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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

Chapter 4 – Ability to Pay | USCIS

20230315-AbilityToPay.pdf (uscis.gov)

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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

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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).


Types of Visa That Are Perfect for Entrepreneurs, Investors or Business Owners

Girish Mohile is an Associate with D&A based in Mumbai, India. Girish works as local Business Development representative for the firm and acts as liaison between Indian clients and US attorneys on their source of funds. Girish is not licensed to practice law in the United States and nothing in this blog constitutes legal advice

 

If you are a business owner or an entrepreneur, then you might have your dreams of launching your business in the US. In order to do that, you will need proper documents as well as a US immigration business visa. You might consult a US visa attorney to know the various details about what type of visa you will need to start your business in the US. Here a list of the most popular visas that are suitable for investors or entrepreneurs or business owners.

E-2 Investor Visa:

If you are looking to run a business in the United States, then the E-2 visa may be the most cost-effective option.It allows a person to move to America for the purpose of running a business. The E-2 Visa is a non-immigrant visa and does not directly lead to obtaining the green card. In order to get this visa, you will need to start a business or at least buy a company or franchise . The investing amount depends on the type of business that you plan to run. The E-2 Visa is renewable indefinitely and allows you to stay in the US as long as you run the business. If the business becomes large enough, it is possible to apply for a Green Card under the EB-5 Program. Your children and spouse will also be able to join you in the US, and your spouse will also be able to apply for authorization to work outside of the business. Only citizens of countries with a relevant treaty with the United States are eligible for an E-2 Visa. This excludes citizens of India, China, Vietnam, and Russia among many others. Citizens of these countries must first obtain citizenship of an E-2 Treaty country like Grenada or Turkey.

EB-5 Immigrant Investor Visa:

If you are seeking a US Green Card, then an EB-5 Visa a better option than the E-2 Visa. The visa requires a $900,000 investment in the United States economy for a period of approximately 5-7 years. Investors are able to invest in their own business, but the investment must create ten American jobs, which can prove challenging. Instead, more than 90% of EB-5 applicants invest with a “Regional Center” which uses the funding to build hotels, residences and sports complexes. Such projects have a high demand for jobs, and mitigate the risk any risks to obtaining the Green Card. A whole family can come under on investment – this can include the investor, a spouse, and any children under the age of 21. Green Card holders are able to access in-state tuition at US universities.

L-1 Visa:

The L-1 Visa allows companies to transfer their employees from an overseas office to a US office. It is also possible to set up an office for your existing business in the United States and then transfer yourself or a manager to the United States to run that business. Entrepreneurs and business owners seeking to open a US branch of their existing business could utilize the L-1 Visa, but the period of validity differs depending upon the country of origin. The US business and the foreign business must be tied together by the same ownership, but do not need to be operating in exactly the same field.

 

These are the primary types of US immigration business visas that on offer to business owners, investors and entrepreneurs who want to set-up or expand their business in the US. Davies & Associates offers free uconsltations to determine the best visa option for our clients.


Seven Ways for Indians to Visit, Work, or Live in the United States

The United States of America is a nation that welcomes people from all over the world to be part of their coexistent culture. However, it can be confusing to understand the process of migrating to the country. While traveling abroad can be a great adventure in itself, it takes a great deal of preparation, planning, and form-filling before you can actually leave for the country. Here are seven ways Indians can visit, work, or even live in the US:

Apply for a US Visa and an EAD

You should have a US visa and a work permit aka Employment Authorization Document (EAD) to be employed in the States. As you delve further into the process, you’ll know that such visas have been classified into seasonal work visas, temporary work visas, exchange work visas, or even permanent work visas. You can obtain a US Visa from the US Consulate in your country.

Employment-based immigration

If you’re planning to study in the United States, apply for an F1 student visa. You should be enrolled as a full-time student at a language-training programme or an academic institute in the United States, prove your financial stability to finance your studies, and that you will maintain your identity as a foreign resident.

Apply for a green card

Formally called the United States Lawful Permanent Residency, a green card authorizes a non-immigrant to study, work, and live permanently in the States. Permanent residency becomes easier if you have a family member or are employed full-time in a company in the States. The family or employment agency in concern would be thus called your sponsor. For more information, check the USCIS website if you want to apply for an ‘adjustment of status’ if you belong to the categories mentioned.

Apply for an EB-5 visa

If you want to invest in the States, apply for an EB-5 visa to invest in a commercial project as a foreign investor. Begin by investing $50,000 in a commercial project based in the States for a duration of five years. In 18 months, you shall acquire conditional green cards that permit you and your family to study, work and live in the States. The project in question must have 10 or more American employees for a period of two years, after which you can acquire permanent resident green cards. You will get back your investment after five years from your first day in the United States.

Apply for an E-2 work visa

An E-2 work visa enables a resident from a treaty country to work in the United States; in other words, they sponsor themselves into the country. Though you invest an amount according to the company and industry, rates usually stay somewhere between $75,000 to $200,000. Moreover, spouses are permitted to work in the United States as well. Such visas can be extended for up to five years and be renewed for an indefinite number of times. If you’re lucky, you might just move forward in line for an EB-5 direct green card as well. Indians are not currently eligible for E-2 visas, but it is possible to first become a citizen of a country that is eligible. This includes Grenada in the West Indies, which is an E-2 Treaty nation to the United States.

Fiancé/Fiancée visa

The non-US fiancé/fiancée in question must apply for a K-1 non-immigrant visa to travel to the United States and marry their partner, who acts as their sponsor as well. However, the couple must get married within 90 days of arrival.

Become a lawful permanent resident

You can become a permanent US citizen only after continuously living in the States for a period of five years. Though you can make short trips overseas, you require a minimum of 30 months of continuous residency. The period will be reduced to three years instead of five if you’re in the military, or are married to a US citizen. As expected, you are required to follow the rules of the state.

These are the seven ways Indians can start a new life in the United States. If you want more information regarding the same, contact us at www.usimmigrationadvisor.com.


5 Non-Immigrant Visas for the USA

There are many different type of non-immigrant visas for people wishing to work, study or do business in the USA. If you select the wrong visa, you may be denied entry at the United States border, or in the worst case, you might face a ban on entering the country. It is important to be aware of the different types of visa,


1. Business Visa: The B1 visa is a non-immigrant visa for the USA for people wishing to visit America to conduct business. It is for people who want to attend a conference or a business meeting in the United States. Importantly, this american business visa does not allow a person to set up a new business in the USA. You must apply at least 60 days before the date you want to travel. Avoid buying air tickets in advance if you have not received your visa yet.


2. Work Visa: There are various categories for this type of visas like H, L, O, P and Q. Which one you need depends on the type of your work for which you are going the USA. These types of visas are also temporary and holders of these visas cannot stay in the USA for a lifetime. Once your visa expires you will have to return to your country of origin. You can not get the visa until USCIS approves your petition.

3. Student Visa: People who want to study in any school or college in the USA have to apply for student visa. You may be asked to pass a certain language test for eligibility. By this test, they see how efficiently you can read, write, listen and speak that particular language. Most of them ask for an English language test. When you are on a student visa you can not take a break for more than 5 months or you may lose your visa.

4. Artists and Athletes Visa: Professional artists like actors, singers and stage performers can apply for this visa type. It includes actors shooting a movie, stage performance and attending an awards show. Athletes can also apply for the visa if there is a tournament or match to attend.

5. Media and Journalist Visa: Journalists can apply for an I visa which allows them to travel to the United States so that they can cover American news for their domestic audiences.


5 Tips to Consider Before Choosing an EB-5 Immigration Attorney

The EB-5 program is envisaged to give a boost to the economy of the United States by attracting investors belonging to other nationalities to make investments in US-based businesses. The minimum amount that is to be invested under the program is US $ 1,000,000 (and US $ 500,000 in targeted employment areas). The business must provide employment to 10 US citizens, apart from the business owner and family members. If the application under EB-5 is approved, then the applicant is granted a 2 years residence in the US on a conditional basis.

The process to obtain an EB 5 visa is complicated and tricky which is not possible for a layman to complete on its own. This is where the requirement of an experienced US business immigration attorney comes up. An expert EB 5 visa attorney will ensure that all the steps are duly followed, and the only accurate information is furnished to the authorities.

Being of such great importance to the prospects of one getting an EB 5 visa application approved, due diligence must be exercised while selecting an EB 5 business attorney. Here are five essential tips to be considered before choosing a US business immigration attorney: –

  1. Experience: – The attorney who is chosen to handle the EB5 visa application process must have proper credentials and prior experience in the field. Therefore, it is recommended to conduct a background check before making a final decision.

  2. Expertise: – It needs to be ascertained as to what type of applications the attorney handles because the process for filing a Direct EB 5 application and Regional EB 5 application is entirely different as both of them require different skills set to be managed.

  3. Fees: – Although, fees should be the last issue that should affect the decision of selecting a US business immigration attorney. Though, it is recommended that the scope of services being offered must be compared with the cost being levied.

  4. Time: – In the case of EB 5 visa application, time is of the essence. It is therefore advisable that the time devoted by the attorney to understand the client business must be given careful consideration.

  5. Reputation: – Reputation also counts a lot when finalising a decision regarding an immigration attorney. It is recommended to research regarding the track record of the attorney.

Selecting a competitive Us business immigration attorney is an essential step towards realising the dream of living and working in the United States. Above mentioned tips will help anyone make a sound and informed decision.