Month: November 2023

US Visa Application

Dual Intent Visa Demystified: Bridging Immigration Paths

US Immigration Advisor

What is a Dual Intent Visa: Unlocking the Path to US Immigration

The concept of Dual Intent Visa

In general, one must always demonstrate nonimmigrant intent to qualify for a
nonimmigrant visa. Anyone applying for a nonimmigrant visa is always presumed
to be intending to immigrate. In this regard, you have to show that you have
ties to your home country and that you have no plans of permanently
immigrating to the U.S. when you apply for a nonimmigrant visa.
However, based on the doctrine of “dual intent” in immigration law,
nonimmigrant visa holder may be allowed to obtain or continue in a
particular nonimmigrant status even though steps may have been taken towards
obtaining a green card. A green card is evidence of your U.S. permanent
residence.

Benefits

A dual intent visa comes with advantages for a foreign employee, investor,
fiancé of a U.S. citizen or dependents of specific nonimmigrant visas:

  • If you’re a foreign employee, you don’t have to
    leave the country during the green card application.
  • If you’re a foreign visitor with more ties to the U.S. than your
    home country, you can avoid any questions regarding immigrant intent upon
    your arrival.
  • You can continue the process of your adjustment of status even
    if you temporarily leave the U.S.

A dual intent visa allows you to lawfully stay in the U.S. while
retaining the right to apply for a green card
in the future. Most nonimmigrant visa classifications require that
you prove ties with your home country and that you don’t
have the intent to permanently stay in the U.S. This is
why taking steps towards a permanent residence can jeopardize your stay.
Unless you hold a dual intent visa, you may be subject to a review for
immigrant intent for each visit to the U.S.

Types of Dual Intent Visa

As we have said, a dual intent visa allows foreign nationals to
enter the U.S. as a nonimmigrant, and at the same time gives
the option to apply for permanent residence
in the future. Below are examples of U.S. nonimmigrant visas
that allow dual intent for the visa holder.

H-1B Visa

The H-1B Visa is a temporary non-immigrant visa that allows a foreign
national to work in a speciality occupation. A specialty occupation can
include jobs in the sciences, engineering, technology, math, and
medicine. Take note that an employer must go through a labor certification
process before hiring a foreigner for a specific job occupation. Due
to the huge demand for this visa, U.S. employers must register for a
lottery unless they are considered exempt. This visa has an initial
3-year term that can be extended for a maximum of 6 years.

H-1B visa holders are eligible to bring their spouse and children below
21 to the U.S. They are also eligible to adjust their
status or apply for an immigrant visa based on an approved petition for
permanent residency for the H-1B visa holder.

Cost

The overall costs for the H-1B Visa depend
on the type of H-1B case and the choice of processing
with the USCIS. All cases of H-1B, including extensions
of the visa, require the USD 460 USCIS fee as well
as the OIA fee.

Application

Due to demand, there is a limited number of visas that can be issued each
year. For 2023, the visa cap is 65, 000. If you have a master’s
degree from a U.S. institution, you are eligible for the 20, 000
extra visas available for master’s degree holders or higher.
Meanwhile, the visa cap doesn’t apply to employers who are
institutions of higher education, nonprofit organizations connected to higher
education, or government research organizations.

Processing time

The processing time for an H-1B Visa can be as short as 4 months and as
long as 8 months unless you are not selected for the visa lottery.
For an additional USD 2, 500, your application can be processed within 15
working days by the USCIS through premium processing.

Requirements

The following are the requirements to qualify for an H-1B Visa:

  • You possess an advanced educational degree, such as a bachelor’s degree or
    equivalent, master’s degree, or doctoral degree.
  • You have a degree common to the industry;
  • Your employer generally requires a degree or equivalent
    for the position; and
  • The nature of your specific duties is so specialized and complex
    that the knowledge required to perform these duties is
    associated with the attainment of an advanced educational
    degree.

The requirements are different for a specialty occupation.

L-1 Visa

L1 Visas are non-immigrant visas that allow a manager, executive or a
specialized knowledge employee of a foreign company to be transferred to a
parent, subsidiary, affiliate or branch in the U.S. to perform
managerial, executive or specialized knowledge functions.

L-1 visa holders may be accompanied by their spouse and children below 21
on L-2 visas. They are also eligible to adjust status or apply for an
immigrant visa at an Embassy or Consulate based on an approved
employment-based petition for the L-1 visa holder.

Cost

The L-1 Visa comes with different costs including the USD 460
visa filing fee, the USD 500 fraud prevention and detection fee,
and the USD 205 Form DS-160 filing fee. Additional costs may occur
for dependent visas, extensions, and if you opt for premium processing.

Application

The L1 Visa application starts with the employer filing a Form
I-129 on behalf of the employee with the USCIS. Upon
approval, the visa applicant then has to complete a Form DS-160
application and attend an interview in their home country’s U.S. Embassy
or Consulate.

Processing time

The processing time for an L1 Visa depends on the USCIS service
center where the petition is filed, the U.S. Consulate or
Embassy handling the employee’s application,
and the complexity of the case. However, in general, L1
Visas tend to be processed much faster than other visa
categories. Processing can be expedited by paying an additional fee of
$2,500.

Requirements

If you’re the transferring employee, you and your employer must
prove the following requirements to qualify:

  • The qualifying relationship between the U.S. company
    and the parent company either as a subsidiary, branch, or
    affiliate;
  • The proof that you have worked full-time for the foreign
    company continuously for at least 1 year within the last 3 years
    before filing the petition; and
  • The proof that you have worked as an executive, MANAGER OR
    SPECIALIZED KNOWLEDGE employee for a foreign company and will be
    assuming the same in the U.S.

There are visa categories that are considered nonimmigrant, but inherently
recognize the intention of the visa holder to
permanently immigrate to the U.S.</strong >

K-1 Visa

A K-1 Visa is also a dual intent visa used by a foreign
fiancé to enters the U.S. and marry a U.S.
citizen. K-1 Visa applicants enter the country as nonimmigrants but
it is clear that they have the intent to marry a U.S. citizen
and generally, immigrate to the U.S. The holder of this
visa must be married within 90 days from their arrival
in the U.S. They are also not allowed to work legally
in the U.S., so they need to apply for a work permit or
adjustment of status after their marriage to work legally.

Cost

The costs for a K-1 Visa include USD 535 for Form I-129F, USD 205 for
Form DS-160, biometrics, and the medical examination.
Generally, the medical examination can go up to USD 200 but may vary
depending on the provider.

Application

The application for a K-1 Visa starts with the U.S. citizen
fiancé filing the petition Form I-129F with the USCIS.
Upon approval, the USCIS will then forward this
to the National Visa Center and you will receive a notice
from the U.S. Embassy or Consulate in their country
regarding the required documents you need to submit
and the location of the visa interview.

Processing time

The processing time for a K-1 Visa averages 6 months.
After the petition is approved, it can take 4 to 6 weeks
for the USCIS to forward the case
to the National Visa Center.

Requirements

Meanwhile, the requirements for a K-1 Visa are as follows:

  • Your sponsoring fiancé must be a U.S. citizen and not a lawful permanent
    resident;
  • Both you and your partner must be unmarried and must prove your
    relationship is valid;
  • You must prove you met in person at least once within 2 years
    before the visa application, subject to exceptions;
  • Both of you must each submit a signed document declaring you intend to get
    married within 90 days after you arrive in the U.S; and
  • The U.S. citizen fiancé must meet the income requirements for a
    K-1 Visa.

K-2 Visa

Dual intent visas like K-2 Visa, on the other hand, allow unmarried
children under the age of 21 years of K-1 Visa holders to
enter the U.S. It is approved at the same time as that
of their parent’s K-1 Visa, and should be submitted not later than a year
after their parent’s K-1 Visa was issued.

Cost and Processing Time

The processing time for a K-2 Visa is the same as a K-1 Visa
as they may be filed simultaneously. However, the cost may
differ for the K-2 Visa as some expenses are computed for each K-2
Visa applicant.

Application

The U.S. citizen sponsor will only need to submit one Form I-129F for
both the K-1 and K-2 Visa holders.

Requirements

To qualify for the visa, the child of the K-1
Visa holder must be under the age of 21 and unmarried. Further, both
fiancés must meet the criteria for eligibility for a K-1 Visa.

K-3 Visa

Dual intent visas like K-3 Visas are used by foreign spouses of U.S. citizens
to enter the country while waiting for their pending Form I-130
(Petition for Alien Relative) filed by their U.S. citizen spouse
listing them as a beneficiary. They’re allowed to work
in the U.S. without securing an Employment Authorization Document
(EAD).

Cost

The costs for a K-3 Visa include the Form I-130 filing
fee, the Form DS-160 processing fee, the medical
examination and vaccination fees, and other administrative costs that may
arise during the application.

Application

The U.S. citizen spouse must file a Form I-130 and then Form I-129F
for you with the USCIS. Upon approval, you will then receive a
notice from the U.S. Embassy or Consulate in your home country along
with instructions for the interview and documents needed.

Processing time

The processing time for a K-3 Visa can take up to 19 months on average.
Due to this, there are a lot of people who think that applying
for the visa classification is not worth it.

Requirements

To be eligible for a K-3 Visa, the applicant must
meet the following requirements:

  • You must be legally married to a U.S. citizen spouse;
  • Your U.S. citizen spouse must have filed a Form I-130 for you to
    enter the country; and
  • You are residing outside the U.S.

K-4 Visa

Meanwhile, the K-4 visa enables unmarried children
under the age of 21 years of a K-3 Visa holder to
enter the U.S. K-4 Visa holders are eligible to apply for work
in the U.S., and their visa automatically expires as soon
as they turn 21 years old.

Cost and Processing Time

The processing time for a K-4 visa is the same
as the K-3 Visa as they may be filed simultaneously.
However, the costs for a K-4 Visa may differ as some
of the expenses need to be paid for each K-4 visa applicant.

Application

The U.S. citizen fiancé only needs to submit a Form I-130 and Form I-129F
petition for their spouse and the child.

Requirements

The child of the K-3 Visa holder must be less than 21 years old
and must be unmarried. Moreover, this visa only applies
to the children of the married couple. If you’re yet to be
married, the proper visa is the K-2 Visa.

Davies & Associates can give you advice on which visa category or classification is the best for your specific needs and circumstances. If you’re curious, you can also check all the nonimmigrant visa classifications here.

Dual Intent Visa vs. Single Intent Visa

When you enter the U.S. on a temporary visa or during your visa
interview, you would need to state or prove your nonimmigrant intent. It means
that you must prove that you intend to leave the country once your
visa expires. Dual intent visas allow you to enter the U.S. to stay
or work temporarily while seeking to become lawful permanent residents.

Meanwhile, single intent visa holders are required to show that they have
no intention to abandon their residence abroad, and their intent to
only stay or work in the U.S. for the duration
of their visa. If you’re a single intent visa holder and you have
intentions to apply for a green card during your time
in the U.S., then this can indicate that you misrepresented
your intention.

Green Card Application

If you want to change from a non-immigrant status to that of a permanent
resident, you may able to do so through an “adjustment of status”
application with the United States Citizenship and Immigration
Services (USCIS).

A dual intent visa holder, generally, may file a Form I-485 without worrying
about their intent upon entry to the U.S. However, visitors who
are required to show their nonimmigrant intent upon entry must be careful
of their situation, even if holding a dual intent visa.

If you’re holding a single intent visa, filing a Form I-485 without a dual
intent visa brings into question if you have a preconceived intent
at the time your nonimmigrant visa is granted. You can’t have a
preconceived intent to enter the U.S. for purposes different from
what’s different under your nonimmigrant visa. As long as you
entered the U.S. without a preconceived intent to stay permanently,
it is possible you changed your mind at a later date or during your trip. For
example, a student may fall in love and marry a U.S. citizen
for the duration of their visa.

US Visa Application

L-1 Visa Success: Documents Checklist for Approval

US Immigration Advisor

About the L1 Visa 

The visa type L1 is a non-immigrant visa that allows an employer to transfer an employee holding a managerial or executive position or those employed in a specialized knowledge position to a qualifying organization in the U.S. Like other visa classifications, the process of L-1 Visa involves presenting  supporting documents and a visa interview. 

There are two different types of an L1 Visa: 1) L-1A and 2) L-1B. The L1A is for employees who will work in a managerial or executive capacity at the qualifying organization in the US, while the L1B is granted to those who will be employed in a specialized knowledge position in the US. 

For both cases, you would need to have worked continuously (in a specialized knowledge or managerial or executive capacity) for at least one year within the 3 years before your application and should be seeking to assume a managerial, executive or specialized knowledge position in the US. 

Your employer would need to file a petition on your behalf with the United States Citizenship and Immigration Services (USCIS) through Form I-129 together with an L supplement. 

To help increase the chances of getting an approval, we have compiled a checklist of the supporting documents required from the foreign employer, the employee, and the U.S. company. 

In addition, the petitioner must establish that the beneficiary’s duties in the U.S meet the criteria for either specialized knowledge or managerial or executive capacity and the beneficiary engaged in either specialized knowledge or managerial or executive duties for at least 1 year 

Foreign Company Required Documents 

The following documents are required from the foreign company: 

  • Articles of Incorporation; 
  • Business License; 
  • Stock certificates and audited accounts; 
  • Business financial statements, and tax filings for the past 3 years; 
  • Evidence proving business transactions such as contracts, bills of lading, and letters of credit among others; 
  • Business promotional materials such as company brochures or product overviews; 
  • An organisational chart that includes the total number of employees and proof that the employee is holding a specialized knowledge, executive, or managerial position; 
  • Any contract or document detailing the affiliate relationship or corporate filings describing the corporate relationship; 
  • A statement from an authorised representative detailing the ownership and control of the company; and 

U.S. Company Documents 

As for the U.S. Company, here are the following documents required: 

  • Articles of Incorporation and corporate by-laws; 
  • Business license; 
  • Stock certificates and audited accounts; 
  • Business financial statements and promotional materials; 
  • A description of the business and a detailed business plan; 
  • An organisational chart that includes the total number of employees and the transferee’s position either as a specialized knowledge professional or an executive or managerial capacity; 
  • Business location lease; 
  • Bank statements or proof of initial investment 
  • Corporate tax returns, if any; 
  • Employer’s Quarterly Report Form 941, if any; and 

If you’re an employee coming to the country to set up a new U.S. office, you would need to submit evidence of the establishment of the new office such as an office space lease, contracts, and copies of applicable business permits. 

Blanket L Petition Requirements 

Foreign employers who regularly send employees abroad as transfers may opt to do a blanket petition which allows them to apply for multiple employees for the L1 status under a single approved petition, rather than file individual petitions with the USCIS. To be qualified, the employer must meet the following requirements: 

  • The petitioner and each of the entities included are engaged in commercial trade or services; 
  • The petitioner has an office in the United States that has been doing business for 1 year or more; 
  • The petitioner has three or more domestic and foreign branches, subsidiaries, or affiliates; and 
  • The petitioner and the other qualifying organizations have obtained approval of petitions for at least 10 “L” managers, executives, or specialized knowledge workers during the previous 12 months; or have U.S. subsidiaries or affiliates with combined annual sales of at least $25 million; or have a U.S. work force of at least 1,000 employees. 
  • If your employer doesn’t have the qualifications above, then they are not eligible for blanket petitions and would need to file individual petitions for each transferring employee. The employer must also prove the following requirements of L1 Visa through supporting documents: 
  • The qualifying relationship between the U.S. company and the parent company either as a subsidiary, branch, or affiliate among others; 
  • The proof that you have worked full-time for the foreign company continuously for at least 1 year within the last 3 years before filing the petition; and 
  • The proof that you have worked as a specialized knowledge, manager or executive employee for a foreign company and will be assuming the same in the U.S. 

Canadians with an approved blanket petition seeking an L-1 classification may present the completed Form I-129S and other supporting documents to a U.S. Customs and Border Protection (CBP) Officer at certain ports of entry at the U.S.-Canada land border or a U.S. pre-clearance or pre-flight inspection station in Canada. 

Transferring Employee Documents 

Once the USCIS approves the petition, your employer will be given an approval notice by way of  Form I-797. You would then need to submit your Form DS-160 (Online Nonimmigrant Visa Application). After that, you would need to schedule an interview with your home country’s U.S. Embassy or Consulate where you would need to submit the following documents: 

  • The visa interview appointment letter; 
  • The confirmation page of your Form DS-160; 
  • A copy of Form DS-160 and L supplement; 
  • The Form DS-160 application fee receipt; 
  • The receipt number of the Form I-129 petition along with a physical copy; 
  • A passport with a validity 6 months beyond the expiration of the L1 nonimmigrant status; 
  • Your resume or curriculum vitae; 
  • Two recent passport-size coloured photographs; 
  • A copy of the Form I-129 petition submitted to the USCIS; 
  • The Form I-797 petition approval from the USCIS; 
  • Records or certificates of educational training or degrees; 
  • Payment statements and income tax records; 
  • Job duties and description; 
  • An organisational chart that shows your position; 
  • Reference letters from your supervisors, colleagues, or from your previous employers indicating your employment history, experience and work skills; 
  • An employment authorization or verification letter from your employer; 
  • The board resolution or appointment documents that verify your transfer; 
  • Any other documents that prove your capability to conduct business in a managerial or executive capacity or any proof that you possess a specialized knowledge position. 

Please take note that sometimes, they will require a reciprocity fee depending on your nationality. The visa application necessarily includes different costs of L1 Visa and filing the correct fees is crucial, so it’s important to take note of it during your application. 

Risks of an L1 Visa Document Checklist 

Having an approved L-1 petition nor submitting all the supporting documents above, doesn’t guarantee visa issuance. The consular officer will determine if you’re qualified based on the documents on all documents and information submitted as well as your answers during the interview 

Please take note that the checklists above are not exhaustive Davies & Associates has a team of experienced L1 visa attorneys who can give you advice and help on which relevant documents you will need to submit depending on your circumstances. 

If the information you have provided is incomplete, your visa application may be needlessly delayed if not denied. Consular officers may ask for further information and documents before making the final decision on your application. 

Moreover, even though you have submitted complete supporting documents, you will still need to be interviewed by the consular officer. The interview will focus on more detailed questions relating to your employer, the U.S. company and your capacity or job duties. 

For those applying for an L-1B Visa, the questions will focus on how their specialized knowledge is crucial to the overall functions of the business. 

You can increase your chances of getting your visa approved by ensuring that all the relevant documents are correct and by answering interview questions honestly, openly and as articulately as possible. 

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

Biometric USCIS

Biden’s New Executive Order Could Make Immigration Faster 

US Immigration Advisor

President Biden issued an Executive Order on October 30 in a bid to promote innovation and attract artificial intelligence (AI) talent to the shores of America. The “Executive Order on the Safe, Secure and Trustworthy Development and Use of Artificial Intelligence” provides new guidelines to protect the privacy of citizens and safeguard US national security.   

The EO also seeks to attract foreign talent from around the globe in the AI space to balance the needs of technology companies in this dynamic AI age. More specifically, the EO seeks to streamline processing times of visa petitions and applications, including by ensuring timely availability of visa appointments for the purposes of work, study, or research in AI or other critical and emerging technologies. The EO directs the relevant government agencies to consider implementing a domestic visa renewal program so that AI skilled employees can continue working without interruption. Furthermore, the EO calls for the establishment of a program to identify and attract top AI talent and for the review and initiation of policy changes to immigration pathways (e.g., O-1A, EB-1, EB-2) for experts in AI and critical and emerging technologies. 

These immigration- specific directives in the EO highlight the Biden administration’s objective to attract and retain foreign talent in the AI and critical emerging technology space in order for America to stay at the forefront.  The measures set forth in the EO, if put into action could make certain areas of immigration more efficient.  Visas such as the H1-B, O-1, F1, and Green Cards could be obtained faster by professionals in the AI and critical and emerging technology fields.  There could also be a possibility of modification of the rules of the EB-1 (B) and EB-2 categories to prioritize AI workers. 

D&A will continue to monitor policies and proposals on immigration and provide updates as and when 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.