Copyright © 2025 Towasze.Studio - All rights reserved.
Copyright © 2025 Towasze.Studio - All rights reserved.
Temporary Employment-Based Visas
Temporary employment-based visas are used by foreign-nationals who wish to enter the U.S. for a limited period of time to attend meetings, trainings, or negotiate contracts. Temporary employment-based visas are also used by professionals, supervisors, intracompany transferees, executives, and others to work in the U.S. for an extended period of time.
To qualify, an applicant must typically demonstrate an intent to return to their home country by providing evidence of his or her primary residence and ties abroad. In some circumstances, “dual intent” is permitted. In these situations, a foreign national may enter the U.S. on a temporary visa with the intent to apply for a green card and reside permanently in the U.S.
H-1B1 (Free Trade Agreement Workers)
The H-1B1 visa resembles the H-1B visa, but is reserved for foreign nationals of Chile and Singapore. This category was created as a result of the Free Trade Agreements between the U.S. and Chile and between the U.S. and Singapore.
To qualify for an H-1B1 classification, the applicant must be a citizen of Chile or Singapore and must possess a bachelor’s degree from a U.S. institution. The applicant must also be sponsored by a U.S. employer for a job requiring a bachelor’s degree or its equivalent.
The H-1B1 employee may be accompanied by his or her spouse and unmarried children under age 21 in H-4 dependent status. In order to work legally in the U.S., H-4 dependents must independently qualify for a work visa. H-4 dependents are permitted to attend school while in the U.S.
H-2A (Temporary Agricultural Workers)
The H-2A visa allows foreign nationals to enter the U.S. for up to a year to perform agricultural labor or services that are temporary or seasonal and where there is a shortage of U.S. workers. This visa is reserved for foreign nationals from certain countries. The U.S. employer must submit a temporary labor certification to the Department of Labor (DOL) demonstrating a shortage of U.S. workers after a recruitment period has been completed.
The spouse and unmarried children under age 21 are allowed to accompany the H-2A employee in H-4 dependent status. In order to work legally in the U.S., H-4 dependents must independently qualify for a work visa. H-4 dependents are permitted to attend school while in the U.S.
H-2B (Temporary Non-Agricultural Workers)
The H-2B visa allows foreign nationals to enter the U.S. for up to a year to provide temporary non-agricultural services. The U.S. employer’s need for the service or labor should be a one-time occurrence, a seasonal need, a peak-load need, or an intermittent need. The H-2B visa requires a U.S. employer to submit a temporary labor certification to the Department of Labor (DOL) demonstrating a shortage of U.S. workers after a recruitment period has been completed.
This visa may also be an alternative visa for foreign nationals who may qualify for an O or P visa, but were unable to obtain one.
The spouse and unmarried children under age 21 are allowed to accompany the H-2B employee in H-4 dependent status. In order to work legally in the U.S., H-4 dependents must independently qualify for a work visa. H-4 dependents are permitted to attend school while in the U.S.
The H-3 visa allows foreign nationals to remain in the U.S. for up to 2 years as a trainee in any field except graduate medical education or medical residency.
To qualify for the visa, the applicant must demonstrate an intent to depart the U.S. at the completion of the training. The sponsoring employer must establish that
The trainee is not permitted to engage in any productive employment in the U.S other than employment that is strictly incidental to the training.
The spouse and unmarried children under age 21 are allowed to accompany the trainee in H-4 dependent status. H-4 dependents cannot work unless they independently qualify for a work visa. H-4 dependents are permitted to attend school while in the U.S.
L-1 (Intracompany Transferees)
The L-1 visa allows existing employees of multinational employers to transfer employees to the U.S. from affiliated companies or offices outside the U.S. Unlike the H-1B visa, the L-1 is not subject to an annual limitation or “cap.”
To qualify for an L-1 visa, the applicant must have worked for the employer abroad for at least 1 year within the past 3 years before assuming temporary U.S. employment in either an executive/managerial (L-1A) or a specialized knowledge (L-1B) capacity.
The U.S. entity of the employer must have a parent, subsidiary, affiliate, branch, or 50-50 joint venture relationship with the entity abroad from which the employee is transferring.
Application Process and Extensions
Sponsoring U.S. employers must first petition approval for L-1 employees from the U.S. Citizenship and Immigration Services (USCIS) in the U.S. and obtain approval before the employee can obtain an L-1 visa or change to L-1 from another visa status.
Once approved, the employee may apply for an L-1 visa at a U.S. consulate abroad. Employees apply for either an L-1A (Executives and Managers) or an L-1B (Persons Holding Highly Specialized Knowledge) visa.
The U.S. government has established an expedited L-1 program for certain large-scale, high-mobility organizations regularly transferring employees to the U.S. as part of their ongoing multinational operations. The expedited program allows individual employees to skip the petitioning process and apply directly with the U.S. consulate.
The maximum initial duration of an L-1 visa is typically 3 years from the time of arrival to the U.S., or 1 year if the sponsoring company has had a U.S. presence of less than 1 year. 2 year extensions are available for L employees, with maximum stays capped at 7 years for L-1A visas for managers and executives and 5 years for L-1B visas for specialized knowledge employees.
The spouse and unmarried children under age 21 of an L-1 employee can acquire L-2 dependent status. The L-2 spouse may also apply for separate work authorization upon arrival in the U.S., but children in L-2 status are not authorized to work.
O (Individuals with Extraordinary Ability or Achievement)
O-1
The O-1 visa allows foreign nationals who have reached the top of their field by achieving national or international acclaim in their particular area to temporarily enter the U.S. The O-1A visa is for individuals with an extraordinary ability in the sciences, education, business, or athletics. The O-1B visa is for individuals with an extraordinary ability in the arts, or extraordinary achievement in the motion picture or television industry.
Applicants can prove that they possess the requisite “extraordinary ability” by being the recipient of an internationally recognized award (Nobel Prize or Academy Award) or by extensive documentation of their achievements and recognition.
O-2
The O-2 visa allows individuals assisting in the artistic or athletic performance by an O-1 to temporarily enter the U.S. if they possess critical skills and experience with the O-1 applicant.
O visas require a written advisory opinion from an appropriate institution describing the beneficiary’s ability and achievements in the field as well as the duties to be performed.
The O visa is often used as an alternative to other nonimmigrant visas, including the H-1B visa, because the O status can be extended almost indefinitely and is not subject to a “cap.” Moreover, the October 1 start date for for-profit petitioners and the “prevailing wage” requirement does not apply to O visas.
P (Performers: Artists, Athletes, and Entertainment Groups)
The P visa allows performers and performing groups to temporarily enter the U.S. This classification includes 3 subcategories: (1) P-1 internationally-known or entertainment group athletes (either individuals or members of a group or team); (2) P-2 individual and group performing artists participating in a reciprocal exchange program; and (3) P-3 culturally unique artists and support personnel for primary P visa holders.
P-1
P-1 athlete applicants must have received international recognition, either individually or as a team. The applicant(s) must demonstrate a high level of achievement in the field evidenced by a degree of skill and recognition substantially above that ordinarily encountered.
P-1 entertainer applicants must belong to an entertainment group that has received sustained international recognition for a substantial period of time, and each member must have had a relationship with the group for more than a year, with some exceptions.
P-2
To obtain a P-2 visa, a labor union must be involved in establishing (or acknowledging the validity of) the exchange program between the U.S. and the foreign country in which the applicant participates.
P-3
P-3 visas allow individuals to temporarily enter the U.S. to develop, interpret, represent, coach, or teach an art or discipline that can be classified as a culturally unique style of artistic expression, methodology, or medium that is unique to a particular country, nation, society, class, ethnicity, religion, tribe, or other group. Essential support personnel do not perform and cannot work apart from principal Ps, but provide highly skilled essential services that are integral to a performance and cannot readily be provided by a U.S. employee.
The R-1 visa allows religious workers to temporarily enter the U.S. to work with a U.S. non-profit organization (or an organization which is affiliated with the religious denomination in the U.S.) as a minister or person in a religious vocation or occupation. Liturgical workers, religious instructors or cantors, catechists, workers in religious hospitals, missionaries, religious translators, religious broadcasters, ministers, nuns, monks, and religious brothers and sisters are examples of religious workers.
R-1 visas are typically issued by a U.S. Embassy or consular Office. R-1 visa applicants must demonstrate that they intend on leaving the U.S. at the end of their R-1 visa status.
The spouse and unmarried children under age 21 are allowed to accompany an R-1 religious worker in R-2 dependent status. R-2 dependents are not authorized to legally work in the U.S., but may attend school.
The TN visa allows Canadian and Mexican citizens to temporarily enter the U.S. for employment in certain professions. With a few exceptions, a bachelor’s level degree or a professional license is the minimum qualification necessary for obtaining TN status. In addition, a job offer must be made by a U.S. employer and be classified as a professional occupation as defined in the NAFTA Treaty. The TN status is granted for up to 3 years and can be renewed indefinitely in 3 year increments.
The spouse and unmarried children of a TN employee are allowed to accompany the employee in TD dependent status. TD dependents are not permitted to work but they may attend school.
Canadian and Mexican Citizens Present in the U.S.
A Canadian or Mexican citizen already in the U.S. can apply for a TN visa with a U.S. Citizenship and Immigration Services (USCIS) Service Center. Processing times are similar to H-1B processing times.
Canadian and Mexican Citizens Outside the U.S.
A Canadian citizen seeking TN status can apply directly to a U.S. immigration inspector at a U.S. port-of-entry (either land border or pre-flight inspection at a designated airport in Canada). The application is typically processed within one or two hours, after which the person can enter the U.S. and commence employment.
A Mexican citizen located outside of the U.S. must apply for a TN visa at a U.S. consulate abroad.
Permanent Employment-Based Visas (Green Cards)
Permanent employment-based immigration options are available for employees who intend to establish permanent residence in the U.S. either individually or with their families.
Agarwal Law Group assists employers with preparing and processing applications for lawful permanent residence for their employees including executives and managers, outstanding professors, researchers, persons of extraordinary ability in their field, professionals holding advanced degrees, and others.
For the vast majority of professionals sponsored for permanent resident status in the U.S., the green card process consists of 3 steps: the labor certification, the immigrant visa petition, and an application for permanent residence. The labor certification is first obtained through the U.S. Department of Labor (DOL) to ensure that the employer has tested the U.S. labor market and has not been able to find qualified and willing U.S. workers.
Some individuals are eligible to receive permanent resident status without going through the labor certification process. These individuals may apply for permanent residence without an offer of employment and forego the labor certification process. The ability to forego the labor certification process often saves substantial time and expense for the employer and the employee. These individuals may file an immigrant visa petition directly with the U.S. Citizenship and Immigration Services (USCIS).
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Individuals who qualify for an EB-1 visa (referred to as the “Employment First Preference” category) must fall into 1 of 3 subcategories: (a) Individuals Demonstrating Extraordinary Ability; (b) Outstanding Professors and Researchers; or (c) International Executives and Managers. The requirements for each subcategory are outlined below. Applicants in all 3 subcategories may apply for permanent residency without going through the labor certification (PERM) process.
Individuals Demonstrating Extraordinary Ability: EB-1(a)
To qualify for an EB-1(a) visa, the applicant must demonstrate extraordinary ability in the sciences, arts, education, business, or athletics through sustained national or international acclaim. The foreign national must be one of a few others who have reached the top of their field and his or her achievements must be recognized through extensive documentation. Unlike other employment-based visas, no offer of employment is required for the EB-1(a).
Evidence in support of an EB-1(a) application can include either the receipt of an internationally acclaimed award like the Nobel Prize, or documentation in 3 of the following areas:
• Receipt of lesser nationally or internationally recognized prizes or awards for excellence;
• Membership in associations in the field that demand outstanding achievement of their members, as judged by national or international experts;
• Published material about the foreign national in professional or major trade publications;
• Evidence of the foreign national’s original contributions of major significance to the field;
• Authorship of scholarly articles;
• Evidence the foreign national has performed in a leading or critical role for organizations that have a distinguished reputation;
• Evidence that the foreign national commands a high salary in relation to others in the field; or
• Evidence of commercial success in the performing arts.
The EB-1(a) applicant must submit clear evidence that the applicant is coming to the U.S. to continue work in his or her area of expertise. Evidence can include pre-arranged commitments such as contracts or letters from prospective employers or a statement from the applicant detailing plans on how he or she intends to continue his or her work in the U.S.
Outstanding Professors and Researchers: EB-1(b)
To qualify for an EB-1(b) visa, the applicant must demonstrate that he or she is recognized internationally as outstanding in a specific academic field; has at least 3 years of experience in teaching or research in that field; or has received an offer of a tenured or tenure-track teaching or research position at a university or comparable research position with a private employer if the employer has at least 3 full-time researchers and documented accomplishments in the research field.
The petitioning employer must submit at least 2 of the following forms of evidence:
• Documentation of major awards or prizes received;
• Documentation of the applicant’s membership in associations in the academic field;
• Published material in professional publications;
• Evidence of the applicant’s participation as the judge of the work of others in the same or similar field;
• Evidence of the applicant’s original scientific or scholarly research contributions to the academic field; or
• Evidence of books or articles in scholarly journals with international circulation authored by the applicant.
International Executives and Managers: EB-1(c)
To qualify for an EB-1(c) visa, an applicant must receive an offer of employment from a U.S. organization that is the parent, subsidiary, affiliate, branch, or joint venture of the previous employer abroad.
The foreign national must have been employed in a managerial or executive capacity for at least one continuous year in the preceding 3 years by the overseas entity of the U.S. organization and demonstrate that he or she is coming to the U.S. to work in a managerial or executive capacity.
The EB-4 classification is reserved for special immigrants such as religious workers, persons under protection of a U.S. juvenile court, certain medical doctors, employees of the U.S. mission in Hong Kong, certain employees of the International Broadcasting Bureau, certain employees of the U.S. Armed Forces or the U.S. government, and other specific groups. These individuals are eligible to apply for permanent residence in the U.S. and forego the labor certification process.
The EB-5 investor visa allows foreign nationals to obtain green cards and become permanent residents by making a capital investment in a new commercial enterprise in the U.S. The investment must benefit the U.S. economy and create full-time employment for at least 10 “qualified employees.”
The process to obtain a green card in the EB-5 category involves 3 steps. After completion of step 2, the investor (and his or her beneficiaries) will receive a conditional green card valid for 2 years. After completion of step 3, the investor will receive a permanent green card.
Step 1: Filing the I-526 Petition—Qualifying Investment and Source of Funds
The first step towards obtaining a green card through the EB-5 program is to file a form I-526 (Immigrant Petition by Alien Entrepreneur) with the U.S. Citizenship and Immigration Services (USCIS) with evidence that the petitioner has invested in or will invest in at least $1,000,000 in a commercial enterprise in the U.S. or $500,000 if the commercial enterprise is located in an area designated as a “Targeted Employment Area.” A Targeted Employment Area is typically a rural area or a high unemployment area. The investor must also provide documentation that the investment funds were lawfully obtained through employment, investment, gift, inheritance or other means and that the investment will create or preserve at least 10 full-time jobs.
Step 2: Obtaining a 2 Year Conditional Green Card
Once the form I-526 is approved, the investor, his or her spouse, and any unmarried children under age 21 receive a conditional green card. The conditional green card is valid for 2 years.
Step 3: Filing Form I-829—Removing Conditions and Obtaining Permanent Resident Status
90 days before the end of the conditional period, the investor and his family can apply for permanent residence by submitting form I-829 (Petition by Entrepreneur to Remove Conditions) to the USCIS along with documentation that the requisite amount of capital was invested, the investment was sustained for a 2-year period, and the commercial enterprise created or preserved at least 10 full-time jobs.
Once the I-829 is approved, the investor and his or her family are granted permanent resident status.
Corporate Compliance and Education
Agarwal Law Group provides customized training and in-house seminars for human resources staff, managers, legal counsel, and foreign employees to educate them on current immigration laws and requirements. Agarwal Law Group also provides seminars on temporary and permanent visa options for employees.
Agarwal Law Group assists employers with completing and maintaining I-9 documents and is available to conduct I-9 audits to ensure that companies are in compliance with current I-9 requirements.
The Department of Homeland Security (DHS) is actively enforcing I-9 compliance regulations and initiating audits and investigations to ensure that companies are compliant with current laws. Companies are required to lawfully complete and file an I-9 form for each employee, maintain the forms, comply with re-verification requirements, comply with E-verify requirements, respond to no-match Social Security letters, and comply with rules concerning the termination of employees, and non-discrimination regulations
Labor Condition Application (LCA) Compliance
The U.S. Department of Labor (DOL) has increased its audits and enforcement activities concerning companies’ maintenance of files related to the Labor Condition Application (LCA). An LCA is filed in connection with H-1B petitions. Agarwal Law Group assists companies with properly maintaining LCAs and Public Access files. Agarwal Law Group also assists companies in developing policies to ensure compliance with laws regarding LCA maintenance.
Immigration and Customs Enforcement (ICE) may conduct unannounced visits in order to assess compliance with immigration laws and regulations. Agarwal Law Group will work with companies to develop a policy and practice for responding to ICE visits and will counsel employers on their rights during and after ICE visits.
Immigration Compliance with Corporate Transactions
The immigration implications of mergers, acquisitions, and divestitures can be drastic. When employing foreign nationals, companies must address immigration related visa and compliance issues to avoid penalties.
Agarwal Law Group advises employers on the best course of action to address foreign employees. Agarwal Law Group assists corporations in developing a strategy to address potential immigration issues to ensure that corporate transactions can move forward efficiently and without unnecessary delay.
Students and Cultural Exchange Visitors
Several categories of student visas are available for foreign nationals who wish to pursue academic or cultural studies in approved programs throughout the U.S. Programs are available for secondary students as well as college or university students.
Agarwal Law Group provides assistance in determining the most appropriate visa category for prospective students and advises on requirements for maintenance, change, and extension of student status.
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An F-1 visa allows foreign nationals to enter the U.S. to engage in academic study. Academic programs can include elementary school, middle school, high school, college, university, seminary, and conservatory programs.
Qualifying for F-1 Status
To qualify for F-1 status, the applicant must demonstrate that:
F-1 Student Employment
Upon completion of their first academic year, F-1 students may engage in 3 types of off-campus employment.
The Cap-Gap: Change of Status for F-1 Students to H-1B
If an F-1 student is graduating and seeking to change to H-1B status, they will likely be eligible for an extension of their work authorization through September 30 of the fiscal year for which H-1B status is being requested. This extension will allow F-1 students whose OPT will expire before the start date of a petition filed under the H-1B cap to remain in the U.S.
Dependents
The spouse of an F-1 applicant and children under age 21 may enter the U.S. in F-2 dependent status.
The J-1 visa allows foreign nationals to enter the U.S. as participants in an exchange visitor program in order to increase cultural awareness between the U.S. and people of other countries.
The U.S. Department of State (DOS) oversees and approves programs to administer the J-1 exchange visas. The J-1 visa is used for students, short-term scholars, trainees, interns, student interns, teachers, research scholars, specialists, international visitors, and camp counselors. 3 other types of programs recognized by DOS include an exchange program for foreign doctors undertaking U.S. internships or residencies, summer work/travel programs for students, and au pair exchange programs for persons seeking entry to provide limited child care services to host families while attending post-secondary courses.
Applicants must demonstrate that they intend to return to their home country upon completion of the J-1 program. The applicant must also prove that he or she has sufficient funds to cover expenses or has made other arrangements to provide for expenses, and that he or she has English proficiency unless the sponsoring organization accepts the lack of English proficiency.
The duration of the J-1 program varies from a few weeks to several years, depending on the program for which the visa is issued. Upon completion of the program, J-1 visa holders may be subject to a requirement that they return to their home country, unless they qualify for a waiver.
The spouse and minor children under age 21 of a J-1 applicant may enter the U.S. in J-2 dependent status. J-2 spouses may apply to the USCIS for an open-market work permit upon arrival to the U.S.
The M-1 visa allows foreign nationals to come to the U.S. to participate in vocational study or in nonacademic programs at an educational institution approved by the U.S. Citizenship and Immigration Service (USCIS).
M-1 students are admitted to the U.S. for the full length of their vocational course of study, plus 30 days or for a period of 1 year (whichever is less). The M-1 student can apply for an extension of stay if his or her course of study lasts for more than one year.
The spouse and children under age 21 may accompany the M-1 applicant in M-2 dependent status. M-2 dependents are not authorized to work during their stay.
Q (International Cultural Exchange Program)
The Q visa allows foreign nationals to enter the U.S. for business training as part of an international cultural exchange program. The designated program must provide practical training, employment, and the sharing of the history, culture, and traditions of the country of the individual’s nationality. The foreign national must also receive the same wages and working conditions as U.S. workers.
Q-1 applicants must be at least 18 years old and must demonstrate an intent to return to their home country. The Q-1 applicant must also be qualified to perform the service or labor or receive the type of training stated in the petition, and be able to communicate effectively about the cultural attributes of his or her country of nationality to the American public.
The Q-1 applicant is admitted to the U.S. for the duration of the approved international cultural exchange program or 15 months, whichever is shorter.
No provision has been made for the admission of the spouse or children of a Q-1 applicant. Immediate family members of Q-1 applicants may seek admission in the B-2 (Tourist) category.
Visitor/Tourist Visas
Foreign nationals may enter the U.S. for short periods of time for business or pleasure. Some individuals may be eligible to the enter the U.S. without first obtaining a visitor visa. Agarwal Law Group assists business visitors and tourists prepare required documentation and obtain the appropriate visa for their travel to the U.S.
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The Visa Waiver Program (VWP) is available for foreign nationals of specific countries who intend to visit the U.S. for tourism, business, or training. The VWP allows eligible foreign nationals to enter the U.S. without first going to a U.S. consulate to obtain a visitor visa. A list of eligible countries is provided by the U.S. Department of State (DOS).
After applying online for travel authorization, a visitor from one of these countries can simply board a plane to the U.S., complete an immigration card during the flight, and explain the purpose of his or her visit to the U.S. immigration inspector upon arrival. If the immigration officer is satisfied with the purpose, the visitor is admitted for a maximum of 90 days. Foreign nationals who enter the U.S. in the VWP are not eligible for extensions of stay.
Travel Authorization
Applications for travel authorization under the VWP are filed through the Electronic System for Travel Authorization (ESTA) website.
The applicant is required to provide information which is compared to information on U.S. government databases. The applicant will receive an automated response either approving or denying travel authorization. If the application is approved, the travel authorization is valid for 2 years or until the applicant’s passport expires.
If the application is not approved, the applicant will not be permitted to use this program, but can apply for the B-1 (business) or B-2 (tourist) visa.
B-1 (Business Visitor) and B-2 (Tourist)
The B-1 and B-2 visas allow foreign nationals to temporarily enter the U.S. for business or pleasure. To obtain a B visa, the applicant must demonstrate that they are coming to the U.S. temporarily, for a proper purpose, and that they have a foreign residence that they do not wish to abandon.
Applications for B visas must be made at a U.S. consulate abroad. In B-1 cases, the application is accompanied by a letter from the applicant’s employer specifying the business need for the trip, including concrete itineraries and scheduled meetings or appointments. In B-2 cases, the application is often accompanied by a letter from a U.S. friend or relative sponsor inviting the individual to the U.S.
The B-1 or B-2 visitor can be admitted to the U.S. for up to 1 year, but in practice, the initial period of authorized stay rarely exceeds 6 months.
Law Enforcement Visas and Humanitarian Options
Foreign nationals who have suffered harm in their home country or during their time in the U.S. have several immigration options available to allow them to remain safely and lawfully in the country.
Victims of criminal activity, trafficking, or domestic violence may be eligible to remain in the U.S. and apply for permanent residency for themselves and their dependents. Foreign nationals who have been persecuted in their home country may also qualify for several forms of protection.
Agarwal Law Group assists victims of violence, abuse, or persecution evaluate and process the most appropriate relief options to remain temporarily or permanently in the U.S.
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S (Persons Assisting in Law Enforcement Activities)
The S visa allows individuals with critical and reliable information regarding criminal organization or enterprise, who cooperate with law enforcement authorities, to temporarily enter the U.S. Federal authorities must determine that the presence of the individual is essential to the success of an authorized criminal investigation or prosecution.
The S visa allows the applicant to remain in the U.S. for 3 years, with no possibility of an extension. To adjust status to permanent residency, S visa holders must satisfy certain criteria beyond that required for other categories of foreign nationals.
Asylum is a form of protection granted by either the U.S. Citizenship and Immigration Service (USCIS) or the Immigration Courts for foreign nationals who fear persecution in their home country on the basis of race, religion, nationality, political opinion, or membership in a particular social group. To be eligible for asylum, the persecution feared must be from the government, or persons or organizations that the government is unable or unwilling to control.
Individuals are required to apply for asylum within one year of arriving to the U.S. Exceptions to the one-year rule include changed conditions in the individual’s home country or other extraordinary circumstances which prevented the individual from applying for asylum within the appropriate time frame.
After a grant of asylum, the individual may apply for permanent residency after one year. The spouse and children under age 21 can derive asylum status from the principal applicant if they are included on the application.
A grant of Withholding of Removal will allow foreign nationals to remain in the U.S. if they are able to demonstrate that they fear severe harm in their home country, but are not eligible for asylum.
To be eligible for Withholding of Removal, individuals must demonstrate that they fear persecution from the government or from organizations that the government is unable or unwilling to control. The individual must be targeted on the basis of his or her race, religion, nationality, political opinion, or membership in a particular social group. To qualify for Withholding of Removal, an individual must prove that their life or freedom will be threatened if they return to their home country.
Unlike asylum, individuals can apply for Withholding of Removal even years after they enter the U.S. Applicants with certain criminal convictions may be eligible for withholding of removal even if they are barred from applying for asylum.
The spouse or minor children under 21 cannot derive immigration status from the principal withholding of removal applicant.
United Nations Convention Against Torture (CAT)
The United Nations Convention Against Torture allows individuals who fear being tortured in their home country to remain in the U.S. Torture includes forms of extreme physical or mental pain and suffering. While the torture must be inflicted intentionally by the government or an organization or group associated with the government, there is no requirement that the torture be for a specific reason or characteristic. Applicants must provide evidence showing that it is more likely than not that they will face torture upon return to their home country.
Applicants are permitted to apply for relief under the Convention Against Torture at any time regardless of their criminal history. Relief under the Convention Against Torture is limited in that it only guarantees that the Department of Homeland Security will not remove the individual to their home country while he or she remains in danger of being tortured.
The spouse and minor children of an applicant cannot derive immigration status through the Convention Against Torture.
Acquisition or Derivation of Citizenship
In some circumstances, individuals either acquire or derive citizenship automatically, by operation of law.
A child born abroad may acquire U.S. citizenship if both parents were U.S. citizens at the time the child was born. At least one U.S. citizen parent must have resided in the U.S. for a certain period of time before the child’s birth. The eligibility requirements can vary based on whether the biological parents were married at the time of the child’s birth.
Children of permanent residents may automatically derive citizenship if they can demonstrate that at least one of their parents was a U.S. citizen by birth or naturalization, they were under 18 years old when the parent obtained citizenship, they are unmarried, they are a lawful permanent resident, and that they are in legal and physical custody of the U.S. citizen parent.
Investors and Entrepreneurs
An investor or entrepreneur seeking to come to the U.S. may take advantage of a number of temporary or permanent visa options. For example, if a requisite treaty exists, a foreign national may be eligible to enter the U.S. temporarily on his or her own behalf or as an employee of a qualifying organization.
Alternatively, foreign nationals interested in investing at least $500,000 may be eligible for permanent residence through the EB-5 program which allows investors to immigrate by forming a business, investing in an existing business, or making an investment in a regional center.
Agarwal Law Group works with organizations and individuals to evaluate and process the most appropriate visa category for investors and entrepreneurs.
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Temporary Trade and Investment-Based Visas
Foreign nationals of approximately 70 countries may enter the U.S. to engage in trade or to make a capital investment under the terms of a treaty between the U.S. and the foreign national’s country.
Although a treaty individual must intend to depart the U.S. when his or her stay is completed, he or she is not required to maintain a foreign residence and does not need to specify a date by which he or she intends to depart the U.S. In fact, the foreign national can remain in the U.S. indefinitely, as long as the trade or investment enterprise continues to qualify for treaty classification and the foreign national continues to maintain valid status.
E-1 (Treaty Traders)
The E-1 classification allows foreign nationals of certain countries with which the U.S. maintains a treaty of commerce and navigation to be admitted to the U.S. to engage in international trade on his or her own behalf. Employees of treaty traders or of a qualifying organization may also be eligible to enter the U.S. under an E-1 classification.
To qualify for an E-1 visa on his or her own behalf, the foreign national must engage in substantial trade where the principal trade is between the U.S. and the country which qualified the treaty trader for E-1 classification. Items of trade can include, but are not limited to, goods, services, international banking, insurance, tourism, transportation, or technology. An employee seeking E-1 status must be the same nationality as the principal foreign national employer and must be employed in a supervisory or executive position.
To qualify as an organization that is eligible to sponsor E-1 employees, the organization must be an enterprise at least 50% owned by persons in the U.S. who have the nationality of the treaty country. The owners must also maintain nonimmigrant treaty trader status.
The E-1 applicant’s spouse and unmarried children under 21 are also eligible for E-1 status. The nationality of E-1 dependents need not be the same as the treaty trader or employee. An E-1 spouse may apply for work authorization once they enter the U.S.
E-2 (Treaty Investors)
The E-2 classification allows foreign nationals of certain countries with which the U.S. maintains a treaty of commerce and navigation to be admitted to the U.S. by investing a substantial amount of capital in a U.S. business. Employees of treaty investors or qualifying organizations may also be eligible to enter the U.S. under an E-2 classification.
To qualify for E-2 status, the treaty investor must be a national of a qualifying country, have invested in or be in the process of investing a substantial amount of capital in a bona fide enterprise in the U.S., and be seeking to enter the U.S. to develop and direct the investment enterprise. An employee seeking E-2 status must be the same nationality as the principal foreign national employer and be engaged in a supervisory or executive role.
To qualify as an organization that is eligible to sponsor E-2 employees, the enterprise must be at least 50% owned by persons in the U.S. who have the nationality of the treaty country. These owners must maintain nonimmigrant treaty investor status.
The E-2 applicant’s spouse and unmarried children under 21 are also eligible for E-2 status. An E-2 spouse may apply for work authorization once they enter the U.S.
Permanent Investment-Based Immigration: EB-5 (Immigrant Investors)
The EB-5 investor visa allows foreign nationals to obtain green cards and become permanent residents by making a capital investment in a new commercial enterprise in the U.S. The investment must benefit the U.S. economy and create full-time employment for at least 10 “qualified employees.”
The process to obtain a green card in the EB-5 category involves 3 steps. After completion of step 2, the investor (and his or her beneficiaries) will receive a conditional green card valid for 2 years. After completion of step 3, the investor will receive a permanent green card.
Step 1: Filing the I-526 Petition—Qualifying Investment and Source of Funds
The first step towards obtaining a green card through the EB-5 program is to file a form I-526 (Immigrant Petition by Alien Entrepreneur) with the U.S. Citizenship and Immigration Services (USCIS) with evidence that the petitioner has invested in or will invest in at least $1,000,000 in a commercial enterprise in the U.S. or $500,000 if the commercial enterprise is located in an area designated as a “Targeted Employment Area.” A Targeted Employment Area is typically a rural area or a high unemployment area. The investor must also provide documentation that the investment funds were lawfully obtained through employment, investment, gift, inheritance or other means and that the investment will create or preserve at least 10 full-time jobs.
Step 2: Obtaining a 2 Year Conditional Green Card
Once the form I-526 is approved, the investor, his or her spouse, and any unmarried children under age 21 receive a conditional green card. The conditional green card is valid for 2 years.
Step 3: Filing Form I-829—Removing Conditions and Obtaining Permanent Resident Status
90 days before the end of the conditional period, the investor and his family can apply for permanent residence by submitting form I-829 (Petition by Entrepreneur to Remove Conditions) to the USCIS along with documentation that the requisite amount of capital was invested, the investment was sustained for a 2-year period, and the commercial enterprise created or preserved at least 10 full-time jobs.
Once the I-829 is approved, the investor and his or her family are granted permanent resident status.
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