Legal Dictionary

Employment-Based Immigration: First Preference EB-1

Employment-based, first-preference visa are designed to grant to people who have an extraordinary ability, are an outstanding professor or researcher, or are a multinational executive or manager. To be eligible, you must be able to demonstrate extraordinary ability in the sciences, arts, education, business, or athletics through sustained national or international acclaim, or  demonstrate international recognition for your outstanding achievements in a particular academic field, or demonstrate that you have been employed outside the United States in the 3 years preceding the petition for at least 1 year in managerial capacity by a firm or corporation and you must be seeking to enter the United States to continue service to that firm or organization.

National Interest Waiver

Aliens whose proffered job is in the interest of United States may request a waiver for Labor Certification. This visa is called National Interest Waiver.   Though the jobs that qualify for a national interest waiver are not defined by statute, national interest waivers are usually granted to those who have exceptional ability and whose employment in the United States would greatly benefit the national.  Those seeking a national interest waiver may self-petition  and may file their labor certification directly with USCIS along with their Form I-140, Petition for Alien Worker.

L1 Visa

The L-1A nonimmigrant classification enables a U.S. employer to transfer an executive or manager from one of its affiliated foreign offices to one of its offices in the United States.  This classification also enables a foreign company which does not yet have an affiliated U.S. office to send an executive or manager to the United States with the purpose of establishing one.  

O-1 Visa

The O-1 nonimmigrant visa is for the individual who possesses extraordinary ability in the sciences, arts, education, business, or athletics, or who has a demonstrated record of extraordinary achievement in the motion picture or television industry and has been recognized nationally or internationally for those achievements.

The O nonimmigrant classification is commonly referred to as:

1. O-1A: individuals with an extraordinary ability in the sciences, education, business, or athletics (not including the arts, motion pictures or television industry)
2. O-1B: individuals with an extraordinary ability in the arts or extraordinary achievement in motion picture or television industry
3. O-2: individuals who will accompany an O-1, artist or athlete, to assist in a specific event or performance.  For an O-1A, the O-2’s assistance must be an “integral part” of the O-1A’s activity. For an O-1B, the O-2’s assistance must be “essential” to the completion of the O-1B’s production. The O-2 worker has critical skills and experience with the O-1 that cannot be readily performed by a U.S. worker and which are essential to the successful performance of the O-1
4. O-3: individuals who are the spouse or children of O-1’s and O-2’s

Adjustment of Status

The Immigration and Nationality Act (INA) permits the change of an individual's immigration status while in the United States from nonimmigrant or parolee (temporary) to immigrant (permanent) if the individual was inspected and admitted or paroled into the United States and is able to meet all required qualifications for a green card (permanent residence) in a particular category. The common term for a change to permanent status is “adjustment of status.”

Concurrent Filing

Concurrent Filing, which was originally put into effect on July 31, 2002 by the U.S. Citizenship and Immigration Services (USCIS), allows an alien to file a USCIS Form I-485, adjustment of status application, at the same time as a Form I-140, immigration petition, as long as visa numbers are currently available for the alien’s preference category (EB-1, EB-2, EB-3). In the past, the USCIS required an approval of the I-140 petition before it would allow a beneficiary to apply for permanent resident status. The only restriction to the rule of concurrent filing is that a visa number must be immediately available for the category in order to file the I-485 application. 

International Trade Law

International Trade Law is not a specific law. It is a set of law that regulates the global exchange of goods and services. For a long time, most trade agreements were bilateral, meaning between two nations). However, with the growth of global trade, countries have increasingly used multilateral treaties, such as when nations within a particular region sign an international trade agreements. Current examples include the North America Free Trade Agreement (NAFTA) and the South Asia Free Trade Agreement (SAFTA).

The multilateral trade agreement with the most members (signatories) is the General Agreement on Tariffs and Trade (GATT). The GATT comprises several rules on international trade, and is now part of the World Trade Organization (WTO), which is not just an agreement, but is also an international organization.

Commercial Law (Business Law) 

The term commercial law describes a wide body of laws that govern business transactions. The Uniform Commercial Code (UCC), which has been adopted in part by every state in the United States, is the primary authority that governs commercial transactions. The UCC is divided into nine articles, covering a broad spectrum of issues that arise in commercial transactions. These articles govern the following: sales of goods, leases of goods, negotiable instruments, bank deposits, fund transfers, letters of credit, bulk sales, warehouse receipts, bills of lading, investment Securities, and secured transactions.

Asylum

People who have arrived in United States may seek and be granted protection if they can prove that they have suffered persecution or fear that they will suffer persecution due to Race, Religion, Nationality, Membership in a particular social group and Political opinion. If you are eligible for asylum you may be permitted to remain in the United States.

Immigration Through Adoption

I tried to explain Adoption to a friend of mine. After 2 hours of back and forth conversation, she seems to be still in the cloud. Looks like a writing is not avoidable to make this inherently complicated subject clear. 

There are three similar but distinct paths to bringing your adopted child to the United States. Which path your adopted child follows will depend on his or her individual circumstances.

Adopt Overseas and Then Immigrate

You first must hire an individual or entity defined as a home study preparer for Hague Convention cases to complete a home study for a Hague adoption. You then file application with USCIS prior to adopting your child from a country that has implemented the Hague Adoption Convention (Hague). After that,  you finalize your Child in that country or bring the Child to US to finalize the adoption.  Your child will enter the United States either with an IH-3 immigrant visa if you adopted your child in a Hague country or IH-4 immigrant visa if you finalize the adoption in the United States.  

A certificate of citizenship or a green card will be mailed to your residence after your new Child’s admission, which is case specific. 

Non-Hague Process

If you follow the same procedure other than home study to adopt  your child is from a country that has not implemented the Hague Adoption Convention,  your child will enter the United States either with an IR-3 immigrant visa in case that adoption finalized in a non-Hague country and you [and your spouse, if married] saw your child prior to or during the adoption process)  or an IR 4 immigrant visa in the case you finalize the adoption in the United States).

Immediate Relative Process

If you adopt your child in US without petitioning to USCIS, you may file petition for relative. However, in this case, you will have to wait until you have lived with your child for two full years to file this petition.  The two years must be accrued BEFORE you file Form I-130. Also, the adoption must be finalized before your child’s 16th birthday (or 18th birthday if they are a biological sibling of a child you have already adopted or will adopt). Your child will receive an IR-2 immigrant visa if he or she is found eligible.

Rule of Thumb in Proof of EB5 Funding

USCIS’s definition of "capital” for EB-5 purposes excludes “assets acquired, directly or indirectly, by unlawful means (such as criminal activities)” 8 C.F.R. §204.6 (e).  Specifically, 8 C.F.R. §204.6(j)(3) requires either “foreign business registration records”; corporate, partnership and personal tax returns filed within 5 years; “evidence identifying any other source of capital”; or documentation of court judgments or pending court cases.  However, in practice, USCIS requests all of the listed categories of documents and, in most cases, significant additional documentation.

Thus, this is one area of the law where simply following the regulations will not be sufficient.  For instance, in many cases, tax returns may not reflect a level of income commensurate with the investment being made.  In these cases, substantial additional documentation will be required.   It can be especially difficult in countries where full disclosure of revenues and profits on tax returns are uncommon in reality.  Where tax returns are not required to be filed, this should be documented.  Where tax returns are required to be filed but the individual’s tax returns show very little income, the documentation of the source of funds should provide overwhelming evidence to counter the negative implication that comes from a review of the tax returns.  As with other types of cases -- L-1, for example, -- the quantity of documentation required might be greater in suspected high-fraud countries or countries for which the US has national security concerns.

The good news is that it is only necessary to prove where and how the investor obtained the $500,000 or $1,000,000 required to be invested.  It is not necessary to prove where the investor obtained every dollar that he now has or ever had.

In many EB-5 cases, documenting the lawful source of funds can be the most arduous and time consuming part of the process.  A good rule of thumb is that if the attorney can understand, through the documentation, where the money came from, the chances of being able to satisfy USCIS should be greatly enhanced.

Federal Law Recognizes Same Sex Marriage

On June 26, 2013, the Supreme Court of the United States issued a decision in United States v. Windsor. The Court ruled that a provision of the federal Defense of Marriage Act (DOMA), which had denied federal benefits to same-sex partners, is unconstitutional.The implication of this ruling is that same-sex spouses are now entitled to the same treatment under federal law as opposite-sex spouses, one example of which is immigration benefit.  

Although this Windsor ruling is effective immediately as of the date the decision was published, many practical quesitons remain unanswered. 

First, exactly what benefits are covered?  Whether the same sex spouses can be derivatives of employment-base immigration is pending the implementation of the Supreme Court. 

Secondly, when review will start.  From a practical standpoint, relevant federal agencies, including USCIS and the DOS will need time to issue practical guidance to create the procedures necessary to implement this ruling and facilitate the processing of applications by same-sex couples. Before that is done, the officers' hands are tied. 

Overall, although federal agencies have been instructed to accept same-sex filings immediately, same sex applicants should anticipate that confusion on the part of federal authorities due to lack of directive and practical guidance will lead to delays and possible rejections and denials of visa applications.