Frequently Asked Questions: Visas, Green Cards & Investment Immigration Law
As a result of assisting hundreds of immigration clients with various visa matters in past years, our immigration lawyers have compiled a list of frequently asked questions. Be sure to check back often as this list is continually updated. Still have a question? Contact us today to speak with an experienced immigration law attorney.
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What Are the Three Types of EB-1 Green Card?
There are three subcategories of the EB-1 immigration visa for those with extraordinary abilities – and chances are that only one is right for you and your family.
The EB-1A green card is meant for those who can easily prove that they have an extraordinary ability and have risen to the top of their field internationally. This immigration visa asks that you prove thoroughly that you have received top recognition as an educator, artist, athlete, businessperson, researcher, or scientist. It does not require that you have a job lined up in the United States.
The EB-1B green card is tailored to professors and researchers with at least three years of experience who have secured a permanent position in the United States, either as a tenure-track teacher or researcher. You must prove that you have received international recognition for your work, such as an award or publication.
The EB-1C green card is designed for managers and executives of international companies who wish to permanently work and live in the United States. While you do not have to prove extraordinary ability, you do have to prove your experience and necessity to your company.
If I have a valid H-1B visa, can my spouse and children accompany me to the United States?
Yes, certain dependents can travel to the United States with you and live with you in America if you have a valid H visa. However, they must first apply for an H-4 visa for dependents to obtain their own visa.
Your spouse and your unmarried children under the age of 21 may apply for an H-4 visa for dependents. With this visa, they will be able to attend school full-time, but they will not be able to seek employment or work in the United States. The H-4 visa allows your family to travel freely throughout the country and the world, and is valid for as long as the H-1 visa holder’s paperwork is current. An H-4 visa can be extended just as an H-1 visa can be extended.
If you would like to work while in the United States on an H-4 visa, you must change your visa status. Likewise, if you are a child of an H visa holder and turn 21 while studying in the United States, you must change your visa status in order to legally continue your education.
What Is a STEM Worker?
A person with an educational background in science, technology, engineering, or mathematics is considered a STEM worker. The majority of STEM workers have advanced degrees, such as masters' degrees and doctorates in these areas.
Do We Have Enough STEM Workers in the United States?
Currently in the United States, lawmakers, businesses, and universities are engaged in an important discussion: is the United States producing enough STEM workers? Are we allowing enough STEM workers to enter the country through work visas? And what can we do to ensure that we are producing enough STEM workers in the future?
As technology advances and many manufacturing jobs move overseas, the U.S. would like to focus on growing the economy through certain high-tech industries. However, many companies complain that a STEM worker shortage makes it impossible for us to keep pace with other competing countries across the world, including India and China. Many believe that increasing the number of STEM worker immigrants can help solve this problem – along with new programs that focus on technology in schools.
New Immigration Policies To Attract STEM Workers to American Companies
At this time, the federal government generally agrees that new immigration policies and reforms should be put in place to help get the most talented STEM workers in the world to American companies.
Can My Spouse And Children Come With Me If I Have An L-1 Visa?
Yes, your spouse and minor children may travel with you to the United States if you have a valid L-1 visa. However, they must apply for an L-2 visa for dependents to legally accompany you to America.
The L-2 visa is meant for the dependents of an L-1 visa holder: the husband or wife of the worker as well as any of their unmarried children under the age of 21. L-2 visa holders have a number of privileges: they can study in the United States without acquiring a F-1 visa for students and they can travel freely in the United States and the world.
The spouse of a L-1 visa holder is allowed to work as long as they attain an Employment Authorization Card from US Citizenship and Immigration Services (USCIS). These cards must be renewed every two years.
An L-2 visa is good for as long as the L-1 visa of the spouse or parent remains valid. The L-1 visa is a non-immigration visa that is valid for five to seven years.
The L-1 Visa Process Explained
If you are applying for an L-1 employment visa, you will likely have to file a lot of forms and stand in many lines before your application is complete. Our San Francisco immigration lawyers offer a general timeline of what you can expect before your L-1 visa is approved.
Here are the steps to filing an L-1 visa application to work in California
- Form I-129 submission. The parent company must file an L-1 visa petition (Form I-129) with the U.S. Citizenship & Immigration Services (USCIS), along with supporting documents proving that both the U.S. company and the foreign affiliate branch meet the qualifications for L-1 classification.
- Form I-797 approval. If your Form I-129 is approved, the USCIS will issue a Notice of Action (Form I-797), stating that your application is valid. However, approval of the visa petition does not guarantee that a visa will be issued; the petitioner must take Form I-797 to the United States consulate or embassy in his home country to submit for visa approval.
- L-1 visa approval. The consular officer will evaluate your petition to ensure that you meet the employment qualifications and that the U.S. company and the foreign affiliate are legitimate businesses eligible for L-1 transfers.
- L-2 visa applications. If your L-1 visa is approved, you may submit L-2 visa applications at the consulate for your family members. Your spouse and unmarried children (under age 21) may accompany you. Your children may attend school but cannot work in the U.S.; your spouse may accept any legal employment of his or her choosing.
Although the L-1 is considered a non-immigration visa, there are no restrictions on an applicant having dual intent. This means L-1 applicants cannot be denied visas if they eventually intend to immigrate to the United States. At the Law Offices of Vaughan de Kirby, we can help you transform your visa into a green card, allowing you and your family to stay in the U.S. indefinitely.
The L-1 visa for intercompany transfers is an important employment-based visa option, especially for businesses who want to start up a United States subsidiary or bring in skilled managers or executives from abroad to work in their American offices. However, how do you know if the L-1 visa is the best option when it comes to work-related visas? Let’s take a closer look at its benefits by comparing it to a few other common options:
L-1 Visa Versus the H-1B Skilled Worker Visa
There are a number of similarities between the L-1 visa and the H-1B visa, which allows American and international companies to bring highly skilled workers to the United States for employment. However, the L-1 visa does have several advantages: an L-1 worker does not need a degree, an L-1 company does not have to prove that a U.S. worker could not fill the position, and an L-1 visa does not have an annual quota.
L-1 Visa Versus the E-2 Treaty Investor Visa
Some business-minded immigrants can choose between the L-1 visa and the E-2 visa. The E-2 visa is also tailored for businesspeople that want to expand a business or open a new business in the United States. However, to qualify for an E-2 visa, the foreigner must originate from a country that has a treaty with the U.S. In addition, you must invest a substantial amount in your business and your business must have a positive impact on the American economy. Finally, you must make your investment before the visa petition is finalized.
L-1 Visa Versus the B-1 Temporary Investor Visa
While both of these visas are designed for foreign workers who need to travel to the United States to conduct important business, the L-1 visa has several advantages over the B-1 visa. While a B visa can give you the opportunity to set up or do business here, B visas are meant for a temporary stay in the country – an initial six-month time period that may be extended another six months. A B visa also requires you to prove that you have the funds to stay in the U.S. for months at a time, but prevents you from becoming an employee during your visit. While both L-1 visas and B-1 visas are non-immigration visas, the B-1 visa requires that you do not have intentions or interest in moving to America and that you have a home that you are keeping overseas.
Should I apply for the EB-1 visa or the O-1 visa for extraordinary ability?
Many talented foreigners are confused by the visa options for immigrants with extraordinary abilities. At first glance, the EB-1 visa and the O-1 visa seem to be extremely similar. How do you know which choice is right for you?
Although both the EB-1 and O-1 visas were developed to encourage foreigners with special talents and abilities to immigrate to the United States, the two options are considerably different.
The EB-1 visa for extraordinary ability is geared toward athletes, artists, and businessmen with acclaimed talents. It is an immigration visa meant for those who would like to live permanently in the United States with a green card. If you come to America with an EB-1 visa, you do not need an employer sponsor or a job lined up, but you are expected to continue working in your field if you would like permanent residency.
The O-1 visa for extraordinary ability is for anyone with internationally acknowledged talents, from athletes to managers to actors. This is a non-immigration visa that requires an employee sponsor and a job in the U.S. Proving a certain level of talent and qualifying for an O-1 visa is more difficult than qualifying for an EB-1 visa. An unlimited number of O-1 visas can be issued each year.
What is the COMPETE Act of 2006?
The Creating Opportunities for Minor League Professionals, Entertainers, and Teams through legal Entry Act (COMPETE Act) gives minor league athletes and amateur athletes the opportunity to enter the United States legally through a P-1 visa. Before the COMPETE Act, these athletes had to seek H-2B non-immigration visas, which is more tailored to other seasonal foreign workers.
Passed in December 2006, the COMPETE Act makes it clear that the P-1 visa is meant for a more diverse collection of international athletes and coaches, not just those that are internationally known or that perform at an international level. Specifically, the COMPETE Act makes it possible for minor league baseball players, junior league hockey players, minor league soccer players, semi-professional athletes, and others to live and work in the United States while playing on a team, training, and working on their skills.
If you are an athlete who wishes to travel to the United States to participate in competition, join a team, or coach, you may have several different options when it comes to visas, including the P-1 visa.
Who Can Act as an O-1 Visa Petitioner or Sponsor?
Unlike some other visas, in which the person petitioning for the visa is the immigrant himself, the O-1 visa for extraordinary ability requires that a sponsor petition U.S. Citizenship and Immigration Services (USCIS). The beneficiary of the O-1 visa (the person with the extraordinary talent) cannot also act as the petitioner (the person who is sponsoring the extraordinary talent).
While other work visas often require an employer to be the sponsor, this is not necessarily true in the case of the O-1 visa. Most beneficiaries are still sponsored by their company or employer, but others are sponsored by an individual United States citizen or permanent United States resident who acts as an agent. In some cases, a foreign employer working through a U.S. resident who acts as an agent can be a sponsor. Individual sponsors are common when a talent doesn’t have a single employer, but rather has an itinerary of events or is an independent contractor.
O-1 visa sponsorship can be more confusing and complex than other visa sponsorships.
How do I become a permanent resident after securing a conditional green card through the EB-5 visa program?
After you have been part of the EB-5 green card program for two years – and after you have successfully invested your money in a United States business, regional center, or project – you may file for permanent residency. When you move from having a conditional green card to being a permanent resident, many restrictions are lifted, and your freedom to work, live, and travel increases.
In order to secure permanent residency, you must file Form I-829 (Petition by Entrepreneur to Remove Conditions) with United States Citizenship and Immigration Services within 90 days of your two-year Eb-5 immigration visa anniversary. This three-page form should be filed with the USCIS California Service Center and comes with a fee of $3,835 – read the four pages of instructions carefully. In addition, a biometrics services fee of $85 is due for each dependent staying with you.
Do you need assistance with your EB-5 investment immigration plan, or help removing the conditions from your residency status after two years of having a conditional green card? The Investment Immigration lawyers at the Law Offices of Vaughan de Kirby can help guide you and your family through the process and to permanent, unconditional residency in the United States.
Is it possible for a foreigner to retire to the United States?
While some other countries offer foreigners retirement visas, sometimes known as silver cards, the United States does not have a retirement visa program – and has no current plans of creating one. However, just because the U.S. does not specifically have a visa program for retirees does not mean that there are not options for those who wish to spend their golden years on American soil.
Retire In The U.S. with EB-5 Investor Visa
If you do not have a close relative who is a United States Citizen and who can sponsor you, your best option for retiring to the U.S. might be an EB-5 investor’s visa. Geared toward foreigners who have accumulated significant wealth and who would like to live and invest in the United States, the EB-5 visa grants eventual permanent residency to those who are willing to invest either $500,000 or $1 million in an American business or project.
Retirement Options Are Possible
Although it can be difficult to retire in the U.S., and while there is no specific visa program for retirees, there are viable options to consider, especially if you have retirement money that you plan on investing.
How much do I have to invest to secure an EB-5 investment immigration visa?
How much money you are required to invest during the EB-5 immigration visa process depends on which type of investment you plan to make: direct investment or a regional center investment. Let’s take a closer look at both options:
- To make a direct investment, you must invest $1 million. An EB-5 direct investment must go toward a new enterprise in a rural area or an area with a high unemployment rate. A direct investment requires the investor to create at least ten new full-time jobs and to be engaged in the day-to-day management of the business.
- To make a regional center investment, you must invest $500,000. This second type of investment must go toward a regional center that has already been approved by the United States Citizenship and Immigration Services. These centers must also promote job growth (at least indirectly) and improve the economy.
Which type of investment is right for you and your family? The answer is different for everyone to discuss these two options in depth, call a California green card lawyer at the Law Offices of Vaughan de Kirby today. Our immigration attorneys provide private, confidential consultations and speak both English and Mandarin.