Articles Posted in Nonimmigrant Visas

A recent decision by the Immigration Administrative Appeals Office overturned an L-1 denial on the grounds that the Immigration Service Director erred in denying the case on the grounds that there was not a qualifying relationship between the parent company and the U.S. subsidiary. The main concern the Director had was that the transfer of ownership did not make sense given that the purchase price was too low in light of the company’s revenues.

In order for a qualifying relationship to exist, the qualifying organization must meet one of the following definitions: “It meets exactly one of the qualifying relationships specified in the definitions of a parent, branch, affiliate or subsidiary…is or will be doing business (engaging in international trade is not required) as an employer in the United States and in at least one other country directly or through a parent, branch, affiliate or subsidiary for the duration of the alien’s stay in the United States as an intracompany transferee.” A “subsidiary” for these purposes means a firm, corporation, or other legal entity of which a parent owns, directly or indirectly, more than half of the entity and controls the entity; or owns, directly or indirectly, half of the entity and controls the entity.

When the case came on appeal, the company showed that the foreign employer acquired 51 percent ownership interest in the U.S. company and submitted evidence to verify the ownership interest. In addition, in the request for evidence, the foreign company showed that the foreign entity agreement to purchase 51 membership units from the existing member also noted the net liabilities by which the foreign entity was willing to accept and was willing to accept those liabilities.

Labor shortages have been a significant challenge to U.S. agriculture for as long as I can remember. On rice farms in Texas to corn fields in Nebraska, it seems as though farmers are always running short of farmhands when it comes time to harvest.

But now, unlike the simpler days of 20 years ago and longer, when farmers could just hire teenagers and retirees, farmers and ranchers are facing new challenges with labor issues. From border security concerns and state versus federal authority questions to I-9 audits and government-caused labor delays under the H2-A program, finding a reliable agriculture workforce is becoming more and more difficult.

From the Border to the Court

This is a great update from the CPB Liaison Practice group. A nonimmigrant alien who has previously presented a visa for admission to the United States may sometimes be readmitted (a) in the same nonimmigrant classification as shown on an expired visa or (b) in a different nonimmigrant classification than shown on an expired or valid visa if a change of status occurred while the individual was in the United States. The nonimmigrant alien’s absence from the United States must be limited to 30 days or less, and the individual’s travel must be limited to certain geographic locations.

Admission under this procedure is called “automatic visa revalidation.” Automatic visa
revalidation is applied differently depending on the individual’s nonimmigrant visa
classification. Most nonimmigrants may rely on automatic visa revalidation to apply for readmission after travel to a “contiguous territory” (Canada or Mexico).

Nonimmigrants in the F or J classification may rely on automatic visa revalidation to apply for readmission after travel to a “contiguous territory” or “adjacent islands other than Cuba.” At a minimum, in order to be eligible for this benefit, the nonimmigrant alien must present a valid passport, a valid Form I-94 (Departure Record or Arrival-Departure Record), and either (a) an expired nonimmigrant visa in any classification or (b) a current, valid nonimmigrant visa in any classification.

Documentary and Other Requirements

To rely on automatic visa revalidation, a nonimmigrant alien must meet the following conditions when applying for readmission to the United States:
– Present a Form I-94 showing an unexpired period of initial or extended authorized stay. If the individual has applied for and received an extension or change of nonimmigrant status while in the United States, the Form I-94 may be attached to, or separated from, a Form I-797, Notice of Action. ¾ Nonimmigrant aliens (including an accompanying spouse or child) applying to be admitted in F, M, or J classification must also present one of the following documents as applicable:
F or M classification: A valid Form I-20, Certificate of Eligibility for Nonimmigrant,
issued by the school at which the Department of Homeland Security has authorized
the principal nonimmigrant’s attendance.

J classification: A valid Form DS-2019, Certificate of Eligibility for Exchange
Visitor Status, issued by the authorized program sponsor showing the unexpired
period of stay.

– Present a valid passport with a nonimmigrant visa, whether valid or expired, used for a prior admission to the United States. If the individual’s current passport does not contain the nonimmigrant visa, the individual must present a prior passport with a visa.

An expired nonimmigrant visa includes (1) a visa that is no longer valid because of
the passage of time and (2) a visa that is no longer valid because the maximum
number of entries has been used.

Canadian Citizens and Presentation of a Passport Containing a Visa

Canadian citizens must have been admitted at least once after presentation of a visa to
qualify for automatic visa revalidation. Canadian citizens are exempt from the requirement to present a visa for admission to the United States in nonimmigrant
classifications other than E or K. If a Canadian citizen is admitted in a nonimmigrant
classification that does not require a visa and then changes status to E-1 or E-2 while
in the United States, the Canadian citizen may not rely on automatic visa revalidation.

Instead, this individual must apply for an E visa before readmission. The Canadian
citizen must hold either a valid or an expired visa in the passport at the time of the
application for admission in E-1 or E-2 status.

Example #1: A Canadian citizen is admitted to the United States in
TN status (a visa exempt classification). The Canadian citizen
changes status to E-2 during the period of temporary stay within
the United States. This person travels to Canada for a week, does
not apply for an E-2 visa, and then asks to return to the United
States in E-2 status. The Canadian citizen presents a valid passport
and a valid I-94 card, but no visa.

The Canadian citizen is not currently admissible under automatic
visa revalidation and must apply for an E-2 visa prior to
readmission to the United States.

Example #2: A Canadian citizen is admitted to the United States in
TN status (a visa exempt classification). The Canadian citizen
changes status to E-2 during the period of temporary stay within
the United States. This individual travels to Canada, applies for
and is issued an E-2 visa, and presents the visa for admission to the
United States in E-2 status. Through the passage of time, the E-2
visa expires even though E-2 status has been extended as reflected
on a Form I-94. The Canadian citizen then travels to Canada, does
not apply for a new E-2 visa, and applies for readmission to the
United States in E-2 status. The Canadian citizen presents a valid
passport, a valid, unexpired Form I-94, and the expired E-2 visa.

The Canadian citizen is admissible under automatic visa
revalidation.

In summary, The Department of Homeland Security (DHS) U.S. Customs and Border Protection (CBP) has the authority and the responsibility over the admission of travelers to the U.S. Under the automatic revalidation provision of immigration law, certain temporary visitors holding expired nonimmigrant visas who seek to return to the U.S. may be admitted at a U.S. port of entry by CBP, if they meet certain requirements, including, but not limited to the following:
* Nonimmigrants who departed the U.S. for brief travel to Canada, Mexico, or an adjacent island (for F and J nonimmigrants) for thirty days or less;
* Nonimmigrants with a valid (unexpired) Form I-94, Arrival-Departure Record, endorsed by DHS.

Continue reading

Despite that fact that the law is written broadly enough that most foreigners from the developing world could be refused for a visitor’s visa as “intending immigrants,” non-immigrant visa issuance rates are still shockingly high. In 2007, 74 percent of the more than five million foreign nationals who applied for visitor’s visas were approved. This figure is particularly startling when one considers that citizens from the world’s most prosperous countries — including most of Western Europe, Japan, Australia, and New Zealand — do not need visitor’s visas to enter the United States. Two-thirds of Mexican applicants were issued visitor’s (B1/B2) visas (or border crossing cards), four-fifths of Chinese applicants were issued visas, 88 percent of Russians were granted visas, and more than half of Haitian and Dominican applicants were successful.

Still, More than a decade after the federal government strengthened travel requirements after the Sept. 11, 2001, terrorist attacks, foreign visitors say getting a temporary visa remains a daunting and sometimes insurmountable hurdle.

The tourism industry hopes to change that with a campaign to persuade Congress to overhaul the State Department’s tourist visa application process.

A new report out today says more than 700,000 foreign students came to the U.S. to study last year. That’s a record high for U.S. colleges and universities. Why the influx? It has a lot to do with state budgets.

The F1 visa is a nonimmigrant visa for international students who are qualified to attend a full course of study at colleges, universities, conservatories, academic high schools (subject to strict regulations) and institutions with language-training programs in the U.S.

Guess who sent the most students to the US in 2011 – China.

Recently, many employers have been receiving Requests for Evidence (RFEs) on their petitions for L-1B Specialized Knowledge nonimmigrant worker visa. The L-1B visa is filed by a company who wants to transfer someone with specialized knowledge of the company or product of the company to their U.S. branch to help with its operations. Because of so many RFEs sent to employers on their L-1B petitions, the United States Citizen and Immigration Services held a stakeholder meeting to address the issues related to L-1B filings. In particular, many attorneys for employers raised the issue concerning the factors in determining Specialized Knowledge. At our law firm, we received an RFE for our own L-1B case that raised many of the same issues other attorneys have faced in their filings. This article will address those issues and how we overcame them in our case.

The main issue being the L-1B visa is the specialized knowledge requirement. Specialized knowledge means special knowledge possessed by an individual of the petitioning organization’s product, service, research, equipment, techniques, management or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization’s processes and procedures (8 C.F.R. 214.2(l)(1)(ii)(D and (E)). From this definition of specialized knowledge, the application of it has varied greatly in many cases. First, what constitutes special knowledge seems to be confused with the standard of the O-1 visa requirements. The O-1 visa requires the individual to hold extraordinary ability in the sciences, arts, education, business, or athletics where “extraordinary ability” means sustaining national or international acclaim. This standard confuses the meaning of someone simply having an advanced level of knowledge or expertise within their organization’s processes and procedures.

In answering how our client’s employee held the specialized knowledge for the position he was being transferred to, we had to go back through the description of the position held in the foreign company and the position going to be held in the U.S. After going through those descriptions, we responded to each duty in both positions to show how the specialized knowledge of the employee was required for both positions. We further confirmed that knowledge through use of many letters of reference from higher up executives and other individuals who recognized the employee’s importance within the organization.

There has been some indication that specialized knowledge is different from proprietary knowledge and should not be confused. Some attorneys reminded USCIS that the L-1B nonimmigrant classification did not require the individual to be extraordinary, and that specialized knowledge need not be proprietary. It has pointed out that specialized knowledge is a special knowledge of the product or processes of a company. It was also stated that specialized knowledge need not to be narrowly held by a select few individuals within a company. These concerns were raised in our own case wherein it was requested to show how the employee held proprietary knowledge of the company’s product. Although there is nothing in the definition of the L-1B visa that says proprietary knowledge is required to show specialized knowledge, nevertheless, by providing other documentation to show how the employee was directly involved in the development of the company’s product, it was indisputable that he held specialized knowledge within the company.

Another issue raised was that skilled individuals required to keep the company competitive in the field were becoming difficult to bring over with RFEs in these cases. In cases where the knowledge relates to the industry rather than a particular company or it is not unique to the company, but rather enhances a company’s competitiveness, the importance of the individual’s skilled work cannot be understated. It was noted that in certain industries such as the software industry, the information is not unique to the company in that there are other individuals who have knowledge of the software as well. All of these considerations make it clear that a specialized knowledge individual is the one whose knowledge makes the company more competitive in its field. This RFE was also asked for in our case and easily responded to through statements from the senior executives of the company attesting to how the employee’s use in the U.S. will make the company more competitive.

Continue reading

Since he arrived in this country two decades ago, Chef Jose Andres has been a tireless advocate for Spanish cuisine. His D.C.-based restaurants helped popularize tapas, the small plates that typify Spanish food. He is also a model and inspiration to many aspiring Chef immigrants looking to move to the US and start their restaurants.

Although many Hospitality workers wait months or even years for permission to live and work in the US legally, a small but growing number have found a legal path that is relatively simple and fast: come with money to buy a businesses here. As the Hospitality business is booming in the US, more and more Hospitality professionals in Europe are coming to the US and starting their own businesses via the E2 visa investment.

This is also known as the nonimmigrant investor visa. It is a temporary category that is granted in two-year to five year increments with no limits on the number of extensions.

When you are traveling to the United States for the first time you are likely to have questions and concerns about what happens when you arrive at the Port-of-Entry?

A foreign national traveling to the United States will arrive initially at a U.S. “Port-of-Entry” (POE). The POE can be an airport, a land border crossing, or a seaport. Passing through a Port-of-Entry generally means that you are seeking permission from an Immigration Inspector, an official of the U.S. Customs and Border Protection (CBP), to enter the U.S. for a specific reason, purpose and duration, which are generally always predefined.

We have posted below a recent CBP Muster on the Basic Elements of a Thorough Primary Inspection for the benefit of our readers.

The Department of State (DOS) has launched the anticipated new version of the Form DS-160 Nonimmigrant Visa Application.

The form’s new version clarifies, in no uncertain terms, that the applicant – and no one else – must electronically sign and submit the DS-160 form. As part of a newly formatted opening page, the DS-160 advises applicants to:

“be aware that under U.S. law you must electronically sign and submit your own application unless you qualify for an exception. This means that you (the applicant) must check the ‘Sign Application’ button, even if someone else helped you fill the application out.”