visa

Third-Party Worksites

June 8, 2018

Introduction An H-1B work visa is appropriate if two primary conditions are met. First, an employer must be able to demonstrate its need for a qualified worker to fill a specialty occupation. Second, a valid employer-employee relationship must exist throughout the duration of the H-1B visa residency.  For a more detailed discussion of the first requirement please see our previous articles. The petitioner (sponsoring employer) carries the burden of proving that a valid employer-employee relationship will exist for the duration of the beneficiary’s (foreign national’s) residency. Usually, a valid employer-employee relationship will exist if the petitioner retains the right to control the daily tasks, the work production, and is able to hire, fire, and pay the beneficiary. Demonstrating that a valid employer-employee relationship exists in compliance with the H-1B standard has never been difficult when the beneficiary will work at the petitioner’s job site, i.e. office, factory, or store. However, when an H-1B beneficiary will be working at multiple job sites a petitioner must demonstrate that a valid employer-employee relationship will exist when the beneficiary is on an assignment at a third-party worksite. It is more difficult to demonstrate a valid employer-employee relationship exists at third-party worksite because usually, both employers maintain some degree of control over the beneficiary. For example, the petitioner may retain the right to pay, fire, and dictate work production, but the third-party worksite may retain the power to discipline and dictate daily tasks of the beneficiary. Typically, when the United States Citizenship and Immigration Services (USCIS) was skeptical that the employer-employee relationship prong had been satisfied it would request additional information from the petitioner. However, under the Trump administration, the USCIS has reviewed and altered the third-party worksites evidentiary requirements. It issued a new policy memorandum that mandated that petitioners submit itineraries and non-speculative evidence that an employer-employee relationship will exist throughout the duration of the beneficiary’s residency if the beneficiary will work at multiple worksites.

Continue Reading →

Path to U.S. Citizenship

March 27, 2017

For foreign national who wishes to gain legal status and eventually citizenship in the United States, this may be achieved in a number of ways. Among the most common methods for a foreign national to achieve citizenship are either through employment or through family, including by marriage. Depending on the foreign national’s circumstances, other methods are also available. The first step on the road to citizenship is gaining legal entry to the U.S. While foreign national may eventually become a citizen despite illegal entry, the illegality of the entry will make gaining citizenship much more difficult, not to mention having to face possible detention and removal from this country, civil or perhaps even criminal penalties if the reentry was made following an existing removal order.  One can gain entry in different ways, oftentimes using either immigrant or nonimmigrant visa categories; however, some non-immigrant visa categories may not translate to citizenship. Next, in most cases a foreign national residing in the U.S. would have to first get permanent residency. Permanent residency, or a Green Card, can be awarded following entry with an immigrant visa or can be applied for from within the United States. A permanent resident can travel, re-enter, and work in the U.S. with fewer restrictions than someone with a non-immigrant visa. Once permanent residence is obtained, the foreign national must live in the United States for five consecutive years before applying for citizenship, or three years if married to a U.S. citizen spouse.  In addition, a foreign national must be able to demonstrate they are of good moral character and take a U.S. history and civics test in English, unless otherwise exempted. The remainder of this article is dedicated to the various ways one can enter and obtain permanent residency: First, the various possible visas available for temporary entry into the United States, or non-immigrant visas, which require further application for permanent residency; second, the various permanent visas foreign nationals can apply for directly; finally, special categories based on family relations and other unique situations. <Gaining admittance to the US>: Foreign citizens come to the U.S. for a myriad of reasons – to study, to be with family, to work, to escape persecution, or to share their culture. For every reason, there is generally a corresponding visa category. The U.S. has categories of visas for both immigrants and non-immigrants. Among the most common immigrant visas are family and employment-sponsored ones. In the non-immigrant category, there are temporary visas for those who visit for business or pleasure, treaty investors/traders, students, temporary workers, exchange visitors, those who are engaged to a U.S. citizen, intracompany transferees, those with extraordinary abilities or who are artists or entertainers, persons in religious occupations, and victims of trafficking and criminal activity. In addition, certain people may be eligible for the visa waiver program, which allows individuals from approved countries to gain entry into the U.S. without applying for a visa from their consulate, so long as they have a valid passport and pass the border inspection.

Continue Reading →

Green Card Through Marriage

May 26, 2015

Obtaining Permanent U.S. Residence Through Marriage When a United States Citizen (USC) or Lawful Permanent Resident (LPR) marries a resident of another country, the foreign spouse can typically receive a Green Card, granting him or her permanent U.S. residence. In order for the foreign spouse to receive LPR status, the couple must follow the proper procedures, and the foreign spouse must meet certain qualifications. Obtaining a visa and LPR status through marriage has great advantages, one being the absence of statutory limitations (or caps) on the number of these visas that will be issued to immediate relatives each year. Immediate relatives are the spouses, parents and unmarried children under the age of 21 of U.S. citizens. A spouse of a LPR and any unmarried children under the age of 21 are subject to the annual visa cap and may qualify for a Green Card once a visa becomes available to them in the family-based second preference group. Valid Marriages for Obtaining LPR Status A couple may marry within the United States or abroad, so long as the marriage is legal and valid where it occurred, and is a type of marriage that U.S. Citizenship and Immigration Services (USCIS) will recognize.   Ultimately, the couple will need to demonstrate theirs is a bona fide marriage; not one entered into for the purpose of obtaining immigration benefits. The application process varies depending on whether the foreign spouse is already in the U.S. or needs a visa in order to travel here. In either scenario the USC or LPR must begin the process by filing an I-130 Petition for Alien Relative with USCIS. Generally approval of the I-130 requires the petitioning USC or LPR spouse to provide by a "preponderance of the evidence" indications of a valid marriage, including (but not limited to) proof that: The petitioner is a U.S. citizen or qualifying LPR; Any previous marriages of petitioner and beneficiary (foreign spouse) have been legally dissolved; AND Any and all evidence tending to demonstrate the marriage is bona fide and valid, including items such as: the marriage certificate, leases or bank accounts held jointly by the couple, affidavits of friends and family members attesting to the validity of the marriage, photos and evidence of a typical marital relationship, etc.

Continue Reading →

Using the B-1 Visa in Lieu of the H-1B Visa: Pros and Cons

December 13, 2012

Normal H-1 requirements: The H-1B visa is issued to those skilled foreign workers who have a bachelor’s degree or higher in the specialty occupation for which they are being issued the visa.[1] US employers sponsor the foreign worker and file a labor condition application (LCA) with the U.S. Department of Labor, and the employer  makes several attestations in the LCA, mainly the following: the H-1B worker is being paid the same wage as U.S. workers who have similar experience and qualifications for that specific employment;  employment of the non-immigrant does not adversely affect working conditions of other workers similarly employed;, and notice of filing the application was provided to workers employed in the occupation at the place where the H-1B worker would be employed.[2] Problems with H-1 visa: Practitioners and applicants for the H-1B visa find that the most salient problem with the H-1B visa filing is the annual cap. Currently, the visa cap is set at 65,000, with an exemption for 20,000 nonimmigrants who hold master’s degrees or higher.[3]  The problem is that the number of applicants greatly outstrips the number of available visas, often resulting in the visa cap being filled on the very first days when filings are accepted.[4] Therefore, potential H-1B applicants may try to explore alternative methods to enter or stay in the US, without having to deal with the visa cap. One possibility is that worker may come to the US under a B-1 visa. However, this approach is somewhat controversial and not yet widely accepted or understood within the different the government agencies.  Consular posts may not know how to properly adjudicate these applications and even if granted, foreign nationals may encounter problems at the port of entry when the Customs and Border Patrol (CBP) officers are not willing to grant them admission.  The United States Citizenship & Immigration Services (USCIS) and its predecessor, the legacy Immigration and Nationality Services (INS), have traditionally been hostile to this visa category and viewed it with much skepticism.  Therefore, employers and foreign nationals wishing to pursue this visa option should understand the requirements and proceed with caution.

Continue Reading →

EB-5 Investor Visa Overview

May 31, 2012

Twenty two years ago, the United States began to allow investment-based immigration to the US. Investment-based immigration occurs through the EB-5 visa program, which grants conditional permanent residency to immigrants and their families over a two-year period. The immigrant investor must 1. invest $1,000,000 in a new commercial enterprise in the United States, 2.create or preserve at least 10 full-time jobs for qualifying US workers via that enterprise and 3. maintain that business for two years.

Continue Reading →