August 26, 2011 | 2:12 pm

B-2 visitor visa for co-habitating partners of non-immigrant visas

Posted by Cedric M. Shen

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On August 17, 2011, the USCIS issued a policy memorandum allowing a “household member” of a principal non-immigrant to extend or to change status to a visitor/B-2 visa.

“In some circumstances, elderly parents, cohabitating nonimmigrant partners, and other household members of principal nonimmigrants may be ineligible for derivative status. For purposes of this memorandum, a “household member” of a principal nonimmigrant is an alien who regularly resides in the same dwelling as the principal nonimmigrant and with whom the principal nonimmigrant maintains the type of relationship and care as one normally would expect between nuclear family members. There are also circumstances when it may be inconvenient or impossible for spouses or children of principal nonimmigrant aliens to apply for the proper derivative status. These aliens may seek B-2 visas, or change their status to B-2, to allow them to reside with the principal nonimmigrant visa holder who is in the United States in another status (H-1B, F-1, etc.) . . . . [The Department of State] directs consular officers to notate the B-2 visa with the principal nonimmigrant’s visa type and duration, and to advise the B-2 visa holder to seek admission for one year at the point of entry if the B-2 visa holder plans to stay in the United States more than 6 months. Applicants may also seek extensions in six month increments from the Department of Homeland Security (DHS) for the duration of the principal alien’s nonimmigrant status.”

This is welcome news for family members, such as spouses or children, of a principal non-immigrant visa cannot obtain derivative status through the principal non-immigrant’s visa.  This memorandum clarifies that the USCIS is not changing the eligibility requirements for change of status to B-2, or an extension of B-2 status. The B visa is generally limited to temporary visitors to the United States for up to six months, or for foreigners coming to the US to conduct business, to attend meetings, or to negotiate contracts, etc.  However, the memorandum clarifies that changes or extensions are appropriate when other eligibility requirements are met.

“When evaluating an application for change to or extension of B-2 status based on cohabitation, the cohabitating partner’s relationship to the nonimmigrant principal alien in another status will be considered a favorable factor in allowing the household member to obtain or remain eligible for B-2 classification. When considering a change of status and/or multiple extensions for the cohabitating partner or other household member, the finite nature of the stay, rather than the duration of the stay or number of extensions sought, is controlling with respect to nonimmigrant intent. For example, the visit should be considered temporary even if the status may be extended several times over several years in order to match an extended course of study undertaken by the principal alien. However, while the I-539 (B-2) application must be adjudicated on its own merits, a finding that the principal nonimmigrant lacks nonimmigrant intent is a negative factor in the exercise of discretion.”

August 22, 2011 | 4:36 pm

The red-headed step-child gets a green card

Posted by Cedric M. Shen

I’ve previously written about family-based green cards and immediate relatives.  Namely, a US citizen parent may sponsor a non-citizen child under the age of 21 for a green card.  But what about step children?  With divorce and re-marriages becoming more and more common, it’s only natural to expect situations in which a US citizen parent wants to sponsor a step-child under the age of 21.  The good news is that this is possible, with a caveat.  The general rule is that a step-parent may sponsor a step-child for a green card if the marriage creating the parent-child relationship took place before the child turned eighteen.  This means that the petitioner/step-parent has to have married his or her second spouse prior to the beneficiary’s 18th birthday.  If the petitioner/step-parent marries after the beneficiary’s 18th birthday, but before the 21st birthday, then the beneficiary is not eligible for “immediate relative” status even though he/she would have been but for the step-parent relationship.

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August 9, 2011 | 2:25 pm

At What Point Does a B-1 Visa Border on H-1B Activities?

Posted by Cedric M. Shen

As discussed in previous posts, a citizen of a foreign country who wishes to enter the United States must first obtain an appropriate visa. The most common visa for visitors is the B visa. This applies to people entering the United States temporarily for business (B-1), or for pleasure or medical treatment (B-2). B-1 visas allow foreign nationals coming to the U.S. to engage in business.  Examples including traveling to the U.S. to consult with business associates; to attend a scientific, educational, professional or business convention; to settle an estate; or to negotiate a contract.  The best way to think about it is that you can come to the U.S. to conduct business, but you should not be employed by a U.S. employer, or take a wage/salary while you are down here.

A lot of foreign nationals come to the United States to conduct business, but not necessarily to engage in active employment by a United States employer. In these instances, the foreign employer may send its employee to the United States for a few days or up to six months for short assignments. The problem with doing this is that several business-related trips to the United States on a B-1 visa may cause the USCIS to believe that the foreign national should be on an H-1B visa instead.

The H-1B visa is issued to foreign nationals seeking temporary work in a “specialty occupation,” which requires the skills of a professional. Generally, these are occupations that require at least a bachelor’s degree or its equivalent, such as accountants, computer analysts, web programmers, web designers, engineers or financial analysts. The H-1B visa is costlier to obtain than a B-1 visa.  Filing fees are at least $1,500.00, excluding attorney’s fees.  Moreover, it requires a United States employer to pay the foreign national a certain salary, and it generally takes at least two or three months to be granted a visa.

If a USCIS officer suspects that a foreign national should be on an H-1B visa, the B-1 visa may be cancelled and entry denied. This has become more frequent in light of an increase in the misuse of such visas by people attempting to circumvent the need for more expensive visas. United States Senator Charles Grassley spoke on the issue of abusing B-1 visas in lieu of H-1B visas, stating: “There is an option to use the B-1 or business traveller visa in lieu of the H-1B work permit in some cases.”

On balance, it is certainly permissible for a foreign national to enter the United States in order to conduct business, negotiate contracts and the like. However, one needs to be cognizant of the fact that the prolonged or sustained engagement of such activity within the United States may affect the foreign national’s chances of being re-admitted to the United States later on. To reduce this likelihood, try to keep the visits and the business affairs short and ensure that you are not being compensated by a United States employer.

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August 3, 2011 | 12:35 pm

H-1B visa - an unconventional option for foreign entrepreneurs

Posted by Cedric M. Shen

Foreign investors and entrepreneurs have had limited options when starting a new business in the United States.  For the most part, the E-2 treaty trader visa and the EB-5 investor green card were the only two options.  Both of these require an entrepreneur to invest a substantial amount of capital, as well as to demonstrate job creation.

However, USCIS Director Alejandro Mayorkas recently announced a series of new initiatives that, among others, adds another avenue for foreign investors and entrepreneurs to obtain a work visa in the United States.  While the initiative is new, the vehicle is not.  Namely, entrepreneurs who start a new business in the United States may now qualify for an H-1B visa.

The H-1B is a temporary work visa designed for employees in a “specialty occupation.”  Traditionally, the H-1B requires a U.S. employer to petition a foreign employee for the visa.  If approved, the employee may work for the employer in that specialty occupation for up to six years.  A key requirement in the H-1B visa is that the employer has a right to control the employee.  This includes the ability to hire and to fire the employee.  Thus, the requirements for an H-1B visa fly directly in the face of an entrepreneur trying to start a business in the United States.  Generally, the entrepreneur is the owner and employer.  The entrepreneur cannot act as an employee and is unable to control him or herself.

Faced with criticism and a desire to increase job growth in the United States, the USCIS has clarified the H-1B requirements in order to allow certain foreign entrepreneurs to qualify.  Thus, foreign entrepreneurs who start their own businesses in the United States may now self-petition for an H-1B visa as long as their business entity is structured in a manner.  A petition still has to show an employer-employee relationship between the employer (company) and the entrepreneur.  However, when the entrepreneur is also an owner, he/she may still qualify as a beneficiary of an H-1B if the company’s corporate governance, such as board of directors, is structured in a manner that allows a board to exercise control over the entrepreneur – including the right to fire the entrepreneur.

There are certainly benefits for an entrepreneur to seek an H-1B visa.  The entrepreneur does not have to invest the high amount of capital that he/she would for an E-2 or EB-5, which can be anywhere from $250,000.00 to $1 million.  Furthermore, unlike the E-2 visa, the H-1B is a path to citizenship.

Entrepreneurs should also consider self-sponsorship of a green card under the EB-2 National Interest Waiver (NIW) category.  The EB-2 category generally applies to employers sponsoring employees with advanced degrees.  However, the USCIS clarified that a foreign entrepreneur may self-sponsor for a green card under this category if he/she can show that the business would benefit the national interest of the United States.

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August 1, 2011 | 3:04 pm

Should I still move to the United States in this economy?

Posted by Cedric M. Shen

The Great Recession started three years ago in 2008 and it’s apparent that the United States still hasn’t fully recovered.  The troubles that began on Wall Street with the collapse of Lehman Brothers and the hubbub of sub-prime mortgages, soon manifested itself in a housing collapse and high unemployment rates.  While the economy appeared to have slowly recovered, America is by no means out of the woods.  This ongoing debt ceiling crisis sure doesn’t help either.

So the question for people looking to come to America is “should I or shouldn’t I”?  Despite the gloom and doom, I think that now is the best time to make your move to the United States.  If you are a student, this is the best time to add to educational credentials while the economy is slow.  Nothing better than being equipped to storm the job market in 2-3 years with an M.D., J.D., Ph.D. or an MBA

Foreign investors considering an E-2 visa or an EB-5 green card may want to consider starting up a business now while interest rates are low.  While credit may be a problem, the aforementioned visas generally require the investors to have the capital placed at risk from the outset.  Furthermore, E-2 visas can be approved within a matter of months, while EB-5 green cards have been issued within a year of making the initial investment.

Professionals looking to work in the United States should take advantage of the coveted H-1B visa.  WIth an annual cap of 65,000 visas, the quota was met within the first couple of weeks of availability in previous years.  With the slow economy, the quotas are taking much longer to fill and therefore making it easier for those applying for an H-1B visa to have one approved.  As stated in my previous posts, H-1B’s have several advantages. Most notably, they are valid for three years and renewable for an additional three years.  Moreover, H-1B’s allow for ‘dual intent.’ This means that the visa holder may apply for a green card while simultaneously working under the H-1B.  If your green card application is pending, an H-1B can even be extended beyond six years under AC21.

Canadians and Mexican professionals should also take advantage of the TN visa, which was created under the North American Free Trade Agreement.  While this visa is limited to certain white collar professions, it is a very mobile visa in that one may apply for it at the border and that one may change employers a lot easier because of the ease with which one can re-apply.  In addition, the TN visa is now valid for up to three years.  Previously, it was only valid for one year.

Like those who invest in the stock market when prices are low, foreigners should look take advantage of this troubled economy to move to the United States.  After all, this is, and always will be, the land of opportunity.  When the economy picks up and visas become more difficult to obtain, you may just regret not getting in on the ground floor.

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