Author: silmilawastage

If you have ever watched the program 90-day fiancé you may know that a K-1 visa is a non-immigrant (temporary) visa that permits the fiancée or fiancé of a U.S. citizen to enter the United States to get married. A K-1 visa is different from a marriage-based immigrant visa. The K-1 visa is an excellent option for a foreign national whose U.S. citizen fiancé(e) wishes to travel to the United States to get married.

K-1 Processing Time

After submitting the I-129F form, known as Petition for Alien Fiancé, it usually takes 6 to 9 months to obtain a K-1 visa. Several factors could contribute to the processing time, especially in terms of the preparedness and compliance of the couple seeking the visa. An ill-prepared I-129F application will undoubtedly increase the waiting time. Errors, omissions, and insufficient evidence can lead to significant delays or even denials.

K-1 Visa Documents Checklist

The following forms and documents must be submitted for the interview:

• Form DS-160, online visa application for non-immigrants
• A valid passport to travel to the United States and valid for at least six months.
• Birth certificate
• Certificate of divorce or death of any previous spouse, if any.
• Police certificates from the current country of residence and from all countries where you have lived for more than six months or since the age of 16
• Medical examination result
• Proof of financial support may be required.
• Proof of your relationship with your U.S citizen fiancé(e)

NOTE: It is worth noting that visa application is treated on a case-by-case basis. As such, some case-specific evidence may be required. It is important that you strictly follow the guidelines given by the embassy in charge of your visa application.

The Step-By-Step Process for K-1 Visa

1. USCIS Filling

The U.S. citizen sponsor submits the K-1 visa application to the USCIS by submitting the entire I-129F petition and payment to the U.S. Department of Homeland Security.

2. Notice of Action 1 (NOA1)

Two to three weeks after sending your order, you will receive a notice of action, indicating that USCIS has received your order.

3. Notice of Action 2 (NOA2)

Usually, 5 to 7 months after filing the visa, you will receive another notice of action, indicating that USCIS has approved, refused, or requested additional evidence for your application. If approved, do nothing at this stage. In the event that your K-1 visa application is denied or more evidence is required, it is best to contact an immigration lawyer on the best possible way to address the issue.

4. NVC Process

The immigration office that processed your application will then refer your case to the State Department National Visa Center (NVC). This will occur within two weeks of your approval. A security check would be run on the foreign fiancé(e) seeking to enter the U.S.

5. NVC to Embassy

If the check comes back clean, the approved K-1 visa application will be sent to the Consular Affairs Office. The Consular Office will send the file to the U.S. Embassy in your fiancé(e) country via DHL.

6. Letter from the Embassy

After receiving the visa application, the U.S. Embassy (usually in the country of origin) sends the fiancé(e) a letter with instructions to schedule their immigration medical examination and visa interview. The U.S. Embassy will also request that the foreign fiancé(e) submit some documents within a specific timeframe.

7. Medical Examination

The foreign fiancé(e) will undergo a medical examination at a designated center recommended by the embassy. After the examination, a parcel containing the result of the medical examination will be sent to the embassy.

8. K-1 Visa Interview at the Embassy

The foreign fiancé(e) must be present for an interview at the U.S. embassy on the scheduled date and time. The U.S. citizen is not required to participate in the interview. If the interview goes successfully, the visa application would be approved. The actual K-1 visa fiancé(e) visa will be issued on the foreign fiancé’s (e)’s passport.

9. Travel to the United States of America

The foreign fiancé(e) has six months to use the visa to enter the United States. Keep in mind that a visa is only a travel document – it doesn’t guarantee entry into the United States. The foreign fiancé(e) will have to seek entry permission at the border or airport through the officials of the U.S. Customs and Border Protection (CBP).

10. Wedding

The couple must get married within 90 days of the foreign fiancé’s (e)’s entry into the United States. The 90-day clock starts when you enter the United States, which is usually stamped on your passport.

The O-1 visa for Individuals with Extraordinary Ability or Achievement is a nonimmigrant work visa in the United States that offers more advantages and flexibilities than other temporary work visas lack. With the complexity of the requirements, working with an immigration attorney who is highly experienced in processing an O-1 visa will improve the likelihood of success.

Types of O-1 Visa

There are two types of O-1 visas. They are O1-A and O-1B.

O-1A: The O-1A visa is for foreign nationals with an extraordinary ability in various fields such as education, business, sciences, or athletics.

O-1B: The O-1B visa is for foreign nationals with extraordinary ability in arts or exceptional achievements in the motion picture or television industry.

Requirements for O-1 Visa

The primary requirement for qualifying for the O-1 visa is for an applicant to demonstrate “extraordinary ability” in their fields. According to USCIS, they must have recorded some level of achievements that is recognized nationally or internationally.

For the O-1A, extraordinary ability indicates that you are one of the small percentages who have gotten to the very top of the field.

For the O-1B, extraordinary ability refers to distinction or a high level of achievement in your own chosen field of art. In order words, you must demonstrate that you possess a degree of recognition and skill above what is ordinarily encountered in the industry.

Evidentiary Criteria for O-1 Visa

To demonstrate they possess “extraordinary ability,” applicants are expected to demonstrate relevant evidentiary criteria. You are expected to have at least 3 of the following evidentiary criteria.

• A national or international award
• Published material in a significant or professional media about your work and achievements
• Have membership of a reputable association in your field
• Evidence showing that you have participated in judging other people’s work in the field
• Proof that you have made significant contributions in your area, such as scientific, scholarly, business-related contributions of major significance.
• Evidence of authorship of scholarly work
• Evidence of employment in an essential or critical capacity for a reputable organization
• Evidence that you have commanded a high salary compared to what others earn in your field.

O-1 Visa Supporting Documents

Each category of the O-1 visa has its long list of supporting evidence, including copies of written contracts between beneficiary and petitioner, an itinerary of activities to be carried out, and starting and ending dates of those activities. Your employer will need to submit these along with the O-1 visa petition filed on your behalf.

O-1 Visa Process

Just like other temporary work visas, you will need an employer or agent to file the petition on your behalf. Your ability to use either an employer or an agent will depend on the nature of work you are coming to do in the US with the visa. In any case, however, the following gives a summary of the O-1 visa application process.

• The employer or agent files Form I-129, Petition for Nonimmigrant Worker, with USCIS.
• After Form I-129 is approved, you and the petitioner would be notified. Then you can commence the visa application process at a US embassy near you if you are outside the US.
• If you are in the US and changing from another nonimmigrant status to O-1, you would only wait for the Approval Notice from USCIS. Once the I-129 petition is approved, your status will change to O-1.

The EB-2 National Interest Waiver is one of two employment-based green cards that can be attained through a self-petition.

Advantages of EB-2 National Interest Waiver

The EB-2 National Interest Waiver offers eligible applicants a wide range of advantages, which include:

• It doesn’t require employer sponsorship. This means if you don’t need an employer to sponsor your petition. You can file the petition yourself.
• It requires no job offer. The NIW uses the “proposed endeavor” language. This endeavor can be a career or business, and an applicant will not need an offer from a US-based employer before they can qualify.
• It doesn’t require PERM labor certification. The PERM labor certification process takes a considerable amount of time in employment-based green card applications. Fortunately for EB-2 NIW applicants, this is one of the waived requirements, which may help expedite the entire process.

Steps for Obtaining EB-2 National Interest Waiver

Step 1: Determine Your Eligibility

The eligibility criteria for the EB-2 national interest waiver are based on two major requirements. This means you must first prove that you meet the general EB-2 requirements. You will then also confirm that it is in the national interest that requirements of a job offer and labor certification process be waived for you.

• General EB-2 Eligibility Requirements
  According to the United States Citizenship and Immigration Services (USCIS), EB-2 applicants are required to have an advanced degree or its equivalent in their profession or possess an exceptional ability. With this, many people with an advanced degree or exceptional ability in their career may qualify for the EB-2 visa. But qualifying for the NIW category has its own list of requirements, as explained below:
• National Interest Waiver Eligibility Requirements
  In addition to fulfilling the general EB-2 criteria, you will need to satisfy 3 other requirements to prove that you merit the National Interest Waiver category. You must prove that:
  i. Your proposed endeavor has both substantial merits and is of national importance.
  ii. You are in a good position to advance that proposed endeavor.
  iii. It would be in the United States’ interest to waive the job offer and labor certification process for you. In other words, in light of the factors above, it would be beneficial for the US if a job offer requirement and labor certification requirement are waived for you.

Step 2: Prepare Supporting Evidence

Once you are sure that you are an eligible candidate for the NIW green card, the next thing is to start preparing your supporting evidence. There is no specific definition for jobs that qualify for NIW; each application’s adjudication will be case-specific. This means your chances of approval will depend on how convincing your application is.
It is best to consult an immigration attorney to help evaluate your case and prepare your supporting evidence by including the key information and documents that best support your eligibility claims. That said, apart from evidence of your advanced degree and/or exceptional ability, certain other documents could help boost your chances for EB-2 NIW approval. They include letters of recommendation, proofs of work experience in your field, updated resume, evidence of publication citations, memberships, and conferences.

Step 3: File Your EB-2 NIW Petition

Once you have gathered your supporting evidence, you can then proceed to file your Form I-140 Immigrant Petition with USCIS, along with the supporting documents. If you are in the United States, you may submit your I-140 petition concurrently with your I-485 Adjustment of Status Application, provided your priority date is current.

The United States immigration law allows U.S. citizens and permanent residents to sponsor their “eligible relatives” who wish to migrate to the U.S. through the family-based green card process. To achieve this, the petitioner (a U.S. citizen or permanent resident) will need to submit Form I-130 to the United States Citizenship and Immigration Services (USCIS).

I-130 Petition: Step by Step Process

1. Determine the Eligibility Requirements

Before submitting Form I-130, you must understand the eligibility requirements both for the petitioner and beneficiary.

A petitioner is the U.S. citizen or permanent resident sponsoring the application, while the beneficiary is the foreign relative who is being sponsored to migrate to the U.S.

So, as a petitioner, you must have proof of citizenship or permanent residency to be eligible to file Form I-130. The beneficiary must also have evidence of a “qualifying family relationship.” This is because not all family members can qualify for family-based green card sponsorship.

As the petitioner, while you may sponsor other family members, your immediate relatives (spouse and unmarried children under 21 years old) top the list of the most qualified relatives for this visa. There are also some differences between those a U.S. citizen can sponsor and those a permanent resident can sponsor. This USCIS “Green Card Eligibility Categories” webpage contains the complete list of who a U.S. citizen can sponsor and who a permanent resident can sponsor.

2. Gather the Supporting Documents

The following are the supporting documents you will need to provide when submitting your Form I-130.

Evidence of U.S. citizenship or lawful permanent residence (as applicable):

• A copy of your birth certificate
• A copy of citizenship or naturalization certificate
• A copy of a valid, unexpired U.S. passport;
• An original statement from a United States consular officer confirming you are a citizen with a valid U.S. passport;
• A copy of the front and back of your Green Card

Evidence of family relationship with the beneficiary using one of the following:

• Spouse: A copy of your marriage certificate
• Child: A copy of your child’s birth certificate(s).
• Parent: A copy of your own birth certificate.
• Brother/Sister: A copy of your own birth certificate and a copy of your sibling’s birth certificate.

Evidence of the bona fide marriage, if the beneficiary is your spouse:

• Documentation showing you both have joint ownership of the property;
• Proof to demonstrate you both live at the same address together, such as leasing showing joint tenancy of a shared residence
• Documentation showing that you both have combined finances;
• Birth certificates of the child(ren) born to you and your spouse together;
• Affidavits are sworn to by third parties that have personal knowledge of the marital relationship’s bona fides.
• Any other relevant documentation to demonstrate that there is an ongoing marital union.
• Proof of legal name change (if applicable)
• Two passport-style photographs (if applicable).

3. Complete the Form

Once you have confirmed that both you and the beneficiary meet the eligibility criteria and have all the supporting documents applicable in your own case, you can then proceed to complete the form. You can file the petition online via the USCIS Form I-130 webpage. The form has about nine different sections, where you will need to input certain information about yourself and the beneficiary.  Ensure you follow all the guidelines in completing the form.

4. Receive a Decision

The processing times for Form I-130 may vary depending on certain factors, such as the particular USCIS center in charge of the case and whether the form was filed with all the required documents. In general, however, the average processing time is 7 – 15 months. It could be longer in some cases, especially if you receive a Request for Additional Evidence (RFE) during the process. However, once the petition is processed and a decision is made, you will receive a notification telling you whether the petition is approved or denied.

NOTE: Form I-130 is just one step in the family-based green card application process. After the petition has been approved, other actions can now follow or, in some instances, be included with the underlying petition. This will consist of filing of I-485, Adjustment of Status, and an I-864 Affidavit of Support. There may be complications depending on unique individual circumstances. Whether you are in the U.S. or outside of the U.S. intending to file with consular processing to receive an immigrant visa, it is advisable to consult with an experienced immigration attorney to confirm eligibility and that all requirements are adequately satisfied.

A corporate merger or acquisition can change the entire structure of an organization and impact its workforce. In US immigration and labor laws, merger/acquisition can impact a foreign employee’s green card application process, especially at the PERM labor certification and the I-140 submission stage.

How Does Merger or Acquisition Affect Green Card Application?

When a merger or acquisition happens, two factors may determine its impact on a pending green card process. The first factor is whether or not the new owner can meet the requirements for what is known as “successor-in-interest” (SII). The second factor is the stage of the green card application when the merger or acquisition takes place.

How is Successor-in-Interest Determined?

The United States Citizenship and Immigration Services (USCIS) considers several factors in determining whether or not the new owner in an organization merger can be deemed an SII employer. This largely predicates on the employer’s ability to prove that:
– The green card applicant employee is being offered the same job opportunity offered by the original employer in the PERM labor certification application.
– They are eligible to act as green card petitioner for the employee, with proofs such as evidence of the ability to pay the beneficiary’s wages.
They can fully describe (with documentary evidence) how they assumed the original company’s ownership.

Keep in mind that USCIS decides every acquisition/merger issue on a case-by-case basis. So, other case-specific factors may also play a role when the agency makes such a decision.

Green Card Application Stages and Successor-in-Interest Eligibility

If the new employer can establish the successor-in-interest eligibility, then the petitioner (employer) and the beneficiary (employee) may leverage that to continue the green card application process, depending on its current stage.

Merger After PERM Approval

If the merger happens after PERM has been approved and successor-in-interest is established, USCIS would allow the new employer to use the approved PERM labor certification to proceed with the case and file a Form I-140 for the employee.

Merger During Form I-140 Petition

If the Form I-140 petition is still pending when the merger happens, USCIS will need to be notified in writing. However, if the I-140 has been approved, the SII employer will need to file an amendment. With the approved I-140, the employee stands a good chance of retaining their original priority date.

Merger During From I-485 Petition

If your I-140 has been approved and you are already at the stage of I-485, Adjustment of Status, then the merger should have little or no impact on your green card process. For many reasons, this can be the safest stage of all green card cases relating to a merger. For example, your pending petition should remain valid as long as the SII employer meets up with all the USCIS requirements, including filing an amendment where necessary. Also, you MAY decide to change the job and move to another employer without losing the validity of the pending green card process.

What Happens If Successor-in-Interests Requirements Aren’t Met?

If the succeeding employer does not meet the requirements to be an SII employer, this can affect the green card case in various ways – again, depending on each case’s uniqueness.
NOTE: It is, however, important to note that merger is a very tricky aspect of immigration and labor laws as regards the green card application process. So, it is important to work with an immigration lawyer when dealing with the case. In fact, we advise the beneficiary to seek independent counsel as the petitioner’s interests may not align with the beneficiary’s interests, and there may be action needed on multiple fronts. Immigration law is like every other legal scenario – different interpretations may apply in similar cases due to each case’s peculiarities.

The EB-1A is the most misunderstood category of employment-based green cards. Due to its seemingly stringent eligibility requirements, many people avoid it and opt for other options. This article explains all you need to know about the EB-1A green card and how to leverage achievements you have made in your field of endeavor to qualify for this most sought-after category.

Understanding the Plain Language Meaning of EB-1A Eligibility Requirements

The EB-1A green card petition is adjudicated using the plain language meaning of the statute. This means the adjudicating officer will determine your eligibility for EB-1A based on the information that you present in your petition to decide whether or not they meet the statutory requirements of the category. There are 3 specifics statutory requirements you are expected to
demonstrate as an EB-1A applicant. They are:

1. That Your Work is Intrinsically or Naturally Beneficial to the United States

2. That You Have Achieved Sustained Acclaim Recognized Within Your Field of Endeavor

3. That You Command a High Salary

Other EB-1A Requirements

However, if you are in a different field where publications don’t apply, you don’t need to start publishing materials just solely for the EB-1A process. There are so many other criteria you can leverage. The most important thing is to present your petition convincingly to the adjudicating officer by paying attention to the plain language of the law.

The H-1B is a petition-based nonimmigrant visa that must be sponsored by a US-based employer. However, after getting the visa, the beneficiary (foreign worker) may choose to work for another employer other than the one who sponsored the visa. This can happen either after working for the employer for some time or even before working for the employer at all. So, in essence, H-1B transfer is the process that allows H-1B holders to change employers.

H-1B Transfer Process

Although the process is generally referred to as H-1B transfer, that doesn’t mean you can transfer the H-1B visa sponsored by employer A to employer B. The new employer will have to file a new H-1B petition on your behalf including Labor Condition Application (LCA), following the guidelines below:

• The employer submits the employment letter containing details of the job offer, including start date, duties, position, and every other necessary information.
• The employer files an LCA with the Department of Labor (DOL) and waits for approval.
• The employer submits Form I-129 petition with relevant supporting documents and filing fees.

Required Documents for H-1B Transfer

You, the employee, will also need to provide the following documents for the transfer process:

• Form I-979, Notice of Action for H-1B visa approval
• Paystubs (if applicable)
• Academic records
• Letter of recommendation
• Resume
• Copies of most recent passport, social security number, and I-94 records

What Happens After Filing H-1B Transfer?

Once the employer submits the petition to USCIS, you can start working on the new job without having to wait until the transfer is approved. This is one of the major advantages of H-1b transfer compared to a fresh application.

Differences Between H-1B Transfer and a New H-1B Application

The major differences and advantages lie in the fact that the H-1B transfer is a quicker process and also allows certain flexibilities compared to a fresh application. These include:

Not Subject to H-1B Visa Caps

H-1B is a quota-based visa that has a statutory annual cap of 65,000 visas, with an additional 20,000 for those with higher degrees – making a total of 85,000 visas. Applicants who are not selected will have to reapply another year. The good news is that as an H-1B transfer applicant, the cap does not apply to you. There are unlimited visas for eligible H-1B transfer applicants.

Can Be Processed Anytime

To get a new H-1B, employers will have to register their prospective employees between March 1 and March 20. But in the case of H-1B transfer, applicants aren’t constrained to a timeframe. You can submit your petition at any time of the year.

You Don’t Have to Wait for Approval

You can start working with the new employer immediately upon USCIS receiving the transfer petition. This is also advantageous to the employer, in that they get to fill their vacant position quickly.

H-1B Transfer without Paystubs

Since paystub is one of the common H-1B transfer requirements, some people wonder if they can be eligible if they don’t have it. Some of the common scenarios for these include those considering transfer after just entering the US.

For example, you just received a better offer from someone else or discovered that the employer who sponsored your visa isn’t the right fit for you. In this case, it is possible you haven’t worked for the employer at all or haven’t worked up to a month. This may mean not having paystubs to tender. But it doesn’t make you ineligible to apply for an H-1B transfer.

Paystub is just one of the requirements. The most important thing is whether you have qualifying status and are considered to be cap-exempt. Having your I-94 reflect valid H-1B means you have a valid status and being in the US on an H-1B visa also means you are cap-exempt. Keep in mind, however, that USCIS still has the prerogative to approve or deny any application.

To become a lawful permanent resident in the United States one must determine whether they are eligible to apply for a green card.

Who is Eligible for Green Card Application?

Whether you are currently in or outside the U.S., you may qualify for a green card if you meet the eligibility requirements under one of the following available categories.

1. Family-Based Green Card

You may qualify for a green card under the family-based category if you meet any of the following requirements:

– You are a Spouse or Child of United States Citizen or Lawful Permanent Resident

There are 2 major subcategories under this category.

The first is “immediate relatives of a U.S. citizen.” This means you are a spouse of a U.S. citizen or an unmarried child (under the age of 21) of a U.S. citizen.

The second subcategory is known as “other relative of a U.S. citizen or relative of a lawful permanent resident.” Other relatives of a U.S. citizen refers to an unmarried child of a U.S. citizen under the age of 21, a married child of a U.S. citizen, or a sibling of a U.S. citizen.

A qualifying relative of a lawful permanent resident must be a spouse or unmarried child of a green cardholder. If you qualify under the family-based category, your qualifying relative who is a U.S. citizen or lawful permanent resident will have to sponsor your green card petition.

2. Employment-Based Green Card

The employment-based green card category is available for foreign nationals who possess certain skills, ideas, experience, and academic qualifications that fit in into the U.S. employment system.

– Immigrant Worker

You may qualify for a green card as an immigrant worker if you meet the requirements under one of the available immigrant visas under this category. In all, there are 4 preferences, namely

1. EB-1 green card
2. EB-2 green card
3. EB-3 green card
4. EB-4 green card
5. EB-5 green card

Each of the categories has its own long list of eligibility criteria. The major factors for qualifying under these categories are your educational background, job experience, or an exceptional talent or ability in your chosen career. If you qualify for most of the immigrant worker green card categories, you will need a job offer from a U.S. employer. The employer will also act as the petitioner to sponsor your petition. In some cases, like EB-1A and EB-2 NIW (National Interest Waiver), you may get your green card without a job offer and also self-sponsor your petition.

– Physician National Interest Waiver

You may get a green card under this category if you are a foreign physician who is ready to work full-time in clinical practice in a medically underserved area in the United States for a set period of time. You must possess all the required licenses to practice in the specialty in the U.S., including the requirements for the state you intend to practice.

– Green Card through Investment

You may get a green card through the Immigrant Investor category, otherwise known as EB-5 green card if you are able and ready to invest at least $900,000 or $1.8 million in the United States. The type and location of your investment will determine the exact minimum investment amount. The EB-5 is also a self-petitioned green card if you meet all the requirements.

Green Card through Other Categories

While the family-based and employment-based categories are the most common routes to a green card, there are also many other categories for certain individuals. They include:

1. Green card as a special immigrant
2. Green card through refugee or asylee status
3. Green card for victims of abuse
4. Green card through the diversity lottery