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New Consular Fees for Non-Immigrant Visas

The US Department of State published a Final Rule on March 28 regarding an increase in fees for certain categories of non-immigrant visa applications. The fee increase will be effective May 30, 2023.

The consular fee for employment-based categories such as the H-1B, L-1, and O-1 will increase from $190 to $205, and for the E-1 trader and E-2 treaty investor visa categories, the fee will increase from $205 to $315.

Other consular fees are not affected by this rule, including the waiver of the two-year residency required fee for certain exchange visitors. Current fees will continue to apply until May 30.

Fee information can be found on the Bureau of Consular Affairs website, travel.state.gov, and on the websites of U.S. embassies and consulates


E-2 Visa approved for a Singaporean national during COVID-19

New Policy Guidance on Employer’s Ability to Pay in I-140 Filings

On March 15, the US Citizenship and Immigration Services issued a policy guidance addressing the analysis of an employer’s ability to pay the proffered wage for certain employment-based immigrant petitions. This guidance, contained in Volume 6 of the Policy Manual, is effective immediately and applies to I-140 petitions filed on or after March 15, 2023. The updated guidance discusses in more detail various types of evidence and explains how USCIS reviews all evidence relevant to the employer’s financial strength and the significance of its business activities.

US employers seeking to sponsor employees under EB-1, EB-2 and EB-3 employment-based immigrant classifications that require a job offer must demonstrate their continuing ability to pay the proffered wage to the employee as of the priority date of the immigrant petition. The employer’s/petitioner’s ability to pay the proffered wage stated on Form I-140 is one of the essential elements that USCIS considers in evaluating whether the job offer is realistic.

Regulations require an employer to submit annual reports, federal tax returns, or audited financial statements for each available year from the priority date. An employer can alternatively submit a financial officer statement attesting to its ability to pay the proffered wage if it has 100 or more workers. Additional evidence such as profit and loss statements, bank account records, or personnel records may also be submitted. Many employers satisfy the ability to pay requirement by also submitting payroll records demonstrating that, during the relevant time period, they have been paying the employee at least the proffered wage indicated on the Immigrant Petition for Alien Workers (Form I-140).

Here’s what the updated USCIS guidance provides:

  • USCIS reviews all evidence relevant to the employer’s financial strength and the significance of its business activities.
  • Employer must submit one of the three forms of initial required evidence listed in the regulation but may also include other types of relevant evidence.
  • Discussion of each form of initial required evidence listed in the regulation and several other forms of additional evidence employers might submit to establish their ability to pay the proffered wage.
  • Explains how USCIS analyzes evidence and issues relevant to an employer’s ability to pay the proffered wage, such as the petitioner’s current employment of the beneficiary, prorating the proffered wage for the priority date year, multiple beneficiaries, successors-in-interest, and non-profit organizations.
  • Addition of information about types of business structures to help officers better understand the types of petitioning employers and the evidence they may submit to establish their ability to pay the proffered wage

Reference Links

Chapter 4 – Ability to Pay | USCIS

20230315-AbilityToPay.pdf (uscis.gov)

EB1c Visa | EB1c US Lawyer | Davies & Associates (usimmigrationadvisor.com)

Merit Based EB-1A Visa | National Interest Waiver (usimmigrationadvisor.com)

EB3 Visa | Permanent Residency for Skilled Workers | Davies & Associates LLC (usimmigrationadvisor.com)


This article has been written by Zeenat Phophalia, Esq. Of Counsel, Davies & Associates, India Office.

Zeenat Phophalia is qualified to practice law in New York, United Kingdom and India. She practices in the area of U.S. immigration law with a focus on business immigration, and has represented corporate clients including large and medium sized companies and startups across sectors such as IT, consulting, consumer goods, manufacturing and telecommunications.

Looking for an US immigration lawyer? Request free consultation at Davies & Associates or find our closest location around the world.


EB-5 petitions visa

Immigration Implications Arising Out of Corporate Transactions

Whenever a corporate transaction involves a business whose employees include foreign nationals, an immigration due diligence is strongly recommended. Corporate transactions in the form of stock or asset acquisitions, mergers, consolidations, restructuring, etc. could trigger immigration implications. Most work visas for foreign nationals are employer specific, changes in an entity’s structure could jeopardize an employee’s work authorization and inadvertently violate immigration regulations. It’s important to ensure that employees are not rendered out of status and understand requirements and nuances of various work visas in order to analyze how a corporate transaction could affect foreign workers, and potentially the interests of a company.

In the United States, there are two separate visa categories for a foreign worker: (i) non-immigrant; and (ii) immigrant. Non-immigrant workers usually fall under the H-1B, 1, TN and E-2, E-3 visa categories, while immigrant workers are those who have obtained lawful permanent status or are in the process of doing so.

This article covers some of the implications of mergers and acquisitions on H-1B, L-1 and green card applications and I-9 compliance.

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v Impact on H-1B Filings:

Arguably, the most popular and commonly used temporary work visa is the H-1B. For a company with H-1B employees, questions to consider are whether the merger and acquisition will result in a new employer and to what extent will the new entity assume the interests and liabilities of the target company. Where the new employer is a “successor-in-interest” that assumes the interests and obligations of the prior employer which includes the assertions the prior employer made on their labor condition application, filing a new H-1B petition is not necessary. This may therefore allow H-1B workers to continue employment without any interruption. That said, any material changes accompanying corporate changes will require action steps, for example, relocation of the employee and/or a substantial change in the employee’s duties will require filing a revised labor condition application (LCA) and an amended H-1B petition.

An issue likely to come up and affecting a small percentage of companies is the loss of eligibility of H-1B cap exempt status. Certain employers such as governmental research organizations, non- profits, certain colleges and universities are exempt from the H-1B cap quota. Depending on the corporate change, the cap-exempt status could be lost by the new employer, for example when a non-profit entity is replaced by a for-profit entity as a sponsoring employer. This loss of status could render an employee unauthorized to work going forward whose H-1B was granted on the basis of the cap-exempt status. Issues like these should be taken into account and addressed prior to closing.

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v Impact on L-1 Visas:

For an L-1 visa, the law requires the existence of a qualifying relationship between the US entity and the foreign entity from which the employee will be transferring or has been transferred, and the relationship must be that of either a “parent, branch, affiliate or subsidiary.” A merger or acquisition resulting in change in the ownership structure of either entity could terminate the qualifying relationship as required under the regulations, thereby invalidating the L-1 status of an employee. It’s important to perform a thorough analysis of the transaction to determine whether the qualifying relationship has been terminated or retained. For example, if a US subsidiary of a Japanese parent is acquired by a US company, in this situation, the qualifying relationship will have terminated and the L-1 Japanese executive working in the US will have lost work authorization. In cases where it can be proved that the qualifying relationship remains intact, only an amended petition is required.

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v Impact on Green Card Applications:

A lawful permanent residency (green card) application can be broken down into 3 steps in modt cases – labor certification, I-140 petition and adjustment of status application. Companies that fall within the successor-in-interest requirements generally are allowed to continue the green card application filed by the predecessor company.

For a labor certification that is filed by the former employer, as long as the new employer assumes all rights, duties, liabilities and obligations of the former employer, the labor certification will remain valid, provided the job position and/or location of the employee remain unchanged. However, if there are any changes in job position or location, or if the new employer does not qualify as a successor-in-interest, the pending labor certification will be invalidated and the new employer will have to file a new labor certification. This could affect the lawful status of a foreign worker who has relied on a pending labor certification in order to extend his or her H-1B visa. An employee could lose his priority date thereby significantly delaying the already lengthy green card process.

During the I-140 stage, if the I-140 is pending, but the adjustment of status application is not filed at the time of the corporate change, the new employer will have to file an amended I-140 demonstrating the successor-in-interest relationship. This would also be the case if the I-140 has been approved but no adjustment of status application has been filed yet.

On the other hand, when a corporate change comes into effect after the I-485 application is filed, an amended I-140 may not be required. This is because the American Competitiveness in the 21st Century Act (AC21) allows a foreign national to change employers if the I-140 has been approved and the adjustment of status application has been pending for 180 days or more, as long as the new position is in the “same or similar occupational classification.” The new employment must be in

the same or similar job category as the one initially sponsored and filing of an amended I-140 is not needed and neither is the demonstration of successor-in-interest relationship

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Key Concerns: I-9 Compliance

One of the most important (but often overlooked) factors that an employer should take into account at the time of a restructuring is the I-9 compliance. All employers in the U.S. are prohibited from hiring unauthorized employees. One of the fundamental reasons in creating the Form I-9 form was to get employees to establish that they are authorized to work in the U.S. (based on certain prescribed documentation) and to obligate employers to verify and confirm their work authorization. Under the I-9 compliance, each employer is required to verify the identity and employment authorization of all employees.

To ensure that employers comply with the above, the law imposes some harsh penalties. These penalties are not only restricted to employing unauthorized workers but also extend to the failure to properly execute and retain records of employees, whether U.S. citizens or not. These penalties can range from $110 – $1,100 per record for not maintaining proper documentation with additional sanctions that may include bars to filing for any immigration benefit.

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Immigration Due Diligence and Best Practices

Any immigration related issues should be addressed and incorporated into the representations and warranties of the key transaction documents. It is a good practice to identify all employees on non-immigrant visas or in the process of applying for green cards and understand future action steps if any to ensure continuation of their lawful status.

Corporates should adopt a best practice checklist for a corporate immigration program – immigration policies should be in writing and ensure that extension of visas and transfer of employees across borders is done in a timely manner. Tone from the top matters; corporate policy should state clearly that the company will remain compliant with all immigration laws, such as timely completion of employment verification and provision of appropriate employment benefits

Reference Links

L1 Visa Attorney | L1 Visa USA | L1 Visa (usimmigrationadvisor.com)

EB1c Visa | EB1c US Lawyer | Davies & Associates (usimmigrationadvisor.com)

EB3 Visa | Permanent Residency for Skilled Workers | Davies & Associates LLC (usimmigrationadvisor.com)


This article has been written by Zeenat Phophalia, Esq. Of Counsel, Davies & Associates, India Office.

Zeenat Phophalia is qualified to practice law in New York, United Kingdom and India. She practices in the area of U.S. immigration law with a focus on business immigration, and has represented corporate clients including large and medium sized companies and startups across sectors such as IT, consulting, consumer goods, manufacturing and telecommunications.

Looking for an US immigration lawyer? Request free consultation at Davies & Associates or find our closest location around the world.


L1 Visa India

How to get L1 Visa for usa from india

To obtain an L1 visa to work in the United States, your employer outside the US must first have a qualifying relationship with a U.S.-based employer based on ownership and control. The qualifying relationship can be parent-subsidiary, affiliate or branch relationship. You must also prove qualifying employment, which means that you have to an executive, manager, or specialized knowledge employee of a multinational company for at least one full year in the past three years. Your employer must also file a petition on your behalf with the United States Citizenship and Immigration Services (USCIS).

Here are the general steps to apply for an L1 visa from India:

1. Check your eligibility: Ensure that you meet the eligibility criteria for the L1 visa category. You must have worked for a qualifying multinational company for at least one continuous year within the past three years.

2. Obtain a job offer: You must have a job offer from a U.S.-based employer with a qualifying relationship with your current employer.

3. File a petition: Your employer must file Form I-129, Petition for Nonimmigrant Worker, with USCIS on your behalf. This includes providing evidence of the qualifying relationship between the two companies, as well as your qualifications and job duties.

4. Attend an interview: Once the petition is approved, you will need to attend an interview at the U.S. Embassy or Consulate in India. You will need to bring all relevant documentation, such as your passport, visa application, and supporting evidence.

5. Wait for a decision: After the interview, you will need to wait for a decision on your L1 visa application. If approved, you will receive your visa and be able to travel to the United States.

It’s important to note that the L1 visa application process can be complex and may require the assistance of an experienced immigration attorney.


L-1 Visa for Spouses

Can a spouse work on L1 Visa

Yes, the spouse of an L1 visa holder can work in the United States. An Employment Authorization Document used to be required, but USCIS has updated the guidance in the USCIS Policy Manual to address the documentation that certain E and L nonimmigrant spouses may use as evidence of employment authorization based on their nonimmigrant status.

On November 12, 2021, USCIS clarified that L spouses are now considered employment authorized based on their valid L nonimmigrant status. Since the November 2021 announcement, the Department of Homeland Security added new Class of Admission (COA) codes to distinguish between L spouses and children. As of January 30, 2022, USCIS and CBP began issuing Forms I-94 with L-2S code for L spouse. An unexpired Form I-94 reflecting one of these new codes is acceptable as evidence of employment authorization for spouses.

It’s important to note that the L1 visa holder’s spouse can only work in the United States for the duration of the L1 visa holder’s authorized stay in the United States.

To obtain an L1 visa to work in the United States, your employer outside the US must first have a qualifying relationship with a U.S.-based employer. This means that you must either be an executive, manager, or specialized knowledge employee of a multinational company that has a subsidiary, branch, affiliate, or parent company in the United States. Your employer must also file a petition on your behalf with the United States Citizenship and Immigration Services (USCIS).


Us Immigration Attorney

Is EB5 going into retrogression?

The EB-5 visa category is subject to a quota system, which means that only a limited number of EB-5 visas are available each fiscal year. When the number of visa applications exceeds the available visa numbers, the visa category is said to be in retrogression, which means that the processing of certain applications will be delayed until more visas become available in the next fiscal year.

As of March 2023, the EB-5 visa category is not currently in retrogression. However, it is important to note that retrogression can occur at any time due to high demand or changes in government policies. In recent years, the EB-5 visa category has experienced periods of retrogression, particularly for applicants from China, due to high demand for visas.

It is recommended to consult with an immigration attorney or a reputable EB-5 regional center to stay informed about any potential changes or updates to the EB-5 visa category.

Check our EB5 visa program for more information:

https://www.usimmigrationadvisor.com/overview-of-eb-5-investor-visas.html


Eb-5 Visa Investment Level Increase

Deciding between an E-2 visa and an L-1 visa

Deciding between an E-2 visa and an L-1 visa depends on your individual circumstances and business goals.

The E-2 visa is a non-immigrant visa that allows foreign investors to live and work in the United States based on their investment in a U.S. business. To qualify, you must make a substantial investment in a U.S. business, and you must own at least 50% of the business. The E-2 visa is typically valid for up to five years and can be renewed indefinitely as long as the investor maintains their investment in the U.S. business.

On the other hand, the L-1 visa is a non-immigrant visa that allows multinational companies to transfer executives, managers, or specialized knowledge employees from a foreign branch to a U.S. branch. To qualify, the foreign employee must have worked for the foreign company for at least one year in the three years preceding the transfer and must be coming to the U.S. to work in a managerial, executive, or specialized knowledge capacity. The L-1 visa is typically valid for up to three years and can be extended up to a maximum of seven years for executives and managers, and five years for specialized knowledge employees.

If you are an investor who wants to start a new business in the United States, the E-2 visa may be the better option for you. If you are an executive, manager, or specialized knowledge employee of a multinational company with a U.S. branch, the L-1 visa may be the better option for you.

It is important to note that both visas have their own requirements and limitations, and it is recommended to consult with an immigration attorney to determine which visa is best suited for your individual circumstances.


US Investor Visa

What is an E-2 visa?

The E-2 visa is a non-immigrant visa that allows foreign investors to live and work in the United States based on their investment in a U.S. business. Here are some of the most common E2 visa questions:

  1. What is an E-2 visa?
  2. Who is eligible for an E-2 visa?
  3. What are the requirements for an E-2 visa?
  4. How much money do I need to invest to qualify for an E-2 visa?
  5. How long can I stay in the U.S. on an E-2 visa?
  6. Can my spouse and children come with me on an E-2 visa?
  7. Can I work for a different company while on an E-2 visa?
  8. Can I apply for a green card while on an E-2 visa?
  9. How do I renew my E-2 visa?
  10. Can I start a new business while on an E-2 visa?

It is important to note that E-2 visa requirements and processes can vary depending on the individual circumstances of the applicant, so it is recommended to consult with an immigration attorney for personalized guidance.

Please see our questions and answer pages on the E2 Visa:

E2 Treaty Investor Visa


H-1B Cap Registration and Understanding Key RFE Issues

H-1B Cap Registration and Understanding Key RFE Issues

For the upcoming H-1B Cap FY 2024 lottery, the electronic registration period opened on March 1 at noon eastern and will close on March 17 the same time. Employers can submit registrations for each prospective H-1B applicant via a myUSCIS online account at a $10 fee for per registration. If selected in the lottery, USCIS will notify the employers and the H-1B cap petitions can be filed within the 90-day period beginning April 1.

In the recent past years, the H-1B RFE (Request For Evidence) rate dropped compared to the prior Trump administration years. That said, an RFE is quite an unwelcome, and often times, onerous step as it adds uncertainty to, and prolongs, the adjudication process. But more often than not, an RFE can be successfully overcome with proper documentation and compelling arguments. This article briefly addresses key RFE issues raised by the USCIS in H-1B cases and ways in which they can be preempted.

Specialty Occupation

US Reopens for Traveler from November

The most common RFE issue relates to whether the proffered US position qualifies as a ‘specialty occupation.’ The H-1B visa is reserved for foreign workers who render services in a specialty occupation; quite simply put – a position that requires at the very least, a bachelor’s degree (or its equivalent) within a specific specialty field as a minimum qualification for entry into that occupation.

USCIS looks for a nexus between the applicant’s degree and the specific job duties associated with the position. Due to the increasing narrow interpretation of ‘specialty occupation’ by USCIS, cases in which the position requires (or the applicant has) a more general degree are often result in RFEs or at times, denial. USCIS in the past has questioned the relevance of a bachelor’s degree in electronic engineering for an IT job, or an MBA degree could be viewed as too broad for a marketing and sales position. Some proffered positions are scrutinized more than others as USCIS relies on their main source – the Occupational Outlook Handbook (OOH) (published by the Department of Labor) – to determine which job positions require a bachelor’s degree.

In other words, it’s not enough to prove that the position would normally require a bachelor’s degree but it should be demonstrated that the position requires a bachelor’s degree that is in a specific or a narrow list of disciplines. There are some ways that can help strengthen the specialty occupation argument. For example, a Third Party Expert Opinion Letter written by an industry expert or a university professor that explains in detail how and why the proffered position involves duties the performance of which would require at least a bachelor’s degree in that particular field, would help. Providing proof of past hiring practices by the employer that show a consistent trend of hiring individuals requiring at least a bachelor’s degree in a specific field for a particular position also helps. Additionally, setting out a very detailed breakdown of daily job duties and describing how the performance of each duty/task relates to the degree coursework may often times contribute to giving a clear understanding to the officer of how the specific degree is related to the performance of the tasks.

Employer – Employee Relationship

The employer-employee relationship has become important in the H-1B third-party worksite context. In such cases, where the employee is posted at the end-client site, USCIS requires evidence to show that the foreign worker will be managed and controlled by the H-1B sponsoring employer and that the third – party client shall have no authority and/or control over the employment terms of such worker (hire, termination, salary, insurance, etc.) This can be usually demonstrated in an employment agreement that clearly spells out the nature of the employer’s control – instructing employee with daily tasks, appraisals and feedback, weekly/monthly reporting, use of company tools, equipment, resources,, etc., and additional employee benefits, etc.

Also wherever possible, employers should submit agreements or MSAs (with SOWs end-client letters, etc) that expressly mention the petitioning employer’s obligations toward the employee and their right to control the employee.

Industry experts predict that the demand for H-1B will remain high this cap season as well. For registrations that are not selected, there may be possible alternatives such as L-1, E-2 and our team at D&A is happy to discuss these with you. We will provide more updates on the cap season as information becomes available


This article has been written by Zeenat Phophalia, Esq. Of Counsel, Davies & Associates, India Office.

Zeenat Phophalia is qualified to practice law in New York, United Kingdom and India. She practices in the area of U.S. immigration law with a focus on business immigration, and has represented corporate clients including large and medium sized companies and startups across sectors such as IT, consulting, consumer goods, manufacturing and telecommunications.

Looking for an US immigration lawyer? Request free consultation at Davies & Associates or find our closest location around the world.