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US Legal Services U.S. Non-Immigrant Status

  1. General
    1. B-1 Visitor For Business and B-2 Visitor For Pleasure
    2. Student Visas
      1. F Student Visa
      2. M Vocational Student Visa
      3. J-1 Exchange Student Visa
  2. Non-Immigrant Business (Employment Authorized) Visas
    1. H-1B Specialty Occupation
    2. H-2B Agriculture/Labor Temporary Visas
    3. E Treaty Trader/Investor
    4. I – Representative of Media
    5. K-1 Fiance of U.S. Citizen and K-3 Spouse of U.S. citizen
    6. L-1A Intra-Company Executives and Managers and Intra-Company L-1B Specialized Knowledge Employees
    7. O Extraordinary Ability in the Sciences, Arts, Education, Business, or Athletics
    8. P Athletes, Group Entertainers, Reciprocal Exchange Program, Essential Support Personnel
    9. Q International Cultural Exchange Program
    10. R Religious Worker
    11. NAFTA (TN-1’s)
  3. U.S. Citizenship
    1. By Birth
    2. By Naturalization
    3. By Derivation Through The Naturalization of Parent(s)
  4. U.S. Admissibility Relating to Criminal Convictions and/or Immigration Law Infractions.


1. General

Given the many alternative employment/student and visitor statuses, the following is a brief presentation of the most often utilized options. All such categories are distinct from immigrant (permanent resident) status in that the foreign national visitor, student or employment authorized worker is limited in duration of U.S. stay unless he/she achieves lawful U.S. permanent residence (“green card”). Our legal service often involves the implementation of an interim non-immigrant status while coordinating an appropriate subsequent petition for lawful U.S. permanent residence.

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1a. The U.S. B Visitor Visa

[INA § 101 (a) (15) (B); 8 U.S.C. §1101 (a) (15) (B); 22 C.F.R. § 41.31; 9 FAM 41.31]

The B visa is divided into two (2) subcategories:

  • B-1 Visitor for Business; and
  • B-2 Visitor for Pleasure.
A foreign national, other than a student, one performing skilled or unskilled labor, or a representative of foreign information media may qualify. “The B classification is not meant to be a “catch-all” classification available to all who wish to come to the U.S. temporarily for whatever purpose. Matter of Healy and Goodchild, 17 I&N Dec. 22 (BIA 1979).

The B Visitor must maintain his/her place of permanent residence abroad INA § 101 (a) (33), 8 U.S.C. § 1101 (a) (33) and have no intention of abandoning the foreign residence. The B Visitor must truly be visiting the U.S. for business or pleasure.

The initial admission period may vary up to a maximum of one (1) year.

Adequate financial arrangements to carry out the purpose of the visit must be demonstrated, 9 FAM 41.31 N.2.1.

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B-1 Visitor For Business

[9 FAM 41.31 N.4-N.8 or 0.1 § 214.2 (b)]

The foreign national must be seeking entry for legitimate, non-employment commercial transactions. May not engage in local labor for hire contrary to 22 C.F.R. 41.31 (b) (1).

Possible activities include:
a. negotiating contracts;
b. litigation;
c. consulting with business associates;
d. participating in scientific, educational, professional, religious or business conventions (with restrictions);
e. installing equipment pursuant to a contract of sale [0.1 § 214.2 (b) (5)]. This regulation is subject to scrutiny and has now been modified so as not to include building or construction work. The DOS guidelines also provide that building or construction work, whether on-site or in-plant, is considered local employment or labor for hire and is not permissible on a B-1 even if it involves an after sales contract. [9 FAM 41.31, note 7.1.]

The foregoing list is not all inclusive.

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B-1 FAQ's

1. If I am rendering a service in the U.S., yet am being paid by a Canadian company, is this O.K.?
Usually the answer is no – unless the service involves after sales service specific to a purchase order and warranty whereby apparatus is purchased from abroad and technicians are required to enter the U.S. to install and maintain consistent with reasonable time limited warranty provisions.

Service agreements may not be fulfilled utilizing foreign workers to address the service requirements.

Source of remuneration (from outside the U.S.) is not the controlling factor. Rather, at issue is whether or not the activity conducted within the U.S. is considered “local labor for hire.”

Those foreign based businesses bordering the U.S. wishing to have their employees enter the U.S. for a business meeting or attendant with non-construction related after sales services should prepare their employees with thefollowing:

a. Proof of continuing employment in the form of a letter specifying date of hire, capacity, rate of pay, purpose for seeking U.S. entry and duration;
b. The U.S. Purchase Order and Warranty should be made available if after sales service is involved;
c. The employee should be able to evidence his/her residence outside the U.S. by producing:

  1. Title to home or lease;
  2. Proof of spouse’s employment;
  3. Child’s report cards; and
  4. Bank account statements evidencing financial capacity.

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B-2 Visitor For Pleasure

[9 FAM 41.31 N.10-N.11]

Pleasure is defined as “legitimate activities of a recreational character, including tourism, amusement, visits with friends or relatives, rest, medical treatment and activities of a fraternal, social or service nature. [22 C.F.R. § 41.31 (b) (2).]

Employment is not permitted even where only remuneration is room, board and pocket change. Matter of Hall 18 I&N Dec. 203 (BIA 1982).

Permissible B-2 activities include, but are not limited to:

1. Tourists;
2. Social visits to friends/relatives;
3. Health purposes;
4. Participants in conventions or social organizations;
5. Participants in amateur musical, sports or similar events, with no remuneration;
6. Dependents of U.S. Armed Forces personnel;
7. Accompanying B or B-1 clients;
8. If coming to U.S. to marry a U.S. citizen – must prove intent to depart afterward. 9 FAM 41.31 N.11.1-1;
9. If coming to U.S. to marry non-immigrant. Must thereafter be eligible for spouses derivative status;
10. If eligible for H-4, but inconvenient or impossible to obtain it, the spouse or child may enter on B-2. 9 FAM 41.53 N.18.4.
11. Non-spouse partner (regardless of gender) accompanying a principal E, H or L for duration of stay. The fact that the cohabitating partner may be living in the U.S. for an extended period is not a bar to B-2 classification. 9 FAM 41.31 N11.4.
12. Parent may remain with F-1 student child, depending on circumstances. Letter, LaFleur, Chief, Business Trade Branch, Benefits Division, INS, HQ 7016.2.2 (June 6, 1996).
13. Language students in course of short duration when the course of study is under 18 hours per week. Cable, DOS, 93 – State – 202275 (July 2, 1993).

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1b. Student Visas

[INA §101 (a) (15) (F), 8 U.S.C. § 1101 (a) (15) (F), 8 C.F.R. § 214.2 (f), 9 FAM 41.61; 67 Fed. Reg. 76256 (Dec. 11, 2002)]

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1b-i. Students - F Visa

a. Applicant must maintain foreign residence with no intent to abandon;
b. Applicant must be a bona fide student qualified to pursue a full course of study;
c. Must be entering to temporarily study at an established academic institution;
d. Will not attend a public elementary school or publicly funded adult education program and will not attend a public secondary school unless he/she attends the secondary school for a period of not more than 12 months and demonstrates he/she has reimbursed the school board the full unsubsidized per capita cost of the education. INA § 214 (m) (1), 8 U.S.C. § 1184 (m) (1).

Procedure
In addition to meeting the above stated criteria, the student must produce evidence of acceptance at a qualified U.S. academic institution. In doing so, a SEVIS Form I-120 must be issued in the student’s name by a school approved by the Service consistent with 8 C.F.R. § 214.2 (f) (1) (i) (A).

The student must demonstrate sufficient funds to cover expenses and demonstrate proficiency in the English language.

The student must demonstrate intent to depart the U.S. post graduation and evidence of sufficient academic credentials to attend the particular institution. 9 FAM 41.61 N.7.

The student must maintain a full course of study consistent with 8 C.F.R. § 214.2 (f) (6). Exception – commuter students from Canada and Mexico may attend school part time or full time in the U.S. as F-3 visa holders as long as they are not residing in the U.S. [INA § 101 (a) (15) (F) (iii); 22 C.F.R. § 41.61 (b) (1) (iii)]. As border commuter students, they will be provided a specified date on their I-94.

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F-1 Student FAQ’s

FAQ #1. May I pursue lawful U.S. employment while in F-1 status?
A student may pursue specified on-campus work which may begin upon admittance. 8 C.F.R. § 214.2 (f) (9) (ii).

No off campus employment is permitted within the first academic year (ie. 9 months). After first year, a student in good standing may obtain employment off campus as determined by the DSO if there is demonstrated severe economic hardship. The student may only work 20 hours per week while school is in session. A student granted permission may work full time during holidays or school vacations.

As well, there are two types of practical training available pursuant to 8 C.F.R. § 214.2 (f) (10):

1. Curricular Practical Training is defined to be alternate work/study internship, cooperative education or any type of required internship or practicum.
2. Optional Practical Training (OPT) pursuant to 8 C.F.R. § 214.2 (f) (10) (ii) may be exercised in one (1) of four (4) circumstances:

  1. during the students annual vacation and at other times when school is not in session;
  2. while school is in session, as long as it does not exceed 20 hours per week;
  3. after completion of all course requirements (excluding thesis or equivalent) for bachelor’s, master’s or doctorial degree programs; and d. after completion of the course study.

The OPT is limited to 12 months and must be completed within 14 months of graduation.

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1b-ii. Vocational Students – M Visa

[INA § 101 (a) (15) (M), 8 U.S.C. §1101 (a) (15) (M)]

This category is similar to the F-1, except at a vocational/non-academic institution.

Permits study in community/junior college for 12 semesters/quarter hours leading to a specific educational and/or vocational objective.

Online course work is not permitted.

Commuter student for Canada and Mexico may attend school part time or full time in the U.S. as M-3 visa holders as long as they are not residing in the U.S. [INA § 101 (a) (15) (M) (iii); 22 C.F.R. § 41.61 (b) (1) (ii)].

An M vocational student may not accept employment, except for practical training. Yet practical training may only be obtained after completion of study [8 C.F.R. § 214.2 (m) (14)]. The employment must be in the field of study and can only be given one period of practical training for period of time “equal to 1 month of each 4 months” student pursued full course of study. Must not exceed 6 months.

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1b-iii. Exchange Student – J Visa

[8 U.S.C. § 1101 (a) (15) (J), 1182 (e)]

To qualify, the non-immigrant visitor must have no intention of abandoning his/her foreign residence and fall within one of the following categories:

a. A bone fide trainee [22 C.F.R. § 62.22];
b. Student [22 C.F.R. §§ 62.23, 62.25];
c. Professor or research scholar [22 C.F.R. § 62.20];
d. Short-term scholar [22 C.F.R. § 62.21];
e. Non-academic specialist [22 C.F.R. § 62.26];
f. Foreign physician [22 C.F.R. § 62.27];
g. International visitor [22 C.F.R. § 62.28];
h. Teacher [22 C.F.R. § 62.24];
i. Government visitor [22 C.F.R. § 62.29];
j. Camp counselor [22 C.F.R. § 62.30];
k. Au pair [22 C.F.R. § 62.31]; and
l. Summer student [22 C.F.R. § 62.31].

The foreign national must have sufficient funds and be fluent in English.

Important Note: Certain J visa holders are subject to a requirement that they must return to their home country or country of last residence upon completion of theirtraining in the U.S. before they may apply for animmigrant visa or non-immigrant employment abroad status.

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2. Non Immigrant Business (employment authorized) VISAS

2a. Exchange Student – J Visa

[INA § 101 (a) (15) (H) (i) (b); 8 U.S.C. § 1101 (a) (15) (H) (i) (b)]

Who Qualifies for an H-1B Visa?

The USCIS has statutory authority to issue up to 65,000 H-1B visas per year to persons qualified to perform services in "specialty occupations." The 65,000 cap is insufficient to meet U.S. economic requirements. The 65,000 allowance is often exhausted early in the USCIS’ fiscal year. In that the USCIS fiscal year commences October 1 of each year and the years allotment of 65,000 H-1B visas is often exhausted soon afterward, careful planning and alternatives must be considered.

An additional allowance of 20,000 H-1B visas has been allotted for masters level graduate students of U.S. academic institutions.

The H-1B cap of 65,000 per year is actually less the free trade visas for Chile and Singapore resulting in 58,200 H-1B visas. [INA § 214 (g) (1) (A), 8 U.S.C. § 1184 (g) (1) (A)]; Pub. L. 108-77 and 108-78]. Only new employment is covered under the cap.

"Specialty Occupation" is defined by statute as "an occupation that requires -- (A) theoretical and practical application of a body of highly specialized knowledge, and (B) attainment of a bachelor's or higher degree in the specific specialty (or it's equivalent) as a minimum for entry into the occupation in the United States." The USCIS Regulations further expand upon this definition and provide that one or more of the following criteria must be met to qualify for H-1B status:

  1. A baccalaureate or higher degree or its equivalent is normally the minimum entry requirement for the position;
  2. The degree requirement is common in the industry or, in the alternative, the position is so complex or unique that it can be performed only by an individual with a degree;
  3. The employer normally requires a degree or it's equivalent for the position; or
  4. The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with attainment of a baccalaureate or higher degree.

Not every occupation in which a degree is ordinarily required will qualify for H-1B eligibility. It is important to note that the USCIS has taken the position that many occupations staffed with personnel having a degree in a variety of fields such as general business administration are not "specialty occupations." Jobs in marketing, accounting and finance, however, are generally viewed as specialty occupations by the USCIS.

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Establishing your H-1B Qualifications:

Generally, to meet the requirements of the H-1B specialty occupation, the applicant will need to produce the following items as evidence in support of their H-1B visa petition:

  1. Bachelor's degree or higher in the specific specialty;
  2. Full state licensure, if that is required for practice in the state of intended employment;
  3. In the absence of a degree, proof of experience in the specialty occupation equivalent to the completion of the degree and recognition of expertise in the specialty through progressively responsible positions relating to the specialty.
The "equivalence" requirement is an important exception to the general H-1B visa rule which requires proof of completion of a university degree. The U.S. Immigration & Nationality Act provides that H-1B visa applicants may produce a work experience equivalency from a recognized credentials evaluation service which confirms that the applicant's years of employment experience in the specialty occupation are equivalent to attainment of U.S. bachelor's degree in the specialty.

The USCIS accepts a three (3) to one (1) experience to education ratio for H-1B equivalency cases. Therefore, if the applicant has at least twelve (12) years of experience in a specialty occupation and may demonstrate progressive responsibility in that position, a credential evaluation service may confirm that the twelve (12) years of experience are equivalent to four (4) years of education and attainment of a bachelor's degree (3:1 ratio).

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How do you apply for an H-1B Visa?

The H-1B visa application procedure involves three distinct steps:

STEP 1.
Determining the prevailing wage for the specialty occupation in the state of intended employment.

  1. A request for the prevailing wage must be filed.
  2. The wage offered must be within 100% of the prevailing wage in the state of intended employment.
STEP 2 .
Filing of a Labor Condition Attestation (LCA) with the Regional Office of the United States Department of Labor (DOL).
  1. The DOL must certify the LCA and ensure that it has been completed correctly and signed by the prospective employer.
  2. By law, the DOL should certify the LCA within seven (7) days of receipt, but in most regions this policy is not adhered to.

STEP 3.
The H-1B Petition filing fee is now $190.00 USD plus a $500.00 Fraud Detection Fee. As well, there is a $1500.00 ACWI fee if the U.S. employer has greater than 25 employees.The ACWI fee is $750.00 if the U.S. employer has less than 25 employees.

The USCIS maintains a premium processing allowance – enabling adjudication within fifteen (15)days of filing. The USCIS Premium Processing Fee is $1000.00 USD.

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How long does it take to apply for an H-1B visa?

Processing times times vary depending upon the state of intended employment, USCIS Service Center used, etcetera. On average though, the H-1B petition process takes between eight (8) and fourteen (14) weeks to complete, excepting the premium processing of 15 days from date of submission

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What is the duration of the H-1B status?

With exceptions, aliens are limited to a maximum of six (6) years in H-1B status. If approved, the USCIS will typically issue an H-1B visa petition for an initial period of three (3) years. A single three (3) year extension is permitted in most cases and a new Labor Condition Attestation is required to support the request for extension.

Precedent indicates that an extension beyond the statutory limit of six (6) years may be possible if the alien can document extended periods of absence from the U.S. during the six (6) year period. If he/she is outside of the U.S. during the six (6) year statutory period, this time may be “re-captured” if properly documented. An extension may be secured for a duration specifically correlatedto the total amount of time spent outside the U.S. during the six (6) year period.

As well, provided a DOL permanent labor certification or I-140 employment based petition is filed not later than the expiration of the fifth (5th) year of H-1B authorization, the H-1B visa may be extended by the USCIS in one (1) year increments beyond the sixth (6th) year statutory limit until the green card petition is either approved or denied.

The USCIS may confer H-1B status for less than three (3) years if the documentation submitted suggests that the duration of temporary employment will be less than three (3) years.

Spouses and dependent children are permitted to accompany the H-1B alien to the United States under H-4 (Dependent) status, but they may not accept employment while in H-4 status.

Our firm works closely with the prospective U.S. employer to carefully draft the required offer of employment documents. The offer of employment letter is the foundation of the H-1B visa petition and a case may be won or lost according to the content of this letter.

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Portability
An H-1B alien may accept new employment with an alternative employer upon filing of a new petition by the prospective employer if:

1. He/she was lawfully admitted;
2. The new petition is “non-frivolous;”
3. The new petition was filed before the date of expiration of the period of authorized stay; and
4. Subsequent to lawful admission the H-1B beneficiary has not been employed without authorization before the filing of such petition [INA § 214 (n) (1) and (n) (2) (A) – (C)].

Multiple Employers
An H-1B alien may work part-time for more than one employer, but each must file a petition. Letter, Bednarz, Chief, NIV Adjudications, CO 214 h-c. (June 29, 1994).

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2b. H-2B Agricultural/Labor Temporary Visas

[INA § 101 (a) (15) (H) (ii) (a) and (b), 8 U.S.C. § 1101 (a) (15) (H) (ii) (a) and (b)]

What is the H-2B Skilled Worker Visa?

The H-2 category is divided between temporary workers performing “agricultural labor or services…of a temporary or seasonal nature.”

There is a 66,000 per year limit on the number of persons who may receive H-2B status during each USCIS fiscal year.

The critical prerequisite to H-2B visa eligibility is the requirement that both the job itself and the U.S. employer's need for the specific foreign worker must be temporary in nature. The employer's need for the worker must generally be for a one-year period or less and can be either a one-time occurrence, a seasonal need, a peak load, or an intermittent need.

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How long is the H-2B visa valid for?

The maximum period for which an alien may be admitted to stay in the United States in H-2B status is three (3) years. After this three (3) year period has expired, the foreign worker cannot seek to extend or change status, nor can he/she be readmitted to the U.S. under the H and L nonimmigrant classification unless such alien has resided and been physically present outside the United States for the immediate prior six months.

The H-2B visa is issued in one (1) year increments with discretionary one (1) year extensions of stay permissible until the total three (3) years of H-2B eligibility has been reached.

As well, the U.S. employer must demonstrate that no U.S. workers capable of performing such service/labor are available in the U.S.

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What is the H-2B visa application procedure?

H-2B visa applicants must demonstrate that no qualified U.S. citizen or permanent resident alien workers are readily available in the area of intended employment to accept the temporary position offered to the foreign worker. Temporary Labor Certification of the offer of employment is therefore required which involves an application to the State Employment Security Agency (SESA), advertising for the position offered, and screening of any U.S. applicants. Qualified U.S. citizen or LPR applicant are given priority.

Once the SESA has completed the recruitment effort, the Department of Labor (DOL) Regional Certifying Officer will determine whether the position offered and the employer's underlying need for the position are truly temporary in nature. If the DOL agrees that the position is temporary, the DOL will "certify" the case.

If DOL certification is secured, the employer must then file form I-129 Petition for Non-immigrant Worker with the USCIS Service Center having jurisdiction over the place of intended employment. The USCIS will generally approve an H-2B case which was certified by the DOL. Even if the DOL does not certify the case, the USCIS retains the authority to approve the H-2B petition provided the U.S. employer can convince the USCIS that the position is truly temporary in nature.

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2c. E-1 & E-2 Treaty Investor and Trader Work Visas

[INA §101 (a) (15) (E), 8 U.S.C. § 1101 (a) (15) (E), 8 C.F.R. § 214.2 (e); 62 Fed. Reg. 48138-01 at 48, 146-55 (Sept. 12, 1997)

Treaties between the United States and many countries allow foreign nationals to come to the United States to conduct trade or to manage substantial investments. Unlike the one million dollar threshold for the permanent resident investor visa, there is no fixed dollar amount for treaty investment. Those qualifying for the E-1 (Trader) or E-2 (Investor) visas can pursue long term business objectives using these practical visas. This said the E-1/E-2 visas are not “green cards” – enabling LPR status.

Who Qualifies for an E-1 Treaty Trader Visa?

A person may be issued an E-1 Treaty Trader Visa if:

1. The individual or the firm has the nationality of the treaty country (at least half of the company must be owned by nationals of the treaty country);
2. There must be substantial trade (more than 50 percent) between the U.S. and the country of nationality. Trade includes the exchange, purchase or sale of goods or services or the transfer of technology; and
3. The individual is either the principal trader, who is coming to the U.S. to engage in substantial trade, or an executive, manager or employee with special skill essential to the company.

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Who Qualifies for an E-2 Treaty Investor Visa?

A person may be issued an E-2 Treaty Investor Visa if:

1. The individual or the firm has the nationality of the treaty country (at least half of the company must be owned by nationals of the treaty country, with certain exceptions);
2. The individual or the company has made or is in the process of making a substantial investment (generally in excess of $100,000 at risk) in a business in the United States;
3. The individual is either the principal investor, who will direct and develop the enterprise, or an executive, manager or employee with special skills essential to the company; and
4. The investment is not the individual's sole income source.

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How Long May An E Visa Holder Remain within the United States?

E visas are generally issued for five (5) years. Extensions of stay in the United States may be granted as long as eligibility continues and the treaty remains in force.

At the border, E visa holders are admitted to the United States for one (1) year. Extensions of stay in the United States may be granted for up to two (2) years at a time from the appropriate Immigration Regional Service Center.

An E visa can be reissued for an additional five years by the State Department Visa Office in Washington, D.C. before the termination of the original E visa without the need to return to the home country. Alternatively, an application extension may be secured via the consulate abroad.

Treaties Containing Treaty Trader and Treaty Investor Provisions in Effect Between the U.S. and OtherCountries (Effective March 31, 2004)

Albania**
Argentina
Armenia**
Australia
Azerbaijan**
Bahrain**
Bangladesh**
Belgium
Bosnia-Herzegovina
Brunei*
Bulgaria**
Cameroon**
Canada
Chile
China (Taiwan)
Columbia
Democratic Republic of Congo (Kinshasa)**
Republic of Congo (Brazzaville)**
Costa Rica
Jordan
Kazakhstan**
Korea (South)
Kyrgyzstan**
Latvia
Liberia
Lithuania**
Luxembourg
Macedonia
Mexico
Moldova**
Mongolia**
Morocco**
Netherlands
Norway
Oman
Pakistan
Panama**
Paraguay
Romania**Croatia
Czech Republic**
Denmark*
Ecuador**
Egypt**
Estonia
Ethiopia
Finland
France
Georgia**
Germany
Greece*
Grenada**
Honduras
Iran
Ireland
Israel*
Italy
Jamaica**
Japan
Singapore
Slovakia**
Slovenia
Spain
Sri Lanka**
Suriname
Sweden
Switzerland
Thailand
Togo
Trinidad and Tobago**
Tunisia**
Turkey
Ukraine**
United Kingdom
Yugoslavia
Philippines
Poland**
Senegal*
* Treaties which contain only treaty trader provisions allowing E-1 status, not E-2 status.
** Treaties which contain only treaty investor provisions and allow only E-2 issuance, not E-1 status.
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E-3 VISA - AUSTRALIA

The E-3 visa is specific to citizens of Australia. While maintaining an “E” designation, the qualifying requirements are much similar to the U.S. H-1B in that the Australian citizen must apply pursuant to an offer of employment from a viable U.S. employer in a “specialty occupation”- one which normally requires the minimum educational background of a Bachelor’s Degree.

On May 11, 2005, President Bush signed into law the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror and Tsunami Relief, 2005 (Pub. L. No. 1V9-13). Section 501 of the REAL ID Act created the new E-3 visa category. As indicated, the E-3 visa allows for the admission of an alien who is a national of the Commonwealth of Australia and who is entering the U.S. to perform services in a “specialty occupation.” Note that the dependant spouse and children of an E-3 principal may derive E-3 non-immigrant status, if otherwise eligible, irrespective of the children’s nationality. Further, an otherwise eligible dependant spouse of an E-3 principal non-immigrant may apply for an Employment Authorization Document (EAD), irrespective of the dependant spouse’s nationality.

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E VISA FAQs

FAQ #1. Is intent to invest and a business plan sufficient to qualify for E-2 status?
No. Intent and prospective plans are insufficient without more. Matter of Chung, 15 I&N Dec. 681 (R.C. 1979). The funds must be irrevocably committed to the enterprise and the applicant has the burden of showing irrevocable commitment. [8 C.F.R. § 214.2 (c) (12); 9 FAM 41.51 N.8.1-3].

FAQ #2. May escrowed funds be utilized?
Yes, in limited instances. Yet it is our experience that Consular Officers are often reluctant to give regard to escrowed funds. This said, placing funds in escrow pending approval of E classification with legal mechanism that irrevocably commits funds, but also protects investor if application denied is permissible. [8 C.F.R. § 214.2 (e) (12); 22 C.F.R. § 41.51 (1)]

FAQ #3. What is considered a substantial investment?
Substantiality of investment is determined based upon a relative/proportionality test, to wit:

a. the amount of qualifying funds invested weighed against the total cost of purchasing or creating the enterprise;
b. the amount normally considered sufficient to ensure the investors financial commitment to the successful operation of the enterprise; and
c. a magnitude of investment to support the likelihood that the investor will successfully develop and direct the enterprise. [8 C.F.R. § 214.2 (e) (14); 9 FAM 41.51 N.10; 22 C.F.R. § 41.51 (n)]

Important: Where small and medium sized businesses are concerned, the lower the cost of the enterprise, the higher proportionally the investment must be to be considered a substantial amount. [8 C.F.R. § 214.2 (e) (14) (iii); 9 FAM 41.51 .10.4]

FAQ #4. What is meant by a marginal enterprise?
Essentially, an enterprise may be considered marginal if it does not have the present or future capacity to generate more than a minimal living for the investor and family. If future capacity is at issue, then must provide a five (5) year plan. [22 C.F.R. § 41.51 (o); 8 C.F.R. § 214.2 (e) (15)].

FAQ #5. What factors may be considered to overcome marginality?
a. Investment will expand employment opportunities;
b. Investment will generate other sources of income;
c. Investment will generate income substantially above what would be considered a living; and d. Investor will not work simply as a skilled or unskilled worker.

FAQ #6. Can the spouse of an E Investor visa holder secure an employment authorization?
Yes. [INA § 214 (e) (6); Cable, DOS, 02 – State – 17328 (Jan. 29, 2002)].

FAQ #7. May a foreign physician qualify for an E-2 visa as an investor?
Yes. Mr. Porter of the Hulka Porter Law Firm was instrumental in breaking down this barrier in 1994 by securing an E-2 visa for a Canadian plastic surgeon intending to incorporate and manage a practice within the U.S. Letter, Schlosser, U.S. Consul. Toronto to Attorney Porter (Jan. 25, 1994). Please see the following letters as addressed to Mr. Porter from the legacy U.S. Department of Justice (INS) dated January 14, 1992 and the Consulate General of the United States of America letter to Mr. Porter dated January 25, 1993. Mr. Porter has been recognized by the American Immigration Lawyers Association for his innovative precedent setting E-2 work onbehalf of physicians intent upon establishing their practice in the U.S. Prior to 1994, when Mr. Porter succeeded in breaking down this barrier, E-2 visas were not utilizedby physicians. As indicated by noted U.S. Immigration Ira Kurzhan within hisImmigration Law sourcebook, “a foreign physician may invest in a medical practiceand obtain an E-2 visa if s/he is from a treaty country…” To clarify, such a physicianmay also engage in direct patient care. This position is supported within U.S. Consul John K. Schlosser’s letter to Porter dated January 25, 1993 and the legacy INS letter to Porter dated January 14, 1992 as signed by R. Michael Miller, Deputy Assistant Commissioner – Adjudications. Copies of both letters are reproduced herewith for reference purposes.

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2d. I – Representative of Media Visas

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2e. K-1 Fiance of U.S. Citizen and K-3 Spouse of U.S. citizen

The K visas are often confused. A K-1 fiancé visa relates to a U.S. citizen sponsoring his/her foreign national fiancé to become a lawful U.S. permanent resident. The process is involved commencing with the filing of the I-129 K fiancé petition at the RSC. Once RSC approved, the application is channeled through the NVC for affidavit of support processing. The NVC then sends the application to the U.S. Consulate/Embassy having jurisdiction over the foreign nationals place of residence. Once the foreign national passes the medical and is interviewed, he/she must present the U.S. Embassy/Consular approved documents upon entering the U.S. The foreign national must then marry within 89 days of entering the U.S. Then the U.S. citizen sponsoring spouse must apply for adjustment of status. Adjustment of status can be very time consuming – taking up to two years. Without more, the foreign national is not permitted to depart the U.S. while in adjustment proceedings. Doing so may be considered abandonment of the petition of lawful U.S. permanent residence. To avoid such a consequence, an I-131 Travel Document/Parole should be secured prior to departure. Given the K-1 fiancé restrictions, it is sometimes better to pursue the I-130 spousal based processing alternative.

Distinct is the K-3 – which may be filed subsequent to the lodging of an I-130 spousal based petition. The K-3 is not a fiancé petition. Rather, it is utilized by a U.S. citizen spouse who wishes to unite with his/her foreign national spouse in the U.S. prior to the issuance of lawful U.S. permanent residence.

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2f. L-1A and L-1B Intra-company Transfer Visa Information

[INA § 101 (a) (15) (L), 8 U.S.C. § 1101(a) (15) (L); 8 C.F.R. § 214.2 (1)]

What is an L-1A and L-1B Intra-company Transfer Visa?

L-1 visas are available to persons who have worked abroad for one continuous year within the preceding three years on a full-time basis for a qualifying foreign business entity in an executive, managerial or specialized knowledge capacity and who are being transferred temporarily to the United States to work for a subsidiary or affiliate business entity in an executive, managerial or specialized knowledge capacity.

Spouses and dependent children may be issued L-dependent status and will be permitted to accompany the principal applicant to the United States, but will not be permitted to accept employment while holding L-Dependent status. Notwithstanding, the spouse of L-1A may apply for open employment authorization (EAD).

L-1A visas are issued to persons working in an "executive" or "managerial" capacity.

The term "executive capacity" is generally defined as an assignment within the organization in which the employee primarily:

  1. directs the management of the organization or major component or function of the organization;
  2. establishes the goals and policies of the organization, component or function;
  3. exercises wide latitude in discretionary decision-making; and
  4. receives only general supervision or direction from higher level executives, the directors or shareholders of the organization.

The term "managerial capacity" is generally defined as an assignment in which the employee primarily:

  1. manages the organization or a department, function, or component thereof;
  2. supervises and controls the work of supervisory, professional or other managerial employees;
  3. has the authority to hire and terminate or recommend those and other personnel actions if other employees are supervised; if no other employees are supervised, functions at a senior level in the organization; and
  4. exercises discretion over the daily operations of the activity or function for which the employee has authority.

The term "specialized knowledge" is defined as:
"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."

L-1B visas are issued to persons working in a "specialized knowledge" capacity.

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How long can I hold L-1A or L-1B status?

L-1A visas for managers or executives are valid for a total period of seven (7) years from the date of issuance. This period may be extended if one resides in and commutes from Canada or Mexico to the United States for employment.

L-1B visas for workers with specialized knowledge are valid for a total period of five (5) years. Again, if one is a commuter, this period may be extended via a “recapture” application.

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Can I obtain a Green Card if I hold a L-1A or L-1B status?

Those persons holding L-1A status generally qualify for the Multi-National Executive or Manager exemption from the Labor Certification process under Section 203(b)(1)(C) of the Immigration & Nationality Act. This exemption is important as it effectively shaves up to two (2) years off of the average I-140 Immigrant petition (Green Card) processing time by eliminating the need for labor certification of the offer of employment. In most cases, L-1A Executives or Managers will receive initial approval of their I-140 Immigrant Petition within seven (7) months of filing.

Those persons holding L-1B status must first obtain DOL labor certification prior to filing an I-140 Immigrant Petition (Green Card). The typical Green Card processing time frame for L-1B holders is therefore much longer than for L-1A holders and is subject to a test of the labor market.

Both L-1A and L-1B visa holders may properly file for permanent resident alien status notwithstanding the fact that they hold non-immigrant status, as the USCIS recognizes the doctrine of "dual intent" in L-1 cases. This doctrine makes it unnecessary for L-1 visa holders to continue to maintain permanent foreign residence or otherwise maintain ties with their home countries.

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What is a qualifying bi-national business?

The Immigration & Nationality Act provisions concerning L-1 intra-company transfer visas render the following types of businesses eligible for L-1 qualification:

  1. Corporations;
  2. Partnerships; and
  3. Sole proprietorships.
The foreign business entity must have been in operation for at least one (1) year and the employee who will be transferred must have worked for that business for at least one (1) year within the preceding three (3) years as well.

The U.S. business entity to which the employee will be transferred must be a "subsidiary" or "affiliate" of the foreign entity. The USCIS employs a strict legal test to determine whether the U.S. and foreign business entities have a qualifying L-1 relationship. Proper legal analysis is required to determine whether the requisite qualifying relationship exists.

In addition, there must continue to be a viable, operating business abroad throughout the transferred employee's stay in the United States. In other words, the foreign business entity must continue to operate during the entire period of the alien's L-1 status. At least one employee must remain abroad to ensure the continued viability of the foreign operation.

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What is the processing time for L-1 visas?

Citizens of Canada are eligible to apply for L-1 status in person at a Class A port of entry pursuant to the provisions of the North American Free Trade Agreement. In these cases, processing is generally conducted on the date of attendance at the port of entry.

Others must apply via the USCIS Regional Service Center (RSC). Once RSC approved,therein the visa must be processed via the U.S. Consulate or Embassy of appropriate jurisdiction.

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If the business is established abroad but is setting up a “new office” in the U.S., what are the implications?

USCIS regulations detail specific provisions when a new parent, subsidiary branch or affiliate office is opened in the U.S. with the intent of employing a manager or executive – yet typically does not have proof of extensive business activity in the U.S. because of inception. A new office is defined as “An organization which has been doing business in the U.S. through a parent, branch, affiliate, or subsidiary for less than one year.”

In order to qualify for an L-1 visa where a new office is involved, the petitioner must submit evidence that:

  1. Sufficient physical premise for the office has been secured (usually involving the provision of a lease);
  2. The beneficiary meets the one (1) year within three (3) years continuous employment requirements; and
  3. The intended U.S. operation will, within one (1) year “support an executive or managerial position.” [8 C.F.R. § 214.2 (1) (3) (V)].

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2g. O Non-Immigrant Visa

[INA § 101 (a) (15) (O); 8 U.S.C. § 1101 (a) (15) (O)]

The O-1A visa is for a person who “has extraordinary ability in the sciences, arts, education, business or athletics which has been demonstrated by sustained national or international acclaim.

The O-1B visa is for those in motion picture or TV production. Such a person must demonstrate record of extraordinary achievement. The person must demonstrate that his/her achievements have been recognized in the field “through extensive documentation.”

O-2 visas are for persons accompanying and assisting O-1 artist or athlete.

O-3 visas are for spouses and children accompanying or following to join O-1.

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2h. P Non-Immigrant Visa

[INA § 101 (a) (15) (P), 8 U.S.C. § 1101 (a) (15) (P)]

The P-1 visa is for Athletes and Group Entertainers. A person who performs as an athlete, individually or as part of a group team that is “internationally recognized.” (P-1A) or a person who performs with or is an integral or essential part of an entertainment group that has been recognized internationally as being outstanding in the discipline for a sustained or substantial period of time (P-1B), and in the case of the performer, has had a sustained and substantial relationship with the group over a period of at least one (1) year.

Internationally recognized means “a high level of achievement…evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that such achievement is renowned, leading or well known in more than one country. [8 C.F.R. § 214.2 (p) (3)].

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P Reciprocal Exchange Program

[8 C.F.R. § 214.2 (p) (5)]

Performs as an artist or entertainer individually or as a part of a group, or is an integral part of the performance. He/she must seek to enter temporarily and solely for performing and is under a reciprocal exchange program between an organization or organizations in the U.S. and one or more foreign organizations, and which provides for the temporary exchange of artists, entertainers or groups.

P-3 Non-Immigrant Visa

[8 C.F.R. § 214.2 (p) (6)]

Performs as an artist, entertainer, individual or as a part of a group or is an integral part of the performance and enters temporarily and solely to perform, teach or coach in a culturally unique program. May be commercial or non-commercial.

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2i. Q Non-Immigrant Visa

[INA §101 (a) (15) (Q); 8 U.S.C. § 1101 (a) (15) (Q)]

The Q visa is for a participant in an international cultural exchange program for the purpose of providing practical training, employment and the sharing of the history, culture and traditions of the country of the person’s nationality. The program applies to an employer who has employees, not simply an agent or office and who provides on a regular, continuous, systematic basis goods and/or services (including lectures, seminars and other types of cultural programs). [8 C.F.R. § 214.2 (q) (4)]

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2j. R Non-Immigrant – Religious Occupation Visa

[INA § 101 (a) (15) (R); 8 U.S.C. § 1101 (a) (15) (R)]

Deacons, practitioners of Christian Science and officers of the Salvation Army may be deemed ministers. [9 FAM 41.58 N.9.2.; 9.3 and 9.4].

As well, a person working in a professional capacity in a religious vocation or occupation may qualify. A professional capacity/occupation is defined at INA § 101 (a) (32) or B.A. as a minimal requirement. 22 C.F.R. § 41.58. However, keep in mind that USCIS defines it only as B.A. degree or foreign equivalent degree. [8 C.F.R. § 214.2 (r) (2)].

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2k. NAFTA TN-1

[8 C.F.R. § 214.6]

The U.S. North American Free Trade Agreement (NAFTA) TN-1 employment authorizations are available are available to citizens of Canada and the Republic of Mexico in certain occupations and when certain qualifications are satisfied. Designated as “TN”, the authorization is similar to the H-1B, except thereis no statutory limitation on stay such as exists for Hs and Ls.

The TN-1 USCIS work permit has a validity period of one (1) year, though may be extended in yearly increments in most instances. The initial application must be submitted in person to a Class A USCBP POE facility. Original proof of citizenship (birth certificate/passport) must be presented, together with original educational diplomas.

The offer of U.S. employment must be presented within a well prepared letter, usually upon the U.S. employers letterhead (with exceptions), serving to:

  1. address terms of engagement, inclusive of the specific NAFTA schedule 16 vocation and employment description;
  2. specify the foreign nationals educational credentials – correlating with the schedule 16 vocation;
  3. indicate temporary assignment within U.S. for period of no more than one (1) year; and
  4. address the U.S. employing entities characteristics (type of business, year in operation, number of employees, etc.)

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TN-1 FAQ's

FAQ #1. Once a TN-1 USCIS work permit has been initially approved for one (1) year at the USCBP POE, may extensions be secured in subsequent years?
Yes. An application for a TN-1 extension may be submitted either at a USCBP POE or, should the foreign national TN-1 worker be within the U.S., the application for extension may be facilitated via the USCIS Regional Service Center (RSC) in Lincoln, Nebraska.

All extensions must be applied for in one (1) year increments. Should a TN-1 application request a temporary employment authorization for greater than one (1) year, it will be denied.

Applications for extension at the POE should be presented approximately four (4) days in advance of the I-92 expiration date.

When applying for an extension via the RSC, we recommend applying for the extension ninety (90) days in advance of expiration in order to enable sufficient time for the USCIS Nebraska RSC to process.

In instances where time is of the essence, the TN-1 extension as submitted to the RSC may include a request for premium processing. The USCIS will “premium process” most non-immigrant employment authorization applications within fifteen (15) days of submission, yet not necessarily approve.

Provided the RSC TN-1 extension application is submitted in advance of the existing I-94 expiration date and provided the Canadian or Mexican citizen worker is within the U.S. at the time the application for TN-1 extension is lodged, the foreign national may remain within the U.S. and legally continue to work for the specified U.S. employer within the U.S. beyond the I-94 expiration date until the TN-1 extension is either approved or denied (within 240 days of submission).

In an instance where a TN-1 extension application has been timely filed with the RSC, the foreign national should not depart the U.S. until the TN-1 extension is approved. Departure in the interim can result in a determination by the Service of abandonment and refusal re-entry. Careful planning is required.

FAQ #2. May a TN-1 be utilized for U.S. self-employment purposes?
No. Self-employment is prohibited when contrary to 8 C.F.R. § 214.6 (b). However, a TN who is entering the U.S.to perform work for a U.S. company in which he/she owns an interest (even if a controlling interest) is permissible. Letter, LaFleur, Chief Business and Trade Branch, Adjudications, HQ 1815–C (Feb.5, 1996)

FAQ #3. If TN approved in the capacity of a Management Consultant, are management initiatives permissible?
No. “A management consultant should not be a regular, full-time employee of the U.S. entity requiring service… In cases [of full time employment] the Management Consultant should not be assuming an existing position, replacing someone in an existing position, or filling a newly created permanent position. The consultant must assess and make recommendations to the U.S. business’ management. The consultant may not make a decision or otherwise manage. If salaried, the position should be “supernumerary in nature.” Memo, Puleo, Asst. Comm., Adjudications CO 1773-C (Oct. 4, 1989)

FAQ #4. May a dependant spouse or child of an approved TN-1 pursue authorized work in the U.S.?
No. Spouses and unmarried minor children accompanying or following to join TN will obtain a TD (dependant) visa. They shall not accept employment in the U.S. unless they are otherwise authorized. 8 C.F.R. § 214.6 (j).

FAQ #5. While working in the U.S. under a TN-1, may I concurrently apply for U.S. permanent residence either via an I-130 spousal or an I-140 employment based petition?
The doctrine of dual intent must be carefully considered. INA § 214 (b) is fully applicable in that the permissible dual intent allowance of maintaining interim non-immigrant status while concurrently pursuing U.S. permanent residence is prohibited where TNs are concerned 63 Fed. Reg. 1,331 at 1,333 (Jan 9, 1998). 8 C.F.R. § 214.6 (b) [Definition of Temporary Entry]; 22 C.F.R. § 41.59 (c). Careful planning is required. To be clear, a TN with an approved I-140 petition may be denied admission at the border as an intending immigrant where an L or H visa holder would not. Letter, LaFleur, Business and Trade Services, Benefits Branch, INS, HQ 1815-C (June 18, 1996)

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3. U.S. Citizenship

3a. By Birth

Under the Fourteenth Amendment “ all persons born or naturalized in the United States…are citizens of the United States.”

A child born outside of the U.S. where one or both parents are U.S. citizens (USC’s) may acquire U.S. citizenship at birth [INA § 301, 8 U.S. C. § 1401]. Acquisition of citizenship for a child born out of wedlock may also be possible. [INA § 309, 8 U.S.C. § 1409] The Congressional acts providing for acquisition of citizenship require the USC parent to reside in the U.S. for certain time periods prior to the birth of the child to transmit citizenship to the child. Failure to comply with these “transmission” residency requirements results in the child not obtaining his/her citizenship by acquisition.

In the case of a person born abroad, a presumption arises that the person is an alien. Matter of Tijerina – Villarreal 1312 N Dec, 327, 330 (BIA 1969). In the case of one claiming citizenship acquired at birth abroad, the respondent must produce sufficient evidence to rebut the presumption of alienage that arises from birth abroad. Murphy v. INS 54 F. 3d 605 (9th Cir 1995).

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3b. By Naturalization

Congress has the constitutional duty to “establish a uniform Rule of Naturalization.” Art. I, Sec. 8, C1.4. To qualify for naturalization an applicant:

a. Must be a lawful U.S. permanent resident (LPR), with few military service exceptions. [INA § 318, 8 U.S.C. § 14293];

b. Must be 18 years old, INA 334 (b), unless the applicants age is waived due to military involvement under INA § 329 (a), 8 U.S.C. § 1440 (a);

c. Must be a resident continuously for five (5) years subsequent to LPR status INA § 316 (a), 8 U.S.C. § 1427 (a) (1); 8 C.F.R. § 316.5. If married to a U.S. citizen, the residency requirement is three (3) years if: (1) the USC spouse is a USC for three (3) years; and (2) the parties have been married for at least three (3) years. Must be “living in marital union” with spouse. 8 C.F.R. § 319.1 (b) (2) (ii) (B). Living in marital union has been interpreted to mean actually residing together. U.S. V. Maduno, 40 F. 3d 1212 (11th Cir. 1994);

d. Must have resided for at least three (3) months within the State in which the petitionwas filed INA § 316 (a) (1), 319 (A), 8 U.S.C. § § 1427 (a) (1), 130 (a);

e. Must be physically present in the U.S. for at least one half of the five (5) years (or one half of the three (3) years if the applicant is the spouse of a USC) INA § 316 (a), 8 U.S.C. § 1427 (a);

f. With few exceptions, must have resided continuously within the U.S. from the date the application is filed up to the time of admission to citizenship INA § 316 (a) (2), 8 U.S.C. § 1427 (a) (2);

g. With few exceptions, must not be absent from the U.S. for a continuous period of more than one year during the period for which continuous residence is required 8 C.F.R. § 316.5 (c) (1) (ii);

h. Must be a person of good moral character for the requisite five (5) years (or in the case of a spouse of a USC three (3) years or person in the military one year under § 1140 (b)), up to the time of admission INA § § 316 (a) (3), 319 (a) (1), 8 U.S.C. § § 1427 (a) (3), 1430 (a) (1); 8 C.F.R. § § 316.10, 329.2 (d);

i. Must be attached to the principles of the U.S. Constitution and well disposed to the good order and happiness of the U.S. INA § 316 (a) (3), 8 U.S.C. § 1427 (a) (3); 8 C.F.R. § 316.11;

j. Must be willing to “(A) bear arms on behalf of the United Stateswhen required by law, or (B) to perform non-combat service in the Armed Forces of the U.S. when required by law, or (C) to perform work of national importance under civilian direction when required by law.” INA § 337 (a) (5) (A)-(C), 8 U.S.C. § 1448 (a) (5) (A)-(C);

k. Must not other wise be barred as a:

  1. Subversive. INA § 313, 316 (f), 8 U.S.C. § § 1424, 1427 (f), 8 C.F.R. § 313.1;
  2. Member of the Communist Party. INA § 313 (a), 8 U.S.C. § 1424 (a);
  3. A deserter during war who was convicted by court martial or civil court. INA § 314, 8 U.S.C. § 1425 unless he/she had received a pardon or general amnesty 0.1 § 314.2
  4. An alien who has removal proceedings pending against him/her or an outstanding and final order of deportation INA § 318, 8 U.S.C. § 1429, with exceptions.
  5. An alien who applied for and received relief from the Selective Service system based upon alienage. INA § 315 (a), 8 U.S.C. § 1426 (a), with exceptions;

l. Must demonstrate:

  1. An elementary level (8 C.F.R. § 312.1) education – reading, writing and understanding of English language INA § 312 (a) (1), 8 U.S.C. § 1423 (a) (1);
  2. A knowledge and understanding of the fundamentals of the history and government of the U.S. INA § 312 (a), 8 U.S.C. § 1423 (a), 8 C.F.R. § 312.2;
  3. An applicant who fails the English or Civics test may retake the exams within 90 days 8 C.F.R. § 312.5. There are English language requirement exceptions for senior citizens with a history of having resided within the U.S.; and
  4. Person who are physically or developmentally disabled or have a mental impairment. 62 Fed. Reg. 12,915-23 (March 19, 1997). There are a number of applicable exceptions.

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3c. By Derivation Through The Naturalization of Parents

A child born outside the U.S. may become a USC as a matter of law by virtue of his or her parent or parents’ naturalization. INA §§ 320-21, 8 U.S.C. § § 1431-32. A child may be a derivative USC where one parent is an alien and the other a USC if the alien parent becomes naturalized while the child is under 18; and the child is residing in the U.S. as a LPR is the custody of the parent. INA § 320 (a), 8 U.S.C. § 1431 (a). A child who is under 18, in the legal custody of the parent, and permanently residing in the U.S. as an LPR in the custody of the parent, and permanently residing in the U.S. or is an LPR may also become a USC when both parents are aliens upon the naturalization of both parents or the naturalization of the parent having custody over him/her if the parents are legally separated or divorced. INA § 321 (a) (5), 8 U.S.C. § 1432 (a) (5). The board has held that the provision raising the age limits for derivation under INA § 321 (a) from 16 to 18 applies retroactively so that a child who was under 18 at the time a parent or parents naturalized would obtain naturalization even if he was over 18 at any time since the enactment of the INA. Matter of Fuentes, 21 I&N Dec 893 (BIA 1997). The Dept. of State agrees. Passport Bulletin – 96 –18 (Nov. 6, 1996). In order to determine eligibility for derivative status, like citizenship by acquisition, it is necessary to review which act of Congress is applicable.

Generally, children of USCs who did not automatically acquire citizenship at birth abroad or derive it through naturalization of their parent(s) may still obtain a certificate of citizenship upon the application of the USC parent if one parent is a USC, child is physically present in the U.S. pursuant to lawful admission, the child is under 18 and in legal custody of the USC parent, who has been in the U.S. five years, two of which were after her 14th birthday. If the child is adopted, the child must have been adopted prior to 16 and meet all the requirements for an adopted child or orphan. A citizen parent who has not been physically present in the U.S. for five years, two of which were after her 14th birthday, may also obtain a certificate for her child if: (a) the child is under 18, is presently in the U.S. pursuant to lawful admission and is an LPR; or (b) the child is under 18, is present in the U.S. pursuant to a lawful admission, and a grandparent (parent of the USC parent) has been physically present in the U.S. for five years, two of which were after the grandparent’s 14th birthday. INA § 322, 8 U.S.C. § 1433. The application is filed on an N-600.

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4. U.S. Admissibility Relating to Criminal Convictions and/or U.S. Immigration Law Infractions

The topic of U.S. admissibility covers a broad range of considerations. Independent assessment relating the law to facts is required.

In order to place into perspective the variety of considerations when analyzing a foreign nationals admissibility (or inadmissibility) to the U.S., a pragmatic analysis is required. In this regard, following is a copy of Mr. Porter’s article “Inadmissibility – When Your Past Catches up to You”- as presented in conjunction with the Ontario Bar Association on January 24, 2006 and published by the OBA.

A read of the article should assist with placing into perspective ones options. Click here to download a copy of the article (pdf format)

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