Immigration Law / L-1 VISAS

L-1 VISAS (INTRA-COMPANY TRANSFER)

The L1 intra-company transferee visa is nonimmigrant, temporary visa, enabling the worker to work in the United States for up to seven years, available to employees of international companies who are being transferred to a parent, branch, affiliate or subsidiary in the U.S. These workers come to the U.S. as intra-company transferees who are coming temporarily to perform services either :

in a managerial or executive capacity (L-1A); or
for a position which requires specialized knowledge (L-1B)
The employee must have been employed abroad for the corporation, firm, or other legal entity (or an affiliate or subsidiary thereof) on a full-time basis for at least one continuous year out of the last three-year period to qualify.

Benefits:

1. There is currently no annual cap on L-1 visas.
2. L visa holders are exempted from the requirement of having to establish their continued non-immigrant intent, greatly smoothing the progress of the transition to an immigrant employment based visa, leading to a “green card”.
3. The employer is not required to obtain a labor certification prior to petitioning in the L-1 category. Compensation level is not prescribed, but U.S. income must be sufficient to prevent the alien from becoming a public charge.
4. Dependents (i.e. spouses and unmarried children under 21 years of age) of L-1 workers are entitled to L-2 status with the same restrictions as the principal. Dependents may be students in the U.S. while remaining in L-2 status. The spouse of an L-1 visa holder (not dependent children) can get employment authorization that allows them to obtain employment and work freely for any legal business they want to work in.
5. Initial L-1 visa is usually issued for 3 years and can be extended for a total of up to 7 years.

Requirements

L-1 visas are available to a person (and L2 to his/her family), to transfer him/her to work in the United States for an employer, who has worked abroad for 1 continuous year within past 3 years in a related business entity in a manager/executive or specialized knowledge staff capacity. The applicant must be coming to the U.S. to continue providing services for this same employer. The worker does not need to be directly employed by the sponsor. It is OK even if he/she is paid through personnel service company or an agency, or even as independent consultant, as long as the sponsor had management and control over the worker during the qualifying year.

Evidence of the qualifying relationship between the U.S. and the foreign employer which address ownership and control, such as an annual report, copies of articles of incorporation, financial statements, or stock certificates; a letter from the alien’s foreign qualifying employer detailing his or her dates of employment, job duties, qualifications and salary and demonstrating that the alien worked for the employer abroad for at least one continuous year within the three-year period before the filing of the petition in an executive or managerial capacity or in a position involving specialized knowledge; and detailed description of the proposed job duties and qualifications and evidence the proposed employment is in an executive or managerial capacity or in a position involving specialized knowledge.

If the alien is coming to the U.S. as a manager or executive (L-1A) to open or to be employed in a new office, also file the petition with evidence that:

1. Sufficient premises to house the new office have been secured;
2. The beneficiary has, or upon establishment will have, the qualifying relationship to the foreign employer and the qualifying position; and
3. The intended U.S. operation will be able to support the executive or managerial position within one year of the approval of the petition. This must be supported by information regarding: the proposed nature of the U.S. office (size and scope, organizational structure, and financial goals), financial information about the foreign entity (the size of the U.S. investment and the financial ability to remunerate the beneficiary and to commence doing business in the U.S.), and the organizational structure of the foreign entity.
4. The legal definition of manager and executive role must be strictly followed and a detailed description of duties must be enclosed along with the petition. Generally, an executive or a manager should have supervisory responsibility for professional staff and/or for a key function, department or subdivision of the employer.

If the alien is coming to the U.S. in a specialized knowledge capacity (L-1B) to open or to be employed in a new office, also file the petition with evidence that:

1. Sufficient premises to house the new office have been secured;
2. The business entity in the U.S is or will be a qualifying organization
3. The petitioner has the financial ability to compensate the alien beneficiary and to begin doing business in the U.S.
4. An employee should have knowledge of the company’s products/services, research, systems, proprietary techniques, management, or procedures. The level of knowledge required and the employment of the specific alien must directly relate to the proprietary interest of the petitioner. To be proprietary, the knowledge must relate to something which relates exclusively to the petitioner’s business.

L1 Visa for opening new office in the U.S.

It is possible for a manager or executive to come to the U.S. for opening a new office, provided evidence for following are produced:

1. Sufficient real estate space has been secured to operate a new office
2. The beneficiary has been employed for one continuous year in the three year period preceding the filing of the petition in an executive or managerial capacity and that the proposed employment involves executive or managerial authority over the new operation; and
3. The intended United States operation, within one year of the approval of the petition, will support an executive or managerial position, supported by information regarding:
4. The proposed nature of the office describing the scope of the entity, its organizational structure, and its financial goals;
5. The size of the United States investment;
6. The financial ability of the foreign entity to remunerate the beneficiary and to commence doing business in the United States; and
7. The organizational structure of the foreign entity.
8. It is expected that a manager or executive who is required to open a new business or office will be more actively involved in day-to-day operations during the initial phases of the business, but must also have authority and plans to hire staff and have wide latitude in making decisions about the goals and management of the organization.

H-1B VISAS

The H-1B category is an expedient and lawful method to bring foreign-born professionals temporarily to the United States, and therefore one of the most widely sought after visa classifications for employment in the United States.

An individual may work in H-1B status for a maximum of six years. However, initial petition will be granted for no more than three years. An extension of stay is requested if an individual is in H-1B status already and he or she is eligible for a longer period of employment. Certain aliens working on Defense Department projects may remain in H1B status for up to 10 years.

A petition may be filed by a job contractor, namely a person or entity that pays its employees for services performed at the work sites of other employers.

Employers can apply for a permanent visa status “green card” for a worker on H-1 Visa. Please note that it is possible to get your H-1B visa approved for more than 6 years in some cases depending upon your employment- based “green card” processing status.

The advantage of an H1 visa is that you can work legally in the U.S. in non-immigrant status, and get the visa quickly after the petition is approved. You may travel in and out of the U.S. or remain in the U.S. until the visa expires, and an H4 visa is available for accompanying family member (spouse and minor children under 21).

In general, most nonimmigrant visa classifications require that a person maintain a foreign residence abroad and show that he or she is coming to the U.S. temporarily. However, the law allows a person on a H-visa to have “dual intent,” which is arguably the most beneficial aspect of obtaining this visa. Under the dual intent doctrine, a person may come to the U.S. temporarily and lawfully seek permanent residence (for himself/herself and immediate family members, spouse and children under 21) in the United States at the same time, without affecting H1/H4 status. Therefore, the filing of a labor certification or an employment based preference petition will not cause denial of an H-1B petition filed with the USCIS or an application for an H-1B visa at a U.S. Consulate abroad. While a green card application is pending, H1/H4 visa holders can travel in and out of the U.S. using a non-expired H1/H4 visa without need for Advance Parole or EAD. H-1B foreign specialty workers are not required to maintain foreign residence and may seek permanent residence in the U.S.

 EXTRAORDINARY ABILITY ALIENS

Immigrant Options for Extraordinary Ability Aliens

Extraordinary ability aliens fall within the employment-based first preference for obtaining permanent visa in US (“green card”).   The most obvious benefits of this visa are: employer or prospective employer is not required (you can self-apply); and labor certification is also not required.

Pursuant to INA § 203(b)(1)(A), the requirements for first preference classification are as follows:

1.  the alien has extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation;
2. The alien seeks to enter the United States to continue work in the area of extraordinary ability; and
3. The alien’s entry into the United States will substantially benefit prospectively the United States.

Who Can Qualify

The list includes “sciences, arts, education, business, and athletics” but not professionals. Therefore, an individual claiming to be an alien of extraordinary ability in one of the professions (such as law) will not be classified under the first employment-based preference.

The term “extraordinary ability” is defined at 8 CFR §204.5(h)(2) as “a level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the field of endeavor”.  8 CFR §204.5(h)(3) specifies initial evidence which must be submitted to establish that the alien “has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise.” Such evidence must include evidence of a one-time achievement (i.e. a major internationally recognized award) or at least three of the following:

1. Documentation of the alien’s receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
2. Documentation of the alien’s membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;
3. Published material about the alien in professional or other major trade publications or major media, relating to the alien’s work in the field for which classification is sought. Such evidence shall include the title, date, and author of the material, and any necessary translation;
4. Evidence of the alien’s participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specialization for which classification is sought;
5. Evidence of the alien’s original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field;
6. Evidence of the alien’s authorship of scholarly articles in the field, in professional or major trade publications or other major media;
7. Evidence of the display of the alien’s work in the field at artistic exhibitions or showcases;
8. Evidence that the alien has performed in a leading or critical role for organizations or establishments that have a distinguished reputation;
9. Evidence that the alien has commanded a high salary or other significantly high remuneration for services, in relation to others in the field; or
10. Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales.

8 CFR §204.5(h)(4) states that if the above do not readily apply to the beneficiary’s occupation, the petitioner may submit comparable evidence to establish the beneficiary’s eligibility. Without evidence of such a one-time achievement or three criteria demonstrating sustained acclaim, the petition will likely fail.

Requirement of Intention to Continue Work in the Field

Aliens of extraordinary ability do not need an employer or other sponsor. However, they must be coming to the United States “to continue work in the area of expertise … .” It is enough to show that such aliens will continue to work in their field of expertise. There is no specific requirement that they pursue the specific topics of research that brought them sustained acclaim.

Requirement of Substantially Benefiting Prospectively the United States

Aliens who intend to work in the area of their extraordinary (or exceptional) ability will substantially benefit the interests of the United States in some fashion should pass this test without submitting additional documentation.

CITIZENSHIP AND NATURALIZATION
 

Immigration Practice

Karasik Law Group provides comprehensive legal services in all areas of immigration and nationality law to individuals, employers, and commercial entities. For individuals, we provide guidance and advocacy in obtaining temporary work visas, visa extensions, and permanent resident (“green card”) status for foreign nationals; and we assist clients in becoming naturalized United States citizens, and solving problems with the USCIS and the Department of State, including consulate petitions.

For businesses, our goal is to assist our clients in resolving all immigration matters that arise on a daily basis in the global marketplace. We serve both foreign and domestic clients needing to transfer personnel to the United States; these include entertainers, athletes, National Interest Waivers, professionals, persons who possess extraordinary abilities, and investors and Regional Centers.

Immigration law is federal and applies equally to all states. Most immigration filings are done by mail or e-filing. This allows us to successfully represent clients wherever they live or do business. Thus, we can represent you even if you live in a different state or abroad.

Citizenship and Naturalization

Naturalization is the manner in which a person not born in the United States voluntarily becomes a U.S. citizen.  The most common path to U.S. citizenship, which allows a green card holder (permanent resident) of at least 5 years to apply for naturalization. Other paths include:

1. Green card holders married to U.S. citizens
2. Green card holders in the military and their family
3. Citizenship through parents

Before you apply for naturalization, you must meet a few requirements. Depending on your situation, there are different requirements that may apply to you. General requirements for naturalization are below.

Eligibility Requirements

•Be at least 18 years old at the time of filing Form N-400, Application for Naturalization.

•Be a permanent resident (have a “green card”) for at least 5 years.

•Have lived within the state or USCIS district with jurisdiction over your place of residence for at least 3 months prior to the date of filing Form N-400.

•Have continuous residence in the United States as a lawful permanent resident for at least 5 years immediately preceding the date of filing Form N-400.

•Be physically present in the United States for at least 30 months out of the 5 years immediately preceding the date of filing Form N-400.

•Be able to read, write, and speak basic English.

•Have a basic understanding of U.S. history and government (civics).

•Be a person of good moral character.

•Demonstrate an attachment to the principles and ideals of the U.S. Constitution.

Family-Based Immigration

Family of U.S. Citizens may petition for certain family members to receive either a green card, a fiancee visa or a K-3/K-4 Visa based on family relationship.

Type of Relative for Whom US Citizen May Petition:

• Spouse
• Children (unmarried and under 21)
• Sons and daughters (married and/or 21 or over)
• Parents, if you are 21 or over
• Siblings, if you are 21 or over
• A fiancé(e) residing outside the United States and children of fiancé(e) under 21
• Children of spouse (unmarried and under 21)
• Spouses of deceased U.S. permanent residents (widows and widowers) may also be eligible to become permanent residents.

To petition for a family member to receive a green card (permanent residence), you must submit the following:

1. Form I-130, Petition for Alien Relative
2. Proof of your U.S. citizenship
3. Evidence of the qualifying relationship (birth certificate, marriage certificate, divorce decree, etc.)
4. Proof of any legal name change for you or the beneficiary

Immediate Relatives are eligible for immediate processing of their visas and exempt from annual visa quotas.  The term “immediate relative(s)” is used to define certain immigrant relatives of U.S. citizens. Immediate relatives include:   Spouses of U.S. citizens; Children (unmarried and under 21) of U.S. citizens; Parents of U.S. citizens (The petitioning citizen must be 21 or older.)

For immediate relatives of U.S. citizens, visas are always available, which means that your family member does not need to wait in line for a visa. Immediate relatives who are in the United States can file Form I-485, Application to Register Permanent Residence or Adjust Status at the same time as Form I-130.

Preference Categories  apply to family members who are not immediate relatives. The visas alloted for these categories are subject to annual numerical limits (quotas). A visa becomes available to a preference category based on the priority date (the date the Form I-130 was filed). Preference categories are grouped as follows:

1. First preference: Unmarried, adult sons and daughters of U.S. citizens (adult means 21 or older.)
2. Second Preference (2A): Spouses of green card holders, unmarried children (under 21) of permanent residents
3. Second Preference (2B):  Unmarried adult sons and daughters of permanent residents
4. Third Preference: Married sons and daughters (any age) of U.S. citizens
5. Fourth Preference: Brothers and sisters of adult U.S. citizens

For current wait times, see the “Visa Bulletin” page on the U.S. Department of State website.

If your relative is already in the United States, he or she may apply to adjust status to become a green card holder (permanent resident) after a visa number becomes available using Form I-485.

If your relative is outside the United States, your petition will be sent to the National Visa Center (NVC). The NVC will forward your petition to the appropriate U.S. consulate when a visa becomes available and your relative will be notified about how to proceed. This process is referred to as “Consular Processing.”

Your family member’s preference category will determine how long he or she will have to wait for an immigrant visa number.

Employment-Based Immigration

Many people become permanent residents through a job or offer of employment. Some categories require a certification from the U.S. Department of Labor to show that there are not enough U.S. workers who are able, willing, qualified, and available in the geographic area where the immigrant is to be employed and that no American workers are displaced by foreign workers. In other cases, highly skilled workers, those with extraordinary ability in certain professions, and investors/entrepreneurs are given priority to immigrate through several immigrant categories. In all cases, the process involves several steps.

The main ways to immigrate based on a job offer or employment are listed below.

Green Card Through a Job Offer

You may be eligible to become a permanent resident based on an offer of permanent employment in the United States. Most categories require an employer to get a labor certification and then file a Form I-140, Immigrant Petition for Alien Worker, for you.

Green Card Through Self Petition

Some immigrant categories allow you to file for yourself (“self-petition”). This option is available for either “Aliens of Extraordinary Ability” or certain individuals granted a National Interest Waiver.

Green Card Through Special Categories of Jobs

There are a number of specialized jobs that may allow you to get a green card based on a past or current job. All of these require a Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, and are described in Section 101(a)(27) of the Immigration and Nationality Act (INA):

• Afghan/Iraqi Translator
• Broadcaster
• International Organization Employee
• Iraqi Who Assisted the U.S. Government
• NATO-6 Nonimmigrant
• Panama Canal Employee
• Physician National Interest Waiver
• Religious Worker
• In some cases, you may be able to file the immigrant petition (either a Form I-140 or I-360, depending on your category) at the same time that you file Form I-485, known as “concurrent filing.”

GREEN CARD FOR INVESTORS

Congress created the EB-5 immigrant visa category in 1990 for immigrants seeking permanent residency (“green card”) to engage in a commercial enterprise that will benefit the U.S. economy and create at least 10 full-time jobs. The basic amount required to invest is $1 million, although that amount may be $500,000 if the investment is made in a “targeted employment area.” Of the approximately 10,000 numbers available for this preference each year, 3,000 are reserved for entrepreneurs who invest in targeted employment areas. A separate allocation of 3,000 visas is set aside for entrepreneurs who immigrate through a Regional Center Pilot program discussed below.

Only about 1,000 to 1,500 people a year have immigrated in this category, just one-tenth of the visas available. In 2003, Congress asked the U.S. Government Accountability Office (GAO) to study the EB-5 program. The GAO report concluded that the program has been under-used for a variety of reasons, including the rigorous application process and the failure to issue regulations implementing the 2002 law. The report found that even though few people have used the EB-5 category, EB-5 participants have invested an estimated $1 billion in a variety of U.S. businesses.

The Regular Program

Immigration and Nationality Act (INA) §203(b)(5) provides a yearly maximum of approximately 10,000 visas for applicants to invest in a new commercial enterprise employing at lea t 10 full-time U.S. workers. To qualify under the EB-5 category, the new enterprise must: (1) be one in which the person has invested (or is in the process of investing) at least $1 million (or at least $500,000 if investing in a “targeted employment area,” discussed below) after November 29, 1990; (2) benefit the U.S. economy; and (3) create full-time employment for at least 10 U.S. workers. Moreover, the investor must have at least a policy-making role in the management of the enterprise.

Two or more individuals may join to make an EB-5 investment. A single new commercial enterprise may be used for investor/employment-creation classification by more than one investor, provided that: (1) each petitioning investor has invested (or is actively in the process of investing) the required amount; and (2) the creation of at least 10 qualifying full-time jobs may be attributable to each investor. In fact, a new commercial enterprise may be used for investor/employment creation classification even though there are several owners of the enterprise, including persons not seeking classification, if: (1) the source(s) of all capital invested is (are) identified; and (2) all invested capital has been derived by lawful means.

There are two basic requirements for showing a new commercial enterprise. First, the enterprise must be “new,” second, it must be a “commercial” enterprise. Any for-profit entity formed for the ongoing conduct of lawful business may serve as a commercial enterprise. Regardless of the forms used to create a new enterprise, the focus of the law is on the creation of at least 10 new employment opportunities. Investments creating a new enterprise but failing to create 10 new jobs will also fail to qualify for EB-5 classification. An investor also can create a new enterprise by expanding an existing business. Only an expansion resulting in an increase of at least 40 percent in the net worth of the business or in the number of employees of the business will satisfy the visa requirements. An investor must be involved in the management of the commercial enterprise. Ownership and operation of real estate property does not qualify as commercial enterprise.

USCIS effectively requires the entire capital amount to be already invested and at risk in the commercial enterprise at the time the petition is filed. The term “invest” means to contribute capital. A contribution of capital in exchange for a note, bond, convertible debt, obligation, or any other debt arrangement between the entrepreneur and the new commercial enterprise does not constitute a contribution of capital and will not constitute an investment. The regulations define “capital” as cash and cash equivalents, equipment, inventory, and other tangible property. Retained earnings cannot count as “capital.”

To qualify for EB-5 status, an investment normally must create full-time employment for at least 10 U.S. citizens, lawful permanent residents, or other immigrants lawfully authorized to be employed in the United States. Neither the investor nor the investor’s spouse and children count toward the 10-employee minimum. The regulations define an “employee” for EB-5 purposes as an individual who (1) provides services or labor for the new commercial enterprise and (2) receives wages or other remuneration directly from the new commercial enterprise. This definition excludes independent contractors. The jobs created must be full-time.

When enacting the EB-5 program, Congress took an affirmative step toward creating jobs in the geographic areas that need them most. The statute set aside 3,000 of the approximately 10,000 EB-5 visas available annually for foreign citizens who invest in “targeted employment areas.” The statute defines a “targeted employment area” as a rural area or an area that has experienced high unemployment of at least 150 percent of the national average. An area not within a metropolitan statistical area (as designated by the Office of Management and Budget) or the outer boundary of any city or town having a population of 20,000 or more is considered a rural area. Each state notifies USCIS which state agency will apply these guidelines, and determines targeted employment areas for that state.

The regulations require submitting evidence to establish that capital used in the new enterprise was acquired by legitimate means. It could be shown by: foreign business registration records; personal and business tax returns, or other tax returns of any kind filed anywhere in the world within the previous five years; documents identifying any other source of money, i.e. inheritance, disposition of real estate or other assets; long-term saving activities; and others.  Each foreign jurisdiction usually presents its own unique challenges to legalization of capital requirements.

The regular EB-5 program and the pilot program have similar requirements to begin the process. The distinction between the two processes is that the former require the petitioner to submit all of the described evidence; the latter requires the designated regional center to certify that the investor has met its criteria.

The Pilot Program – Regional Centers

To encourage immigration through the EB-5 category, Congress created a temporary pilot program in 1993. The Immigrant Investor Pilot Program directs the Attorney General and Secretary of State to set aside 3,000 visas each year for people who invest in “Designated Regional Centers.” The Pilot Program has been renewed several times, and efforts are underway in Congress to make it permanent. USCIS estimates that approximately 90% of EB-5 visas are based on regional center investments.

The Pilot program does not require that the immigrant investor’s enterprise itself employ 10 U.S. workers. Instead, it is enough if 10 or more jobs will be created directly or indirectly as a result of the investment. This program also differs from the regular EB-5 provisions in that it permits private and governmental agencies to be certified as regional centers if they meet certain criteria.  It also allows the immigrant investor not be involved in management of the enterprise and thus reside anywhere in the United States regardless of the location of the enterprise.

An investment under the EB-5 pilot program must be made in a commercial enterprise located within a “Regional Center,” defined as “any economic unit, public or private, which is involved with the promotion of economic growth, including increased export sales, improved regional productivity, job creation, or increased domestic capital investment.” A center seeking USCIS approval must submit a proposal showing how it plans to focus on a geographical region within the United State and to achieve the required growth by the means specified. The proposal must show “in verifiable detail how jobs will be created indirectly through increased exports,” as well as the amount and source of capital committed and the promotional effort made and planned. USCIS should approve applications for EB-5 regional center status as long as the applications are based on a general prediction concerning: (1) the kinds of commercial enterprises that will receive capital from investor; (2) the jobs that will be created directly or indirectly as a result of the investment of capital; and (3) the other positive economic impacts that will result from the investment of capital.

Assuming a Regional Center application has been approved, an applicant seeking EB-5 status under the pilot program must make the qualifying investment (i.e., the amount required under the regular program) within an approved regional center. However, the requirement of creating at least 10 new jobs is met by a showing that as a result of the new enterprise, such jobs will be created directly or indirectly.

The petitioner’s new commercial enterprise must be within the area specified in that letter. If the commercial enterprise is involved directly or indirectly in lending money to job-creating businesses, it may only lend money to businesses located within targeted employment area to take advantage of the lesser capital requirement ($500,000). The businesses receiving the loans must be within the geographic limits of the regional center if the enterprise is to qualify under the pilot program. Otherwise the enterprise is not promoting economic growth through “improved regional activity” as required by the regulations. In 2003 Congress gave USCIS discretion to “give priority” to EB-5 petition filed through a regional center.

Before an investor can participate in a Regional Center’s EB-5 investment program, each investor must independently petition USCIS for an EB-5 visa.  USCIS solely determines whether the investor qualifies for the EB-5 visa.  USCIS’ diligence includes a detailed review of the sources of the investor’s funds, family history, and other representations of the head of household and his immediate family member under the age of 21.

Assuming USCIS approves an investor’s petition under either the regular or pilot program, he or she becomes a conditional resident for two years following the approval of an adjustment application or admission under an immigrant visa. The application to remove the conditions is accompanied by evidence that the individual invested or was in the process of investing the required capital, and that the investment created or will create 10 full-time jobs. The individual should show that he or she has “substantially met” the capital investment requirement and has continuously maintained this investment during the conditional period.