Articles Posted in Top Immigration Stories

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In this live stream, attorneys Jacob Sapochnick and Marie Puertollano discuss recent topics in immigration including the immigrant caravan, the new proposed rule to restrict admission of aliens reliant on public benefits, updates relating to the I-751, NTA memos, and the upcoming H-1B season and new proposals.

Immigrant Caravan

The immigrant caravan is comprised of a large group of individuals traveling together from Central America for the purpose of claiming asylum in the United States. Unfortunately, there are long waiting times for individuals to be scheduled for what is known as a “credible fear” interview, where an immigration officer will determine whether the applicant has a credible fear of asylum. This waiting period of course is exacerbated by the large amounts of people who continue to seek asylum at a port of entry.

Proposal to Restrict Admission for Aliens Reliant on Public Benefits 

The Department of Homeland Security recently announced a new proposed rule that may prevent non-citizens reliant, or likely to become reliant on public benefits, from gaining admission to the United States.

Under the proposed rule, a non-citizen can be found inadmissible to the United States if they have become reliant on a prohibited public benefit, or if they are likely to become reliant on a prohibited public benefit. The non-citizen seeking to gain admission to the United States bears the burden of proving that they will not become a public charge to the United States government. This can be accomplished by showing that the non-citizen applicant has sufficient finances to support themselves in the United States, or by presenting a signed and completed affidavit of support.

Under the proposed rule receipt of any of the following types of public benefits could make a person inadmissible on public charge grounds:

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In this video attorney Jacob Sapochnick discusses an important E-2 visa subject: how do you prove source of funds for your E-2 investment?

Loans

If your source of investment is a loan: you must prove that your loan is secured by some personal property.

Gifts

If your source of funds is a gift: you must prove that you have control of that gift and show the source of funds of the person that gave you the gift, for example if the funds came from the sale of the house, the documents of the sale of that house must be provided. If the funds came from savings, then the person would need to provide their savings account statements. If the funds came from someone’s salary, then pay stubs must be provided.

In general, if a person has given you a gift of money, and that is the source of your E-2 investment, that person must prove how they got the money.

Proceeds from Real Estate

If the funds are coming from the proceeds of a real estate sale then you must provide the deed, proof of the bill of sale and the transaction, etc.

Investments

If the source of funds is coming from investments such as stock, life insurance, then at least three years of tax returns must be provided, and three years of statements from those institutions.

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In this video attorney Jacob Sapochnick discusses how entrepreneurs come to America.

What are the available visa options for an entrepreneur to launch a startup company?

The O-1A:

One of the most common ways to launch a company in the United States is through the O-1A visa. This is a great option for entrepreneurs who have already established their reputation in their home country, have run a successful business abroad, and who wish to bring their unique talents and skills to the United States.

To qualify for an O-1A visa, the entrepreneur must demonstrate that they are exceptionally distinguished in their field or industry. This can be demonstrated by way of sustained recognition in the industry on a national or international level, or awards, titles, honorary distinctions, etc. The entrepreneur must also demonstrate that they have achieved a high level of expertise in their industry

The O-1A visa enables the entrepreneur to come to the United States to work for their own company, or for another company.

The L-1A:

Another great option is the L-1A visa. If you are a startup founder and you already have a company in your home country, and you want to launch in the United States, you can set up a subsidiary or an affiliate of your startup in your home country and come to the United States as an executive such as a CEO.

The E-2:

Alternatively, you may wish to apply for the E-2 visa as an investor of the startup company that you wish to launch in the United States. To qualify for this visa type, you must be a national of a foreign country that has a qualifying treaty of friendship, commerce, navigation, or similar agreement with the United States.

In addition, the investment must be made in a real, operating commercial enterprise or active entrepreneurial undertaking productive of some service or commodity. Paper organizations, speculative, or idle investments do not qualify as real operating enterprises or active entrepreneurial undertakings.

The TN: 

If you are a citizen of Mexico or Canada, you can apply for a TN visa and be part of the company that you launch in the United States as an advisor or a higher-level position. The position that the entrepreneur will engage in must be a profession that is approved by NAFTA, and the entrepreneur must meet the qualifications for that position.

The E-1:

The E-1 Treaty Trader visa is a good option for entrepreneurs who wish to work in the technology sector. If you have a patent in your home country or have an idea to invest in the technology sector, and you are starting a company in your home county, you can set up a company in the United States as a founder without investing anything, because of the exchange of trade and technology.

National Interest Waiver

Company founders can apply for a green card by applying for a national interest waiver if you are a highly successful entrepreneur, and you can show the government that your level of innovation is at a high level.

Please visit our website for more information about these different options.

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How can religious workers come to the United States?

A religious worker visa allows a foreign national to come to the United States to work in a religious occupation for an authorized non-profit organization.

To qualify for the R-1 visa, the foreign national must be employed by (1) a non-profit religious organization in the United States or (2) a religious organization that is authorized by a group tax exemption holder to use its group tax exemption or (3) a non-profit religious organization affiliated with a religious denomination in the United States.

Religious occupations are those whose duties:

  • Primarily relate to a traditional religious function
  • Are recognized as a religious occupation within the denomination
  • Are primarily related to, and clearly involve, inculcate, or carry out the religious creed and beliefs of the denomination
  • In addition, the foreign national must be a member of the religious denomination for at least two years immediately prior to filing for an R-1 visa.

The R-1 visa is issued for a period of up to 5 years, and the religious worker may apply for a green card using Form I-360.

For more information about the R-1 visa please visit our website.

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Recently the President of the United States controversially announced that he could end birthright citizenship by executive order.

What is birthright citizenship? The 14th amendment of the U.S. Constitution grants citizenship to all persons born in the United States. This right to citizenship is referred to as “birthright citizenship.” Such a right is granted to an individual born in the United States, irrespective of their parent’s immigration status in the United States.

Unsurprisingly, the President made the suggestion that he could do away with birthright citizenship, ahead of the midterm elections in the United States. The timing of the President’s statement shows that the message was politically motivated.

Does the President have the power to end birthright citizenship? The President cannot end birthright citizenship by executive order. The President’s message was made simply to incite fear in the non-citizen population, and to solidify the President’s support from his conservative base, who believe that “anchor babies,” a derogatory term used to refer to children born in the United States to non-citizen parents, should not be entitled to United States citizenship.

The President is likely aware that he, of course, does not have the power to end birthright citizenship by executive order, and made such a statement to deliberately deceive his base, and create confusion.

This is very troubling, given the state of our current political climate. If the President ever signed such an executive order, it would undoubtedly be met with fierce opposition in court.

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In this video attorney Jacob Sapochnick discusses a frequently asked question regarding the E-2 Investor Visa: Are loans or gifts a legitimate source of funds for the E-2 visa?

In order to get an E-2 visa as an investor in the United States, you must demonstrate that you will make a substantial investment in a new business enterprise or an existing business. As part of the application process, you must show the origin of the source of funds for that investment, and the source of those funds must be legitimate. Not all sources of funds will qualify for the E-2 visa. Many of our clients ask whether a gift of funds or a foreign bank loan will qualify as a legitimate source of funding for the E-2 visa.

Overview: 

Are gifts a legitimate source of funds for the E-2 visa?

Yes, provided the investor has possession of the funds, and the funds are irrevocably committed to the investor by the giver of the gift. The person that has given the gift to the investor must provide documentation showing the source of those funds to prove that the funds came from a legitimate source.

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In this video attorney Jacob Sapochnick explains the differences between the K-1 fiancé visa and a marriage visa.

What is the K-1 Fiancé Visa?

The K-1 visa is available to foreign nationals who are engaged to U.S. Citizens only. K-1 visas are also reserved for foreign fiancées, who do not have any other means of coming to the United States. A K-1 visa holder must marry the U.S. Citizen fiancé/fiancée within ninety days of entry to the United States or else the alien must leave the country.

If the foreign fiancé does not intend to marry the U.S. Citizen within ninety days of arriving to the United States, then the K-1 fiancé visa is not a good option.

The K-1 fiancé visa is a good option for couples who want to spend time together in the United States before getting married.

The fiancé visa process is typically much faster than the marriage visa process.

Marriage Visa

Spouses Overseas: U.S. Citizens and Legal Permanent Residents may file Form I-130 on behalf of a foreign spouse residing abroad, so that the foreign spouse can apply for a marriage visa through the U.S. Consulate in their home country. Spouses of Legal Permanent Residents must wait for a visa to become available to them, before proceeding with the marriage visa application process.

Spouses within the U.S.: If the foreign spouse of a U.S. Citizen is residing inside of the United States on a valid visa type, then the foreign spouse can file Form I-130 and Form I-485 to adjust their status permanent residence at the same time.

The marriage visa application process is generally longer than the fiancé visa process, while adjustment of status for spouses residing within the United States is shorter than the fiancé visa process (typically 4-7 months processing time).

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In this video, attorney Jacob Sapochnick discusses how you can obtain permanent residence if your U.S. Citizen spouse has passed away, and you are still in the process of applying for permanent residence.

Overview:

What happens if you and your spouse have filed the I-130/485, and your US Citizen spouse tragically passes away during the process?

SCENARIO ONE: If the couple married but did not have the opportunity to file the I-130/485 applications with USCIS, before the death of the US Citizen spouse, the surviving spouse can still obtain permanent residence by filing form I-360 as a widow(er), provided the couple had a bona fide marriage. Once the I-360 petition is approved by USCIS, the surviving spouse can proceed on their own in filing the I-485 application for permanent residence.

SCENARIO TWO: In cases where the I-130/485 applications have already been filed with USCIS, but the couple did not have the opportunity to go to their I-485 interview before the passing of the US Citizen, USCIS may still adjudicate the foreign national’s application for permanent residence, even if the US Citizen spouse is now deceased. At the interview, the surviving spouse must provide the US Citizen’s death certificate, as well as evidence of bona fide marriage.

If you have any questions regarding this process, please email jacob@h1b.biz, or contact our office.

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In this video attorney Jacob Sapochnick discusses the future of the EB-5 Visa Program.

What is the EB-5 Visa Program?

The EB-5 Visa Program is an Immigration Investor Program that was created by Congress in 1990 to stimulate the U.S. economy through job creation and capital investment by foreign investors. In 1992, Congress created the Immigrant Investor Program, also known as the Regional Center Program. This sets aside EB-5 visas for participants who invest in commercial enterprises associated with regional centers approved by USCIS based on proposals for promoting economic growth.

EB-5 Investors can obtain conditional residence if they:

  • Make the necessary investment in a commercial enterprise in the United States; and
  • Plan to create or preserve 10 permanent full-time jobs for qualified U.S. workers.
  • In general, the minimum qualifying investment in the United States is $1 million.
  • Regional Centers: Targeted Employment Area (High Unemployment or Rural Area). The minimum qualifying investment must be either within a high-unemployment area or rural area in the United States is $500,000.

As of September 28, 2018, Congress has extended the EB-5 visa program until December 7, 2018. This means that the program will continue to be active and investors may utilize the program just as before, at least until the end of the year. It is not yet known whether any changes will be made to the program in the future, or if the program will continue at all into the new year.

For more information about the EB-5 program please visit our website.

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In this video attorney Jacob Sapochnick talks visa options for entrepreneurs.

Overview:

In this video we cover four visa options that allow foreign entrepreneurs to live and work in the United States. These visa options also allow the foreign entrepreneur to bring his or her dependents to live with them in the United States.

Option #1 L-1 Visa for Executives, Managers, and Essential Employees:

There are two types of visas available under the L-1 category: 1) L-1A Intracompany Transferee Executive or Manager and 2) L-1B Intracompany Transferee Specialized Knowledge.

The L-1A category is a non-immigrant visa classification for aliens seeking to work in the United States in an executive or managerial capacity on an assignment of a temporary nature for a U.S. subsidiary or parent company of their foreign employer.
The L-1A visa classification allows a foreign company to transfer an executive or manager to the U.S. subsidiary or parent company. If an affiliated U.S. subsidiary or parent company does not yet exist, the L-1A classification allows the foreign company to send the executive or manager to the United States for the purpose of establishing the affiliated subsidiary or parent company.
L-1B: If the alien is not employed in an executive or managerial capacity, the L-1B visa classification comes into play. To be eligible for the L-1B visa, the petitioner must demonstrate that although the alien is not employed in an executive or managerial capacity with the company, the alien possesses specialized knowledge and can represent the organization’s interests in the United States.

Both the L-1A and L-1B require the beneficiary to have worked abroad for the foreign employer for at least one year within the proceeding three years.

Pro: the L-1 visa leads to a green card

Option #2 E-2 Investor Visa:

The E-2 treaty investor visa is a non-immigrant visa that allows foreign entrepreneurs from treaty nations to enter the United States and carry out investment and trade activities. Investment activities include the creation of a new business in the United States or investment in an existing enterprise. The investment must be significantly proportional to the total investment, that is, usually more than half the total value of the enterprise or, if a new business, an amount normally considered necessary to establish the business.

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