• sciences
• arts
• education
• business
• athletics
• motion picture or television industry

There are some great advantages to an O-1 Visa, but be aware these are not easy visas to get.

You’ll need to show you have “extraordinary achievement,” in your field.  The purpose of this article is to help you understand what that means, so you can decide whether the O-1 Visa is right for you.

O-1 Overview

The term “extraordinary achievements” seems vague and broad, but the USCIS has given us some rather specific examples of items that meet this requirement.  First, be aware there are two subcategories of the O-1 visa that are equal but different: the O-1A and the O-1B. The O-1A is meant for those with extraordinary achievements in the fields of science, athletics, business, or education (left-brainers, if you will). Here is a list of the evidence that you can use to reap the O-1A benefits:

• A well-recognized international award such as a Nobel Prize or Olympic medal
• A less well-known award that is nationally or internationally recognized
• A membership in an exclusive organization related to your field
• Mentions of your published material in trade publications
• Scholarly articles that you’ve written for your field
• Other significant contributions to your field
• Commanding a large salary
• Sitting as a judge or on a panel of judges for your peers
• Holding critical positions for esteemed organizations in your field

The O-1B is, as you’ve probably guessed, more for right-brained individuals and is geared toward extraordinary actors and artists. The criteria for this one is slightly different from those of the O-1A. You’ll need to show proof of:

• A top-tier award like an Oscar or a Grammy
• A position as the lead role in a well-known production
• Having received national or international recognition for your achievements
• A lead and/or starring role in a well-known organization
• Reviews, publications, or other news that indicates your commercial success
• Commanding a large salary
• Recognition for your achievements from reputable organizations of your achievement

Remember that, if you have a top-level award like a Nobel Prize or Oscar, you satisfy the requirement. If you do not have a top-level award, then you will need to present evidence of at least three of the other items on the above list.

Also, these lists are not exhaustive and supplementary evidence can be used. Your immigration attorney can help you determine what can be used in this case.

O-1 Visa Benefits

So now that we know the standards that this visa demands, we can examine the O-1 visa benefits that come along with the prestige. Overall, well cover the following topics:

• Cost
• Sponsors
• Validity Period
• Assistants and Family Members
• Green Card Process

How Much Does it Cost?

When viewed in the light of other nonimmigrant visas, the O-1 is relatively inexpensive. As the petitioner, you are responsible for the $460 basic filing fee for the I-129 petition and the $190 charge for the DS-160 online application (only if you are outside of the U.S. and are going through consular processing). Additionally, you can opt to pay $1,225 for premium processing to have your I-129 processing time expedited from the usual six months to just 15 calendar days.

So, all in all, the O-1 visa cost is between $460 and $650 without premium processing. Compared to the hefty H-1B fees that add up to over $6,000 at times and the loose E-2 visa investment of $150,000, the O-1 is relatively light on the wallet.

Who Can Sponsor Me?

One question we often get is: can I self-petition? And while self-petition ing or self-sponsoring is possible through visas such as those in the E class, it is not possible through an O-1.

So why have we added it to the list of O-1 visa benefits? This visa is advantageous because of the versatility of who your sponsor can be. Most visas that require a sponsor maintain that the sponsor should be an employer. However, because O-1 visa applicants are often contracted rather than hired at will, the sponsor can either be an employer or a U.S. agent.

An agent is someone that is hired as representation for the employment and interests of the O-1 applicant. This designation means that you do not have to be committed to any one employer or seek a job offer to qualify for the O-1. You simply need someone to represent you who will sponsor you for your visa. However, that person must represent you throughout your O-1 visa duration of stay.

Also, you can also go the route of getting a direct employer. If this is your case, then you will need to make sure that this employer is your only employer. You can’t switch from one to the other to maintain your status and you will need to obtain a new O-1 visa in order to continue once your contract with your employer is over.

How Long is the O-1 Visa Validity Period?

Here is where the O-1 visa benefits really pay off. Most other visas have a limited duration of stay. The H-1B allows you to stay for six years, the L-1 for five to seven, and the J-1 for an average of five. In contrast, the O-1 offers an initial period of stay of three years, but allows for unlimited extensions. Essentially, you can stay and work in the U.S. as long as you are under O-1 status and meet the requirements for an O-1 extension. These extensions are granted in one-year increments and are not guaranteed, however.

To petition for an O-1 visa extension, you need to file:

• Another I-129 form along with the filing fee
• A copy of your I-94 arrival/departure card that has a non-expired departure date, and;
• A written statement from your agent or employer which states the reason for the extension and why your continued presence in the U.S. is required.

Assistants and Family Members

Another O-1 visa benefit is the fact that you can bring your family along under your O-3 status, which is granted to your spouse and unmarried children under the age of 21. Their visa validity time will be the same as yours, and if you receive an O-1 extension, that extension will be passed to your O-3 family.

Additionally, you can bring along assistants that can be considered essential to your work in the U.S. under O-2 status. Like O-3 family members, their status is dependent on yours. If your status is extended, theirs will be too. If your status is revoked, that reflects on their status as well. Also, O-2 holders can bring their own family members under O-3 status.

Lastly, O-2 and O-3 holders are capable of adjusting their statuses to lawful permanent resident, which we’ll talk about next.

O-1 Visa to Green Card

In the field of immigration law, there’s a term known as “dual intent” which refers to a nonimmigrant visa that allows the holder to pursue lawful permanent resident (green card) status while still a nonimmigrant. Not every visa is a dual intent visa. Some notable exceptions are the J-1, TN, and B-1 visas.

However, the O-1 is among the visas that are considered dual intent, so your status will not be jeopardized or otherwise negatively affected by filing a petition for a green card. For many, this is the most valuable of the O-1 visa benefits.If you are interested in making your stay in the U.S. a permanent one, here is how to go from O-1 status to green card.

You first need to determine which green card you would like to pursue. Because the qualifications are so similar, most O-1 holders choose the EB-1A for aliens with extraordinary achievement or EB-1B for outstanding researchers and professors. Neither of these green cards requires a PERM Labor Certification and the EB-1A does not require a job offer or sponsoring employer, which is a huge advantage and lets you carry over your O-1 visa benefits.You can also look to qualify for the EB-2 green card, but that does require a PERM, job offer, and sponsor.

Once you determine which green card you would like to pursue, you will need to file an I-140 petition. Either you or your employer depending on your green card as your O-1 agent cannot petition for you. Once your petition is received by the USCIS, that date will become your priority date. It will be up to you to stay up-to-date with the latest final action dates on the monthly visa bulletin. Once you see that the final action date for your green card category and country has matched or passed your priority date, a visa number will be made available and you will be able to move onto the next step.

When your priority date is current, you can file an I-485 and appropriate fees to the USCIS to have your status transferred from O-1 to green card status. Depending on which green card you choose and the final action dates in the visa bulletin, this process can take several years or only a few months. Speak with your immigration attorney to find out more about your unique case.

How Our Immigration Attorneys Can Help

With a visa as prestigious as the O-1, the stakes can be high and the potential to make an innocent error can make filing your petition a nerve-wracking experience. Protecting your investment is likely a high priority for you and your case and the best way to do this is to hire an expert to help you take advantage of the O-1 visa benefits.

~ Jeff Harrington, Esq.

One of the primary advantages of the so-called “EB-1A” is that you do not have to be sponsored by an employer.  You can “self-petition.”  You also do not have to go through the labor certification process.  And, of course, the other great thing is that this visa gives you permanent residence.

With this visa, the US is saying “We want you talented people, whether or not you have a sponsor, and you are welcome to stay here as long as you want.”

There are actually three classes of people who can get an EB-1 visa:

• Those with extraordinary ability in sciences, arts, education, business, or athletics.

• Outstanding professors and researchers who are recognized internationally for their outstanding academic achievements in a particular field.

• Certain executives and managers of foreign companies who are transferred to the U.S.

This article focuses on the first class, which is for aliens who have distinguished themselves in their field of work.

Eligibility

The way the law reads, you have to meet two criteria:

1. Demonstrate “extraordinary ability in sciences, arts, education, business, or athletics through sustained national or international acclaim” and

2. Provide “extensive documentation” in support of the extraordinary ability.

If you are thinking this description is far too vague, you are right.  The question is “What does the USCIS consider to be extraordinary ability?”

Let’s look at more specific criteria:

A.  Have you won a Nobel prize? If so, you’re in.  Let’s get you signed up.  If not, keep reading.

B.  Can you meet any three (3) of the following?

• nationally or internationally recognized awards for excellence
• membership in a group that only permits professionals of outstanding achievement
• publications in professional journal
• media coverage of alien’s accomplishments (i.e. magazines, journals, TV, radio, etc.)
• judge of work performed by other professionals in the field
• important contributions to field
• work displayed at exhibitions or showcases
• commercial success in performing arts
• leading or critical role in distinguished organizations
• high salary compared to others in the same field

Having a checklist like this is helpful, but it does still leave grey area.  In reality, it is a bit dicey to get too specific with the characteristics of a successful petition since (i) the USCIS trends change over time, and (ii) we do not want to discourage clients who might not perfectly fit the description but who would still make good candidates.

With this caveat in mind, consider the following examples of successful EB-1A petitions.

Example #1

Field: Behavioral Neuroscience

Degree:  Ph.D.

Title: Scholar-Employee

Nationality: Chinese

Key Characteristics:  Three articles in scholarly journals, which have been cited in other publications a combined 140 times.  Seven letters of recommendation from peers.  Conducted peer-reviews for 14 scholarly journals.

Example #2

Field: Salsa Dance

Title: Competitor & Instructor

Nationality: Slovenia

Key Characteristics:  Various prizes in home country and internationally.  Leading role in organization by creating dance curricula and online instructional materials.  Number of articles about her in major media publications.

Example #3

Field: Molecular Biology

Degree:  Ph.D.

Title: Senior Research Associate

Nationality: Chinese

Key Characteristics:  Fifteen peer-reviewed publications, which have been cited in other publications a combined 150 times.  Six letters of recommendation from experts in the field.  Conducted peer-reviews for 25 scientific journals.

Example #4

Field: Computer Engineering

Degree:  Ph.D.

Title: Senior Research Associate

Nationality: India

Key Characteristics:  39 peer-reviewed publications, and one book, which had been cited over 300 times.  Conducted peer-reviews for 30 scientific periodicals.

Example #5

Field: Soccer

Title: Referee

Nationality: Northern Ireland

Key Characteristics:  Experience refereeing professional, international competitions.  Recommendations from colleagues for his mentorship of younger referees.  Recognition in the media.

As you can see, there is a wide variety of experience and accolades that can lead to successful petition.  If there is an over-arching key to focus on, it is demonstrating you are a leader in your field.

UPDATE

The immigration laws have not changed, but the enforcement of those laws does vary from administration to administration. Under Tromp, there were higher denial rates for this kind of visa. We have largely seen that reversed under the Biden administration. However, in 2023, we have seen a significant retrogression with regard to applicants from India. In fact, as of the date of this article, there is a temporary halt on the issuance of green cards to Indians due to annual limits been reached.

~ J. Harrington

Check out more articles on immigration visas here.

The E-1 classification is for foreigners who do not intend to immigrate permanently to the US but who wish to live here and engage in international trade.  Typically, this kind of visa is for businesses that import/export goods between the US and their home country.  E-1 visas are available to both to individuals and companies, as long as the home country has entered into the treaty with the US.

Eligibility

I.  First, you have to be a citizen of a country that has an E-1 agreement with the US.  Here is a list of the E-1 and E-2 country participants: List of Treaty Countries.

II.  Second, you have to carry on trade between the US and your home country.  Trade items do not have to be goods.  “Trade” also includes services and other activities.  Here are just a few examples provided by the USCIS:

• Goods
• Services
• International banking
• Insurance
• Transportation
• Tourism
• Technology and its transfer
• Some news-gathering activities.

See 8 CFR 214.2(e)(9) for additional examples and discussion.

III.  Third, you must carry on “substantial” trade.  To be substantial, the amount of trade should be sufficient to ensure a continuous flow of international trade between the US and your home country.  There is no minimum requirement regarding monetary value or volume of each transaction, but there should be numerous transactions over time.  As a guideline, think of the income generated through the trade being sufficient to support you and your family.

Qualifications for Employee of Treaty Trader Company

Recall that the E-1 Visa is available for both individuals and companies.  If a company is the applicant, then the employee that comes to the US must meet certain requirements.

1. Have the same nationality as the employer;
2. Be an “employee” as defined under relevant law; and
3. Be an executive or have special qualifications essential to business operations.

Most E-1 employees come over as executives, but other employees may also be eligible if they have _

1. proven expertise in the area of operations (Relevant Factor: Whether other employees possess the same skills)
2. salary commensurate with the special skills (Relevant Factor: Whether the same skills and qualifications are readily available in the US)

As for the company itself, it should be at least 50% owned by individuals who are _

1. the same nationality as the company; and
2. themselves E-1 Visa holders or, if not living in the US, eligible for E-1 status.

See 8 CFR 214.2(e)(18) for more details.

Period of Stay

The initial stay under E-1 status is for two (2) years, generally.  And, you can apply for extensions, also for two (2) years, as many times as you want.

The E-1 program does not provide a path to permanent residence in the same way an L-1 Visa does.  However, you can extend your stay in the US indefinitely, as long as you continue the trade activities.

Just remember that your intention as an E-1 visa holder is to return to your home country when your trading business is complete.  Things can happen along the way that change your plans, such as meeting someone special and getting married.  Should your intentions change such that you wish to live permanently in the US, changing to a different kind of status may be advisable.

Family Members

E-1 holders may be bring spouses and children under 21 years of age as dependents, even if they are not the same nationality.  The period of stay for dependents will generally be the same as for the principal.

Change of Status

In “real life” it is often important to clients to be able to apply for a new immigration status without having to go back to their home country and go through consular processing.  The ability to change status without leaving the US is available for E-1.  If you are already here in the US as a lawful nonimmigrant, you may file Form I-129 to request a change of status to E-1 classification.

Travel

You are able to freely leave and re-enter the US under an E-1 Visa.  In fact, each time you re-enter the US, you will generally be granted an automatic extension of two (2) years from the time of re-entry.  The same applies to your dependents, but only if they travel with you.

Both E-class visas (E-1 and E-2) are very good visas.  If you are lucky enough to hold a passport from a country that participates in the treaty, then you would be well advised to carefully consider the advantages of the E-1 program.  Anecdotally speaking, E visas are not insanely difficult to obtain nor to maintain.  By comparison, EB-5 visas are much more expensive to obtain, and L-1 visas are much harder to hold onto after the initial period of stay.

As always, this article is intended to help you focus your approach.  Meet with an experienced H&S attorney to go over your particular circumstances and map out a plan of action.

~ Jeff Harrington, Esq.

The rhetoric from the Biden team has been of tolerance and reconciliation, so there is reason to believe there is good news for immigrants and visa-holders.  That said, the US is not exempt from the heightened security and rising anti-immigrant sentiment around the world, and not everyone is in favor of loosening restrictions put in place over the past four years.

This article looks at some of the specific policy changes under Trump and how those have affected US employers.  In order to determine whether the Trump-era policies have had a positive or negative impact on the US economy, a recent nationwide survey asked employers about their experiences and how they have responded to the changes.

It is important to understand the differences between immigration laws and immigration policies/procedures.  The actual laws are very hard to change because they have to go through Congress.

The Trump Administration, like all other administrations, did not accomplish much in terms of changing the existing statutes.  That, however, certainly does not mean that nothing has changed.

As we have all seen, while presidents cannot unilaterally change immigration laws, they can implement new policies and procedures.  These policies/procedures have a very direct and immediate impact on companies and individuals.

At the end of 2020, a survey of 215 US employers was conducted[1] to gauge how Trump’s policies have affected their companies, as well as their feelings about the expected immigration reforms under Biden.

The survey indicates the 400+ policies and rules put in place between 2017 and 2020 have caused delays and increased costs for employers.  Further, business owners claimed that these policy changes directly led to an increase in offshoring and outsourcing, with only a slight increase in domestic hiring.  From a purely economic perspective, it does make sense that employers would sooner outsource work to cheaper foreign markets than increase expenses by hiring domestic employees.

If these survey results are representative, then the Trump policies intended to increase the hiring of local workers actually had the exact opposite effect.

Between the Pandemic and the Trump regulations, the pipeline for foreign talent was all but closed off entirely.  Between January and April 2020, the number of visas issued to foreign nationals declined by 93.2%. According to the employers surveyed:

Green Cards

36% said there are too few green cards available each year

39% said the number was just right

18% said there are too many

Visas

41% said there were too few employment-based visas available

37% said the amount is correct

17% said there are too many

These results align with current data on the STEM skills gap in the US work force.  Despite the economic downturn due to the COVID-19 pandemic, the December 2020[2] unemployment rates for computer science and mathematical jobs was just 3.0%, which is essentially the same as it was before the pandemic’s onset in March 2020.

Meanwhile, the general unemployment rate peaked at 14.4% in April and stabilized at 6.5% in December 2020.[3]

Specific Trump Policies

In April 2017, the Trump Administration issued the “Buy American, Hire American” executive order, which promised to protect American workers by restricting immigration. The USCIS, DHS and DOL put in place a number of new policies, rules and regulations meant to carry out the purposes of the executive order.

Requests For Evidence

A Request for Evidence, or “RFE,” is issued by the USCIS when they want an applicant to submit additional information.  RFEs always slow down the visa process and are generally considered to be a “bad sign” since the application is undergoing scrutiny.

Between 2017 and 2019, the issuance rate for RFEs rose from 21% to 40.2%. The survey respondents indicate the following:

Public Charge Rule

One heavily litigated policy change was the Public Charge Rule, which was first implemented in February 2020.  This Rule requires employers filing green card petitions for their foreign workers to demonstrate the worker has not and will not rely on any government benefits such as Medicare, food stamps or housing vouchers.

The responses were as follows:

Previously Approved Visas

Also, in 2017, the USCIS changed a long-standing policy of not questioning previously approved applications when evaluating extension requests or new visa petitions.  Under Trump, however, whenever a worker requests an extension of a current visa, or files a petition for a new visa, the examining officers can go back and question whether the initial petition should have been approved to begin with.

Making previously approved petitions fair game for reversal has a strong chilling effect on workers requesting extension or permanent residence.  As a result, employers lose skilled workers. 

Restrictions on Length of Stay

The same year, the USCIS also began requiring detailed itineraries from employers and restricting the duration of visas.  The survey respondents said:

In response to the shorter durations, 35% of the surveyed employers said they began looking at alternative sponsorship options.  More importantly, 37% said they simply decided to fill these jobs by outsourcing offshore.

Consulate Closures

In March 2020, we saw many U.S. Embassies and Consulates close or restrict hours of operations.  The survey respondents comments on how such closures affected their organizations.

Student Visas

Trump’s temporary ban on J-1 visas and F-1 visas for students who could not attend in-person classes had immediate consequences for employers who hire from those pools.  It seems likely the policy will also disrupt talent acquisition in future as well, especially in STEM fields.  Respondents had this to say.

H-1B Visa Restrictions

In November 2020, the White House released two new rules placing restrictions on H-1B visas. First, the DHS narrowed the definition of a “specialty occupation” and made stricter degree requirements.  Second, the DOL raised the required wages for sponsored roles. A district court struck down both rules in early December, so there may be additional litigation to come unless the Biden Administration changes course on this.

Just the same, the issue is of some concern to the respondents, who said this.

Increased Wage Requirements

Although new wage requirements are supposedly meant to ensure employers were less likely to hire foreigners for jobs that a U.S. worker could do, survey respondents indicate this:

HLA’s Immigration Practice

The Future

Employers surveyed largely indicated the Trump policy changes to the immigration system were disruptive and costly to their businesses. They did, however, express support for broader immigration reforms.  In particular, employers seem interested in making sponsorship easier and bringing more transparency to the immigration system.

Selection Process

Legislators and stakeholders have called for fundamental changes to employment-based immigration processes. For example, the DHS proposed a new selection process for H-1B visas that would give priority to petitions for higher-paid roles, as opposed to the random lottery currently in use. Respondents say such a change would be positive for their organizations.  However, some employers say such a change would make things very difficult for entry-level employees.

Points-Based System

The United Kingdom recently put in place a points-based immigration system, which promotes employment-based immigration.  Many, including the survey respondents, want to see the U.S. enact a similar model and do away with the current quota system.

To be fair, not all respondents saw the point-based system as being entirely positive.

The “Heartland” Visa

During the last Presidential Election, several candidates talked about setting up a location-based visa that would promote development in non-coastal or rural areas.  Joe Biden included this idea in his immigration platform, along with an expansion of current quotas for visas and green cards.  The survey respondents said this.

 Conclusion

Due to the Pandemic, unemployment rates are currently around 6.5% .  However, the unemployment rate is only 3.0% for math and science occupations.  Even without the Trump policies, there is a shortage of STEM talent in the US work force.  The last four years has forced employers to seek alternatives for filling their positions — which was, of course, the whole idea.

However, a significant percentage of affected employers have responded to the restrictive policies by outsourcing work to offshore locations, whether by hiring a foreign company or allowing a foreign employee to work remotely from outside the US.   It is virtually impossible to ascertain an exact number, but the result has likely been hundreds of thousands of high-skilled jobs moving away from the U.S.

It has been a dramatic four years in immigration, and the Biden presidency will surely bring about many new changes.  We anticipate the new policies will undo many, if not all, of the Trump changes.  The effects of the Biden polices remain to be seen, but we are hopeful they will ease restrictions currently in place and bring jobs back to the US.

~ Jeff Harrington, Esq.

[1] Envoy Global

[2] Bureau of Labor Statistics. “Labor Force Statistics From Current Population Survey” December 2020.

[3] Bureau of Labor Statistics. “Labor Force Statistics From Current Population Survey” April 2020.

Premium processing is a expedited service offered by the USCIS for certain visa types.  There is an extra charge, which adjusts from time to time (currently $2,805).  The advantage of premium processing is that you will get a response to the application within 15 days.  Currently, the USCIS offers Premium Processing for the following Visa applications:

I-129 Petitions

• H visas
• L-1 visas
• O visas
• P visas
• Q-1 visas
• R-1 visas – only if the petitioner has passed an on-site inspection

I-140 Petitions

• EB visas (all)

The 15-day deadline

The clock starts the day the USCIS receives your Form I-907, along with payment.  Usually, the I-907 is filed along with the rest of the petition package but, if you decide after filing the main package that you want premium processing, you can do that by electronically filing the I-907 by itself.

If you pay for Premium Processing but do not get a response within 15 days, the USCIS will refund the fee you paid for the Premium Processing (not the other filing fees, though).  And, the USCIS will continue to process the petition on an expedited basis.  So, you basically get expedited treatment for free.

Other considerations

While the idea of paying a little extra to speed up the visa process sounds fantastic, there are some caveats to keep in mind.  First, the USCIS does not promise you will get a decision within 15 days.  Technically, the examiner only has to make one of four responses:

1. Approval Notice – this is ideal
2. Request for Evidence – this is less than ideal but not a killer
3. Notice of Intent to Deny – this is definitely not good but might be surmountable
4. Commencing an investigation for fraud or misrepresentation – uh oh . . .

Also, be aware that, even if your petition is approved within 15 days, that does not mean you will immediately have your visa.  In most cases, you will still have to go through the US embassy/consulate in your home country for the interview and actual issuance of the visa.  So, that means you will be subject to the local embassy/consulate’s scheduling calendar.

HLA’s Immigration Practice

The skeptics say . . .

One of the common criticisms is that Examiners simply issue Requests for Evidence (RFE) for each and every petition filed with Premium Processing.  What some of us immigration attorneys suspect is that it is unrealistic for Examiners to get through the very substantial documentation that goes along with these business visa petitions within 15 days.  The packages tend to be 200+ pages, and God only knows how many of these packages each Examiner has on his/her desk.  At the same time, the USCIS surely does not want to refund Premium Processing fees left and right.  So, what options do they have?

The Examiners just trump up some excuse for issuing an RFE — which is not hard to do — and they have the best of both worlds.  They get the extra time they need to properly review the package but without having to refund the Premium Processing fee.

Nobody knows for sure what really happens behind the curtain, but some of this speculation does stand to reason.  Now, if you want to try to speed up the process, I suppose there is no harm done by paying for Premium Processing.  All you have to lose is the extra fee.  So, if time is of the essence, you should certainly give it a try.

Make sure you get an attorney that will submit a very complete and accurate package along with the Premium Processing fee.  Also, make sure the package is organized as well as humanly possible in order to make things easier for the Examiner. 

If you do that, maybe the Examiner will not feel the need to issue an RFE and will simply approve the petition.

~ Jeff Harrington, Esq.

Document Preparation

The first step is collecting documents and information from you, so we can prepare the various forms involved.  In a typical spousal petition, the following forms will be submitted on your behalf:

G-28    Notice of Attorney Rep.

I-130   Petition for Alien Spouse

I-130A Spousal Supplement

I-485   Adjustment of Status

I-693   Medical Report

I-765   Work Authorization

I-864   Affidavit of Support

H&S Approach.  The forms are quite detailed, so the preparation can be tedious.  We do our best to make that process as painless as possible for you.  So, for example, we don’t hand you a massive questionnaire and ask you to fill the whole thing out. 

Instead, the first thing we do is collect all the relevant documents from you, and we glean as much information as we can from those documents.  Then, and only then, we send you a short list of the information we still need. 

Review & Submission

Once the forms are completed, you will meet with an attorney to finalize and sign the forms.  We will prepare a cover letter for the package and assemble all the exhibits.  We are then ready to send the package out by certified mail.   

After Submission

Notice of Receipt (1-2 weeks) – The first thing we will receive from the USCIS is a notice letting us know the package has been received and is being processed. 

Biometrics (3-4 weeks) –  Then, we will get a notice with an appointment date/time for the beneficiary to do biometrics (i.e. finger printing & background check). 

Interview (6-8 months) – You should receive the notice with a date/time for your interview.  We will help you prepare for the interview.  We will give you a tailored list of documents you need to take with you. And, an attorney will talk to you about what to expect.

Decision (9-11 months) – You will receive notice of approval or denial of your petition

*If the alien spouse if overseas, the process will be slightly different – and take a bit longer – because the beneficiary will have to go through the US Consulate in order to get a visa before coming to the US.

Please bear in mind there is always the possibility of unexpected delays and/or events.  Still, hopefully, this Map will give you a clearer sense of the process and help you better prepare along the way.

~ Jeff Harrington

Eligibility for Filing Change of Status

Understand that qualifying for a change of status is different from qualifying for the student visa itself.  USCIS officers must first determine eligibility for a change of status, which has a standard separate from whether or not a person qualifies for issuance of an I-20 and F-1 status itself.

A prospective student is generally eligible for issuance of an I-20, but if he/she is not eligible for a change of status, the process stops right there.  The student will NOT BE APPROVED.

Here are some general points to keep in mind:

• B2 visitor visa holders have a designated amount of time that they are authorized to be in the country which is marked on their I-94 card. Generally B visa holders are given a stay of either 3 or 6 months.
• They have to file prior to the date stamped & cannot be past that date upon arrival to the service center.
• They also cannot have longer than a 30 day gap between statuses.
• (e.g. if Antonio came in on 5/01/2006 to change of status to F1 he would be ineligible for change of status b/c the next semester is longer than 3
• 0 days past his B-2 stay allowance.)
• Change of status for B2 to F1 are difficult and there is a high incidence of denial.

IF YOU DO NOT MEET THESE ELIGIBIITY CRITERIA THEN YOU WILL BE REQUIRED TO RETURN TO YOUR HOME COUNTRY TO APPLY FOR YOUR F-1 THROUGH THE U.S. EMBASSY/CONSULATE.

Process

To change from a nonimmigrant visa to F-1 student status you must first be accepted for a full-course of study.  After that, the process is essentially as follows:

(1) Pay Student and Exchange Visitor Information System (SEVIS) I-901 Fee: The US Department of Homeland Security (DHS) requires the collection of a one-time fee of $200 from new F-1 and students.

The SEVIS fee must be paid and fully processed before filing the I-539 Change of Status Application and a copy of the payment receipt must be sent in with the application.

(2) Fee of $290: check or money order made payable to the Department of Homeland Security; write your admission number (the number on your I-94 and I-20), name (if not already printed on your check), and the type of application you are requesting on the face of the check or money order.

(3) A letter from you, requesting the change of status and explaining why you did not enter the US on an F-1 visa.

(4) Completed Form I-539, Application to Extend/Change Nonimmigrant Status. The International Student Counselor can help you with the items that you do not

understand.

(5) Your Form I-20

(6) Financial documentation- bank statements, affidavit of support (Form I-134) if the money is coming from someone other than you.

(7) Make sure to bring your passport, current non-immigrant Visa, and I-94 card- to send with application

~ Jeff Harrington, Esq.

The post IMMIGRATION: Change of Status from B-1/B-2 to F-1 first appeared on Harrington Legal Alliance.]]> https://Harringtonandsheppard.com/immigration-perm-certification/ Thu, 04 Oct 2018 13:26:40 +0000 https://www.harringtonlawassociates.com/?p=1348 Are you a foreigner already working in the US?  Are you now interested in remaining in the US on a permanent basis?  Or, are you a US employer looking to keep a foreign worker permanently?  Here is how you do it. Program Electronic Review Management (PERM) is the system set up by the USCIS for obtaining what is called “labor certification.”  Labor certification is READ FULL POST

As with the generic L-1, the qualifying period of employment with an overseas branch, parent, affiliate or subsidiary is also one full year. Once the organization is approved for the “Blanket L” program, the USCIS stage of petition processing is bypassed, allowing candidates to apply directly for an L visa at the U.S. Consulate using the Blanket L Approval Notice and a Blanket application package.

Notably, if the candidate will be working in a “specialized knowledge” role in the U.S. and wishes to apply through the Blanket L program, the candidate must also be a “professional.” The definition of professional is borrowed from the H-1B requirements, generally requiring a university degree, although candidates without full university degrees can at times benefit from an academic evaluation by professional evaluators.

For more information on the L-1 Program, click below to access the numerous online articles published by HLA’s immigration attorneys:

More on Immigration

~ Jeff Harrington, Esq.

The post IMMIGRATION: Blanket L-1 Program for Multi-National Companies first appeared on Harrington Legal Alliance.]]> https://Harringtonandsheppard.com/immigration-tn-1-program-canadian-citizens/ Fri, 21 Sep 2018 11:46:46 +0000 https://www.harringtonlawassociates.com/?p=1325 the TN-1 classification is available only to Canadian citizens who intend to work in the U.S. in certain professions. The NAFTA list of approved professions includes accountants, engineers, attorneys, pharmacists, scientists, and teachers.