventually leads to permanent residency and takes about 18-24 months. J-1 Au Pair The J-1 visa allows program participants to reside legally in the United States for 12 months while caring for children in a J-1 program-approved host family. Up to 12-month extensions can be applied for. Category: Other Non-Immigration Visas
For first time H-1B visa stamping, you cannot go to Mexico, but you can for visa renewals. You have the option to have your first H-1B visa stamped in Canada, but they reserve the right to refuse to stamp visas at the Canadian consulate, especially if your education was done primarily outside of the U.S. or Canada.
When a visitor enters the U.S. on a B-2 visit visa, they are generally granted admission for 6 months. The visitor can request an extension of their B-2 status for another 6 months (for a maximum stay of 12 months), by filing an I-539 form before their I-94 expires. In some cases, USCIS can exercise their discretion and grant a second I-539 B-2 extension request beyond the allowable 12 month period, if the applicant can prove that it is due to exceptional circumstances beyond their control. In our experience, we have seen USCIS approve these cases where there is a medical basis for the B-2 extension, for example the applicant has ongoing medical treatment that prevents them from traveling internationally. If you are inside the U.S. as a B-2 visitor, and you want to file an I-539 B-2 extension beyond the 12-month allowable period because you believe that international travel would expose you to risk of contracting Covid-19 (and describe if you are high risk), or because your flight was cancelled and cannot be rescheduled before your I-94 expires, or because your home country won’t admit you back due to Covid-19, you can file another I-539 B-2 extension before your I-94 expires, and you should explain the circumstances to USCIS and why you believe they are beyond your control. Your request should also be supported with documentation. USCIS can choose to exercise their discretion in granting the second B-2 extension, and you can stay in the U.S. in a period of authorized stay, until the final decision is made. If the decision results in a denial, you will need to leave the U.S. as soon as practically possible. You will not be granted a grace period. Further, denial of the B-2 extension would invalidate the B-2 visa in your passport, per the DOS regulations.
H-1B visas are intended for people with a special skill, knowledge, or ability. Therefore, USCIS reasons that a low wage level, such as a level 1 wage, may not show evidence of a special skill or ability held by the foreign applicant, and therefore may not qualify as a “specialty occupation” position. Instead, it may indicate that the position is an entry level position which may not require a bachelor’s degree.
The general rule under the Department of Labor’s (DOL) regulations that govern the wage component of the H-1B visa is that the employer needs to pay the H-1B employee for the entire H-1B period, even during nonproductive periods. The exception to the wage requirement is when it is the employee’s decision not to work. Unpaid leave may be permitted, if it is determined, and documented by the employer, that the H-1B worker requested the time off for personal reasons. The employer cannot have requested it. If an H-1B worker needs reasonable maternity leave, then this should qualify for an exception. Leave under the Family and Medical Leave Act does not terminate the H-1B relationship with the employer. How long is it allowable for? USCIS policy places no time limit on the length of the leave but the longer the leave the higher the risk of becoming out of status. The Family and Medical Leave Act (FMLA) provides certain employees with up to 12 weeks of unpaid, job-protected leave per year. What evidence is required to support it? U.S. Citizenship and Immigration Services (USCIS) confirmed that H-1B workers on approved leaves of absence continue to maintain lawful status and that a letter from the employer stating that the worker remains an employee but is on leave, would be acceptable documentation. Letter from the physician, medical records, prescription medication, or other documents that provide additional support for the employer’s statement, are also recommended. What circumstances allow for it? H-1B visa holders are entitled to the same FMLA rights as all other U.S. workers. H-1B employees must be granted the same rights and considerations as all other employees at an organization, so if the employer customarily pays employees who take medical leave, then they must pay the H-1B worker as well. This also means that if the employer is exempt from FMLA coverage, then employees, including the H1-B visa holder, may not be covered by FMLA
At the end of the H-1B visa validity period, there is a 10-day grace period to prepare to leave the U.S. During this time, employment is not allowed. However, if the employment is terminated before the end of the visa validation period, there is a 60-day grace period to find new sponsoring employment or change to another legal status. The grace period can only be used once during the visa validity period.
The new employer is a “successor in interest” where “a new corporate entity succeeds to the interest and obligations of the original petitioning employer and where the terms and conditions of employment remain the same but for the identity of the petitioner.” INA § 214(c)(10); 8 U.S.C. § 1184(c)(10). When a company has been acquired or merged, or when there has been a significant change in its ownership, an H-1B amendment/transfer may need to be filed for the new company, or a new PERM and I-140 may need to be filed for the new company. The exception to this rule is when the new company qualifies as a “success in interest.” It’s worth noting that a simple name change or ownership change should not require any action at all. In order to prove that the new company qualifies as a “successor in interest,” they need to present evidence that it has assumed the rights, duties, obligations and assets of the original employer and that it will be liable for the employment of the beneficiary subject to the terms set forth in the original LCA (in the case of an H-1B), or the original PERM (in the case of an I-140). There are 3 requirements that need to be met: 1. The job opportunity offered by the successor must be the same as the job opportunity originally offered on the labor certification. Here, USCIS will be comparing the ETA 9035 (H-1B) and ETA 9089 (PERM) – job title, SOC code, salary and duties – to the new job being offered by the succeeding company. The successor should provide a letter that compares both. 2. The successor must be able to prove the “ability to pay” the wage listed on the ETA 9035 or ETA 9089. Here, USCIS will be looking at the successor’s tax returns and financial statements, particularly the net taxable income. 3. Proof of the transfer and assumption of the ownership (assets and liabilities) of the predecessor by the successor. Here, USCIS will want to see the sales agreement or merger agreement. USCIS will be looking at whether the successor company explicitly assumes the rights, duties, obligations, liabilities and assets of the previous company. Examples of assets: • Cash, short-term investments, accounts receivable, inventories, and prepaid expenses • Long-term investments such as securities, sinking funds, and pension funds • Properties, including equipment • Intangibles such as patents, licenses, and trademarks Examples of liabilities: • Accounts payable, short-term debts, advances from customers on contracts, and accrued compensation and benefits • Those arising from specific financing situations like the issuance of bonds, long-term leases, deferred income tax liabilities, and warranties • Immigration obligations Note, often times in the case of asset purchases, existing liabilities, such as the ones mentioned above, do not necessarily transfer to the buying entity, which would make it difficult to demonstrate that it is a qualifying successor-in-interest. In the case of an H-1B, the employer must place a document in the required “public access file” acknowledging the new employing entity. The document must state: 1. The affected LCA number and its date of certification; 2. A description of the new employing entity’s wage system applicable to the employee; 3. The federal employer identification number (FEIN) of the new employing entity; and 4. A sworn statement by an authorized representative of the new employing entity expressly acknowledging the entity’s “assumption of all obligations, liabilities and undertakings arising from or under attestations made” in the certified LCA.
Technically no, since the 6 years were already used up before the I-140 was approved, but we’ve still seen cases in which USCIS has been willing to still consider the beneficiary as H-1B cap exempt. If the employer attempts to file the H-1B as cap exempt, and USCIS denies it by stating that the beneficiary is not cap exempt, the only harm is the loss in the USCIS filing fees. The employer can still register the beneficiary in the next H-1B lottery.
Technically, the regulations require that the beneficiary be in H-1B status within the past 6 years, or have been counted against the cap within the past 6 years. However, we’ve still seen cases in which USCIS has still considered the beneficiary as H-1B cap exempt, even when they were not in H-1B status within the past 6 years, or were counted against the cap over 6 years ago. If the employer attempts to file the H-1B as cap exempt, and USCIS denies it by stating that the beneficiary is not cap exempt, the only harm is the loss in the USCIS filing fees. The employer can still register the beneficiary in the next H-1B lottery.
Immigration practitioners differ on the answer to this question. Some practitioners believe that the employee can choose not to join Company B, and it would not be a problem. Others believe that the employee is required to move to Company B, and that the choice to move to Company B or remain with Company A is not the employee’s choice to make. The argument that the employee is required to move to Company B rests on the “last action rule,” which means that the last petition that was approved for the employee is the one that goes into effect. Once the H-1B transfer is approved, the employee is no longer authorized to work for Company B. This argument tends to make sense because if we extend this logic to its natural conclusion, and if the option was the employee’s whether to switch to Company B, then the employee could also switch back to Company A whenever they wanted and continue to jump back and forth at their discretion. Of course, this would lead to an absurd result. To further elucidate the point, let’s assume that you have two I-797A approval notices (Company A and Company B), and a valid H-1B visa in the employee’s passport. When the employee arrives at the port of entry, and presents the H-1B visa, they are only allowed to present one I-797 approval notice, and let’s say in this case, they use Company A’s. The port of entry officer thereafter stamps the entry based on the I-797 with Company A and provides an I-94 based on that I-797. After entry, the employee would not then have the liberty of simply switching over to Company B, simply because you have an approved I-797A with that company, right? Instead, they would be expected to only be authorized to work for Company A, because that was the last action that DHS took and that DHS authorized for the employee. Finally, on page 2 of the I-129 form, USCIS requests the beneficiary’s most recent I-129 receipt notice be provided, presumably, because USCIS wants to capture information on who the beneficiary is authorized to work for.
As long as you were in H-1B status in the U.S. within the past 6 years, you would still be cap exempt. The I-140 will remain intact as long as the employer does not withdraw it within 180 days of approval. Finally, your priority date can continue to be retained for subsequent I-140’s.
Generally, anyone can pay the premium processing fee (e.g. employer, employee, friend, etc.), unless it’s an H-1B. In the case of an H-1B, the employer is required to pay the premium processing fee. 20 C.F.R. § 655.731(c)(9). The benefit of premium processing is that you get a decision within 15 business days, or an RFE will be issued within 15 business days. Without premium processing, your case will be subject to the standard processing times, which can be viewed here: https://egov.uscis.gov/processing-times/. If the case is filed in regular processing, and you want to upgrade to premium processing, you can do so by paying the $2,500 fee and submitting an I-907. If you have a case that our office has filed, and you want to upgrade it to premium processing, then you do not need to complete the I-907 form, we will. Please mail or drop off a check for $2,500, here: Azhar & Azhar Law Firm 614 S. Watters Rd. Bldg # C Allen, TX 75013 The check should be made out to the “US Department of Homeland Security.”
USCIS charges $2,500 for premium processing, but it only applies to certain I-129 and I-140 applications. To see a list of those cases, please visit this site: https://www.uscis.gov/forms/all-forms/how-do-i-request-premium-processing
Business expenses are defined by the DOL as expenses that are “required to be performed by the employer” in preparation of the LCA or H-1B. Fees associated with the H-1B process, including attorney fees and USCIS filing fees, are considered an employer’s business expense, and therefore they cannot be paid by the H-1B employee. See 20 C.F.R. 655.731(c)(9). This includes the premium processing fee – which also cannot be paid by the employee.
Yes, as long as the employer can prove that they still exercise the “right of control” over the beneficiary’s work. When working from home, no new LCA is required, as long as the home office is within normal commuting distance within the same area of intended employment. Otherwise, a new ETA Form 9035 labor condition application (LCA) and I-129 are required.
According to regulations, H-1B workers must be paid their regular wages even when they are in a nonproductive status unless it was due to something not employment related and at the request of the employee. Therefore, if an H-1B worker is part of a mandatory company-wide furlough, the employer must still pay them the wages listed in their LCA and H-1B application. If the furlough continues, employers still need to pay the regular H-1B salary during the furlough period. If hours are reduced instead, an amended LCA and H-1B petition will need to be submitted.
