May 23, 2011 | 9:38 am

K visa for fiancés

Posted by Cedric M. Shen

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The K-1 visa is for the unmarried, foreign national fiancé of a U.S. citizen living abroad. This visa allows the foreign national fiancé to enter the United States in order to marry the U.S. citizen sponsor within ninety (90) days of arrival.  The foreign national may also bring his/her children under K-2 visas.

Qualifications

To qualify for the K visa, both the U.S. citizen and the foreign national must have been legally free to marry at the time the petition was filed and must have remained so thereafter.  In other words, both parties must have been of legal and were not otherwise married to other spouses.  In addition, the marriage must be legal pursuant to the laws of the U.S. state in which the marriage will take place.  Additionally, both parties must have met in person within the past two years.  For example, if a U.S. citizen met a foreign national through an online dating site, and have been communicating via email without ever having met in person, they would not qualify for a K visa.  An exception to this requirement may be made based on extreme hardship for the U.S. citizen sponsor to personally meet the foreign-citizen fiancé or if it is contrary in the U.S. citizen sponsor’s or foreign-citizen fiancé’s culture for a man and woman to meet before marriage.  However, it is very unlikely that this type of exception will be made by the USCIS in instances involving most foreign national fiancés.

Procedure

The first step requires the U.S. citizen to file a petition with the USCIS.  Once approved, the petition will be sent to the consulate in the foreign national’s home country where he/she will apply for the K visa.  This process will usually require an interview, fingerprinting, providing certain documents, including results of a medical examination, proof of vaccinations and proof of financial support.  Upon approval, the foreign national fiancé may enter the United States, at which time he/she will have to marry the U.S. citizen within ninety days.

May 10, 2011 | 4:42 pm

L Visas - Intra-company transferees

Posted by Cedric M. Shen

Transferring to a U.S. company

The L visa allows a U.S. employer to transfer a manager or an executive from an affiliated foreign office to one of its U.S. offices.  The employer must be doing business in the U.S. and it must have an existing relationship with the foreign company (such as being a parent company, affiliate, subsidiary etc.).  Furthermore, the employee must have been working for the affiliated employer in the foreign country for at least one continuous year within the three years prior to being issued an L visa, and he/she must be going to the U.S. to render services as a manager/executive.  Employees will be granted an initial three-year L visa.

Example:  KPMG is an accounting company with offices in Canada and in the United States.  Sally is a Canadian citizen who has been working as a financial accounting director for KPMG in its Vancouver offices for the past four years.  She has accepted a position to work as a financial accounting director at KPMG in its New York office.  She is eligible to work in New York under an L visa.
Example:  Sally has only been working as a financial accounting director at KPMG in Vancouver for the past six months.  She is not eligible for an L visa to work in the New York office.  However, she may be eligible for a TN visa or an H-1B visa if, for example, she is a CPA or has at least a bachelor’s degree in accounting or a related field.

Setting up a U.S. affiliate company

The L visa also allows a foreign company that does not yet have an affiliated U.S. office to send a manager/executive to the United States for the purpose of setting one up.  To do so, the foreign company must demonstrate that: 1) sufficient physical premises to house the new office have been secured; 2) the employee has been employed as a manager/executive for one of the three previous years; and 3) the new U.S. offices will support an executive/managerial position within a year of the L visa being issued.  These employees will be granted an initial one-year L visa.  This is an ideal visa for foreign companies looking to expand to the United States and should be considered as an alternative to the E visa.

Family of L visa holders

Employees under an L visa are also allowed to bring their spouses and unmarried children under 21 years of age to the U.S. under an L-2 classification for the same period of stay as the primary employee.  Spouses of L visa holders are allowed to work in the United States as well.

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May 4, 2011 | 10:56 pm

TN visa for Canadians

Posted by Cedric M. Shen

The TN visa was created under the North American Free Trade Agreement between Canada, U.S. and Mexico.  Under this visa, a Canadian citizen may work in a professional occupation in the U.S. if:

1) He/she qualifies under the “Professionals Under the North American Free Trade Agreement” list;
2) the Canadian citizen possesses the specific criteria for that profession;
3) the employment position in the U.S. requires someone in that professional capacity and
4) the Canadian citizen is going to work for a U.S. employer.

Advantages of TN visas

There are several advantages to applying for a TN visa.  First, TN visas are valid for three years, whereas they were previously only valid for year at a time.  This means that the TN visa is valid for as long as an H-1B visa. Second, TN visas are easier to apply for, and to have approved, than other work visas such as the H-1B.  There are two ways to apply for a TN visa: 1) in person at a port of entry (POE) to the United States; or 2) by submitting an application to the USCIS while in the United States.

Should I apply at POE or through USCIS?

Between applying at a POE or through the USCIS, the better alternative is to apply at a POE.  First, the application fee is considerably lower if you apply in person.  The USCIS filing fee is over $300.00 while applying at a POE is less than $100.00.  Second, a decision to grant or to deny the visa is made immediately.  On the other hand, applying for a TN visa by mail to the USCIS may take a couple of months.  If you are denied a TN visa at the POE, you learn the decision for denial right away and you can attempt to correct it immediately or at least very soon.  If your TN visa is denied by the USCIS, it is much more difficult to try to obtain a favorable resolution.  Worse yet, you may be required to leave the United States during this time.

Other disadvantages of TN visas

One considerable disadvantage to a TN visa is that it applies to a very narrow group of professions, making most Canadians ineligible.  In fact, you must qualify within a profession on the TN professional occupations list [LINK] in order to be eligible for a TN visa.  Most of these professions require an advanced degree, or at least a bachelor’s degree in a particular area.  Some of these professions include: architect, accountant, engineer, graphic designer, lawyer, doctor, management consultant, dentist, pharmacist, and college teacher.  So a Canadian citizen with a bachelor’s degree (or even a Master’s degree) in sociology would not likely be eligible for a TN visa.

Another disadvantage is that the Canadian citizen must demonstrate to the CBP agent an intention to return to his/her home country upon the expiration of the visa.  This is not usually an issue when it is an applicant’s first TN visa.  But what if the applicant has already been in the U.S. on a TN visa for nine years?  How does one demonstrate his/her intent to return to Canada if he/she has been in the U.S. for nine years and is asking to stay for another three years?  The best way is to provide the CBP agent with documents showing that the applicant continues to maintain ties to Canada.  This may be done in the form of bank account statements, a provincial driver’s license, ownership of real estate, or having a spouse, children or other family living in Canada.  However, be aware that every CBP agent is different – with different moods and personalities.  One agent may deny a fourth TN visa while another may think nothing of it.  Always be prepared for a denial by having supporting documents to prove your intent to return to Canada.

Yet another disadvantage to a TN visa is that it is more difficult to apply for an employment-based green card.  The reason goes back to the “intent to return” rule.  If you apply for a U.S. green card while on a TN visa, this flies directly in the face of your stated intent to return to Canada.  There are ways to apply for an employment-based green card while on a TN visa, which I will probably outline in a future post.

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