Immigration

Question 1

E-1 Visa (General)

Answer 1

Available where there is substantial trade between the U.S. and the Treaty Trader’s County.

Question 2

E-1 Visa (Elements)

Answer 2

To be approved for an E-1, must prove:

1) Treaty Exists

2) Individual/business possesses the nationality of the treaty country

3) Activities constitute “trade”

4) Trade is substantial

5) Trade is principally between the US and treaty country

6) Applicant is either an executive/supervisor or possesses skills essential to firm operations

7) Applicant intends to depart when E-1 terminates

Question 3

E-1 Visa (What is trade?)

Answer 3

To constitute trade, there should be an exchange involving goods, moneys, or services.

Any service or goods can technically qualify.

The flow of the transactions must be traceable between the two countries. Typically, this is done using purchase orders, wire transfers, bills of lading, and the like.

Question 4

E-1 Visa (What is “substantial” trade?)

Answer 4

In order to establish that the trade is substantial, the Department of State (DOS) will look to the volume and value of the transactions.

DOS will give greater discretion to more valuable, frequent transactions.

However, DOS notes that a smaller business should not be excluded if it can prove that the volume of transactions is sufficient to support the E-1 treaty trader(s) and family.

An E-1 cannot be based on one transaction though even if it was one very large transaction.

Question 5

E-1 Visa (What is “principal” trade?)

Answer 5

DOS again relies on a general 50% rule to analyze if trade is principally between the United States and the treaty country, so an application should include documentation of the total trade that the company or individual is transacting and then proof that at least 50% is between the two countries.

Question 6

E-2 Visa (General)

Answer 6

The E-2 category is for people coming to the United States to develop and direct the operations of an enterprise in which an investor has already invested, or is actively in the process of investing, a substantial amount of capital.

Question 7

E-2 Visa (Elements)

Answer 7

To qualify for an E-2 visa, one must establish the following:

1. Requisite treaty exists;
2. Individual and/or business possess the nationality of the treaty country;
3. Applicant has invested or is actively in the process of investing;
4. Enterprise is a real and operating commercial enterprise;
5. Applicant’s investment is substantial;
6. Investment is more than a marginal one solely for earning a living;
7. Applicant is in a position to “develop and direct” the enterprise;
8. Applicant, if an employee, is destined to an executive/supervisory position or possesses skills essential to the firm’s operations in the United States; and
9. Applicant intends to depart the United States when the E-2 status terminates.

Question 8

E-2 Visa (What is an “investment?”)

Answer 8

The textbook example of an E-2 investment involves the E-2 investor transferring their personal funds from their personal, foreign bank account to the new U.S. enterprise’s bank account and thereby documenting the transfer of funds—the investment.

For those not planning to fund the E-2 enterprise with their own capital, either in total or only in part, one needs to take into consideration the nationalities of those investors to make sure that at least 50% of the shares in the company are still held by nationals of the E-2 treaty country.

Question 9

E-2 Visa (What is a “substantial” investment?)

Answer 9

There is no bright line answer to the question of how much an E-2 applicant needs to invest. Instead, the DOS uses a proportionality test to determine whether the investment is substantial enough to reasonably expect the company to be successful. “Substantial” for E-2 purposes is:

1. Substantial in a proportional sense as determined through the application of the proportionality test outlined below;
2. Sufficient to ensure the treaty investor’s financial commitment to the successful operation of the enterprise; and
3. Of a magnitude to support the likelihood that the treaty investor will successfully develop and direct the enterprise.

The proportionality test weighs the investment amount versus the cost of the business.

Question 10

E-2 Visa (Is the investment “marginal?”)

Answer 10

The enterprise must be more than marginal. This means that it should be capable of generating enough income to provide the E-2 applicant and their family with more than minimal means of living.

Having said that, a business can demonstrate that it has the potential to reach such an income even though it may not have any immediate revenue. The potential should be realizable within five years.

A business plan with financials projections showing more than marginal revenues within five years can demonstrate marginality.

Question 11

E-2 Visa (Develop and Direct)

Answer 11

An E-2 investor must be in a position to develop and direct the E-2 enterprise.

If the person applying for the E-2 visa is also the investor, then they can use a formal job description in the business plan to demonstrate how they will be developing and directing the business.

If the E-2 enterprise is owned by foreign nationals other than the applicant or by a foreign company, then the application should explain how that foreign national or foreign corporation, the “investor,” develops and directs the E-2 enterprise in the United States.

Question 12

L-1 Visa (General)

Answer 12

L-1 Visas are intracompany transfer visas allowing an employer to transfer a foreign employee into its U.S. office OR allowing a foreign employee to form a U.S. office.

Must file I-129.

Question 13

L-1 Visa (Employer Qualifications)

Answer 13

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

1) Have a qualifying relationship with a foreign company (parent company, branch, subsidiary, or affiliate, collectively referred to as qualifying organizations); and

2) Currently be, or will be, doing business as an employer in the United States and in at least one other country directly or through a qualifying organization for the duration of the beneficiary’s stay in the United States as an L-1. While the business must be viable, there is no requirement that it be engaged in international trade.

Question 14

L-1A Visa vs L-1B Visa

Answer 14

The L-1A nonimmigrant classification enables a U.S. employer to transfer an executive or manager from one of its affiliated foreign offices to one of its offices in the United States.

The L-1B nonimmigrant classification enables a U.S. employer to transfer a professional employee with specialized knowledge relating to the organization’s interests from one of its affiliated foreign offices to one of its offices in the United States

Question 15

L-1A Visa Length

Answer 15

Qualified employees entering the United States to establish a new office will be allowed a maximum initial stay of one year.

All other qualified employees will be allowed a maximum initial stay of three years.

For all L-1A employees, requests for extension of stay may be granted in increments of up to an additional two years, until the employee has reached the maximum limit of seven years.

Question 16

L-1 Visa (Derivatives)

Answer 16

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

Spouses are given the L-2S designation. L-2 spouses may apply for employment authorization using Form I-765.

Question 17

L-1 Visa (What does “doing business” mean?)

Answer 17

Doing business means the regular, systematic, and continuous provision of goods and/or services by a qualifying organization and does not include the mere presence of an agent or office of the qualifying organization in the United States and abroad.

Question 18

L-1 Visa (Employee Qualifications)

Answer 18

To qualify, the named employee must:

1) Generally have been working for a qualifying organization abroad for one continuous year within the three years immediately preceding his or her admission to the United States; and

2) Be seeking to enter the United States to provide service in an executive or managerial capacity for a branch of the same employer or one of its qualifying organizations.

Question 19

L-1A Visa (Executive Capacity)

Answer 19

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

Question 20

L-1A Visa (Managerial Capacity)

Answer 20

Managerial capacity generally refers to the ability of the employee to supervise and control the work of professional employees and to manage the organization, or a department, subdivision, function, or component of the organization. It may also refer to the employee’s ability to manage an essential function of the organization at a high level, without direct supervision of others.

Question 21

L-1A Visa (Forming a New Offices)

Answer 21

For foreign employers seeking to send an employee to the United States as an executive or manager to establish a new office, the employer must also show that:

1) The employer has secured sufficient physical premises to house the new office;

2) The employee has been employed as an executive or manager for one continuous year in the three years preceding the filing of the petition; and

3) The intended U.S. office will support an executive or managerial position within one year of the approval of the petition.

Question 22

L-1B Visa (Specialized Knowledge)

Answer 22

Specialized knowledge means either special knowledge possessed by an individual of the petitioning organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization’s processes and procedures.

Question 23

L-1B Visa (Forming a New Offices)

Answer 23

For foreign employers seeking to send an employee with specialized knowledge to the United States to be employed in a qualifying new office, the employer must show that:

1) The employer has secured sufficient physical premises to house the new office ; and

2) The employer has the financial ability to compensate the employee and begin doing business in the United States.

Question 24

L1-B Visa Length

Answer 24

Qualified employees entering the United States to establish a new office will be allowed a maximum initial stay of one year.

All other qualified employees will be allowed a maximum initial stay of three years.

For all L-1B employees, requests for extension of stay may be granted in increments of up to an additional two years, until the employee has reached the maximum limit of five years.

Question 25

O-1 Visa (General)

Answer 25

The O-1 nonimmigrant visa is for the individual 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.

Form I-129 is used for O visas. In addition to Form I-129, the petitioner must submit the documentary evidence discussed below:

1) Consultation: The Petitioner must provide a written advisory opinion from a peer group (including labor organizations) or a person with expertise in the beneficiary’s area of ability.

2) Exception to Consultation Requirement: If your employer or agent can demonstrate that an appropriate peer group, including a labor organization, does not exist, then we will base our decision on the evidence they submit in support of the Form I-129. We may waive a consultation if you have extraordinary ability in the field of arts and you are seeking readmission to perform similar services within two years of the date of a previous consultation. Your employer or agent should submit a waiver request and a copy of the previous consultation with the petition.

3) Contract between Petitioner and Beneficiary detailing the terms of Beneficiary’s Employment

4) Itineraries providing 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.

5) Evidence demonstrating O-1 Eligibility: The petitioner must provide evidence demonstrating your extraordinary ability in the sciences, arts, business, education, or athletics, or extraordinary achievement in the motion picture industry. The record must include at least three different types of documentation corresponding to those listed in the regulations, or comparable evidence in certain circumstances, and the evidence must, as a whole, demonstrate that you meet the relevant standards for classification.

Question 26

O-Visa (Subcategories of Visa)

Answer 26

The O nonimmigrant classification are commonly referred to as:

O-1A: Individuals with an extraordinary ability in the sciences, education, business, or athletics (not including the arts, motion pictures or television industry);

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

O-2: Individuals who will accompany an O-1 artist or athlete to assist in a specific event or performance; and

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

Question 27

O-1A Visa (Extraordinary Ability)

Answer 27

Extraordinary ability in the fields of science, education, business or athletics means a level of expertise indicating that you are one of the small percentage who have arisen to the very top of the field.

Question 28

O-1B Visa (Extraordinary Achievement)

Answer 28

In the motion picture or television industry, you must demonstrate extraordinary achievement. This is evidenced by a degree of skill and recognition significantly above that ordinarily encountered, to the extent that you are recognized as outstanding, notable or leading in the motion picture and/or television field.

Question 29

O-2 Visa (Integral Part)

Answer 29

To qualify for an O-2 visa, your assistance must be an “integral part” of the O-1A visa holder’s performance and you must have critical skills and experience with the O-1 visa holder that are not of a general nature and cannot be readily performed by a U.S. worker.

In the case of an O-2 visa holder in the motion picture or television industry, you must have skills and experience with the O-1 visa holder that are not of a general nature and which are critical either based on a pre-existing longstanding working relationship or, with respect to the specific production, because significant production (including pre- and post-production work) will take place both inside and outside the United States and your continuing participation is essential to the successful completion of the production.

Question 30

O-2 Visa (Application Process)

Answer 30

In addition to Form I-129, Petition for Nonimmigrant Worker, the petitioner must submit the following documentary evidence:

1) Consultation: If you will support of an individual with extraordinary ability in athletics or the arts, the consultation must be from the appropriate labor organization; or

If you will support of an individual with extraordinary achievement in motion pictures or television, the consultation must come from an appropriate labor organization and a management organization with expertise in the skill area involved.

2) Evidence Demonstrating O-2 Eligibility

The evidence should establish your current essentiality, critical skills, and experience with the O-1 beneficiary and that you have substantial experience performing the critical skills and essential support services for the O-1.

In the case of a specific motion picture or television production, the evidence should establish that significant production, including pre- and post-production, has taken place outside the United States and will take place inside the United States, and that you’re your continuing participation is essential to the successful completion of the production.

Question 31

O Visa (Length of Stay)

Answer 31

As an O nonimmigrant, you may be admitted to the United States for the validity period of the petition, plus a period of up to 10 days before the validity period begins and 10 days after the validity period ends. You are only authorized to work during the validity period of the petition.

An initial stay is only valid up to a maximum of three years.

Extensions are available but USCIS will determine the time needed to accomplish the initial event or activity in increments, up to one year.

Question 32

O Visa (Derivatives)

Answer 32

The spouse and children (under the age of 21) they may be eligible to apply for an O-3 nonimmigrant visa, that will be subject to the same period of admission and limitations as the O-1/O-2 holder. They may not work in the United States under this classification, but they may participate in full-time or part-time study on an O-3 visa.

Question 33

R Visa (General)

Answer 33

Religious workers seeking to temporarily enter the United States to pursue work in their field are likely to enter using the R nonimmigrant visa. To qualify for an R visa, the applicant must be:

1) A minister;
2) A person working in a professional capacity in a religious occupation or vocation; or
3) A person who works for a religious organization or an affiliate in a religious occupation who has been a member of the religious group for at least the two years immediately preceding the application.

The applicant must also be coming to work at least part time.

An R-1 cannot be self-petitioned. The foreign national must be sponsored for employment by a bona fide nonprofit U.S. religious organization or a bona fide nonprofit organization that is affiliated with a religious denomination.

Question 34

H1-B (General)

Answer 34

The H-1B visa is a nonimmigrant work visa that allows U.S. employers to hire foreign workers for:

1) Specialty jobs that require a bachelor’s degree or equivalent;

2) Exceptional merit and ability relating to a Department of Defense (DOD) cooperative research and development project; or

3) A fashion model of distinguished merit or ability.

Form I-129 used for H-1B.

Question 35

H1-B (Cap)

Answer 35

65,000 H1-B Visas are available annually with an additional 20,000 visas available for persons holding U.S. Master’s Degrees.

These visas are made available through a lottery process. If selected, applicants are invited file an H1-B Visa.

It is important to note that a person, generally, only has to be selected in the lottery once. If selected in the lottery on a petition from Company A, the person can later be petitioned by Company B without having to go through the lottery again simply by transferring the H-1B.

Question 36

H1-B (Cap-Exempt)

Answer 36

Some employers are exempt from the H-1B lottery altogether. In most cases, the employers must fit in one of the following categories:

• Institutions of higher education;
• Nonprofit entities related to or affiliated with an institution of higher education if one of the following is true:
  o The nonprofit entity is connected to or associated with an institution of higher education through shared ownership or control by the same board or federation;
  o The nonprofit entity is operated by an institution of higher education;
  o The nonprofit entity is attached to an institution of higher education as a member, branch, cooperative, or subsidiary; or
  o The nonprofit entity has entered into a formal written affiliation agreement with an institution of higher education that establishes an active working relationship between the nonprofit entity and the institution of higher education for the purposes of research or education, and a fundamental activity of the nonprofit entity is to directly contribute to the research or education mission of the institution of higher education.

Cap-exempt institutions may file H-1B petitions anytime of the year with start dates at any time.

Working on a cap-exempt H-1B does not allow the recipient to then transfer to a cap subject employer, however, because the recipient has not been counted against the cap.

Question 37

H1-B (Cap-Gap)

Answer 37

When considering if an H-1B is the right option, it is important to consider that the H-1B is based on the government’s fiscal year, which starts on October 1, so, even if selected and approved, new employees could not begin their time in H-1B status until that date, at the earliest, with the exception of F-1 students who are working in Optional Practical Training (OPT) at the time their H-1B petitions are filed for change of status. If selected, the F-1 status and work authorization is extended to October 1 in what is known as cap gap.

Question 38

H1-B (Portability)

Answer 38

The portability provision is intended to preserve the legal status of an H-1B nonimmigrant who is already in the United States. Portability allows the employed H-1B worker to enter into employment with a new employer provided that:

1) The new employer has filed a non-frivolous Petition for a Nonimmigrant Worker (Forms I-129/ I-129W) for the employment of the H-1B worker before the date of expiration of the worker’s authorized period of stay; and

2) The new employer has submitted, along with its petition, an unexpired, approved Labor Condition application (LCA) covering the same work that the individual is being hired to perform. The new employer may already hold an applicable LCA, or may have sought and received a new LCA in order to submit the petition.

Question 39

H1-B (Eligibility Criteria)

Answer 39

1) You must have an employer-employee relationship with the petitioning U.S. employer.
2) Your job must qualify as a specialty occupation by meeting one of the following criteria:
a) A bachelor’s or higher degree or its equivalent is normally the minimum requirement for the particular position; or
b) The degree requirement is common for the position in the industry, or the job is so complex or unique that it can only be performed by someone with at least a bachelor’s degree in a field related to the position;

3) Your job must be in a specialty occupation related to your field of
study;
4) The petitioning employer must submit evidence that the U.S. Department of Labor has certified a labor condition application;
5) You must be paid at least the actual or prevailing wage for your
occupation, whichever is higher; and
6) An H-1B visa number must be available at the time of filing the petition, unless the petition is exempt from numerical limits.

Question 40

H-1B (Specialty Occupation)

Answer 40

A specialty occupation requires the theoretical and practical application of highly specialized knowledge along with at least a bachelor’s degree (or equivalent).

Some of the occupational categories where H-1Bs are available are:

• Architecture;
• Engineering;
• Mathematics;
• Physical Sciences;
• Social Sciences;
• Medicine and Health;
• Education;
• Business Specialties;
• Accounting;
• Law;
• Theology;
• The Arts.

USCIS will sometimes look to what are the industry-wide standards in an occupation. The agency’s examiners will often consult the DOL’s Occupational Outlook Handbook to determine the normal duties and basic educational and experience requirements for an occupation.

Question 41

H1-B (LCA)

Answer 41

Whether filing a cap case in the lottery, a cap-exempt petition, an extension for a person already in H-1B status, or a transfer of a new hire’s H-1B to a startup, the process will begin by filing an Labor Condition Application (LCA) with the DOL.

The LCA (Form ETA-9035) contains specifics of the position, including title, start date, worksite location, the wage to be paid, and the prevailing wage for the SOC code and wage level that was chosen. The form is then submitted online, and the DOL typically certifies the LCA within seven business days.

A certified and signed copy of the LCA is eventually submitted to USCIS as a part of the H-1B petition. Once certified, an LCA is valid for up to three years. An H-1B cannot be approved without a valid LCA, so mistakes on the LCA can be costly.

Question 42

H-1B (Posting Requirement)

Answer 42

The employer must post a Notice of Filing Labor Condition Application. The posting is to inform all employees of the company that an LCA has been or will be filed for an H-1B worker.

The notice must include the following information:
* Job title;
* Salary;
* Start date;
* End date; and
* Work location.

This notice must be posted for 10 business days at work locations.

Furthermore, one must list the dates that the notice was posted and removed, and it must be signed and dated by a company official.

Question 43

H1-B (PWD)

Answer 43

The Immigration and Nationality Act requires that the hiring of a foreign worker will not adversely affect the wages and working conditions of U.S. workers comparably employed.

To comply with the law, the U.S. Department of Labor’s regulations require that the wages offered to a foreign worker must be the prevailing wage rate for the occupational classification in the area of employment.

The prevailing wage rate is the average wage paid to similarly employed workers in a specific occupation in the area of intended employment.

Question 44

H1-B (Work Experience)

Answer 44

Work experience can sometimes substitute for education in an H-1B petition.

For a bachelor’s degree, three years of progressive work experience in a field will be considered as one year of full-time study in a bachelor’s program.

So, twelve years of progressive work experience in a specialty occupation would be equivalent to a bachelor’s degree. For a master’s equivalence, a combination of a bachelor’s degree and five years of experience in the specialty will suffice.

Question 45

H1-B (Licensing)

Answer 45

If an occupation requires a license, the H-1B petition must include evidence that the beneficiary has a full state license to practice in the occupation.

A temporary license is permitted as well as practicing without a license under state-approved supervision.

H-1Bs may be approved in one-year increments if a license is not available because the beneficiary lacks a valid Social Security card or employment authorization but otherwise meets the other license requirements and is awaiting approval of a license application.

Question 46

H1-B (Visa Length)

Answer 46

An H-1B holder may be admitted for a period of up to three years. The time period may be extended, but generally cannot go beyond a total of six years.

Once a beneficiary has been outside of the United States for one year, the person is eligible for six more years of H-1B time.

Question 47

H1-B (Recapture)

Answer 47

Because only time spent inside the United States is counted against your six-year limit, you can “recapture” time spent outside of the country and thereby extend the length of time you can stay in the U.S. in H-1B status. This means that you can add full days (not partial days) spent outside the U.S. during the validity of your H-1B status back to your total maximum stay of six years.

If you are successful in recapturing time abroad and extending your stay, your family members (i.e. H-4 dependents) will also be entitled to extend their stay.

Question 48

H-1B (Public Access File)

Answer 48

H-1B employers must make the following materials available to the public within one working day of filing the Labor Condition Application (LCA) (Form ETA 9035 and/or ETA 9035E) with the Department of Labor:

1. The LCA;
2. Rate of pay for the H-1B worker;
3. Description or summary of the actual wage system;
4. Prevailing wage rate and its source;
5. Documentation that the notice requirement was satisfied;
6. Summary of benefits offered to U.S. workers and H-1B workers;
7. List of entities included as a “single employer”; and
8. In the event of corporate change:
   a. Sworn or notarized statement by successor entity accepting all liabilities of predecessor entity;
   b. List of H-1B workers transferred to successor entity;
   c. Each affected LCA number and effective date;
   d. A description of successor entity’s actual wage system; and
   e. Successor entity’s employer identification number.

Question 49

H1-B (Dependent Employer)

Answer 49

An employer is considered H-1B-dependent if it has:

• 25 or fewer full-time equivalent employees and at least eight H-1B nonimmigrant workers; or
• 26 - 50 full-time equivalent employees and at least 13 H-1B nonimmigrant workers; or
• 51 or more full-time equivalent employees of whom15 percent or more are H-1B nonimmigrant workers.

This also has an effect on the H-1B filing fees. Employers that have more than 50 employees in their workforce with more than half on H-1B status must pay a fee of $4,000 to DHS.

Question 50

H1-B (Foreign Degree)

Answer 50

USCIS will require additional documentation if an H-1B is relying on a foreign degree.

The application needs to document that the foreign degree is equivalent to a U.S. bachelors or higher degree. This is done by obtaining an advisory evaluation of the beneficiary’s credentials from an official who has authority to grant college-level credit or who has such experience.

Most often, individuals with these qualifications work for private credentials evaluation company and those companies will provide a report for inclusion with an H-1B petition that will:

• Consider formal education only (versus practical experience);
• State whether the applicant completed the U.S. equivalent of high school before entering college;
• Provide a detailed explanation of the material evaluated; and
• Briefly state the qualifications and experience of the evaluator providing the opinion.

Question 51

H-1B (Neufeld Memo)

Answer 51

Memo pertaining to the employer-employee relationship in the H1-B context.

USCIS will evaluate whether the petitioner has the “right to control” the beneficiary’s employment, such as when, where and how the beneficiary performs the job. No one factor is decisive; adjudicators will review the totality of the circumstances when making a determination as to whether the employer-employee relationship exists.

Question 52

H-1B (Dual Intent)

Answer 52

Most nonimmigrant classifications require aliens to prove they have a residence abroad that they do not intend to abandon, and that they do not have the intention to immigrate permanently to the United States.

H-1B (and L-1) visa holders are exempt from this requirement. Other H nonimmigrants are NOT exempt from dual intent.

Question 53

H Visa (Other Types of Visas)

Answer 53

H-1B1 - Provides for the temporary employment of nonimmigrant aliens in specialty occupations from Chile and Singapore, limited to 1,400 nationals of Chile and 5,400 nationals of Singapore. The H-1B1 program is governed by many of the rules that apply to the H-1B program. The period of employment is one year. Extensions may be obtained twice but only in one year increments.

H-2A - Temporary Agricultural Workers (3 year max stay)

H-2B - Temporary Non-Agricultural Worker (3 year max stay)

H-3 - Nonimmigrant Trainee or Special Exchange Visitor (2 years for trainee and 18 months for special exchange visitor)

H-4 - Spouses and Dependents of H-1B, H-2A, H-2B, and H-3 holders. The majority of H-4 dependents are ineligible for employment authorization except for for H-4 dependent spouses of H-1B nonimmigrants who are the principal beneficiaries of an approved Form I-140.

Question 54

TN Visa (General)

Answer 54

he TN nonimmigrant classification permits qualified Canadian and Mexican citizens to seek temporary entry into the United States to engage in business activities at a professional level.

Among the types of professionals who are eligible to seek admission as TN nonimmigrants are accountants, engineers, lawyers, pharmacists, scientists, and teachers. You may be eligible for TN nonimmigrant status, if:

1) You are a citizen of Canada or Mexico;
2) Your profession qualifies under the regulations;
3) The position in the United States requires a NAFTA professional;
4) You have a prearranged full-time or part-time job with a U.S. employer (but not self-employment - see documentation required below); and
5) You have the qualifications to practice in the profession in question.

Unlike Mexican citizens, Canadian citizens are generally eligible for admission as nonimmigrants without a visa.

If you wish to remain in the United States beyond your initial period of stay (3 year max) without first departing from the United States, you must seek an extension of stay. If you are in the United States, your employer may file Form I-129 on your behalf.

Question 55

P-1A Visa

Answer 55

The P-1A classification applies to you if you are coming temporarily to the United States solely for the purpose of performing at a specific athletic competition as:

1) An individual athlete at an internationally recognized level of performance;
2) Part of a group or team at an internationally recognized level of performance;
3) A professional athlete; or
4) An athlete or coach, as part of a team or franchise that is located in the United States and a member of a foreign league or association.

The P-1A classification also applies to professional or amateur athletes coming temporarily to the United States solely to perform in a specific theatrical ice skating production or tour, individually or as part of a group.

Question 56

P-1B Visa

Answer 56

The P-1B classification applies to you if you are coming to the United States temporarily to perform as a member of an entertainment group that has been established for a minimum of one year and recognized internationally as outstanding in the discipline for a sustained and substantial period of time.

Question 57

P-2 Visa

Answer 57

The P-2 classification applies to you if you are coming temporarily to perform as an artist or entertainer, individually or as part of a group, who will perform under a reciprocal exchange program between an organization in the United States and an organization in another country.

Question 58

P-3 Visa

Answer 58

The P-3 classification applies to you if you are coming temporarily to perform, teach or coach as artists or entertainers, individually or as part of a group, under a program that is culturally unique.

Question 59

F-1 Visa

Answer 59

The F-1 Visa (Academic Student) allows you to enter the United States as a full-time student at an accredited college, university, seminary, conservatory, academic high school, elementary school, or other academic institution or in a language training program. You must be enrolled in a program or course of study that culminates in a degree, diploma, or certificate and your school must be authorized by the U.S. government to accept international students.

Question 60

M-1 Visa

Answer 60

The M-1 visa (Vocational Student) category includes students in vocational or other nonacademic programs, other than language training.

Question 61

J-1 Visa

Answer 61

The J-1 classification (exchange visitors) is authorized for those who intend to participate in an approved program for the purpose of teaching, instructing or lecturing, studying, observing, conducting research, consulting, demonstrating special skills, receiving training, or to receive graduate medical education or training.

Question 62

J-1 Visa (Waiver)

Answer 62

Some exchange visitors with J-1 visas are subject to a two-year home-country physical presence requirement. It requires you to return home for at least two years after your exchange visitor program.

If you cannot return home for two years, you must apply for a waiver.

Five Bases for Recommendation of a Waiver

1) Home Country Does not Object;
2) Request by Interested U.S Federal Government Agency;
3) Persecution;
4) Exceptional Hardship to a USC/LPR spouse or child; or
5) Request by a designated State Public Health Department

Question 63

OPT

Answer 63

Optional Practical Training (OPT) is temporary employment that is directly related to an F-1 student’s major area of study. Eligible students can apply to receive up to 12 months of OPT employment authorization before completing their academic studies (pre-completion) and/or after completing their academic studies (post-completion). However, all periods of pre-completion OPT will be deducted from the available period of post-completion OPT.

Question 64

CPT

Answer 64

Curricular Practical Training is an alternative work/study, internship,
cooperative education or other type of required internship or practicum that a sponsoring employer offers through agreements with a student’s school.

Question 65

STEM OPT

Answer 65

STEM OPT Extension

If you have earned a degree in certain science, technology, engineering and math (STEM) fields, you may apply for a 24-month extension of your post-completion OPT employment authorization if you:

Are an F-1 student who received a STEM degree included on the STEM Designated Degree Program List;

Are employed by an employer who is enrolled in and is using E-Verify; and

Received an initial grant of post-completion OPT employment authorization based on your STEM degree.

Question 66

EB-1 (General)

Answer 66

You may be eligible for an employment-based, first-preference visa if you are a noncitizen of extraordinary ability, are an outstanding professor or researcher, or are a certain multinational executive or manager.

This is a permanent visa allowing an applicant to obtain LPR status.

Question 67

EB-1 (Extraordinary Ability)

Answer 67

You must be able to demonstrate extraordinary ability in the sciences, arts, education, business, or athletics through sustained national or international acclaim.

You must meet at least 3 of the 10 criteria for demonstrating extraordinary ability or provide evidence of a one-time achievement (i.e., Pulitzer, Oscar, Olympic Medal) as well as evidence showing that you will be continuing to work in the area of your expertise. No offer of employment or labor certification is required.

Question 68

EB-1 (Outstanding Professors and Researchers)

Answer 68

You must demonstrate international recognition for your outstanding achievements in a particular academic field. You must have at least 3 years experience in teaching or research in that academic area. You must be entering the United States in order to pursue tenure or tenure track teaching or a comparable research position at a university, institution of higher education, or private employer.

You must meet at least 2 of the 6 criteria for demonstrating that a Person is an Outstanding Professor or Researcher and provide an offer of employment from the prospective U.S. employer. The private employer must show documented accomplishments and that it employs at least 3 full-time researchers. No labor certification is required.

Question 69

EB-1 (Certain Multinational manager or executive)

Answer 69

You must have been employed outside the United States for at least 1 year in the 3 years preceding the petition or the most recent lawful nonimmigrant admission if you are already working for the U.S. petitioning employer.

The petitioning employer must be a U.S. employer and intend to employ you in a managerial or executive capacity. The petitioner must have been doing business in the U.S. for at least 1 year, as a legal entity with a qualifying relationship to the entity that employed you abroad in a managerial or executive capacity.

No labor certification is required.

Question 70

EB-1 (Criteria for Demonstrating Extraordinary Ability)

Answer 70

In order to demonstrate you have sustained national or international acclaim and that your achievements have been recognized in your field of expertise, you must either include evidence of a one-time achievement (major internationally-recognized award) or 3 of the 10 listed criteria below (or comparable evidence if any of the criteria do not readily apply):

1) Evidence of receipt of lesser nationally or internationally recognized prizes or awards for excellence;

2) Evidence of your membership in associations in the field which demand outstanding achievement of their members;

3) Evidence of published material about you in professional or major trade publications or other major media;

4) Evidence that you have been asked to judge the work of others, either individually or on a panel;

5) Evidence of your original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field;

6) Evidence of your authorship of scholarly articles in professional or major trade publications or other major media;

7) Evidence that your work has been displayed at artistic exhibitions or showcases;

8) Evidence of your performance of a leading or critical role in distinguished organizations;

9) Evidence that you command a high salary or other significantly high remuneration in relation to others in the field;

10) Evidence of your commercial successes in the performing arts.

Question 71

EB-1 (Examples of Documentary Evidence That a Person is an Outstanding Professor or Researcher)

Answer 71

In order to demonstrate you are an outstanding professor or researcher, you must include evidence of 2 of the 6 listed criteria below (or comparable evidence if any of the criteria do not readily apply):

1) Evidence of receipt of major prizes or awards for outstanding achievement;

2) Evidence of membership in associations that require their members to demonstrate outstanding achievement;

3) Evidence of published material in professional publications written by others about the noncitizen’s work in the academic field;

4) Evidence of participation, either on a panel or individually, as a judge of the work of others in the same or allied academic field;

5) Evidence of original scientific or scholarly research contributions in the field;

6) Evidence of authorship of scholarly books or articles (in scholarly journals with international circulation) in the field.

Question 72

EB-1 (Application Process)

Answer 72

Extraordinary Ability: You may apply for yourself by filing a Form I-140, Petition for Alien Worker.

Outstanding Professors and Researchers: Your U.S. employer must file a Form I-140, Petition for Alien Worker. As part of the application process, your employer must be able to demonstrate a continuing ability to pay the offered wage as of the priority date. Your employer may use an annual report, federal income tax return, or audited financial statement to demonstrate a continuing ability to pay your wage.

Multinational Manager or Executive: Your U.S. employer must file USCIS Form I-140, Petition for Alien Worker. As part of the application process, your employer must be able to demonstrate a continuing ability to pay the offered wage as of the priority date. Your employer may use an annual report, federal income tax return, or audited financial statement to demonstrate a continuing ability to pay your wage.

Question 73

EB-1 (Derivatives)

Answer 73

If your I-140 petition is approved, your spouse and unmarried children under the age of 21 may be eligible to apply for admission to the United States in E-14 or E-15 immigrant status, respectively.

Question 74

EB-2 (General)

Answer 74

You may be eligible for an employment-based, second preference visa if you are a member of the professions holding an advanced degree or its equivalent, or a person who has exceptional ability.

Question 75

EB-2 (Advanced Degree)

Answer 75

You must have have an advanced degree or its equivalent, which is a bachelor’s degree plus five years of progressive work experience in the field.

Acceptable documentation includes:

An official academic record showing you have a U.S. advanced degree (or a foreign equivalent degree); or

An official academic record showing you have a U.S. bachelor’s degree (or a foreign equivalent degree) and letters from current or former employers showing you have at least five years of progressive work experience in your field after you earned your bachelor’s degree.

If a doctoral degree is customarily required, you must have a United States doctorate or foreign equivalent degree.

Question 76

EB-2 (Exceptional Ability)

Answer 76

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

You must also meet at least three of the exceptional ability criteria.

Question 77

EB-2 (Exceptional Ability Criteria)

Answer 77

1) Official academic record showing that you have a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to your area of exceptional ability;

2) Letters from current or former employers documenting at least 10 years of full-time experience in your occupation;

3) A license to practice your profession or certification for your profession or occupation;

4) Evidence that you have commanded a salary or other remuneration for services that demonstrates your exceptional ability;

5) Membership in a professional association(s);

6) Recognition for your achievements and significant contributions to your industry or field by your peers, government entities, professional or business organizations;

7) Other comparable evidence of eligibility is also acceptable.

Question 78

EB-2 (Labor Certification and Ability to Pay)

Answer 78

Employment-based, second-preference petitions must usually be accompanied by a certified Application for Permanent Employment Certification from the Department of Labor (DOL) on ETA Form 9089, however, DOL provides for a blanket (Schedule A) certification in certain situations.

As part of the application process, your employer must be able to demonstrate an ability to pay the offered wage as of the priority date and continuing until you obtain lawful permanent residence status. Your employer may use an annual report, federal income tax return, or audited financial statement to demonstrate a continuing ability to pay your wage.

Finally, you may request a waiver of this requirement in the national interest through the petition filed with USCIS. Because the national interest waiver waives the job offer, you do not need to demonstrate an employer’s ability to pay a wage.

Question 79

EB-2 (Derivatives)

Answer 79

If your I-140 petition is approved, your spouse and unmarried children under the age of 21 may be eligible to apply for admission to the United States in E-21 and E-22 immigrant status, respectively.

Question 80

EB-3 (General)

Answer 80

You may be eligible for this immigrant visa preference category if you are a skilled worker, professional, or other worker.

“Skilled workers” are persons whose jobs require a minimum of 2 years training or experience, not of a temporary or seasonal nature. The skilled worker must meet the educational, training, or experience requirements of the job opportunity. Relevant post-secondary education may be considered as training.

“Professionals” are persons whose job requires at least a U.S. baccalaureate or foreign equivalent degree and are a member of the professions. Examples include lawyers, architects, engineers, and teachers.

The “other workers” subcategory is for persons performing unskilled labor requiring less than 2 years training or experience, not of a temporary or seasonal nature.

Question 81

EB-3 (Evidence for Skilled Workers)

Answer 81

1) You must be able to demonstrate that you possess at least 2 years of job experience, education, or training that meets the job requirements specified on the labor certification.

2) Relevant post-secondary education may be considered as training.

3) You must be performing work for which qualified workers are not available in the United States.

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

Question 82

EB-3 (Evidence for Professionals)

Answer 82

1) You must demonstrate that you possess a U.S. baccalaureate or foreign equivalent degree, and that a baccalaureate degree is the normal requirement for entry into the occupation.

2) You must be performing work for which qualified workers are not available in the United States.

3) Education and experience may not be substituted for a baccalaureate degree.

4) You must meet any other requirements specified on the labor certification.

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

Question 83

EB-3 (Evidence for Unskilled Workers/Other Workers)

Answer 83

1) You must demonstrate the ability to perform unskilled labor (requiring less than 2 years training or experience), that is not of a temporary or seasonal nature.

2) You must be performing work for which qualified workers are not available in the United States.

3) You must meet any other requirements specified on the labor certification.

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

Question 84

EB-3 (Application Process)

Answer 84

Your employer (petitioner) must file a Form I-140, Immigrant Petition for Alien Workers. As part of the application process, your employer must be able to demonstrate a continuing ability to pay the offered wage as of the priority date. Your employer may use an annual report, federal income tax return, or audited financial statement to demonstrate a continuing ability to pay your wage.

Question 85

EB-3 (Derivatives)

Answer 85

If your I-140 petition is approved, your spouse and unmarried children under the age of 21 may be eligible to apply for admission to the United States in E34 (spouse of a “skilled worker” or “professional”) or EW4 (spouse of an “other worker”). and E35 (child of a “skilled worker” or “professional”) or EW5 (child of an “other worker”).

Question 86

EB-4 Visa (General)

Answer 86

You may be eligible for an employment-based, fourth preference (EB-4) visa if you are a special immigrant. The following special immigrants are eligible for the fourth preference visa:

1) Religious workers;

2) Special Immigrant Juveniles;

3) Certain broadcasters;

4) Certain retired officers or employees of a G-4 international organization or NATO-6 civilian employees and their family members;

5) Certain employees of the U.S. government who are abroad and their family members;

6) Members of the U.S. armed forces;

7) Panama Canal company or Canal Zone government employees;
8) Certain physicians licensed and practicing medicine in a U.S. state as of Jan. 9, 1978;

9) Afghan or Iraqi translators or interpreters;

10) Iraqis who were employed by or on behalf of the U.S. government; and

11) Afghans who were employed by the U.S. government or International Security Assistance Force (ISAF).

Question 87

EB-4 (Application Process)

Answer 87

To petition for an employment-based fourth preference immigrant, your employer must file a Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant.

Question 88

EB-5 (General)

Answer 88

SCIS administers the EB-5 Program. Under this program, investors (and their spouses and unmarried children under 21) are eligible to apply for a Green Card (permanent residence) if they:

1) Make the necessary investment in a commercial enterprise in the United States; and

2) Plan to create or preserve 10 permanent full-time jobs for qualified U.S. workers.

This program is known as EB-5 for the name of the employment-based fifth preference visa that participants receive.

Question 89

Employment Based Permanent Resident Process (General)

Answer 89

The employment-based permanent residence process is generally comprised of three phases:

1) PERM Labor Certification: Recruitment and Prevailing Wage Determination;

2) I-140 Application for Immigrant Visa and Proof of Ability to Pay;

3) I-485 Adjustment of Status.

Question 90

PERM Process

Answer 90

The PERM labor certification includes 2 major steps:

1) U.S. Labor Market Test/Recruitment: First the employer is required to participate in a process to test the U.S. labor market by recruiting to determine if there are any able, willing, available and qualified U.S. workers for the position to be offered to the foreign national. Recruitment is just like it sounds, the employer must advertise the position and review resumes for more than 30 days, but less than 180 days, prior to filing the application to ensure that there are no other qualified U.S. workers available. Advertising must include a Sunday newspaper listing unless no such listing is available in the area. This process to include copies of advertising placed, resumes and review notes must be documented. There is no listing of acceptable journals or publications for recruitment.

2) Prevailing Wage Determination: The employer is also required to offer at least the prevailing wage for the position ,as determined by the DOL based on the job requirements and location of employment. A prevailing wage determination from DOL must be obtained before filing the PERM application once recruitment has been conducted.

Once the PERM application is filed with DOL, it may take the DOL several months to adjudicate the application. If DOL audits the PERM application, the employer will have thirty days to respond and it goes back in the processing queue which may take an additional year to be processed by the DOL.

The DOL regulations expressly prohibit an employee from paying for any fees and costs associated with the PERM labor certification application process if an attorney represents both the employer and employee which is typically the situation in almost every case. Therefore, employers may generally not require employees to pay for any portion of the cost for this step.

Question 91

I-140 Process

Answer 91

Once a PERM application is certified (approved) by DOL the employer must file an I-140 Immigrant Worker Petition with the USCIS within six months of the approval date of the PERM application. The employer is required to show that it has the ability to pay the wage offered and that the foreign national possesses the education, experience and skills required in the PERM application. This generally involves submitting proof such as Profit and Loss Statements, Balance Sheets, and for new start ups, may even involve providing personal financial information from the owners. The employer’s attorney will help determine what documents are needed to support this filing and prepare the filing.

USCIS processing time for an I-140 Petition is typically four to six months. However, for an additional filing fee, the USCIS will adjudicate the petition via “premium processing” (15 calendar days). If the USCIS requests additional evidence in order to process the I-140 Petition, an additional thirty to sixty days could be added to the processing time or an additional 15 calendar days, if premium processing was requested.

Unlike the PERM application, there are no restrictions on who may pay for the fees and expenses associated with the I-140 Petition. Thus, an employer may pass all of the fees and expenses or some of the fees and expenses on to the foreign national either at the time of filing the I-140 Petition or as part of a “pay back” agreement if the foreign national leaves the employer within a specified period of time after obtaining permanent resident status.

Question 92

Portability (I-140)

Answer 92

Under the American Competitiveness in the 21st Century Act (AC21), if you are the beneficiary of a pending or approved Form I-140 and your Form I-485 has been pending for more than 180 days, you are eligible to change to a same or similar position without having to begin the process all over again.

If you have a new employer and s(he) is willing, they may file for a new labor certification under PERM for your new position. You will be allowed to use the priority date of the application that was filed by your first employer.

Question 93

Concurrent Filing (I-140)

Answer 93

An I-140 can be concurrently filed with an I-485 for beneficiaries applying under EB1, EB-2, or EB-3.

Question 94

LPR Cancellation of Removal (Elements)

Answer 94

Found at INA 240(A)(a).

You can apply for LPR Cancellation if:
1) You obtained LPR status lawfully and are not inadmissible for security/terrorism grounds;
2) You have not been convicted of an aggravated felony;
3) You have been an LPR for at least five years. The stop-time rule does not affect this requirement; and
4) You have accrued seven years of continuous residence in the United States since admission in any status. Stop-time does affect this requirement.

You must also warrant a favorable exercise of discretion. No hardship required.

Question 95

Non-LPR Cancellation of Removal (Elements)

Answer 95

Found at INA 240(A)(b).

You can apply for Non-LPR Cancellation if:
1) You have been physically present in the U.S. continuously for ten years;
2) You have had good moral character for ten years;
3) You have not been convicted of certain criminal offenses (crimes listed in INA §§ 212(a)(2), 237(a)(2) and 237(a)(3). [Typically controlled substance offenses or CIMTs.]; and
4) Removal would cause extreme and exceptionally unusual hardship to USC/LPR spouse or child.

You must also warrant a favorable exercise of discretion.

Question 96

212(c) Waiver

Answer 96

Found in former INA §212(c).

You can apply for relief for aggravated felonies if:

1) You are an LPR with lawful domicile for at least seven years. These seven years continue to accrue up until the entry of a final order of removal by an IJ or the BIA. The stop-time rule does not apply.;
2) You are not inadmissible due to national security concerns; and
3) For convictions entered between 11/30/1990 and 9/30/1996, LPR has not served more than 5 years imprisonment for one or more aggravated felony offenses.

Note: Immigration law includes the entire sentence ordered, even if all or part has been suspended.

Question 97

Stop-Time Rule

Answer 97

Under the stop-time rule, continuous physical presence ends either when an alien is served with a notice to appear (NTA) or when they have committed certain criminal offenses (controlled substance offenses, CIMTs, etc.)

Note that per Niz-Chavez v. Garland and Pereira v. Sessions, a defective NTA (lacking date, time, location of removal proceedings) does not stop continuous physical presence for cancellation of removal purposes.

Question 98

Labor Certification Form (Non-Immigrant)

Answer 98

Form ETA-9035.

Question 99

Labor Certification Form (Permanent Employee)

Answer 99

Form ETA-9089.

Question 100

Matter of Quilantan

Answer 100

For purposes of establishing eligibility for adjustment of status under section 245(a), an alien seeking to show that he or she has been “admitted” to the United States need only prove “procedural regularity” in his or her entry, which does not require the alien to be questioned by immigration authorities or be admitted in a particular status.

A procedural regularity means that if CPB usually waives in a vehicle and the occupants of the car do not commit fraud or state an material misrepresentation (aka lie), then the entry could constitute a lawful entry.

Question 101

Matter of Koloamatangi

Answer 101

An alien who acquired permanent resident status through fraud or misrepresentation has never been “lawfully admitted for permanent residence” and is therefore ineligible for cancellation of removal under section 240A(a) of the Immigration and Nationality Act.

Question 102

H-1B (7th Year Extension)

Answer 102

Under sections 104 and 106 of the American Competitiveness in the 21st Century Act ( AC21), it is possible to obtain H-1B status beyond the six-year limit for the following individuals:

1) 365 days or more have passed since the filing of any application for labor certification (Form ETA 750 or 9089) that is required or used by the alien to obtain status as an EB immigrant; or
2) 365 days or more have passed since the filing of an EB immigrant petition (I-140); or
3) The alien is the beneficiary of an approved EB immigration petition and is not able to file to adjust status to U.S. permanent legal residence based on the unavailability of an immigrant visa number (retrogression).

1 and 2 can extend an H-1B in one year increments. Option 3 can extend H-1B in three year increments.

Question 103

Stepchildren (General)

Answer 103

A U.S. citizen or LPR stepparent may petition for their stepchild to immigrate them or adjust their status if the stepparent married the child’s birth parent before the child’s 18th birthday. You are not required to adopt your stepchild to petition for them.

Question 104

Adoption (General)

Answer 104

Adoption alone does not convey any immigration status to the child. Therefore, if you wish to petition for your adopted stepchild so they can immigrate to the United States, or if they wish to adjust their status from within the United States to become an LPR, you will need to file Form I-130, and your adopted child will need to file either Form DS-260 or Form I-485 as appropriate.

Question 105

Adoption (Types)

Answer 105

Three types of adoption processes:

Hague Process
Orphan Process
Stepchildren Adoption

Question 106

Adoption (Hague Process)

Answer 106

The Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (Hague Adoption Convention) is an international treaty that provides important safeguards to protect the best interests of children, birth parents, and adoptive parents in intercountry adoptions.

To be eligible to file Form I-800A and Form I-800 you must meet the following requirements:

1)Be a U.S. citizen
2) Be habitually resident in the United States; and
3) If you are not married, be at least 24 years old when you file your Form I-800A, and be 25 years old when you file your Form I-800.

For a child to be classified as a Hague Convention adoptee, the child must meet the following criteria:

1) Be under the age of 16 at the time of filing Form I-800 (or under 18 if the sibling exception applies—see the Form I-800 instructions (PDF, 227.2 KB) for more information);
2) Be habitually resident in a Hague country; and
3) Be deemed eligible for intercountry adoption by the Central Authority of that country and have obtained all necessary consents for adoption.

Question 107

Adoption (Orphan Process)

Answer 107

For Non-Hague Signatories.

You May Immigrate an Adopted Child Through the Orphan Process if:

1)You Are a U.S. citizen.
2) If you are married, your spouse must also sign Form I-600, Petition to Classify Orphan as an Immediate Relative and must also adopt the child
3) If you are not married, you must be at least 25 years old when you file your Form I-600 petition
4) You establish that you will provide proper parental care to the child
5) You establish that the child whom you have adopted or plan to adopt is an “orphan” as defined in U.S. immigration law
6) You establish that either: You (and your spouse, if married) have adopted the child abroad, and that at least 1 of you personally saw and observed the child before or during the adoption proceedings OR You will adopt the child in the United States after the child arrives in the United States (you must have permission to bring the child out of his or her own country and to the United States for adoption)

Question 108

Adoption (What is an orphan?)

Answer 108

Under U.S. immigration law, an orphan is a foreign-born child who:

1) does not have any parents because of the death or disappearance of, abandonment or desertion by, or separation or loss from, both parents OR 2) has a sole or surviving parent who is unable to care for the child, consistent with the local standards of the foreign sending country, and who has, in writing, irrevocably released the child for emigration and adoption.

You must file an orphan petition before the child’s 16th birthday, or before the child’s 18th birthday if the child is a birth sibling of another child whom you have also adopted and who immigrated (or will immigrate) as an orphan based on a Form I-600 petition filed before the sibling’s 16th birthday OR an “adopted child” provided the actual adoption took place before that sibling’s 16th birthday.

Question 109

Adoption (Stepchildren)

Answer 109

Stepchild adoption is generally not considered an intercountry adoption subject to the Hague Adoption Convention process.

If you are trying to adopt your stepchild in a country that is party to the Hague Adoption Convention, consult with the Central Authority in that country to determine whether they require you to complete the adoption under their Hague procedures (as opposed to their domestic procedures.

Question 110

Marriage Fraud Bar

Answer 110

Found in INA 204(c).

Prohibits the approval of a visa petition filed on behalf of an alien who has attempted or conspired to enter into a marriage for the purpose of evading the immigration laws.

Per Matter of P. Singh, the standard of proof is “substantial and probative evidence” which is “more than a preponderance of evidence, but less than clear and convincing evidence” and must be “more than probably true that the marriage is fraudulent.” Must consider the evidence in its totality.

Question 111

CSPA

Answer 111

The Child Status Protection Act (CSPA) of 2002 was enacted to preserve child status for certain beneficiaries who would otherwise “age out” (turn 21 years old before they could be issued a visa) due to administrative delays in visa processing. To be CSPA qualified you must meet two criteria:

Your “CSPA age” must be under 21 years old.
You must take action to enact CSPA within one year of your visa becoming available.

In addition, the Immigration and Nationality Act (INA) defines a child as a person who is both unmarried and under 21 years old. If you marry, you will lose “child” status. A subsequent divorce that occurs after your 21st birthday and after the visa becomes available will not restore “child” status because you were married at the time of visa availability.

Your CSPA age is the result of subtracting the number of days that the immigrant visa petition was pending with USCIS (from date of receipt to date of approval, including any period of administrative review) from the actual age of the applicant on the date that the visa became available.

Question 112

Adam Walsh Waiver

Answer 112

Per the Adam Walsh Act, a U.S. citizen or permanent resident who is convicted of a “specified offense against a minor” may be prevented from filing a visa petition on behalf of a close family member or fiancée.

If the petitioner is a permanent resident rather than a citizen, the person will be referred to removal proceedings to see if he or she is deportable.

The law provides an exception only if the DHS adjudicator makes a discretionary decision, not subject to review, that the citizen or permanent resident petitioner does not pose a risk to the petitioned relative despite the conviction.

Under the INA, a minor is under 18.

Specified offenses against a minor include: kidnapping or false imprisonment by an individual who is not the minor’s parent or guardian, solicitation (for prostitution), use in a sexual performance, video voyeurism, offenses related to CP, criminal sexual conduct with a minor, any other conduct that constitutes a sex offense with a minor.

Question 113

Marriages During Removal Proceedings

Answer 113

Prohibited by INA 204(g) unless Petitioner requests application of the bona fide marriage exemption.

Non-citizens who marry U.S. citizens or lawful permanent residents while in removal proceedings must show by clear and convincing evidence that the marriage was entered into in good faith.

Question 114

VAWA (General)

Answer 114

Under the federal Violence Against Women Act (VAWA), you may be eligible to become a lawful permanent resident (get a Green Card) if you are the victim of battery or extreme cruelty committed by:

A U.S. citizen spouse or former spouse;
A U.S. citizen parent;
A U.S. citizen son or daughter;
A lawful permanent resident (LPR) spouse or former spouse; or
An LPR parent.

If you are a VAWA self-petitioner, all the grounds of inadmissibility apply to you except for 1) public charge and 2) entry without inspection.

Question 115

B-1 in lieu of H-1B

Answer 115

As a general rule, you cannot undertake paid work or gainful employment in the United States on a business visa or if you enter the US visa-free under the Visa Waiver Program/ESTA.

However, the B-1 in lieu of H-1B allows a business to send an employee to the United States for a short-term project if that person is a specialized knowledge professional and provided they remain employed by, and on the payroll of, the non-US business.

To qualify for this type of B-1 visa, the applicant must be:

1) “Customarily employed by,” and remaining on the payroll of a non-US firm;
2) A “specialized knowledge professional” (typically this requires a degree in a field relevant to the applicant’s current work);
3) On a project in the United States not expected to last more than 6 months;
4) Otherwise qualified to obtain a visa, e.g., having nonimmigrant intent to leave the US by the end of their period of stay

Importantly, the worker cannot be paid by a US entity for any work undertaken in the US under the B-1 in lieu of H-1B. They must remain on the payroll and be paid by the overseas organization. Outside of salary, certain expenses may be allowable such as for food and accommodation.

The B-1 in lieu of H-1B is not a visa class on its own, but a recognized type of B-1 business visa with a special annotation. As such, it is not available to be selected specifically in the DS-160 Department of State visa application. Rather, the applicant makes the case that they qualify for this type of B-1 visa at the visa window, through answers to interview questions and the documents submitted with the application.

Question 116

L-1 Blanket Visa

Answer 116

The L-1 visa blanket petition program allows U.S.-based organizations to petition the USCIS to bring several foreign employees to the United States quickly and on short notice. It is a single visa petition that eliminates the need to file separate L-1 petitions for each qualified employee. Once USCIS approves the L-1 visa blanket petition, each transferring employee may file a petition for an L-1 visa directly at the United States embassy or consulate.

An organization may be eligible for the blanket petition if:

1) The petitioner and each of the qualifying organizations are engaged in commercial trade or services;

2) The petitioner has an office in the United States that has been doing business for one year or more;

3) The petitioner has three or more domestic and foreign branches, subsidiaries, and affiliates; and

4) The petitioner along with the other qualifying organizations meet one of the following criteria:

a) Have obtained at least 10 L-1 approvals during the previous 12-month period;
b) Have U.S. subsidiaries or affiliates with combined annual sales of at least $25 million; or
c) Have a U.S. work force of at least 1,000 employees.

Question 117

Premium Processing

Answer 117

Premium processing provides expedited processing for Form I-129, Petition for Nonimmigrant Worker, and Form I-140, Immigrant Petition for Alien Worker, for a $2,500 fee.

USCIS guarantees to take some adjudicative action on the case within 15 calendar days for most classifications or 45 calendar days for Form I-140 EB-1C multinational executive and manager and Form I-140 EB-2 national interest waiver classifications, or they will refund the premium processing fee and will continue with expedited processing.

Except in cases where the petitioner is eligible to file a self-petition, only the petitioner may request premium processing for a designated petition. While the petitioner or beneficiary may pay the premium processing service fee, the beneficiary cannot sign or file Form I-907.

Question 118

Grace Periods

Answer 118

F-1 visa holders have 60 days after their program end date to leave the United States. For F-1 students who participate in post-completion optional practical training, they have 60 days after their employment ends to depart.

M-1 visa holders have 30 days after their program end date to leave the United States. M-1 students who participate in practical training have 30 days after their EAD expires to depart.

J-1 visa holders may remain in the U.S. for up to 30 days beyond the end date listed on the DS-2019 form.

Regulations permit a discretionary grace period that allows workers in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN classifications (and their dependents) to be considered as having maintained status following the cessation of employment for up to 60 consecutive calendar days or until the end of the authorized validity period, whichever is shorter.

Question 119

Language and Civics Test Exceptions

Answer 119

You are exempt from the English language requirement, but are still required to take the civics test if you are:

Age 50 or older at the time of filing for naturalization and have lived as a permanent resident (Green Card holder) in the United States for 20 years (commonly referred to as the “50/20” exception); OR
Age 55 or older at the time of filing for naturalization and have lived as a permanent resident in the United States for 15 years (commonly referred to as the “55/15” exception)

If you are age 65 or older and have been a permanent resident for at least 20 years at the time of filing for naturalization, you will be given special consideration regarding the civics requirement (you can take the test with a reduced question pool/easier test.)

You may be eligible for an exception to the English and civics naturalization requirements if you are unable to comply with these requirements because of a physical or developmental disability or a mental impairment. Form N-648.

Question 120

CCA 2000

Answer 120

The Child Citizenship Act of 2000 allows foreign-born, biological, and adopted children of U.S. citizens to acquire U.S. citizenship if they satisfy certain requirements before age 18.

Under INA 320, you must show:

1) Have at least one U.S. citizen parent by birth or naturalization
2) Be admitted to the United States as an immigrant for lawful permanent residence
3) After admission to the United States, reside in the country in the legal and physical custody of a U.S. citizen parent
4) If the child is adopted, his or her adoption must be full and final so that the adoption process is legally complete and fully recognized by the U.S. state where the child is residing.

Uses Form N-600.

If you and your child reside outside the United States, then you must qualify under INA 322 which requires that your child meets certain requirements before age 18 which include:

1) Have at least one U.S. citizen parent by birth or naturalization
2) Have a U.S. citizen parent who has been physically present in the United States for a total of at least five years, at least two of which are after age 14. If the child’s U.S. citizen parent cannot meet the physical presence requirement, one of the child’s U.S. citizen grandparents must meet it.
3) The child lives abroad in the legal and physical custody of the U.S. citizen parent and is temporarily present in the U.S. pursuant to a lawful admission and is maintaining that lawful status.

Uses Form N-600K.

Question 121

Physical Presence (Naturalization)

Answer 121

Applicants for naturalization must demonstrate that they have been physically present in the United States for more than half of the required time (three years for those married to and residing with a U.S. citizen and five years for all others).

Physical presence should not be confused with continuity of residence. The requirement to demonstrate physical presence is generally straightforward. Count any day, a part of which was spent in the United States, and if they add up to more than half of the required time, then the condition is met.

Question 122

Continuous Presence (Naturalization)

Answer 122

Applicants for naturalization must demonstrate that they have continuously resided in the United States for the required time or have not abandoned their residence.

Requires the lawful resident not to have left the United States for an extended period of time during a single trip. Any absence from the United States of more than six months, but less than a year, will “break the continuity” of residence and raises a rebuttable presumption of abandonment of residency for naturalization purposes.

The burden is on the naturalization applicant to show by preponderance of the evidence that the continuous residence requirement has been met.

Unlike for an absence of six months to less than one year, there is no option to rebut a presumption of abandonment of continuous residency for any absence of one year or more. In such a case, the consequence is an automatic break in the continuity of the applicant’s residence, unless the applicant was able to apply for and obtain an approved Application to Preserve Residence for Naturalization Purposes, Form N-470, for qualifying employment abroad.

A re-entry permit does not preserve continuous presence.

Question 123

Good Moral Character Bars (Naturalization)

Answer 123

An individual cannot show GMC if he or she has:

1) Been convicted of murder at any time;
2) Engaged in persecution, genocide, torture, or severe violations of religious freedom at any time; OR
3) Been convicted of an aggravated felony on or after November 29, 1990.

Question 124

T Visa (General)

Answer 124

T nonimmigrant status is a temporary immigration benefit that enables certain victims of a severe form of trafficking in persons) to remain in the United States for an initial period of up to 4 years if they have complied with any reasonable request for assistance from law enforcement in the detection, investigation, or prosecution of human trafficking or qualify for an exemption or exception.

T nonimmigrant status is also available to certain qualifying family members of trafficking victims.

T nonimmigrants are eligible for employment authorization and certain federal and state benefits and services. T nonimmigrants who qualify may also be able to adjust their status and become lawful permanent residents (obtain a Green Card).

Question 125

T Visa (Eligibility)

Answer 125

You may be eligible for T nonimmigrant status if you:

1) Are or were a victim of a severe form of trafficking in persons;
2) Are physically present in the United States or at a port of entry due to trafficking;
3) Have complied with any reasonable request from a law enforcement agency for assistance in the investigation or prosecution of human trafficking (unless you were under the age of 18 at the time at least one of the acts of trafficking occurred or you are unable to cooperate due to physical or psychological trauma; if either case applies, you may not need to show that you complied with reasonable requests from law enforcement);
4) Demonstrate that you would suffer extreme hardship involving unusual and severe harm if you were removed from the United States; and
5) Are admissible to the United States (If you are not admissible, you may be eligible for a waiver of certain grounds of inadmissibility. You may apply for a waiver using a Form I-192, Application for Advance Permission to Enter as a Nonimmigrant).

Question 126

S Visa

Answer 126

An S nonimmigrant is an individual who has assisted a law enforcement agency as a witness or informant.

A law enforcement agency may submit an application for permanent residence (a Green Card) on behalf of a witness or informant when the individual has completed the terms and conditions of his or her S classification. Only a federal or state law enforcement agency or a U.S. Attorney’s office may submit a request for permanent residence as an S nonimmigrant on behalf of a witness or informant. The requesting agency must also be the same agency that initially requested S nonimmigrant status on behalf of the individual.

Qualifying family members of the principal S nonimmigrant may also be eligible to apply for a Green Card.

Question 127

U Visa (General)

Answer 127

The U nonimmigrant status (U visa) is set aside for victims of certain crimes who have suffered mental or physical abuse and are helpful to law enforcement or government officials in the investigation or prosecution of criminal activity.

U nonimmigrants can be eligible for employment authorization per the BFD (bona fide determination) program. U nonimmigrants who qualify may also be able to adjust their status and become lawful permanent residents (obtain a Green Card).

Question 128

U Visa (Eligibility)

Answer 128

You may be eligible for a U nonimmigrant visa if:

1) You are the victim of qualifying criminal activity;
2) You have suffered substantial physical or mental abuse as a result of having been a victim of criminal activity;
3) You have information about the criminal activity.
4) You were helpful, are helpful, or are likely to be helpful to law enforcement in the investigation or prosecution of the crime.
5) The crime occurred in the United States or violated U.S. laws.
6) You are admissible to the United States. If you are not admissible, you may apply for a waiver on a Form I-192, Application for Advance Permission to Enter as a Nonimmigrant.

Question 129

SIJS

Answer 129

Special Immigrant Juvenile Status

If you are in the United States and need the protection of a juvenile court because you have been abused, abandoned or neglected by a parent, you may be eligible for Special Immigrant Juvenile (SIJ) classification. If SIJ classification is granted, you may qualify for lawful permanent residency (also known as getting a Green Card).

Those seeking to apply for SIJ immigration must be able to prove:

1) They are living in the United States;
2) They are unmarried;
3) They have a juvenile court order issued by a state court and are dependent of a state agency or department; AND
4) That is not in the best interest of the minor to go back to the country of origin and be reunited with either parent.

A child who immigrates as an SIJ ceases to be a “child” of her parents for immigration purposes. That means that the parents cannot receive lawful status through the child. Even if the child becomes a United States citizen, she cannot file for her parents when she reaches 21.

Question 130

Alternate State Chargeability

Answer 130

Allows for a foreign national to be “charged” or assigned to a country that is different that his or her country of birth. It is an exception to the general rule of birth country chargeability.

Such cross or alternate chargeability may be passed from one spouse to another spouse, from parents to their children, and on rare occasions may be determined by the place of habitual residence. While children may derive alternative chargeability through their parents, parents cannot derive from children. Parents may only derive cross-chargeability from their spouses.

Children and/or spouses whose birth nationalities are different than the principal applicant’s birth nationality may be “charged” to the principal’s country of chargeability to avoid family separation.

Alternate State Chargeability works both ways: not only may derivative applicants obtain the principal applicant’s chargeability but the principal may obtain the chargeability of any derivative family members as well. In this case, however, both parties are considered to be “principal applicants” and must immigrate at the same time.

Question 131

Alternate State Chargeability (Example)

Answer 131

Albert was born in the United Kingdom and works in the United States in H-1B status. He is married to Ina, who was born in the Philippines. Albert’s employer filed a permanent residence case for him in the EB-3 category. The wait list for nationals of the Philippines in the EB-3 category is several years long but it is only a few months for U.K. nationals. Albert may elect to pass his U.K. chargeability to his spouse so they both are counted as U.K. nationals and their permanent residence cases would be approved at the same time.

Question 132

DV Lottery

Answer 132

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

The Diversity Immigrant Visa (DV) Program requires the principal DV applicant to have a high school education, or its equivalent, or two years of qualifying work experience as defined under provisions of U.S. law. Only the principal applicant must meet this requirement. Your spouse and children do not have to meet this requirement.

Question 133

Patel v. Garland

Answer 133

SCOTUS decision holding that federal courts lack jurisdiction to review facts found as part of discretionary-relief proceedings.

Question 134

Guerrero-Lasprilla v. Barr

Answer 134

SCOTUS decision holding that federal circuit courts have jurisdiction to review mixed questions of law and fact.

Question 135

Matter of Thomas and Thompson

Answer 135

State-court orders that modify, clarify, or otherwise alter a criminal alien’s sentence will be given effect for immigration purposes only if based on a procedural or substantive defect in the underlying criminal proceeding; these orders will have no effect for immigration purposes if based on reasons unrelated to the merits of the underlying criminal proceeding, such as rehabilitation or the avoidance of immigration consequences.

Question 136

Effect of Divorce of Step Parent

Answer 136

For immigration purposes, a stepparent-stepchild relationship is not necessarily terminated by the divorce of a child’s parent and stepparent. See Matter of Mowrer.

Neither physical separation nor legal termination of the marriage will automatically disqualify a stepchild for immediate relative classification.

Instead, the appropriate inquiry is whether a family relationship has continued to exist as a matter of fact between the stepparent and stepchild.

Consequently, self-petitioning children may still establish a qualifying relationship and meet the definition of a stepchild at section 101(b )(1)(B) of the Act if they demonstrate that they continued to have a relationship with their former stepparents as a matter of fact.

Such stepchildren will remain eligible for immigrant classification under the self-petitioning provisions of section 204(a)(1)(A)(iv) of the Act if they meet all other eligibility criteria.