Client Q & A on Eb-2 Visa

Options for Workers After Loss of Employment in the US

A non-immigrant worker in the US could working in L-1, E-1, E-2, E-3, H-1B, H-1B1, O-1, or TN status.  When such worker is laid off or they resign, they do no necessarily need to leave the United States within 60 days, which is often wrongly assumed; there are options they can explore.

Loss of non-immigrant visa employment either voluntarily or involuntarily results in the loss of the NIV status of the foreign worker.  A grace period of up to 60 days following termination is generally available to remain in the country.  However, if one of the following actions as applicable, is taken within the 60-day period, the foreign worker (and dependents) can remain in the US in an authorized stay beyond 60 days:

  • File an application for a change of nonimmigrant status;
  • File an application for adjustment of status;
  • File an application for a “compelling circumstances” employment authorization document; or
  • Be the beneficiary of a nonfrivolous petition to change employer.

If the individual fails to take any of the above actions, they and their dependents may then need to depart the country within 60 days, or when their authorized validity period ends, whichever is shorter.

The 60-day grace-period is a discretionary regulatory provision and starts the day after termination of employment, which is typically determined based on the last day for which a salary or wage is paid.

D&A attorneys have extensive experience with non-immigrant visas and can help you navigate options in what can be a nuanced and often, complex process following employment termination.  Please feel free to contact us if you require assistance in this regard.


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.


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

E2 Employee Visa: The Key to Working in the United States

E2 Employee Visa defined

An E2 Employee Visa is a visa classification that allows a national of an E2 treaty country to work for an E2 business. The business can be new or existing where the treaty investor of the same nationality has invested a substantial amount. If the treaty investor has been proven eligible, certain employees may also be eligible.

Treaty investors, either real or corporate, must possess the following requirements to qualify:

  • Be a national of an E2 treaty country. Treaty countries are those that entered into a treaty of commerce and navigation with the U.S.
  • Made a substantial investment in a genuine U.S. enterprise.
  • Must show that they own or control at least 50% of the U.S. enterprise
  • Must invest in an enterprise that’s more than marginal

Privileges that an E2 Employee Visa grants

The E2 Employee Visa allows the holder to work in the treaty investor’s business in either an executive or supervisory role or any other role that’s essential to the operations of the business, which means that they possess specialized skills needed by the E-2 company. The holder of an E2 employee visa must only work for the treaty investor business and not for any other U.S. employer without seeking further permission.

The holder can be accompanied by their spouse or unmarried children under the age of 21 in the U.S. Their spouse can also legally work in the U.S., while their children can attend school.

Moreover, the E2 Employee Visa holder can freely travel in and out of the U.S. with their dependent family members without restrictions, provided their visa remains valid.

Types of Employees under the E-Visas

Executives and/or Supervisors

For this type of employee, it is a must that the applicant possesses qualifying executive and supervisory experience. You should be able to demonstrate their experience, although it is not a requirement that you have previous employment with the principal treaty investor for a specific period.

You should also be in a senior position and manage the whole business or a key part of the business. Moreover, your role’s executive or supervisory nature must be the principal and primary function and not just merely incidental. If the role entails key supervisory responsibility for a key part of the business’s operations and only routinely involves substantive staff work, then you can apply for this visa type.

During the application process, you should submit documents such as a job description, resume, and other supporting documents.

Specialized or Essentially Skilled Workers

In this type, you should be able to demonstrate that you’re an essential employee possessing a specialized knowledge of the business which can be hardly found in the U.S. or that you’re necessary for the efficient operation of the treaty investor business. There are cases, however, that ordinarily skilled workers can qualify as essential employees for start-up or training purposes.

Benefits of an E2 Employee Visa

There may be reasons why an E2 Employee Visa may be a better fit for you than other nonimmigrant work visas. The E2 Visa can be extended or renewed indefinitely as long as the treaty country nationality meets the requirements. Moreover, there is no limit on the number of E2 visas issued per year. If you’re accompanied by your spouse, they can work in the U.S., and you’re not required to work abroad for a period of time before qualifying.

However, the E2 Visa is not a direct road towards a green card. As an E2 Visa holder, you must have a nonimmigrant intent and as such, you have the intent to depart once your visa expires.

If you think that the E2 Employee Visa is not the right one for you, you can also visit here for the other employment-based visas.

Requirements for an E2 Employee Visa

Before applying for an E2 Employee Visa, the treaty investor business must be first registered with the E-Visa Unit. After all the requirements are met by the business, as the E2 employee, you must also satisfy the following:

  • You have the same nationality as the treaty investor or the treaty investor’s business
  • You must work in an executive or supervisory position or possess essential skills to the operations of the business; and
  • You intend to leave the U.S. once your visa expires.

Requirements for the E2 Treaty Investor

If you’re a treaty investor, you must satisfy certain requirements to be able to bring employees to the U.S. under an E2 Visa USA.

You have to be a national of an E2 Treaty Country

To qualify for an E2 Treaty Investor Visa, you have to be first national of a treaty country, which is a country that has a treaty of commerce and navigation or that has a qualifying international agreement with the U.S. or which has been deemed qualified by law.

You can also check through the U.S. Department of State website to check which countries are qualified for an E2 Visa.

However, for companies, the process can be a little more complex. To determine its nationality, you have to look into the ownership structure. At least 50% of the company must be owned by treaty country nationals. These owners must either maintain a nonimmigrant treaty investor status or if they’re not in the U.S., they are seeking admission to the country as nonimmigrant treaty investors.

You have to show that you intend to or will direct and develop the enterprise.

You must show that you’ll personally develop and direct the enterprise in the U.S. if the employee plans on applying for the E2 Employee Visa as an individual employee.

In the case of a company, the parent company itself and not the individual owners must show that it will develop and direct the enterprise.

You have to show that you made a substantial investment in the U.S.

You must show that you have invested or are in the process of investing a substantial amount of capital in a real and operating commercial enterprise. Aside from making sure that the funds came from legal sources, the investment must also be “at risk” and must be more than a marginal investment. Substantial may depend on the E2 business, but the investment must be sufficient to ensure the treaty investor’s financial commitment to the success of the enterprise. Meanwhile, to not be marginal means that it’s intended to provide more than a living solely for the investor and his family.

Since this is a quick rundown, you may also check the full comprehensive requirements for E2 Visa.

The application process for an E2 Employee Visa

The requirements for filing for an E2 Employee Visa are the same as that of an E2 Treaty Investor Visa, albeit with different supporting documents.

Before being granted an E2 Employee Visa, the treaty investor business must be first successfully registered with the E-Visa Unit through Form DS-160 and by submitting comprehensive supporting documents. Meanwhile, the E2 Employee Visa applicant must submit a Form DS-156E.

If you’re applying for employment in a previously qualified E2 business, then you’ll need to submit both Form DS-160 and Form DS-156E.

You are required to attend an interview and submit all the relevant supporting documents which include:

  • A copy of the confirmation page of Form DS-160
  • A copy of the appointment confirmation page, if necessary
  • A filled-up Form DS-156E
  • A copy of your passport valid for at least 6 months beyond your stay in the U.S. and with at least one blank page
  • A coloured passport taken within the last 6 months, unless your photo was uploaded at the same time as the Form DS-160.
  • Evidence of previously issued U.S. Visas, if any
  • A letter that details your job description, including the description of the treaty investor’s business, your role in the business, your qualifications for the role, and your salary plus benefits.
  • An organizational chart which defines the executive, managerial or essential role in the business
  • An updated resume
  • A copy of certificates, diplomas or professional qualifications
  • A copy of the approval letter of the registered E2 business
  • A signed and dated intent to depart once your visa expires
  • If your name has been changed, a copy of the name change by deed poll
  • A police certificate or ACROW if you have a previous history of being arrested, cautioned or convicted
  • A letter from a physician which discusses your health, if you have a medical condition which would affect your eligibility for the visa
  • Any document that can be relevant to your application

Take note that this list is not exhaustive and there may be additional documents that you might need to bring depending on your circumstances.

Meanwhile, if you’re planning to change to an E2 status in the U.S., you must file a Form I-129 along with an E supplement.

Davies & Associates has the right immigration lawyer for your E2 Visa application which can help you determine the right documents you may need depending on your circumstance and help increase your chances of getting approved.

Requirements to petition for E2 Employees

To be eligible to petition for E2 employees, the prospective employer must fulfil the following requirements:

  • Be a citizen of a treaty country, which is a country that has a treaty of commerce and navigation that has a qualifying international agreement with the U.S. or that has been deemed qualified by law.
  • If it’s a company or organization, have at least 50% of it owned by citizens of a treaty country. These owners must maintain a nonimmigrant treaty investor status if residing in the U.S. or if not residing in the U.S., who would be classifiable as treaty investors.

If you’re the E2 employee that will be hired, you must have the same nationality as your employer. Once you’ve fulfilled that requirement, there are two requirements that your employer must possess depending if they’re located in the U.S. or abroad.

E2 Employer located in the U.S.

If your employer is located in the U.S., they must have an E2 Treaty Investor visa. They can’t be in the U.S. under any visa classification other than E2 to be eligible to hire employees under the E2 Employee Visa.

If the U.S.-based employer is a company or organization, at least 50% of it must be owned by citizens of a single treaty country and maintain an E2 treaty investor status in the U.S. The company or organization must only have one nationality as an E2 employer unless it’s controlled equally by nationals of 2 treaty countries maintaining an E2 treaty investor status in the U.S.

E2 Employer located abroad

If the employer is an individual, they must be classifiable as an E2 treaty investor.

Meanwhile, if it’s a company or organization, at least 50% of it must be owned by citizens of a single treaty country and maintain an E2 treaty investor status in the U.S. The company or organization must only have one nationality as an E2 employer unless it’s controlled equally by nationals of 2 treaty countries maintaining an E2 treaty investor status in the U.S.

Take note that persons abroad who are U.S. citizens or lawful permanent residents may not be counted even if they also have the nationality of an E2 treaty country.

Job duty requirements for an E2 Employee

Job creation and hiring employees is one of the important parts of the E2 Visa program. The treaty investor must show that their investment has the potential to generate full-time jobs in the U.S. Although it’s not required to be immediate, the business must contribute eventually to the U.S. labor market.

If the treaty investor is planning to hire employees from their treaty country, there are certain requirements for job roles. If you’re planning to obtain an E2 Employee Visa, you must either be working in an executive or supervisory position or possess essential skills for the successful operation of the U.S. business.

Employees with Executive or Supervisory Positions

Various factors need to be taken into account in determining if you will be pursuing an executive or supervisory role in the E2 enterprise. These include the title, the duties, the salary, its position in the organizational chart, the degree of control and responsibility the applicant will have on the overall operations, the people whom you will supervise, and whether you possess any relevant experience.

Moreover, the executive or supervisory aspect of the role must be the principal and primary function and not merely incidental. This means that if your position primarily involves routine staff work and secondarily entails supervision of other employees, then you may not be classified as an executive or supervisory employee for the E2 Employee Visa.

Additionally, if you’re occupying a supervisory role, the business must be sufficiently large enough for you to supervise a key part of it. It’s not acceptable that you would only be supervising lower-level employees in the same business.

Employees with Essential Skills to the Operations

Different factors need to be taken into account when determining if you have the skills essential to the successful operation of the U.S. business. These include your experience, training, the uniqueness of your skills, the availability of U.S. workers with the same skills, the salary, your expertise, and the function of your future job in the U.S. business.

There are cases where ordinarily skilled workers may also qualify as essential employees when such employees are needed for startup or training purposes. Take note that under this type, you are essentially needed for your specialized knowledge and familiarity with overseas operations.

E2 Employee Visa Duration

The E2 Employee Visa is usually based on a reciprocity schedule with the treaty country. However, it should be noted that the applicant has the burden of establishing the duration of essentiality.

E2 Employee Visa Extension

The E2 Employee Visa can be extended indefinitely provided that the E2 enterprise continues to meet the requirements and that the employee shows their intent to return once their visa expires.

If you’re planning to extend your visa, you must apply for the extension before the expiry of your current grant of leave to maintain your E2 status.

Take note, however, that this visa classification doesn’t give you a direct path to a lawful permanent resident status. You would need to look into other visa options to transition to become a permanent resident.

E2 Employee Visa Costs

You must pay a non-refundable fee of $205 for Form DS-160 to apply for an E2 Employee Visa. This means that for every denied application, you must pay the required application fees to apply again.

Meanwhile, if you’re a treaty investor, you may also check out the complete E-2 Visa cost.

E2 Employee Visa Dependents

As an E2 Employee Visa holder, your spouse or unmarried children under the age of 21 can accompany you to the U.S. under your visa. They may be admitted for the same period as yours and may also be eligible for extensions. Your spouse may apply for work in the U.S. without the need for an Employment Authorization Document (EAD), while your children may attend school.

FAQs

Is there an educational requirement such as a bachelor’s degree before I can be eligible for an E2 Employee Visa?

No, unlike other work visas, the E2 Employee Visa doesn’t require that you possess the relevant bachelor’s or master’s degree. While this could be helpful, it’s not one of the requirements for the visa category. As long as you possess the requirements, then you can apply for an E2 Employee Visa.

How long do I have to wait once I apply for an E2 Visa?

The processing times can vary depending on the type of your application and where you apply. If the business is already registered as an E2 business, then the process can be faster and easier.

In terms of location, the processing times can also vary depending on the U.S. Embassy or Consulate. Some consular officers complete the applications within a week while some may take months. If you’re applying for a change of status while in the U.S., the USCIS has a premium processing service where your application can be expedited in 15 days rather than weeks or months.

Can the E2 Visa grant me a green card?

The E2 Visa is classified as a nonimmigrant visa, which means that although it can be renewed indefinitely, it’s still a temporary visa. If you’re an E2 Visa holder, you would need to look for other visa classifications to be able to apply for a green card.

What is the minimum investment required for an E2 Visa?

There is no given amount for it to be considered as a sufficient investment under the E2 Visa. Substantial may depend on the E2 business, but the investment must be sufficient to ensure the treaty investor’s financial commitment to the success of the enterprise.

Does the employee need to invest money in the U.S. enterprise?

No, the investment requirement is necessary only for the treaty investor applying for an E2 visa.


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


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

Decoding 221g Administrative Processing

Pursuant to your non-immigrant visa (L, H-1B, E-2, O-1) interview, the consular officer will typically indicate whether they are approving or refusing/denying the visa.  But at times, officers may require additional information due to which they are unable to approve or deny the visa at the end of the interview.  In such instances, the officer will “refuse” the visa application placing it under “221g Administrative Processing,” requiring further scrutiny.  Generally, the applicant will receive a notice from the consular officer indicating that their case is undergoing administrative processing, and in some situations, listing further documents that may be needed.

There’s often confusion that a “Refused” visa status on the Department of State’s case portal means that the visa was denied. A Refused status in the context of administrative processing does not mean that the visa was denied or that the refusal is final; it means that the final decision is put on hold until necessary checks are completed.  A refusal may be overcome by providing further information and/or documents as may have been requested by the consulate.

Possible Reasons for Administrative Processing

  • Additional Background Checks – In certain situations, a consular officer will need to verify or confirm certain data.  For example, in H-1B cases, where the applicant will be deployed to an end-client worksite, common in the IT industry, the officer may need to contact the end client to verify assignment and worksite details or employer-employee relationship. 
  • Missing Documentation or Information – If any material information is missing or inaccurate, the officer will likely not make a decision and request further information or clarification as they deem fit. 
  • Criminal Background – If an applicant has a criminal record, the consular officer may need to conduct additional checks to determine their visa eligibility and further evidence such as police and court records may be needed.
  • Prior Visa denial – A prior visa denial does not necessarily hinder obtaining a visa in the same category (or a different one).  That said, if an applicant is unable to satisfactorily explain the change in circumstances from the last visa denial if applying in the same visa category, the consular officer may issue a 221g notice requesting further documentary evidence to clarify change in circumstances.  
  • Material Misrepresentation or Fraud Suspicion – Should an officer suspect fraud, for example, material inconsistencies in information provided in the petition and the applicant’s responses, the consular officer may want to perform additional checks or forward the application to their Fraud Prevention Unit for further investigation, which could involve employer site visits and interviews. 
  • Legal Question – In cases involving complex ownership corporate structures in the E-2 and L-1 visa context, an officer may want to seek guidance from higher authority or wish to review necessary departmental guidance and regulations. 
  • Petitioner Information Management Service (PIMS) – This generally happens when the underlying non-immigrant petition (filed with the United States Citizenship and Immigration Services) has not been updated at the Kentucky Service Center, which scans the duplicate into PIMS systems for consulates to access petition data.

 Timeline and What Can be Done?

There is, unfortunately, no predictable timeline to the administrative processing phase, it can take from a few weeks to several months. 

If the consulate requests specific documents or information via their letter or email, one should ensure that the requisite items are submitted promptly as per their submission instructions. 

DOS has stated that their goal is to complete administrative processing within 60 days.  It is advisable to write to the post (via email and through their online portal) regarding the status of your case if there’s no decision within this timeframe.  If you believe that the consular officer expressed concern regarding any specific point or that you were unable to answer a material question, it might help to address that particular concern or question by way of an email to the consulate.

If the case is stuck in administrative delay for  n excessive period of time, a Mandamus lawsuit could be an option, seeking a U.S. court’s order to direct the post to adjudicate the visa application.

Once the administrative processing is complete, the consulate will issue the visa or refuse/deny it.  In cases where fraud is suspected, the consulate may return the petition to the USCIS with a recommendation for revocation. 

What to Bear in Mind

Administrative processing not only prolongs visa adjudication but to an extent, adds an element of uncertainty; hence it’s important to apply well in advance and factor in such delays.  Certain factors prompting administrative delays are beyond one’s control.  That said, to minimize chances of such delays, the applicant should be prepared to answer all questions as best they can and truthfully.  If you believe there’s anything in the petition or your background that might warrant scrutiny, ensure that you have the necessary explanation and supporting evidence if any.  And very importantly, it helps greatly to understand the requirements of your visa category and be well versed with key petition documents.  As good practice, one should carry all pertinent paperwork to the interview.

D&A attorneys routinely assist and guide visa applicants in the consular processing stage.  Please feel free to contact us if you require assistance in this regard.


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.


E2 Visa Study cases

U.S. State Department Issues Near Record Level Non-Immigrant Visas

On November 28, 2023, the U.S. State Department shared a press release highlighting the agency’s operations and the significant numbers of different types of visas issued in the last fiscal year. 

From October 2022 through September 2023, the State Department issued a near record level of non-immigrant visas – more than 10 million globally – 8 million visitor visas for business and tourism and more than 600,000 F-1 student visas (embassy and consulates in India issued an all-time record of more than 140,000 student visas).  590,000 visas were issued to high-skilled workers and executives to work in some critical fields, ranging from emerging technology to healthcare, and nearly 365,000 to airline and shipping crew members.

The State Department attributes these achievements to innovative solutions, such as expanding the interview provision that allows certain visa applicants to renew their visas without the need for an interview appointment at the consulate or embassy.    

The interview waiver flexibility is set to expire on December 31, 2023.   There is no announcement as yet from the administration regarding its continuity. 

Visa Operations Bring Record Achievements Worldwide – United States Department of State 

We at D&A are monitoring the situation and will 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.


US Immigration attorney

Non-Immigrant Visa USA: Your Gateway to the United States

Non-immigrant Visa

A non-immigrant visa is for individuals who want to visit, live or work in the United States temporarily. For example, if you’re visiting the U.S. for a vacation or a business conference, then you would need a non-immigrant visa.

On the other hand, an immigrant visa is for individuals who want to permanently move to the U.S. and obtain their green card.

Non-immigrant visa categories include the H-1B, L, J-1 and E-2 and F-1

Process for Temporary Work Visa

There are different federal government agencies involved in reviewing and approving visa applications or petitions for temporary worker visas such as the US Department of Labor, Department of State and the Department of Homeland Security. In some cases, the prospective employer would have to first obtain certification from the DOL and then file a petition with the USCIS (United States Citizenship and Immigration Services) at DHS and after obtaining their approval, the candidate will apply for visa stamping at the US consulate rIn some cases, the prospective employee can apply for a visa directly at the US consulate.

The specific visa category will determine the various steps in the application process.  

Types of Temporary Worker Visa

There are different temporary worker visa categories available which you can choose depending on the purpose of your visit and eligibility criteria. We’ve rounded them up below with brief descriptions so you can get acquainted.

CW-1

The CW-1 is a visa exclusively for employers in the Commonwealth of the Northern Mariana Islands (CNMI), where they can apply to employ foreign workers who don’t fit into other employment categories.

E-1

An E-1 Visa is a nonimmigrant classification that allows a national of a treaty country to carry substantial trade and principal trade between the U.S. and their home country. Treaty countries maintain a treaty of commerce and navigation with the U.S., or with which the U.S. maintains a qualifying international agreement, or which has been designated as qualified by law.

E-2

An E-2 Visa is a non-immigrant visa that is granted to a national of a treaty country to make a substantial investment in a U.S. enterprise or business. The definition of a treaty country, in this case, is the same as that of an E-1 Visa.

E-2 CNMI

An E-2C Visa, on the other hand, allows long-term foreign investors to remain in the CNMI through December 31, 2029, while they resolve their immigration status. This visa helps while the CNMI transitions from the CNMI permit system to the U.S. immigration laws.

E-3

An E-3 Visa is a special work visa exclusively given to residents of Australia working in specialty occupations in the U.S. Moreover, their spouse and unmarried children under the age of 21 years may also qualify, even if they are not Australian themselves.

H-1B

An H1-B Visa is reserved for those who will undertake a role with a U.S. employer in a specialty occupation or profession that requires certain minimum education.

H-2A

An H-2A Visa is given to a temporary agricultural worker from certain countries. It’s typically used by foreign agricultural workers who have a job offer from a U.S. company and U.S. companies hiring foreign workers for temporary or seasonal agricultural work.

H-2B

Meanwhile, an H-2B visa is for employers to hire a temporary non-agricultural worker. The employment, in this case, must be temporary as such it’s only for a limited period, seasonal need, or intermittent need.

H-3

An H-3 Visa allows foreign nations to enter the United States either as: 1) a Trainee, to receive training in any field of endeavour other than graduate medical education or training, and 2) a Special Education Exchange Visitor, to participate in a program that provides for practical training and experience in the education of children with special needs.

I

This visa is a type from different non-immigrant visa classifications granted to journalists visiting the United States for work or educational opportunities. It is exclusively for representatives of foreign media across different mediums such as press, film or print.

L

The L Visas is commonly referred to as intra-company transfer visa where an employee of a multinational company is temporarily transferred to a U.S. branch, affiliate, parent or subsidiary of the same company. Under the L1 Transfer Visa, the employee holding a managerial or executive capacity or a specialized knowledge position must also work in a similar capacity in the U.S. office.

O

The O Visa is for individuals with a unique or extraordinary ability in science, arts, education, business, or athletics who wish to temporarily work in their field of expertise in the U.S. Under this visa, the individual must prove that they offer essential services in their field of expertise that can’t be provided by a U.S. citizen.

P-1A

A P-1A Visa is granted to internationally recognized athletes or athletic teams coming to the U.S. to perform at a specific athletic competition. It can be granted to professional or amateur athletes to perform in specific theatrical ice skating productions or tours, either individually or as a part of a group.

P-1B

The P-1V Visa, on the other hand, is given to you if you are coming to the U.S. temporarily as part of an entertainment group that has been established for a minimum of a year and has been recognized internationally as outstanding for a sustained and substantial period.

P-2

The P-2 Visa is a type from the different nonimmigrant visa classifications that is granted if you are coming to the U.S. to perform as an entertainer or artist under a reciprocal exchange program between a U.S. organization and an organization in your home country, either individually or as part of a group.

P-3

The P-3 Visa is a visa classification that’s granted if you’re coming to the U.S. temporarily to perform, teach, or coach as artists or entertainers under a culturally unique program, either individually or as a group.

Q-1

The Q-1 Visa is granted to individuals visiting the U.S. to take part in an international cultural exchange program where they will share their history, culture, and tradition. It is to provide practical training and employment.

R-1

The R-1 Visa is for foreign nationals coming to the U.S. to be employed temporarily as a minister or in another religious occupation for a minimum of 20 hours per week on average.

TN

The TN visa is a visa classification that permits qualified Canadian and Mexican citizens to seek temporary entry into the U.S. to engage at a professional level in business activities.

You can click here to check a summary of these temporary worker visas.

Non-immigrant Work Visa Options

There are three different non-immigrant temporary work visa categories:

  • Temporary work visas such as the H-1B, E-2, L-1. Before applying for a majority of these visas, first, there must be an approved petition filed by the prospective employer with the (USCIS.
  • Work under an Employment Authorization Document (EAD).  This option allows certain eligible non immigrant visa holders including L-2, H-4 (spouses of principal L-1 and H-1B respectively) and individuals awaiting adjudication of their I-485 to apply for the EAD and lawfully work in the US after approval of such application.
  • Work in the U.S. with a NAFTA visa. In this category, only citizens of Canada and Mexico are eligible, granting them temporary entry into the U.S. for business at a professional level.

Application for a U.S. Nonimmigrant Visa

Individuals who wish to apply for a visa under the temporary worker categories at the US consulate will first need to fill out a Form DS-160 (Online Non-Immigrant Visa Application). Depending on the requirements of their chosen visa, they might need additional information and forms.

After completing your Form DS-160, you will receive a barcode which you will need to print and keep for your upcoming appointment at the U.S. embassy. You can schedule your visa interview once you already have your barcode.

Immigrant Visas vs Nonimmigrant Visas

A foreign national can enter the United States based on a  a valid and unexpired visa, either a nonimmigrant or an immigrant visa.

A nonimmigrant visa is only granted for a limited time, although in most cases, you can extend this visa as long as you meet all the requirements throughout your stay in the U.S.

On the other hand, immigrant visas allow you to live and work in the U.S. permanently and indefinitely. However, take note that immigrant visas don’t grant you the same rights as that of a U.S. citizen.

If you’re unsure of which visa category applies to your goals and circumstances, the experienced team of lawyers at Davies & Associates can help you navigate, strategize and  determine which visa best fits your needs


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


Immigration Court Ruling

US Visa Ineligibility Findings and Waiver Option

Often times, foreign nationals are denied a visa or entry into the United States based on certain grounds. Such individuals who are found inadmissible and need a non-immigrant visa to enter the U.S. can apply for a waiver application at a U.S. consulate. The Immigration and Nationality Act (Section 212 (d)(3)) provides for a waiver (or pardon) for certain inadmissibility findings. The “212 (d) (3) waiver” can be used to overcome most grounds of ineligibility. One such very common ground is that of willful misrepresentation or fraud, the consequences of which are dire as it triggers a permanent or lifetime bar to entering the U.S However, all is not lost and this ground like many others can be challenged and overcome through a 212 (d) (3) waiver.

The INA 212 (d) (3) waiver, dubbed as the “Hranka Waiver,” although discretionary, can waive most grounds of inadmissibility, including willful misrepresentation or fraud, crimes involving moral turpitude, prostitution, smuggling, bars resulting from unlawful presence in the United States, health related grounds and a few others. There are certain grounds of inadmissibility that are excluded, such as espionage, participation in Nazi persecution and genocide. The waiver is available to NIV visa applicants, i.e., B-1, L-1, F-1, J-1, O-1, etc. visas and not to immigrant visa applicants.

The U.S. Department of State and consular officers are tasked with the discretionary authority of recommending these waivers for non-immigrant (NIV) visa ineligibilities to the Department of Homeland Security for approval.

Waiver Assessment Criteria

There are no prescribed criteria but the adjudicating officer will weigh the following factors in recommending a 212 (d)(3) waiver:

  1. Risk of harm to society if the foreign national is admitted;
  2. Seriousness of the foreign national’s immigration or criminal law violation;
  3. Foreign national’s purpose of travel to the United States;
  4. Whether there is a single, isolated incident or a pattern of misconduct; and
  5. Evidence of reformation or rehabilitation.

Application Procedure

The 212(d)(3) waiver application can be submitted to the U.S. consulate in the applicant’s home country (or country of residence) or in case of visa-exempt foreign nationals, at the U.S. port of entry (with Customs and Border Protection). Generally, one can submit the waiver application at the consulate at the same time that the person is applying for a non-immigrant visa; some consulates may require the waiver filing at a later time. If consular officers believe that the waiver should be granted, they are required to forward the case to the Customs and Border Protection’s Admissibility Review Office (ARO) with an affirmative recommendation. The consular officer is not obligated to accept the waiver application if he or she believes that the waiver has no merit and is required to reject it if the applicant is otherwise found ineligible for the underlying visa. However, consular officers are directed to refer the waiver request to the Department of State for review if the applicant requests, provided that the applicant’s case involves certain situation/s such as national security, foreign relations, significant public interest and/or urgent humanitarian or medical reason. The ARO’s decision is final pursuant to which the consular officer will adjudicate the underlying non-immigrant visa application.

The ARO/CBP generally grant a waiver in most visa cases for 5 years. The waiver processing can be lengthy at times ranging from few weeks to several months but is an inexpensive and relatively straightforward option to overcome certain ineligibility findings.


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.


US Visa Application

Protecting U.S Citizenship: Can it be Revoked?

A naturalized United States citizen is someone who has voluntarily obtained U.S. citizenship based on certain grounds other than by birth in the U.S. The process by which they obtain U.S. citizenship is called naturalization. The U.S. citizenship of such individuals can be stripped away or revoked through what is known as the “denaturalization” process. U.S. citizenship of a person who is born on US soil cannot generally be revoked, but such a person can lose citizenship by engaging in certain explicit voluntary acts.

The U.S. government can rescind a naturalized person’s citizenship for a variety of reasons which are:

“Illegally” procuring citizenship

Procuring naturalization illegally simply means that the person was not eligible for naturalization, therefore any eligibility criterion that was not fulfilled can form the basis for revocation. This includes the requirements for residence, physical presence, lawful admission for permanent residence, good moral character, and attachment to the U.S. Constitution. This applies even if the person unintentionally made a mistake.

Non-Disclosure of Material Fact or Willful Misrepresentation

If a naturalized person misrepresented or hid a material fact deliberately which fact impacted his naturalization application, the citizenship in such cases may be revoked. This ground of revocation includes omissions as well as affirmative misrepresentations. Examples of such instances include failure to disclose an arrest or criminal conviction or lying about one’s marital status.

The misrepresentations can be oral testimony provided during the naturalization interview or can include details provided on the N-400. The materiality test is whether the misrepresentations or concealment had the ability to affect the grant of citizenship decision.

In 2017, the U.S. Supreme Court in the case, Maslenjak v. United States, 37 S. Ct. 1918 (2017), limited the grounds for revoking citizenship by holding that unless the underlying omission or false statement was significant to the acquisition of citizenship, citizenship cannot be revoked for a false statement that has no bearing on the decision.

Membership or Affiliation with Certain Organizations

A person is subject to revocation of naturalization if he or she becomes a member of, or affiliated with, the Communist party, other totalitarian party, or terrorist organization within five years of naturalization. There is an assumption that the person dd not have allegiance to the U.S. Constitution and was never well-disposed to the wellbeing of the United States.

Separation from the Military

Some people can obtain U.S. citizenship by serving honorably in the U.S. armed forces. The government can revoke citizenship obtained on this basis if the naturalized person separates from the armed forces under other than honorable discharge before serving five years of military service.

The Denaturalization Process

Unlike most other immigration matters that USCIS handles in an administrative setting, revocation of naturalization can only occur in federal court. A person’s naturalization can be revoked either by civil proceeding or pursuant to a criminal conviction. For civil revocation, the U.S. Attorney’s Office must file the revocation of naturalization actions in a Federal District Court. For criminal revocation of naturalization, the office files criminal charges in Federal District Court. The government holds a high burden of proof when attempting to revoke a person’s naturalization. For civil revocation, the burden of proof is clear, convincing, and unequivocal evidence and for criminal revocation, it’s proof beyond a reasonable doubt, as required in every other criminal case.

Source: USCIS Policy Manual I Grounds for Revocation of Naturalization


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.


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

Guidance on Compelling Circumstances EADs

In June 2023, the U.S. Citizenship and Immigration Services (USCIS) released an updated guidance on the employment authorization document (EAD) based on compelling circumstances for beneficiaries of an approved I-140 petition. The guidance clarifies the eligibility criteria for a compelling circumstances EAD.

A compelling circumstances EAD is a stopgap measure for non-immigrant visa holders, in the process of applying for their green cards, who have been lawfully residing in the US and are faced with unforeseen or sudden circumstances that would cause them to immediately depart the United States. The compelling circumstances EAD provision which came into effect in January 2017, provides a temporary benefit for eligible foreign nationals and their family members to continue to reside and work in the United States without interruption and accruing unlawful presence.

For an applicant to be eligible for an initial EAD based on compelling circumstances, they must meet the following eligibility requirements:

  • The principal applicant must be the beneficiary of an approved Form I-140 in either EB-1, EB -2 or EB-3 category;
  • The principal applicant must be in a valid non-immigrant status (E-3, H-1B, H-1B1, O-1, or L-1) or authorized grace period
  • The principal applicant must not have filed a I-485 adjustment of status application;
  • The applicant and their dependents have not been convicted of a felony or two or more misdemeanors ; and
  • An immigrant visa is not available to the principal applicant based on the applicant’s priority date according to the relevant Final Action Date in the U.S. Department of State’s Visa Bulletin in effect when they file Form I-765; and

Examples of Compelling Circumstances

The regulations do not define “compelling circumstances”, but in general, are situations outside one’s control that adversely affect their ability to continue working for their employer. USCIS exercises discretion on a case-by-case basis in assessing. Below are non -exhaustive examples that could justify the existence of compelling circumstances.

Serious Illness and Disability

A principal applicant or their dependent faces a serious illness or disability that substantially changes employment circumstances, such as requiring them to move to a different geographic area for their or a dependent’s treatment, or the illness or disability otherwise reduces or adversely affects the principal applicant’s ability to continue their previously approved employment.

Employer Dispute or Retaliation

A principal applicant is involved in a dispute regarding their employer’s alleged illegal or other forms of abusive conduct, which may take the form of a whistleblower action, litigation, or other documented dispute.

Other Substantial Harm to the Applicant

The principal applicant is unable to timely extend or otherwise maintain status, or obtain another nonimmigrant status, and would suffer substantial harm as a result. This harm may be financial or may be due to an inability to return to their home country due to conditions there.

Financial hardship to the principal applicant may rise to the level of compelling circumstances when coupled with circumstances beyond those typically associated with job loss, for example, loss of health insurance.

Significant Disruption to the Employer

If the applicant is unable to continue working due to failure of filing a timely extension of change of status, and as a result, the employer will suffer significant disruption of business or that the loss of the employee will negatively impact project and cause significant monetary loss, such situation could establish compelling circumstances.

USCIS generally does not consider unemployment or job loss, in and of itself, to be a compelling circumstance unless the principal applicant can show additional circumstances that compound the hardship ordinarily associated with job loss.

Impact on Non-Immigrant Status

While a discretionary relief, the compelling circumstances EAD is an alternative that allows one to continue to stay and work in the United States in an authorized period of stay. Note that this is not a substitute for a “non-immigrant” status. An applicant would not accrue unlawful presence during the EAD’s validity or during the pendency of a timely filed non-frivolous EAD application. Spouses and children of the principal EAD applicant may also receive EADs provided that they individually meet the compelling circumstances and filing requirements.

Resource: Chapter 3 – Certain Employment-Based Immigrants in Compelling Circumstances | USCIS


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 Source of Funds for Italians Webinar

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


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.