Visa Lawyer Blog

Articles Posted in Nonimmigrant Visas

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If you are a foreign national that will be a potential investor or will participate in commercial or professional business activities in the United States, you may qualify for a B-1 Temporary Business Visa by applying through the consulate nearest to you.

Business activities, according to USCIS, that are of a commercial or professional nature include, but are not limited to, the following:

  • Consulting with business associates
  • Traveling for a scientific, educational, professional or business convention, or a conference on specific dates
  • Settling an estate
  • Negotiating a contract
  • Participating in short-term training
  • Transiting through the United States: certain persons may transit the United States with a B-1 visa
  • Deadheading: certain air crewmen may enter the United States as deadhead crew with a B-1 visa

There are several eligibility requirements that a B-1 Temporary Business Visa applicant MUST fulfill when they apply for their visa through consular processing. They are the following:

  1. The applicants must demonstrate that the purpose of the trip is to enter the United States for legitimate business reasons
  2. The applicants must demonstrate that they will remain in the United States for a specified temporary period of time to take care of the intended business activities
  3. The applicants must demonstrate that they have sufficient financial resources to sustain themselves and their expenses during their stay in the United States
  4. The applicants must also demonstrate that they have a permanent residence abroad that they do not intend to abandon, as well as provide other proof of ties with the home country
  5. If you have any inadmissibility issues, you must consult with an attorney

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imagePresident Obama closed off the year by announcing his highly anticipated executive action on November 20, 2014 which will go into effect early this year, but the executive action was only one of many important initiatives that occurred in 2014.

2014 was a big year for immigrants for several reasons:

  • AB 60 California Driver’s License Applicants: Beginning January 01, 2015 undocumented immigrants can start the process of obtaining their driver’s licenses under AB 60 at their local DMV field office
  • Executive Action: Beginning February 2015, eligible applicants can apply for the expanded DACA program which shields undocumented individuals from deportation who were brought to the United States illegally as children, our office will be providing you with further updates early this year
  • Beginning May 2015 eligible parents of U.S. Citizens and lawful permanent residents can apply for deferred action thereby protecting them for deportation and allowing millions of parents to be eligible for employment authorization

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President Obama’s executive action announced on November 20, 2014 fell short in many ways than one for many people residing in the United States—both legally and illegally. Though a marginalized few have been allowed to come out of the shadows, some of the world’s best and brightest have been completely ignored by the executive action altogether. The United States would be quite a different place without our hard working immigrant population and without our foreign born innovators, movers, and shakers.

Obama’s announcement on November 20th notably left out any indication that the creation of a more expedient and efficient system would be considered— through which highly skilled and highly capable foreign workers would be able to more easily attain permanent residency and visas. Industry leaders in areas such as the Silicon Valley, seeking to employ such highly skilled and highly capable foreign workers for their startup companies, have expressed their concerns, forming groups such as FWD.us, albeit with the knowledge that Congress must act in order for an all-encompassing solution to be reached.

Though Obama’s speech shed little light on the topic, a memorandum released by the U.S. Department of Homeland Security following the speech is much more informative. The memorandum announces that inventors, researchers, and founders of start-up enterprises who do not qualify for a national interest waiver, but who have been awarded what is considered ‘substantial’ financing by a U.S. investor OR who ‘hold the promise of innovation and job creation through the development of new technologies or the pursuit of cutting edge research’ can attain parole authority under section 212(d)(5) of the INA,6 on a case-by-case basis after being assessed by the DHS. Possessing parole in this situation would authorize extraordinary inventors, researchers, or start-up entrepreneurs to temporarily conduct their research or development of innovative ideas or their business while in the United States.

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The 27th AILA (American Immigration Lawyer Association) California Chapter Conference was held between the 13th and 15th of November 2014 at San Jose, California. Attorney Yingei Zhou, Esq. was in attendance on behalf of our law firm. The conference concentrated on several trending topics such as status of comprehensive immigration reform, consular processing and updates with border posts in Mexico and Canada, driver’s licenses for undocumented workers, unaccompanied alien children (UAC), H-1B/L-1A/O-1/EB-1 adjudications, federal litigation, and advanced family immigration issues, as well as staple subjects like evidentiary issues in removal proceedings and PERM applications.

This article provides you several important updates from the conference addressed at the conference, especially the government open forums with AILA practitioners, USCIS representatives, CBP officers, and San Francisco Asylum officers.

In the following weeks, we will post more articles to address the trends on each specific visa applications and immigration proceedings discussed in the conference.

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By Yingfei Zhou, Esq.

In July 2014, we updated our readers regarding newly released guidance by USCIS, on adjudication of H-1B petitions for nursing occupations. In the guidance, USCIS acknowledged that the nursing industry has changed and that the private sector is increasingly showing a preference for more highly educated nurses. Although it seems that USCIS has shown its willingness to entertain H-1Bs for nurses, the adjudicatory standards remain high. In our practice, we have found that USCIS adjudicators set very high standards in adjudicating H-1B petitions, arguably higher than what the regulations require, for certain occupations, including nursing.

For Registered Nurses, the key to filing a successful H-1B petition is to differentiate the duties of a nursing position that requires at least a bachelor’s degree in Nursing. USCIS relies on the OOH, as an authoritative source for outlining both the educational requirements, and duties for H-1B specialty occupation cases. The OOH has listed a number of areas in which a nurse may focus: addiction nurses, cardiovascular nurses, critical care nurses, etc. and states that “depending on the facts of the case, some of these Registered Nurse positions may qualify as specialty occupations.” In other words, positions that focus on a particular area, or a particular population, are more likely to be classified as ‘specialty occupations’ than a more general practice nurse.

For Advance Practice Registered Nurses (APRN), USCIS has previously recognized that positions requiring APRN certification will generally be considered specialty occupations due to the advanced level of education and training required for this certification.

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The O-1 visa is a great option for those who have a demonstrated record of extraordinary achievement in their field. In order to obtain an O-1 visa, one must be an alien with a proven track record of extraordinary ability in the sciences, arts, education, business, or athletics. Proving that you are extraordinary in your field is not always an easy task. However, there are several steps you can take to help ensure that your application for an O-1 visa is approved.

Include all required documentation

First, you need to ensure that you completely and accurately fill out the O-1 visa application, Form I-129. Next, you need to make sure that you include in your application package all of the other required documentation, such as a written advisory opinion from a peer group, a copy of the written contract between you and your employer, and your itinerary. If you accidentally forget to include these documents, you risk having your application delayed or even denied.

Provide sufficient and convincing evidence

The most important step in filing your O-1 visa application, however, is including sufficient and convincing evidence that you are an alien of extraordinary ability in your field. The evidence you include needs to prove that you have received a major, internationally-recognized award or, if you have not done so, you need to prove at least three other listed achievements.

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The O-1 visa is quickly becoming a popular immigration solution for talented entrepreneurs who have already started or are about to start a new business in the United States. Many of Silicon Valley’s top companies owe their creation and success to foreign-born entrepreneurs, including Google, Intel, and Yahoo. In fact, more than 40 percent of American Fortune 500 companies were founded by an immigrant or child of an immigrant.

In order to obtain an O-1 visa, one must show that he or she is an alien of extraordinary ability in the sciences, arts, education, business, or athletics. This visa allows individuals to come to the United States for up to three years, with extensions available after that period has elapsed if the applicant is able to prove that he or she is still outstanding in the field. This is a great option for those in technology-related fields.

The O-1 visa has proven to be a better option for many entrepreneurs than the more popular H-1B visa. This is especially true for those entrepreneurs who do not qualify for the H-1B visa or when the H-1B visa cap has already been met, as there is no cap to the number of O-1 visas granted each year. In addition, unlike most H-1B visas, the O-1 visa does not require a college education. This is an important difference, since there are many young and innovative entrepreneurs who bypassed formal education in order to begin their careers. Another benefit of the O-1 visa over the H-1B visa is that it does not tie the immigrant to any employer or sponsor or have any of the other strict requirements, such as a prevailing wage. An O-1 visa applicant can be sponsored by his or her own U.S. company. This gives the entrepreneur more freedom to conduct their business as they choose, including investing any profits early on back into the business instead of paying themselves the prevailing wage salary. The O-1 visa is also a better option than the E and EB “investor visas” for many entrepreneurs, as the O-1 visa does not require any particular amount of capital to be invested into the business.

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By Yingfei Zhou, Esq.

The B-1 business visitor visa allows foreign businesspersons to be admitted into the U.S. so that they may engage in certain temporary business activities. B-1 business visitors are not required to obtain work authorization prior to being admitted because they are not entering the U.S. labor market and they are admitted to the U.S. without Numerical limit.

Who qualifies as a business visitor?

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You are a H-1B visa holder from a country with a backlogged employment based category and you are currently living and working in the United States. You have applied for permanent residence through your employer. You have been working for the same employer for years and have extensive experience in your field. Despite all of these factors, you are still waiting in line for your priority date to become current, and what’s more, your spouse has not been eligible to apply for their employment authorization due to the restrictions on their visa. What, if anything, can be done to receive your permanent resident card sooner?

Thousands of immigrants are in the same hypothetical situation. Comprehensive Immigration Reform is necessary not just for undocumented immigrants living in the United States, but also for such specialty workers who regularly contribute to our economy and society, but are stuck in limbo awaiting their permanent residency. Comprehensive immigration reform is also necessary because specialty occupation workers often run out of their H-1B status while they are in line for their priority date to become current. If the specialty occupation worker is married, chances are their spouse has not had the opportunity or privilege to legally obtain employment while the primary applicant has been in line waiting to adjust their status. Many immigrants who have found themselves in similar situations fear international travel due to the risk they may run in not being able to return to the United States.

Bypassing the Quota System

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By Lupe Lopez

Francis was excited.  As a student of holistic nutrition, he had excelled and the school he was attending wanted him to stay on to work with them as an assistant instructor. The school Francis was attending in the M1 status was pleased with his depth of knowledge and his ability to work with people.  They wanted to find a way for Francis to work with them and to help other students achieve the level of knowledge that he had and so willingly shared.  Also, Francis not only had previous education, he had years of experience in a community clinic using holistic nutrition and alternative medicine to heal people of serious ailments.

Francis called us excitedly looking to learn about his employment options.  The school had not ever offered optional practical training (OPT) to their foreign students and although they are SEVIS certified (schools are required to be certified to enroll foreign students), they were not able to answer the questions that Francis had relative to employment authorization.

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