Immigration Law – Law Offices of Victor Wu

Intra-Company transferees L-1

The L-1 nonimmigrant classification enables a U.S. employer to transfer an executive or manager or someone with specialized knowledge from one of its affiliated foreign offices to one of its offices in the United States. This classification also enables a foreign company which does not yet have an affiliated U.S. office to send an executive or manager to the United States for the purpose of establishing a new office.

Basic Requirements for L-1 visa

The overseas company must be related to the U.S company in a specific manner;
The company must be one that is doing business in the United States and at least one other country during the whole period of the transfer;
The employee must have worked abroad for the overseas company for a continuous period of one year in the preceding three years;
The employee must be coming to the U.S. company to work in an executive, managerial, or specialized knowledge capacity.

Extra Requirements applicable to New Office

The U.S. company must have secured sufficient physical premises to house the new office;
The employee must have been employed as an executive or manager for one continuous year in the three years preceding the filing of the petition;
The U.S. office will support an executive or managerial position within one year of the approval of the petition;

Term of Stay

L-1A classification permits a total period of stay to seven years.
L-1B classification allows a total period of stay of five years.

Specialty Occupation H-1B

U.S. businesses can employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields through the H-1B program. However, the prospective H-1B workers are subject to a numerical cap each fiscal year on a first-come, first-served basis. The current annual cap on the H-1B category is 65,000. The first 20,000 petitions filed on behalf of beneficiaries with a U.S. master’s degree or higher are exempt from the cap.

Requirement of the offered position

The job must meet one of the following criteria to qualify as a specialty occupation:

Bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the position;
The degree requirement for the job is common to the industry or the job is so complex or unique that it can be performed only by an individual with a degree;
The employer normally requires a degree or its equivalent for the position;
The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.

Qualification of the foreign worker

The foreign worker must meet one of the following criteria to qualify to accept a job offer in a specialty occupation:

Have completed a U.S. bachelor’s or higher degree required by the specific specialty occupation from an accredited college or university;
Hold a foreign degree that is the equivalent to a U.S. bachelor’s or higher degree in the specialty occupation;
Hold an unrestricted State license, registration, or certification which authorizes him/her to fully practice the specialty occupation and be engaged in that specialty in the state of intended employment;
Have education, training, or progressively responsible experience in the specialty that is equivalent to the completion of such a degree, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.

Application Process

Step 1.

Employer must obtain a certification of a Labor Condition Application (LCA) from Department of Labor (DOL).

Step 2.

Employer files Form I-129, Petition for a Nonimmigrant Worker, supporting documents and petition fees to USCIS.

Step 3.

Prospective workers outside the United States apply for visa and/or admission.

Extraordinary Ability EB-1

The extraordinary ability worker visa is included in the first employment-based preference. Extraordinary ability workers mean aliens of “extraordinary ability” in the sciences, arts, education, business, or athletics. The ability must be demonstrated through sustained national or international acclaim, and the alien must have achievements recognized in the field through extensive documentation. In addition, the alien’s entry in to the United States must substantially benefit prospectively the United States.

Advantages of EB-1 Extraordinary Ability

Immigrant visas are immediately available to this category;
The labor certification requirement does not apply to this category, meaning total processing time for immigration cases in this preference is much shorter than is possible for the other employment-based preference.
A specific job offer is not required for an alien in this group, meaning the alien may file the petition on his or her own behalf.

Evidence of Extraordinary Ability

Option One: One time achievement

Evidence of receipt of a major, internationally recognized award, such as the Nobel Prize, Oscar, Olympic Medal.

Option Two: 3 of 10 criteria

Documentation of receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
Documentation of membership in associations in the field of endeavor, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;
Published material in professional or major trade publications or other major media, about the alien or relating to the alien’s work in the field of endeavor (Such evidence shall include the title, date, and author of the material, and any necessary translation);
Evidence of participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specialization;
Evidence of original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field;
Evidence of authorship of scholarly articles in the field, in professional or major trade publications or other major media;/
Evidence of the display of the alien’s work in the field at artistic exhibitions or showcases in more than one country;
Evidence of performance in a lead, starring, or critical role for organizations or establishments with distinguished reputations;
Evidence of having commanded a high salary or other significantly high remuneration for services in relation to others;
Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales.

Investor Immigration EB-5

Investor visas for permanent resident status are available for qualified individuals and their family members based on their investment in a new commercial enterprise or a struggling business which results in the creation of 10 full time jobs for US citizens or permanent residents.

EB5 Investor Visa Requirements

Investment of at least $1 million in a new commercial enterprise or struggling business in the U.S. and hiring 10 people within two years of starting the business; or
Investment of $500,000 in a new commercial enterprise or struggling business in a targeted employment area (TEA) in which the unemployment rate is higher than the national average. You must hire 10 people within two years of starting the business.

Investment Models

All EB-5 Investors have the option of investing in the regional center or direct investment model. Each investment model has its pros and cons:

Direct Investment Model: Each investment will not be contingent on gaining a big number of investors. The Investor can become operational through his/her investment alone and removal of conditional status is independent of other investors. Investor retains control of management and decision making for business. However, business enterprise is required to directly employ at least ten (10) full-time jobs for each Investor and prove with appropriate documentation.
Regional Center Model: It allows a passive investment structure, so investors are not required to take part in the operation and management of the project. When applying to remove condition, investors can use a calculation of indirect jobs created from these projects to count towards the ten (10) full-time jobs. However, a minimum number of investors are required to make the center operational. If the goal is not met, the investor will not be able to remove conditional status.

Application Process

Step 1.

The investor submits Form I-526 Petition for an Alien Entrepreneur and the supporting documents to USCIS.

Step 2.

Once the I-526 petition is approved, the investor either files a Form I-485 application to adjust status to lawful permanent resident (if he is already in the U.S. through a non-immigrant visa), or applies for an immigrant visa at a U.S. consulate or embassy in his home country (if he is currently outside of the United States). Either way, the investor will receive a two-year conditional green card.

Step 3.

Within three months of expiration of the two-year conditional green card, the investor must file Form I-829 Petition by an Entrepreneur to Remove Conditions and the supporting documents to USCIS. Once it is approved, he will be granted a 10-year unconditional green card.

Family-based Immigration

Family Based Immigration is one of the most common immigration categories. To promote family unity, immigration law allows U.S. citizens and U.S. permanent residents to petition for certain qualified relatives to come and live permanently in the United States. However, Congress has established a cap of 480,000 on family-sponsored immigration. Immediate relatives of U.S. citizens may be admitted in unlimited numbers. With regard to all other family-based groups, only a limited number of immigrant visas are available within the annual cap for each foreign state and within each preference category.

Family-based categories with unlimited number

Persons who qualify as immediate relatives of U.S. citizens are so highly preferred as candidates for immigration that no numerical limitation is placed on the number of immediate relatives of citizens who may be become permanent residents in any year. Immediate relatives of U.S. citizens include:

Spouses of U.S. citizens
Unmarried children under age of 21
Parent of U.S. citizens (if the U.S. citizen is over the age of 21)

Other family-based categories with limited number

The following groups are subject to a numerically-limited number of immigrant visas available to them each year. Congress has divided these groups into “preference” categories, ranking them in the order in which they are preferred for immigration. The higher the preference, the more quickly a visa will be allotted to the alien.

F1: Unmarried Sons and Daughters of U.S. Citizens who are 21 years of age
F2A: Spouses and Children (under age of 21) of Permanent Residents
F2B: Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents
F3: Married Sons and Daughters of U.S. Citizens
F4: Brothers and Sisters of Adult U.S. Citizens

Application Process

Generally, the procedure for obtaining permanent residence involves two steps. First, the U.S. citizen or permanent resident must file the Form I-130, Petition for Alien Relative, and the supporting documents with USCIS to have the alien classified as a person qualified to immigrate. Once the petition is approved and the immigrant visa category is current, the alien can then apply for permanent residence status. The application is often made at a U.S. consulate outside of the United States when the alien is currently outside U.S. But if the alien is already in the United States, the application can be made to the National Service Center through the “adjustment of status” process.

There is a special situation that the alien can obtain permanent residence status though a one-step process. For the immediate relatives of U.S. citizens who are currently inside United States, they can apply to adjust status to become a permanent resident at the same time their U.S. citizen petitioner files Form I-130, Petition for Alien Relative, because there is no numerical limitation for this category.

Intra-Company transferees L-1

Basic Requirements for L-1 visa

Extra Requirements applicable to New Office

Term of Stay

Specialty Occupation H-1B

Requirement of the offered position

Qualification of the foreign worker

Application Process

Step 1.

Step 2.

Step 3.

Extraordinary Ability EB-1

Advantages of EB-1 Extraordinary Ability

Evidence of Extraordinary Ability

Investor Immigration EB-5

EB5 Investor Visa Requirements

Investment Models

Application Process

Step 1.

Step 2.

Step 3.

Family-based Immigration

Family-based categories with unlimited number

Other family-based categories with limited number

Application Process

Practice Areas

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