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Adjustment of Status

B-1/B-2 Visitor Visas

E-2 Temporary Work Status

EB-1 Temporary Work Status

EB-5 Investors and Entrepreneurs

H-1B Temporary Work Status

H-2 Temporary Work Status

Immigration and Marriage

Immigration and Travel

L-1 Temporary Work Status

Consular Processing for Nonimmigrant Visas (Temporary Visas)

Visa Waiver Program


 Frequently Asked Questions About

Adjustment of Status

  

  1. What is adjustment of status?

Adjustment of status is a legal term for the process through which an individual present in the U.S. seeks to switch into Lawful Permanent Resident (“green card”) status without leaving the U.S.  The alternative is for an individual to seek permanent resident status by applying for an immigrant visa at a U.S. Consulate outside the United States.

 

  1. Who is eligible to apply for adjustment of status?

In order to be eligible to apply for adjustment of status to Lawful Permanent Residence, an individual must usually first get an approval from U.S. Citizenship and Immigration Services (USCIS) of an immigrant petition that was filed on his or her behalf by a U.S employer or a U.S. citizen family member.  In addition, an individual must have been lawfully admitted to the U.S. and must satisfy all relevant legal requirements including those discussed below in order to apply for adjustment of status. 

 

 3.  Who is not eligible to apply for adjustment of status?

According to general adjustment of status standards, an individual usually may not seek adjustment of status to permanent resident in the United States if he or she entered the U.S. illegally.  Even if an individual entered the U.S. legally, he or she usually may not apply for adjustment of status if he or she is currently in the U.S. in certain nonimmigrant classifications.  For example, some individuals in B visitor status, J exchange visitor status, or individuals admitted to the U.S. under the visa waiver program, may be refused permission to adjust status in the U.S.  In addition, an individual may usually not apply for adjustment of status in the U.S. if he or she is out of status at the time of filing or if he or she has violated certain immigration rules in the past.  Finally, an applicant for adjustment of status must be admissible, meaning that he or she is not subject to the grounds of inadmissibility (i.e. security risks, conviction of a serious crime, etc.).  In some cases an individual

who cannot apply for adjustment of status in the U.S. may still be eligible to apply for an immigrant visa at a U.S. consulate abroad or be eligible for a “waiver of inadmissibility”.

 

  1. When can someone apply for adjustment of status?

Even though an individual may be the beneficiary of an approved immigrant petition, he or she may not file for adjustment of status until an immigrant visa is immediately available.  Whether an immigrant visa is available depends on what type of family-sponsored or employment-sponsored immigrant petition was approved on the individual’s behalf and the individual’s country of nationality.  Some immigrant visas are subject to annual numerical limits (“quotas”) per country and per category.  For example, an immigrant visa is always immediately available to individuals who are immediate relatives of U.S. citizens because there is no numerical limit on this category; however, other relatives of U.S. citizens from particular countries may have to wait to apply for adjustment of status.  If the numerical limit is exceeded for a certain country or a certain category, an immigrant visa may not be immediately available. The U.S. Visa Bulletin issued by the U.S. Department of State summarizes the immigrant numbers available on a monthly basis. 

 

5.       5.  Who is eligible to file an adjustment of status application concurrently with an immigrant petition?

Certain individuals seeking permanent resident status may file an adjustment of status application concurrently with an immigrant petition if an immigrant visa is immediately available.  Immediate relatives of U.S. citizens, other family members of U.S. citizens, and beneficiaries of employment-based immigrant petitions with current priority dates may file an adjustment of status application concurrently with an immigrant visa petition. 

 

  1. How long does it take for someone to obtain permanent resident status?

Processing times vary among the service centers and district offices of the USCIS.  Recently, it has been taking on average a year or more to obtain permanent resident status from the time of filing the adjustment of status application.  Since processing times vary widely and may change abruptly for many reasons (e.g. staffing changes, uneven regional workloads, changes in government policy and procedure, etc.) processing times estimates are only approximations and not reliable predictions.

 

  1. Who is required to attend an interview as part of the adjustment of status process?

Individuals seeking adjustment of status on the basis of marriage to a U.S. citizen are required to attend an interview at the appropriate local USCIS office.  Other family members of U.S. citizens seeking adjustment of status on the basis of the relationship may or may not have an interview scheduled.  This is also the case with individuals seeking adjustment of status on the basis of employment.  It is generally within the discretion of the Immigration Officer whether or not an interview is necessary.  If there are questions surrounding the qualifying relationship or employment, or for random government quality control reasons, an interview may be scheduled. 

 

  1. Can someone work in the U.S. while the adjustment of status application is pending?

Yes.  There are two means by which an adjustment of status applicant may be authorized to work while the application is pending.  First, an applicant who was authorized to work at the time of filing the adjustment of status application pursuant to a nonimmigrant category such as H-1 Temporary Work status may continue to work for the employer as long as the nonimmigrant classification has not expired and the individual continues to comply with all legal requirements of that classification.  Second, all adjustment of status applicants can apply for an employment authorization document (EAD) at the time of filing the adjustment of status application.  Since approval and issuance of an EAD card may take up to 90 days or longer after application filing, the timing of application preparation and filing and proposed employment start dates should be considered carefully.  The EAD is issued in one-year increments during the pendency of the adjustment of status application so the individual must apply for periodic renewal of his or her work authorization if the adjustment of status application takes more than one year to process. 

 

  1. Can someone travel abroad while the adjustment of status application is pending?

Yes, but a pending adjustment of status applicant must usually first obtain a travel document from the USCIS.  “Advance parole” is the legal term for the USCIS’ granting of permission to a pending adjustment applicant to return from travel abroad.  Any bona fide personal or business reason for travel during the pendency of the adjustment of status application is usually sufficient to obtain advance parole.  Advance parole may be granted for up to one year for multiple entries.  Any pending adjustment of status applicant who leaves the U.S. without first obtaining advance parole will usually be deemed to have abandoned the pending adjustment of status application.  There is a limited exception to this rule for H-1 and L-1 nonimmigrants with pending adjustment of status applications.  H and L nonimmigrants may depart and be readmitted to the U.S. in the same nonimmigrant status provided they intend to resume employment with the authorized employer and they present a valid nonimmigrant visa and a receipt notice evidencing that an adjustment of status application is pending. 

 

  1. Can an applicant include his or her spouse and children on the adjustment of status application?

Yes.  The spouse and children of an adjustment of status applicant may apply for adjustment of status as derivatives of the principal applicant. Each child and the spouse must submit a separate application.  A child of the principal applicant may only be included if he or she is under 21 years of age and unmarried.

 

  1. Can an applicant change employers while the adjustment of status application is pending?

A person whose employment-sponsored adjustment of status application has been pending for more than 180 days may be able to change employers or jobs without affecting the validity of the underlying immigrant petition if the new employment is within “the same or a similar occupational classification” and if the I-140 petition has been approved.  Generally, most family-sponsored applicants and certain self-petitioning employment-based applicants such as Extraordinary Ability Priority Workers may change employment while the application is pending.

 

  1. Do all applicants have to submit a medical examination as part of the adjustment of status application?

Yes, all applicants for adjustment of status to permanent residence must submit a medical examination form that was completed by a USCIS designated physician (civil surgeon).  The medical results are valid for 12 months for immigration purposes.  With limited exceptions, all applicants must also provide proof that they have received certain vaccinations as part of the medical examination.  An individual will usually need to receive those required vaccinations for which they cannot provide a valid vaccination record. 

 

  1. What is the role of the employer in the adjustment of status process?

Generally, an employer is not involved in the adjustment of status application itself because it deals with the individual’s personal eligibility and not the employment situation.  An employer may need to provide a letter verifying the employment, position, and salary of the applicant to submit in support of the application. 

 

  1. What does the adjustment of status application consist of?

The standard required documents include various USCIS forms, photographs, medical examination results, fingerprints, and filing fees.  Additional supporting documents often include birth certificates, marriage and divorce certificates, etc.  One should always check with the appropriate USCIS office to determine the specific required documents because the documents required vary and may change.  Additional forms, photographs, fees and other documents are required if an individual wants to apply for a travel document or employment authorization. 

 

  1. How is someone notified of the approval of the adjustment of status application?

This depends on whether or not an individual has an interview.  If an applicant is interviewed, the final determination is usually made by the officer at the end of the interview.  If the application is approved and an immigrant visa is immediately available, the applicant may receive a temporary

I-551 stamp in his or her passport showing that he or she is a permanent resident.  This stamp will serve as evidence of the individual’s permanent resident status until the actual “green card” (i.e. permanent residence card) arrives in the mail.  If the interview is waived, an applicant will receive the final determination via mail, but usually will not receive a temporary I-551 stamp. 

 

  1. What happens if the application is incomplete?

If the application is missing an important form or filing fee, the entire application will probably be sent back to the applicant along with a letter explaining the reason for its return.  If all of the required forms are submitted but some information is incomplete or unclear (e.g. the medical form was improperly completed), the USCIS will likely send a Request for Evidence (RFE) letter asking for additional documents or information.  The applicant has a specified period of time within which to submit the additional requested information or else the application may be denied. 

 

17.  17. What should someone do if they cannot remember or obtain all of the information required on the forms?

It is very important to always provide the most accurate and complete information possible.  However, if someone does not remember or cannot obtain some of the information required, he or she should provide as much information as possible.  Do not provide information unless you are confident that it is accurate.  For non-citizens especially, giving inaccurate information to the immigration authorities may be a very serious violation of immigration law and can lead to many problems including removal and permanent exclusion from the United States.

 

  1. What is §245(i)?

This is Section 245(i) of the Immigration and Nationality Act which extends the eligibility for adjustment of status to some individuals who were otherwise ineligible because they entered the U.S. without inspection, engaged in unlawful employment, or failed to maintain lawful status.  These individuals are required to pay a penalty fee in addition to the regular filing fees in exchange for the opportunity to apply for adjustment of status in the U.S.  This provision initially took effect in 1994 and sunset on January 14, 1998.   Therefore, anyone who was the beneficiary of an immigrant petition filed before January 14, 1998 preserved the right to apply for §245(i) adjustment of status at a later date.  In 2000, a limited extension of the program was enacted under the LIFE Act.  This extension of the program sunset on April 30, 2001.  Therefore, anyone who is the beneficiary of an immigrant petition filed before this date is “grandfathered” under this provision and preserves the right to apply for §245(i) adjustment of status at a later date.  Those individuals eligible to apply under §245(i) of the LIFE Act program must also prove that they were present in the United States on December 21, 2000. 

 

  1. What bars to admission are waived under §245(i)?

This provision allows the following otherwise ineligible individuals to apply for adjustment of status in the U.S.: individuals who entered the U.S. without inspection; individuals who overstayed an authorized period of nonimmigrant stay or who violated a nonimmigrant status in any way, and individuals who have engaged in unauthorized employment. 

 

  1. What is the immigration attorney’s role in the adjustment of status process?

The assistance of an immigration attorney is not required but can be very helpful with an application as complex as the adjustment of status application.  The attorney can assist an individual with completing the required forms and obtaining and organizing the required supporting documents.  In addition, attorneys may attend the interview with an adjustment applicant. 

 

  1. Qualified immigration attorneys who have examined and analyzed the facts and evidence in a particular case may be able to prevent many problems before they occur. When can someone apply for adjustment of status?

Even though an individual may be the beneficiary of an approved immigrant petition, he or she may not file for adjustment of status until an immigrant visa is immediately available.  Whether an immigrant visa is available depends on what type of family-sponsored or employment-sponsored immigrant petition was approved on the individual’s behalf and the individual’s country of nationality.  Some immigrant visas are subject to annual numerical limits (“quotas”) per country and per category.  For example, an immigrant visa is always immediately available to individuals who are immediate relatives of U.S. citizens because there is no numerical limit on this category; however, other relatives of U.S. citizens from particular countries may have to wait to apply for adjustment of status.  If the numerical limit is exceeded for a certain country or a certain category, an immigrant visa may not be immediately available. The U.S. Visa Bulletin issued by the U.S. Department of State summarizes the immigrant numbers available on a monthly basis. 

 

22.  22. Who is eligible to file an adjustment of status application concurrently with an immigrant petition?

Certain individuals seeking permanent resident status may file an adjustment of status application concurrently with an immigrant petition if an immigrant visa is immediately available.  Immediate relatives of U.S. citizens, other family members of U.S. citizens, and beneficiaries of employment-based immigrant petitions with current priority dates may file an adjustment of status application concurrently with an immigrant visa petition. 

 

  1. How long does it take for someone to obtain permanent resident status?

Processing times vary among the service centers and district offices of the USCIS.  Recently, it has been taking on average a year or more to obtain permanent resident status from the time of filing the adjustment of status application.  Since processing times vary widely and may change abruptly for many reasons (e.g. staffing changes, uneven regional workloads, changes in government policy and procedure, etc.) processing times estimates are only approximations and not reliable predictions.

 

  1. Who is required to attend an interview as part of the adjustment of status process?

Individuals seeking adjustment of status on the basis of marriage to a U.S. citizen are required to attend an interview at the appropriate local USCIS office.  Other family members of U.S. citizens seeking adjustment of status on the basis of the relationship may or may not have an interview scheduled.  This is also the case with individuals seeking adjustment of status on the basis of employment.  It is generally within the discretion of the Immigration Officer whether or not an interview is necessary.  If there are questions surrounding the qualifying relationship or employment, or for random government quality control reasons, an interview may be scheduled. 

 

  1. Can someone work in the U.S. while the adjustment of status application is pending?

Yes.  There are two means by which an adjustment of status applicant may be authorized to work while the application is pending.  First, an applicant who was authorized to work at the time of filing the adjustment of status application pursuant to a nonimmigrant category such as H-1 Temporary Work status may continue to work for the employer as long as the nonimmigrant classification has not expired and the individual continues to comply with all legal requirements of that classification.  Second, all adjustment of status applicants can apply for an employment authorization document (EAD) at the time of filing the adjustment of status application.  Since approval and issuance of an EAD card may take up to 90 days or longer after application filing, the timing of application preparation and filing and proposed employment start dates should be considered carefully.  The EAD is issued in one-year increments during the pendency of the adjustment of status application so the individual must apply for periodic renewal of his or her work authorization if the adjustment of status application takes more than one year to process. 

 

  1. Can someone travel abroad while the adjustment of status application is pending?

Yes, but a pending adjustment of status applicant must usually first obtain a travel document from the USCIS.  “Advance parole” is the legal term for the USCIS’ granting of permission to a pending adjustment applicant to return from travel abroad.  Any bona fide personal or business reason for travel during the pendency of the adjustment of status application is usually sufficient to obtain advance parole.  Advance parole may be granted for up to one year for multiple entries.  Any pending adjustment of status applicant who leaves the U.S. without first obtaining advance parole will usually be deemed to have abandoned the pending adjustment of status application.  There is a limited exception to this rule for H-1 and L-1 nonimmigrants with pending adjustment of status applications.  H and L nonimmigrants may depart and be readmitted to the U.S. in the same nonimmigrant status provided they intend to resume employment with the authorized employer and they present a valid nonimmigrant visa and a receipt notice evidencing that an adjustment of status application is pending. 

 

  1. Can an applicant include his or her spouse and children on the adjustment of status application?

Yes.  The spouse and children of an adjustment of status applicant may apply for adjustment of status as derivatives of the principal applicant. Each child and the spouse must submit a separate application.  A child of the principal applicant may only be included if he or she is under 21 years of age and unmarried.

 

  1. Can an applicant change employers while the adjustment of status application is pending?

A person whose employment-sponsored adjustment of status application has been pending for more than 180 days may be able to change employers or jobs without affecting the validity of the underlying immigrant petition if the new employment is within “the same or a similar occupational classification” and if the I-140 petition has been approved.  Generally, most family-sponsored applicants and certain self-petitioning employment-based applicants such as Extraordinary Ability Priority Workers may change employment while the application is pending.

 

  1. Do all applicants have to submit a medical examination as part of the adjustment of status application?

Yes, all applicants for adjustment of status to permanent residence must submit a medical examination form that was completed by a USCIS designated physician (civil surgeon).  The medical results are valid for 12 months for immigration purposes.  With limited exceptions, all applicants must also provide proof that they have received certain vaccinations as part of the medical examination.  An individual will usually need to receive those required vaccinations for which they cannot provide a valid vaccination record. 

 

  1. What is the role of the employer in the adjustment of status process?

Generally, an employer is not involved in the adjustment of status application itself because it deals with the individual’s personal eligibility and not the employment situation.  An employer may need to provide a letter verifying the employment, position, and salary of the applicant to submit in support of the application. 

 

  1. What does the adjustment of status application consist of?

The standard required documents include various USCIS forms, photographs, medical examination results, fingerprints, and filing fees.  Additional supporting documents often include birth certificates, marriage and divorce certificates, etc.  One should always check with the appropriate USCIS office to determine the specific required documents because the documents required vary and may change.  Additional forms, photographs, fees and other documents are required if an individual wants to apply for a travel document or employment authorization. 

 

  1. How is someone notified of the approval of the adjustment of status application?

This depends on whether or not an individual has an interview.  If an applicant is interviewed, the final determination is usually made by the officer at the end of the interview.  If the application is approved and an immigrant visa is immediately available, the applicant may receive a temporary

I-551 stamp in his or her passport showing that he or she is a permanent resident.  This stamp will serve as evidence of the individual’s permanent resident status until the actual “green card” (i.e. permanent residence card) arrives in the mail.  If the interview is waived, an applicant will receive the final determination via mail, but usually will not receive a temporary I-551 stamp. 

 

  1. What happens if the application is incomplete?

If the application is missing an important form or filing fee, the entire application will probably be sent back to the applicant along with a letter explaining the reason for its return.  If all of the required forms are submitted but some information is incomplete or unclear (e.g. the medical form was improperly completed), the USCIS will likely send a Request for Evidence (RFE) letter asking for additional documents or information.  The applicant has a specified period of time within which to submit the additional requested information or else the application may be denied. 

 

34.  34.  What should someone do if they cannot remember or obtain all of the information required on the forms?

It is very important to always provide the most accurate and complete information possible.  However, if someone does not remember or cannot obtain some of the information required, he or she should provide as much information as possible.  Do not provide information unless you are confident that it is accurate.  For non-citizens especially, giving inaccurate information to the immigration authorities may be a very serious violation of immigration law and can lead to many problems including removal and permanent exclusion from the United States.

 

  1. What is §245(i)?

This is Section 245(i) of the Immigration and Nationality Act which extends the eligibility for adjustment of status to some individuals who were otherwise ineligible because they entered the U.S. without inspection, engaged in unlawful employment, or failed to maintain lawful status.  These individuals are required to pay a penalty fee in addition to the regular filing fees in exchange for the opportunity to apply for adjustment of status in the U.S.  This provision initially took effect in 1994 and sunset on January 14, 1998.   Therefore, anyone who was the beneficiary of an immigrant petition filed before January 14, 1998 preserved the right to apply for §245(i) adjustment of status at a later date.  In 2000, a limited extension of the program was enacted under the LIFE Act.  This extension of the program sunset on April 30, 2001.  Therefore, anyone who is the beneficiary of an immigrant petition filed before this date is “grandfathered” under this provision and preserves the right to apply for §245(i) adjustment of status at a later date.  Those individuals eligible to apply under §245(i) of the LIFE Act program must also prove that they were present in the United States on December 21, 2000. 

 

  1. What bars to admission are waived under §245(i)?

This provision allows the following otherwise ineligible individuals to apply for adjustment of status in the U.S.: individuals who entered the U.S. without inspection; individuals who overstayed an authorized period of nonimmigrant stay or who violated a nonimmigrant status in any way, and individuals who have engaged in unauthorized employment. 

 

  1. What is the immigration attorney’s role in the adjustment of status process?

The assistance of an immigration attorney is not required but can be very helpful with an application as complex as the adjustment of status application.  The attorney can assist an individual with completing the required forms and obtaining and organizing the required supporting documents.  In addition, attorneys may attend the interview with an adjustment applicant. 

 

Qualified immigration attorneys who have examined and analyzed the facts and evidence in a particular case may be able to prevent many problems before they occur.

 

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Frequently Asked Questions About

B-1/B-2 Visitor Visas

     1.   What is a B visa?

The B visitor visa is a nonimmigrant visa granted to an individual seeking admission to the United States who plans to remain in the U.S. only temporarily for business or pleasure.  It is the most commonly issued temporary visa in the U.S. immigration system. 

2.   What is the difference between a B-1 and a B-2 visa?

An individual who enters the U.S. temporarily for business purposes may be granted a B-1 visitor visa.  The B-2 visitor visa is for individuals entering the U.S. temporarily for the purpose of pleasure or for medical treatment.

3.   What legal requirements must someone satisfy to be eligible to use a B visitor visa?

The general presumption under U.S. law is that all individuals seeking admission to the United States are “intending immigrants”.  An “intending immigrant” is a person who intends to stay permanently or indefinitely in the U.S.  Therefore, all applicants for the B visitor visa must prove that they are not intending immigrants by demonstrating that they seek admission to the U.S. for only a limited duration.  This is accomplished by demonstrating that one has strong ties abroad such as a permanent residence, family, and permanent employment. 

4.   Where should one apply for a B visa? 

Generally, one should apply for a B visitor visa at the U.S. consulate in their home country or in their country of current residence.

5.   What is the difference between a status and a visa?

A visa represents only permission to seek entry to the U.S.  It does not guarantee admission to the U.S.  Visas are available only from the U.S. consulates and embassies outside the U.S.  The written evidence of a visa is a visa stamp or visa page including a photo placed in a passport by a U.S. consular official.  A visa may still be valid even though the passport it is stamped into has expired.  A visa only allows a person permission to come to the U.S. to try to get a “status” from U.S. Department of Homeland Security, Customs and Border Protection (CBP) officials at the border or arrival airport.   

A status is an official immigration category assigned by the Department of Homeland Security (DHS) to a non-citizen who is present in the U.S.  A status is available only from the DHS inside the U.S. or at one of the small number of pre-flight inspection offices outside the U.S. (e.g. Toronto, Canada).  The written evidence of a status usually appears on a small white card called an “I-94 Arrival/Departure Record” that is usually endorsed by a CBP official at the border or arrival airport at the time a non-citizen comes into the U.S.  Sometimes the I-94 is issued by mail if a person is approved for a change of status or extension of stay.

6.   How long is a B visa valid?

Generally, B visitor visas are initially issued for a period of up to ten years.  Many are valid for multiple entries during that time.  Some are limited to one or two entries only. 

7.   How long may a person stay in the U.S. in a B visitor status?

Initial periods of B visitor status are usually limited to six months.  However, an immigration officer has the discretion to issue a B visitor status for a shorter period of time. 

8.   How long does it take to get a B visa?

The actual processing time varies among consulates; however, at many consular offices a B visitor visa is issued the same day or within one or two days after the application has been filed with the consulate.  However, since 9/11, security clearances have delayed some applications for 3 weeks or longer.

9.   For what reasons can someone be denied a B visitor visa?

A consular officer has the discretion to deny someone a B visitor visa to enter the U.S. when that individual has not proven sufficient ties abroad, fails to show an intent to remain temporarily in the U.S., or fails to provide proof of sufficient funds to support himself or herself while in the U.S.  Even if a B visa is issued, the U.S. immigration service can refuse admission to a person if the immigration officer at the airport does not believe the person meets the requirements to qualify as a B visitor. 

10. Can someone in the U.S. in B status extend his or her stay?

An individual who is currently in the U.S. in B visitor status may apply to extend his or her status for an additional period of up to six months provided that the individual can show that the nature of the visit remains temporary and he or she has sufficient means to support the costs of the additional stay.  In addition, an individual may need to show the intended means of departure (e.g. a return plane ticket to the home country).  Generally, a request for an extension of B visitor status must be made to the USCIS before the date of expiration of the current authorized period of stay.  In rare cases, late applications are possible.

11. How many times can someone request an extension of B visitor status?

There is currently no limit on the number of times that someone can request an extension of B visitor status.  However, given the temporary nature and purpose of this classification, it is not likely that someone will be granted multiple extensions of this status. 

12. Can a B visitor’s spouse and children also come to the U.S.? 

Yes, spouses and children can come to the U.S. as B visitors, however, they must each apply for their own separate B visa.  There is no derivative B visitor visa category for spouses and children as is the case with other nonimmigrant categories. 

13. Can someone change status from B visitor status to another nonimmigrant category while in the U.S.?

Yes.  An individual in the U.S. in B visitor status may apply to change to another nonimmigrant status if the person has maintained full compliance with all immigration rules since entry to the U.S. and if the person fully meets all of the eligibility requirements for the new category.  An issue arises when an individual in B visitor status wants to adjust to permanent resident status while in the U.S. because this may suggest that the individual’s original intent upon entry to the U.S. was to remain permanently and not temporarily.  Also, it is generally inappropriate to enter the U.S. in the B category and quickly apply to change to another status such as the F student category. 

14. Can someone who enters the U.S. on a B visitor visa work while in the U.S.?

Generally, persons admitted to the U.S. as B-1 or B-2 visitors may not accept or engage in employment while in the U.S.  Individuals who are admitted to the U.S. on a B-1 visitor visa may engage in certain limited business activities while in the U.S.  This means that a foreign national in B-1 visitor status in the U.S. may engage in certain professional or commercial activities such as attending professional or educational conferences, participating in negotiations, and attending meetings. 

15. What is the role of the immigration attorney in the B visitor visa process?

Most individuals do not seek the assistance of an immigration attorney in applying for a B visitor visa abroad.  However, individuals are more likely to seek the assistance of an attorney in applying for an extension of B visitor status once they are in the U.S.  An attorney can assist in preparing and organizing the application documents and provide legal advice regarding an individual’s specific situation, which can be very helpful if there are any issues with an individual’s immigration history.  Also, any person who has ever been refused a U.S. visa or has ever violated U.S. immigration rules would be wise to seek assistance from an experienced immigration lawyer before applying for a visa or attempting to reenter the U.S. 
 

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Frequently Asked Questions About
E-2 Temporary Work Status

1.  What is an E-2 status?

             E-2 status is intended for foreign persons and companies who make a substantial investment in a business in the United States and who are from a country that has a qualifying investor treaty with the U.S.  The E-2 is a nonimmigrant visa available to persons who will develop and direct the operations of an enterprise in which the person has invested, or to employees who will be employed in an executive or supervisory capacity, or who are essential to the efficient operation of the business. 

      2.  When would an employer or individual use an E-2 visa?

The E-2 visa category is appropriate for situations where an individual or a foreign company invests in a business in the U.S., and in the case of a foreign company, has a need to employ persons who are citizens of the treaty country.  It can be especially useful when the individual investor or foreign employees will fill positions that are likely to continue for up to several years or even longer.  Because it is renewable indefinitely, it may also be appropriate for an investor who would not otherwise be eligible for a “green card” as a way to work long-term in the U.S.  Unlike the H-1B category, the E-2 does not require a bachelor degree or equivalent, there are no wage requirements, there is no annual limit on the number issued, and spouses of E-2’s may apply for unrestricted work authorization.

      3.  What legal requirements must the investor satisfy to be eligible to obtain an E-2 visa?

The individual or company investor must be the principal investor in the U.S. enterprise.  This means that persons from the treaty country must own at least 50% of the U.S. enterprise.

In addition, the investment must be “at risk” and “substantial.”  To be at risk, the investment must be the investor’s own funds, or obtained through an unsecured loan or based on collateral from personal assets.  Other funds, such as loans that are secured by the business itself, will not be counted toward the substantiality test.  While there are no specific minimum dollar amounts legally required for an investment to be considered substantial, generally, the amount of the investor’s at-risk investment is weighed relative to the cost of purchasing or creating the enterprise.  The higher the at-risk investment, the more likely the E-2 will be approved.

The enterprise also cannot be a “marginal” one—i.e., it must be capable of generating more than a minimal living for the investor and the investor’s family.  Employment of U.S. workers can be used as one way to demonstrate the investment is not marginal.

      4.  How long is an E-2 status valid?

A person with an approved E-2 visa may be admitted to the U.S. for up to two years at a time.  Similarly, a person already in the U.S. and who changes their nonimmigrant status may be given E-2 status for up to two years at a time.  Note that E-2 status is potentially renewable without limit in two-year increments.  If there are material changes in the terms of employment or in the ownership or corporate structure of the employer, the E-2 may become invalid.  If the employee engages in work activities not authorized on the visa application or the E-2 petition, the employee is in violation of U.S. laws and potentially deportable.

      5.   How long does it take to get approval for E-2 status?

E-2 visa processing times vary widely depending on the U.S. Consulate that is reviewing the visa application.  Petitions for E-2 change of status or extension of status filed with U.S. Citizenship and Immigration Services have recently ranged from about two to five months.  In some cases expedited processing in less than 15 days is possible.  Each E-2 petition revolves around facts pertaining to the individual investor or employee, the U.S. business enterprise, and the position.  Recently created entities, those with lower at-risk to total cost ratios, or positions other than top management may require significant additional legal preparation time. 

      6.  Can E-2 status be extended?

                The E-2 may be renewed in two-tear increments, and may be renewed indefinitely, so long as the person in E-2 status
           continues to be eligible.

      7.  Does an E-2 automatically turn into a green card?

No.  However, employers can sponsor their E-2 workers for permanent resident (“green card”) status, although such sponsorship by an individual investor may not be a practical alternative for technical reasons.  Green card options other than Labor Certification are usually a better choice for E-2 principal investors.  Often, Labor Certification sponsorship for a green card can work well for key employees.

      8.  How much administrative work by the employer is required?

The employer must review and sign a government form, but need not maintain special documentation beyond that required for other employees.  A typical E-2 case, especially the first one by an investor company or for an individual investor may require seven hours of the investor’s or a human resource staff member’s time.  As with any temporary foreign work status, the employer should maintain a tracking system so any changes in job duties will trigger a call to the employer’s immigration law firm.

      9.  What government agencies are involved?

Usually, an E-2 visa is applied for at a U.S. Consulate outside the U.S.  Therefore, the Department of State is primarily responsible for examining E-2 visa applications.  In addition, USCIS is responsible for examining E-2 petitions for persons who are already in the U.S. and who wish to change their status to E-2 or extend their existing E-2 status while remaining in the U.S.  Unlike most other non-immigrant categories, Canadian citizens are required to have a valid E-2 visa to enter the U.S.

     10.  What is the role of the investor/employer in the E-2 work visa process?

The investor must provide basic information about the U.S. business enterprise, including corporate documents, investment details, financial condition, and other relevant business information, as well as the E-2 investor’s or employee’s intended job duties.  We may ask the investor to complete a simple questionnaire, then review and sign a draft form and support letter that we will submit to the government on the investor’s behalf together with appropriate supporting evidence.

     11. What is the role of the immigration lawyer in the E-2 work visa process?

The lawyer should lead the E-2 processing efforts.  First, he or she should screen the nature of the proposed (or existing) business enterprise, corporate or other business entity forms, the terms of employment, the investor’s or E-2 employees’ immigration & employment history, and the financial condition and investment, to determine the probability of E-2 approval within the proposed time frame.  A good immigration lawyer will identify strategy options and assist the employer in choosing an optimal strategy; gather and analyze evidence for suitability; draft forms and supporting letters maximizing the probability of approval and minimizing the risk of collateral damage, evaluate possible processing complications; and consult with the investor and any employees as needed to coordinate visa application & travel plans, explain legal requirements and procedural matters.  The lawyer will submit the case on the investor’s behalf, and follow up with the government as needed until the case is concluded.  On an ongoing basis, the immigration lawyer can help plan for employment changes and the additional procedures that will be needed to continue the employment relationship without interruption.

     12.  Who is on the investor’s E-2 work visa team?

Typically the E-2 team will include an immigration lawyer and a case manager from the investor’s outside immigration law firm as well as the investor, any other foreign employees, those employees’ immediate supervisors or managers and an HR staff member.  At a minimum the foreign employee and a human resources staff member must be available to assist in preparation of the necessary documents. The employer can designate any staff member with appropriate authority to sign the government forms.

The E-2 visa application or petition materials will contain information about the investment, the U.S. business enterprise, the job duties, and basic information about the employer’s number of employees and financial condition.  If a human resources or legal department staff member can readily obtain the necessary information, it is most efficient to have the same staff member responsible for all E-2 cases.  In the case of company investors, it is often useful if the employee’s immediate supervisor is available to answer detailed questions about the position. Where a large employer will have multiple E-2 cases over time, an effort should be made to educate at least one executive and one legal department staff member about the basic legal requirements and procedures of the E-2 program.  Senior executives who are often involved in oversight of the employer’s immigration compliance responsibilities include Vice President of Human Resources, or Vice President of Administration, COO, or General Counsel.

     13.  What are the chances of success in a typical E-2 case?

Well-documented E-2 visa applications or petitions that meet the basic legal requirements are likely to be approved. A careful screening by the immigration lawyer at the outset will normally uncover most potential complications that would reduce the probability of prompt approval.  The chance of smooth approval may be somewhat reduced in cases involving recently created entities, those with lower at-risk to total cost ratios, or positions other than top management.

     14.  Is there a minimum salary requirement?

No.  However, E-2’s are intended for people with valuable knowledge.  An unusually low salary could lead to closer scrutiny of the visa application or petition and a reduced chance of smooth approval.

     15.  Who usually pays the filing fees?

             Anyone or any entity may pay the filing fee.  In most cases, the company investor chooses to pay the filing fee, but the investor is not required to do so.

     16.  Who usually pays the legal expenses?

In an individual case, since the investor is the same as the E-2 applicant, the investor generally pays the legal costs and related expenses.  Similarly, when there is a company investor, the investor, as the employing entity generally pays the legal costs and related expenses.  The law does not currently prohibit reimbursement by the employee.

     17.  Can the E-2 employee’s spouse and children also get visas?

Yes.  E-2 workers’ family members may accompany them in E-2 status. A separate application for the spouse and unmarried children may be needed—E-2 status is not automatic.  E-2 status is not intended for children 21 years of age or older, or for extended family members such as parents or siblings of the E-2 worker.

     18.  Can the E-2’s spouse and children get permission to work in the U.S.?

The E-2 spouse may apply for permission to work by filing a relatively basic USCIS application form and paying a small fee.  The spouse will receive an employment authorization document, which may be renewed annually while in E-2 status.  The E-2 worker’s children are not eligible for employment authorization.

     19.  Can the E-2’s spouse and children get permission to attend school as part-time or full-time students in the U.S.?

             Yes, spouses and children in E-2 status may attend school.

 

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Frequently Asked Questions about Permanent Residence

for EB-1 Executives and Managers

 

1. What is an EB-1 Executive or Manager Permanent Resident Petition?

An EB-1 Executive or Manager Petition can be a useful option for foreign executives or managers seeking permanent residence status in the U.S. The EB-1 Executive or Manager Petitions are for executive or managerial employees who will work in the U.S. for an employer that is legally affiliated with a company the employee has worked for outside of the United States. 

  1. When would an employer use an EB-1 Executive or Manager Petition?

The EB-1 Executive or Manager Permanent Resident category is appropriate for many situations where an employer wants to transfer an offshore executive or manager to a U.S. executive or management position that is likely to continue for more than one year. Usually, an EB-1 Executive or Managerial Permanent Resident Petition is filed by the employer after the executive or manager has entered the U.S. on an approved L-1A temporary immigrant petition. Unlike the EB-2/EB-3 Professional and Advanced Degree permanent resident categories, the EB-1 Executive or Managerial category does not require a bachelor degree or equivalent. Also, there are no specific minimum wage requirements. No labor certification demonstrating a job shortage in the position needs to be obtained from the U.S. Department of Labor.   

  1. What legal requirements must the employer satisfy to be eligible to file an EB-1 Executive or Manager Petition for its employee?

The foreign employer and the US employer must have a “qualifying relationship.” The relationship can be that of a parent, branch, subsidiary, or affiliate with common majority ownership, or common control by the same person or entity. The foreign employer must continue to be an active operating business. The intended U.S. job must in the position of a manager, or executive employee.  Most typical managerial and executive positions may qualify, but the U.S. Citizenship and Immigration Services (USCIS) is less friendly to “first-line supervisors” of low-level employees, and to very small companies.    

  1. What legal requirements must the employee satisfy to be eligible for EB-1 Petition for an executive or manager?

The EB-1 executive or manager must have been continuously employed abroad for at least one of the last three years by the related employer outside the U.S., in a position meeting the L-1 definition of manager or executive employee. Individuals who have worked on an L visa may still qualify even if they have been in the U.S. longer than 3 years as long as the foreign affiliated company continues to do business and is still structurally affiliated with the U.S. Employer. The EB-1 executive or manager must meet the normal screening criteria for all applicants for permanent residence and adjustment of status.  If a candidate has a history of immigration violations or serious criminal activities, the permanent residence adjustment or petition may be delayed or denied. 

  1. How long does it take to get approval for an EB-1 Petition for an executive or manager?

 Recently, EB-1 I-140 petition processing times and I-485 applications to adjust to permanent residence have ranged from about six months to one year or more. For additional information on adjustment of status please see our Adjustment of Status FAQ. Each EB-1 petition is based upon facts specific to the individual candidate, the related employing entities and the position. Recently created entities, employers with complex affiliate relationships, or positions other than top management may require significant additional legal preparation time. If the candidate is outside the United States, processing time can be increased while the U.S. government collects necessary documents for the immigrant visa interview and completes security clearances at the U.S. consulate.   

  1. How much administrative work by the employer is required?

The administrative burden connected with EB-1’s is often substantially less than that connected with other employment-based permanent residence pathways such as EB-2/EB-3 or Labor Certification. The employer must review and sign government forms and provide additional relevant documentary evidence, but usually the employer does not need to maintain special documentation beyond that required for other employees. A typical EB-1 case may take a few hours of a human resource staff member’s time. 

  1. What government agencies are involved?

The USCIS is responsible for examining I-140 EB-1 petitions. Depending on the location of the job site, the petition must be filed at one of two USCIS Regional Service Centers. For employees working in the Midwest and West, EB-1 I-140 petitions are filed at the USCIS Service Center in Lincoln, Nebraska. Other petitions are filed at the Regional Service Center in Texas. If the candidate is outside the United States, the U.S. Department of State may also be involved in the process. 

  1. What is the role of the employer in the process?

The employer must provide basic information about the EB-1 worker’s intended job duties, the legal relationship between the foreign and U.S. entities, and the employer’s financial condition. We will also likely need supporting documents establishing the legal and financial relationship between the foreign and U.S. entity and the executive and managerial nature of the positions in the U.S. and in the positions outside the U.S. Typically, the employer will need to complete a short one-page questionnaire, then review and sign a draft form and support letter that we will submit to the government on the employer’s behalf. 

  1. What is the role of the immigration lawyer in the process?

The lawyer typically leads the EB-1 processing efforts. First, he or she will review the terms of employment, the candidate’s immigration & employment history, and the relationship between the U.S. and foreign entities, to estimate the viability of the EB-1 petition and estimate an initial time frame for preparation and processing. An experienced immigration lawyer can help identify strategy options and assist the employer in choosing a good strategy; gather and analyze evidence for suitability; draft forms and supporting letters to increase the probability of approval and reduce the risk of delay or denial, and evaluate possible processing complications. The immigration lawyer also will consult with the employer and employee as needed to coordinate visa application & travel plans, explain legal requirements and procedural matters. The lawyer will submit the case on the employer’s behalf, and follow up with the government as needed until the file is closed. On an ongoing basis, the immigration lawyer can help plan for employment changes and the additional procedures that may be needed to continue the employment relationship without interruption.

  1. Does just the filing of the EB-1 I-140 Petition itself provide employment authorization?

     No. However, the employer can seek temporary immigrant work authorization for the executive or manager using an L category petition or using some other valid temporary work visa option. Alternatively, if the executive or manager is legally in the United States and an application to adjust status to permanent residence is filed jointly with the employer’s I-140 EB-1 petition, the executive or manager may also file and request employment authorization while the application is pending. It can take 90 days for the employment authorization request to be processed.  For additional details see our FAQ on Adjustment of Status.

 

  1. Is there a minimum salary requirement?

No. However, EB-1’s are intended for executive and managerial employees. An unusually low salary could lead to extra review of the petition and a reduced chance of approval.

  1. Who usually pays the filing fees?

 

        Anyone or any entity may pay the filing fee. In most cases, the employer chooses to pay the filing fee, but the employer is not required to do so.

  1. Who usually pays the legal expenses?

Since the employer is the EB-1 petitioner, the employer generally pays the legal costs and related expenses. The law does not prohibit reimbursement by the employee.

  1. Can the EB-1 employee’s spouse and children also obtain permanent residence?

Yes. EB-1 workers’ immediate family members also may obtain permanent residence as dependents of the EB-1 Principal Applicant. A separate adjustment of status application for the spouse and unmarried children under 21 years of age is customary.  

 

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Frequently Asked Questions about Permanent Residence
 for EB-5 Investors & Entrepreneurs

  

1.     What is the EB-5 Investor & Entrepreneur Program?

       The EB-5 Program is an investment-based permanent residence program.  The EB-5 Program requires an investment of $1,000,000 (or in some circumstances $500,000) by an individual in a “new” U.S. commercial enterprise that must create fulltime employment for 10 U.S. workers or more.  It is a two stage process that involves a first petition for conditional permanent residency, and then approximately two years later a second petition for full permanent resident status. 

2.     What are the two EB-5 Programs for making investments?

There are two programs for EB-5 investments programs: The Basic Program, and the Regional Center Program.  The Basic Program usually involves an investment in a new enterprise.  The investor in the Basic Program is usually involved in selecting the new enterprise, making the investment, developing the plan for employment creation, and running the investment enterprise.  The Regional Center Program is a pilot program under which an investment entity may seek authorization from USCIS to participate as a Regional Center if certain criteria are met, including providing an investment capital structure plan and job creation counting methodology.  With Regional Centers, an investor may be able to demonstrate that the required 10 jobs have been created by the investment either directly or indirectly.  

    3.     When would an investment of $500,000.00 be sufficient?

     An investment of $500,000 may be possible if the area where the investment is to be made falls into a targeted employment area, which includes most rural areas and some urban areas of high unemployment.

4.     What constitutes a New Enterprise? 

    The investment must be made in a new enterprise.  Entities formed after November 29, 1990, are generally considered to be new.  An enterprise formed prior to November 29, 1990 can be considered “new” under some circumstances such as certain restructuring and expansions.

    5.     What legal requirements must the Investor satisfy to be eligible to file an EB-5 I-526 Immigrant Petition by Alien Entrepreneur –First Stage
            (Conditional Permanent   Residency Petition)?
 

The Investor must be investing or in the process of investing the $1,000,000 (or $500,000) in the new enterprise or Regional Center.  The investment must be demonstrated to be legally and economically at risk, and the invested funds must be from traceable legitimate sources.  The Investor must show that the investor will engage in some day-to-day management or policy making activities and provide a business plan demonstrating how the investment will lead to the creation of 10 full-time jobs for U.S. workers.  If the Investor uses the Basic Program, the Investor will need to provide extensive documentation establishing the existence of the new enterprise.  If the Investor invests through the Regional Center Program, the Investor will need to provide relevant information concerning the chosen Regional Center.  The Investor must meet the normal screening criteria for applicants for permanent residence and adjustment of status.  If a candidate has a history of immigration violations or serious criminal activities, the permanent residence adjustment or petition may be delayed or denied.
 

6.     How long does it take to get a ruling on the First Stage EB-5 I-526 Immigrant Petition by Alien Entrepreneur (Conditional Permanent Residency Petition)?  

Based on current processing time lines, adjudication of the I-526 EB-5 Petition can vary from 5 months to 2 years or more, depending on multiple factors.  However, even after an I-526 is filed, an investor must also file, if in the U.S., an application to adjust status to permanent residence, or consular process with an immigrant visa if outside the United States.  Additional information on Adjustment of Status and Consular Processing are provided in separate FAQs. 

7.     When can the Investor with Conditional Permanent Residency File (the Second Stage Petition I-829 to Obtain Full (Unconditional) Permanent Residency? 

Within 90 days of the 2nd anniversary as a conditional resident, the Investor may petition to remove conditions.  The Investor is required to file an I-829 Petition to Remove Conditions with supporting documentation.    

8.     What legal requirements must the Investor satisfy to be eligible to file I-829 Petition To Remove Conditions by Entrepreneur? 

Generally, the Investor must demonstrate that the investment was made, that the money continues to be invested, and that the 10 jobs have been created or can reasonably be expected to be created within a reasonable time before conditions on residency will be removed. 

9.     How long does it take to get a ruling on an I-829 Petition To Remove Conditions by Entrepreneur? 

     Based on current processing time lines, adjudication of the I-829 Petition To Remove Conditions by Entrepreneur can vary from 6 months to a year or more. 

10.  What government agencies are involved? 

The USCIS is responsible for examining I-526 EB-5 Entrepreneur petitions and I-829 Entrepreneur Petitions to Remove Conditions on Permanent Residency.  The I-526 EB-5 Petitions are filed with a lockbox and routed to adjudications centers in Nebraska, Texas, California, and Vermont.  At the moment, the I-829 Entrepreneur Petitions to Remove Conditions are filed at the California Service Center, but these petitions may be moved to a lockbox in the future.  If the candidate is outside the United States, the U.S. Department of State may also be involved in the process. 

11.  What is the role of the Investor in the process? 

The Investor must provide required information about the planned investment, investment capital, the enterprise, job creation plans and other supporting documents necessary to demonstrate the program requirements have been met.     

12.  What is the role of the immigration lawyer in the process? 

The personal immigration lawyer representing the investor typically leads the EB-5 processing efforts.  First, the lawyer will review the key facts to estimate the viability of the EB-5 petition and estimate an initial time frame for preparation and processing.  An experienced immigration lawyer can help identify strategy options and assist the employer in choosing a good strategy; gather and analyze evidence for suitability; draft forms and supporting letters to increase the probability of approval and reduce the risk of delay or denial, and evaluate possible processing complications.  The immigration lawyer also will consult with the client as needed to coordinate visa application & travel plans, explain legal requirements and procedural matters.  The lawyer will submit the case on the client’s behalf, and follow up with the government as needed until the file is closed.   

13.  Who usually pays the filing fees? 

Generally, the Investor pays the fees.

14.  Who usually pays the legal expenses?

Generally, the Investor pays the legal expenses.

15.  Can the EB-5 Investor’s spouse and children also obtain permanent residence?

 Yes. The Investor’s immediate family members also may obtain permanent residence as dependents of the EB-5 Principal Applicant. A separate adjustment of status application for the spouse and unmarried children less than 21 years of age is customary. 

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Frequently Asked Questions
 About
H-1B Temporary Work Status

  1. What is an H-1B visa?

         The H-1B program is the primary method for temporarily employing professional level foreign employees in the United States. It   is especially useful in “new hire” situations.  The H-1B category is for workers in ‘specialty occupations’ – jobs that normally require at least a four-year university degree in a specific field.  Although the term “H-1B visa” is frequently used to describe this category of work authorization, the term “visa” relates only to the document a foreign worker must show to the immigration inspector when seeking to enter the U.S.  Once here, the foreign worker is given another document (which is not a visa) that indicates the worker’s H-1B employment-authorized immigration status and the expiration date of their authorized stay in the United States.

  1. When would an employer use the H-1B program?

The H-1B visa category is appropriate for most situations where the employer must quickly fill a complex position that is likely to continue for up to several years or even longer.  If the foreign candidate has an appropriate bachelor-level or higher degree or equivalent experience and if such a degree is the employer’s minimum educational requirement for the position, and if the intended wage is competitive, the H-1B category may be the best option.  If the candidate is a Canadian citizen or currently an employee of an affiliated entity outside the United States, other categories such as the TN or L-1 should also be considered.

  1. Is there a quota limiting the number of new H-1B workers?

Yes.  Currently, there is an annual quota for new H-1B workers.  If the quota is reached, H-1B’s for new H-1B workers may not be available again until October 1st, when the U.S. Citizenship and Immigration Services (USCIS) next fiscal year begins.  There are quota exemptions for employers hiring workers who are already in the U.S. working in H-1B status, for H-1B employees of colleges and universities, and for certain physicians.  In addition, a portion of the quota is reserved for workers from Chile and Singapore, and a separate quota is available for H-1 workers who have received a U.S. advanced degree (i.e. Masters Degree or higher).

  1. Must the employer demonstrate that there is a shortage of qualified U.S. workers to obtain H-1B approval?

No.  The H-1B employer need not advertise or show an effort to hire U.S. workers.  H-1B rules seek to protect U.S. workers primarily by mandating the employer’s compliance with H-1B prevailing wage requirements.

  1. What legal requirements must the employer satisfy to be eligible to employ an H-1B worker?

The employer must first establish that a specific bachelor-level or higher degree or equivalent is normally the employer’s minimum requirement for the position, and that it will pay the prevailing wage for that position in the area of intended employment.  In addition, the H-1B program requires that an employer pay H-1B workers at least as much as its similarly employed workers with comparable qualifications.  The employer must notify other workers in the occupational classification at the intended location of employment that an H-1B worker is being hired to fill the position and will be paid at least a certain specified wage.  The employer must attest to the above requirements on forms filed with the U.S. Department of Labor and the U.S. Citizenship and Immigration Services.  Normally, the employer’s H-1B petition must be approved before employment may begin.

  1. What legal requirements must the employee satisfy to be eligible to use an H-1B work status?

The employee candidate must document their educational credentials, and meet the normal screening criteria for entering the U.S. or changing from another immigration status in the U.S.  If a candidate has a history of immigration violations or criminal activities, the H-1B status may be denied.  If an H-1B candidate does not have a bachelor degree, it may be possible to document experience that is considered equivalent to the degree.  If the candidate is outside the U.S., and does not hold a valid H-1B visa, she or he must usually present the employer’s H-1B approval notice along with other visa application materials to a U.S. embassy or consulate outside the U.S. and receive an H-1B visa before entering the U.S. for employment.

  1. How long is an H-1B valid?

The initial petition for an individual worker can be approved for up to three years.  The validity of an H-1B petition is linked to the particular employer, employee, job duties, location and wage.  If there are material changes in the terms of employment or the legal identity of the employer during the petition period, the H-1B may be considered automatically invalidated.  If the employee engages in work activities not authorized on the petition, the employee is in violation of U.S. laws and potentially deportable.

  1. How long does it take to get an H-1B petition approved?

Currently, a reasonable window of expectation is about two weeks to four months. Because each H-1B petition revolves around facts related to the individual candidate, as well as to the employer and the position, there is some variation in the preparation and processing time needed for H-1B cases.  Government processing times vary substantially.  By paying an extra expedited processing fee to the U.S. Citizenship and Immigration Services, an employer can currently anticipate H-1B petition processing within two to four weeks or less after opening a law firm file.  As described above, if the annual quota for new H-1B workers is reached, processing could be delayed until October 1st, when the next fiscal year begins.  Always check with qualified immigration counsel regarding the most recent processing times for cases similar to yours.  In some emergency situations temporary employment authorization can be obtained more quickly, occasionally within one week or less.  If the candidate is outside the United States, processing time can be increased by several days or weeks while the U.S. government completes security clearances and consular visa processing.

  1. Can an H-1B be extended?

The employer may request an extension for up to an additional three years.  However, many foreign workers are subject to a six-year limit in H-1B status. Any time spent working under a previous employer’s H-1B petition will count toward the six-year limit in H-1B status.  In some cases, it is possible to get permission to exceed the six-year limit on H-1B status. 

  1. Does it automatically turn into a green card?

No.  The process of greencard sponsorship is almost entirely separate from the H-1B process.

Many employers choose to sponsor their H-1B workers for permanent resident (“greencard”) status, starting the process at least several years prior to the end of the sixth year, in order to obtain alternate employment authorization before the six-year limit is reached.  Starting the permanent residence sponsorship process within 6 months or less after the first approval of H-1B status often provides significant immigration advantages to both the employer and the employee.  Unlike certain other nonimmigrant statuses, such as F-1 students or B-1/B-2 visitors, an H-1B worker is legally permitted to have both temporary and permanent intentions at the same time (“dual intent”).  Both the employer and H-1B employee are allowed to actively pursue permanent resident status for the H-1B worker.

  1. How much administrative work by the employer is required?

The employer must review and sign several government forms, and maintain a public disclosure file containing basic information about the job, wages and benefits.  It is generally most efficient for an employer to designate an administrative staff person who will become the immigration coordinator for the employer.  Although an initial H-1B case may take three or four hours of the employer’s administrative time, subsequent H-1B’s may require about half that time.  The employer should maintain a tracking system so any changes in job duties or location will trigger a call to the employer’s immigration law firm.

  1. What government agencies are involved?

The U.S. Department of Labor and the U.S. Citizenship and Immigration Services are the primary agencies responsible for administering the H-1B program.  If the candidate is outside the United States, the U.S. Department of State may also be involved in the process.

  1. What is the role of the employer in the H-1B process?

The employer must provide accurate basic information about the H-1B worker’s intended job duties, normal minimum requirements for the position, and the employer’s financial condition.  We can quickly appraise the potential viability of an H-1B sponsorship for any particular H-1B candidate by reviewing the information typically found on a candidate’s resume and the employer’s internal job description.  We may ask the employer to complete a simple one-page questionnaire, then review and sign draft forms and documents, which we will submit to the government on the employer’s behalf.  In addition, the employer will usually need to post a notice at the place of employment, and maintain an H-1B disclosure file in accordance with our instructions and government regulations.

  1. What is the role of the immigration lawyer in the H-1B process?

It is natural for the foreign employee or candidate and the employer’s human resources staff to focus on the immediate task of obtaining H-1B authorization as soon as possible.  The immigration lawyer’s role is to help the employer and employee to comply with the law and to facilitate H-1B approval within an acceptable time frame.  The lawyer will first screen the terms of employment and the candidate’s immigration history to evaluate the probability of H-1B approval within the proposed time frame.  The lawyer will identify strategic options and assist the employer in choosing the optimal strategy; gather and analyze evidence for suitability; draft forms and supporting letters maximizing the probability of approval and minimizing the risk of collateral damage; prepare the employer for potential government audit of their H-1B program; evaluate potential processing complications and consult with the employer and employee as needed to coordinate visa application and travel plans, explain legal requirements and procedural matters.  The lawyer will submit the case on the employer’s behalf, and follow up with the government as needed until the case is concluded.  On an ongoing basis, the immigration lawyer can help plan for employment changes and the additional procedures that will be needed to continue the employment relationship without interruption.

  1. What is the role of the foreign employee in the H-1B process?

The foreign employee or candidate must provide accurate information and documentation at the attorney’s and the government’s request.  We generally ask the employee to complete a detailed questionnaire and to gather items from a list of personal documents.  The employee must keep the attorney apprised of any intended changes in employment or travel plans so that the lawyer can adjust strategies as needed.  If the employee is outside the U.S. or needs to travel outside the U.S., the employee should work with the attorney to complete a visa application form and to prepare for the employee’s interview at the U.S. embassy or consulate abroad.

  1. Who is on the employer’s H-1B processing team?

Typically the H-1B team will include an immigration lawyer and a case manager from the employer’s outside immigration law firm as well as the foreign employee, the employee’s immediate supervisor or manager and an HR staff member.  At a minimum the foreign employee and a human resources staff member must be available to assist in preparation of the necessary documents.  The employer can designate any staff member with appropriate authority to sign the government forms. 

The H-1B petition materials will contain information about the job duties and employer’s minimum education requirements, and basic information about the employer’s number of employees and financial condition.  If a human resources or legal department staff member can readily obtain the necessary information, it is most efficient to have the same staff member responsible for all H-1B cases.  It is often useful if the employee’s immediate supervisor is available to answer detailed questions about the position.  Where a large employer will have multiple H-1B cases over time, an effort should be made to educate at least one executive and one legal department staff member about the basic legal requirements and procedures of the H-1B program.  Senior executives who are often involved in oversight of the employer’s immigration law compliance responsibilities include Vice President of Human Resources, or Vice President of Administration, COO, or General Counsel.

  1. What are the chances of success in a typical H-1B case?

Well-documented H-1B petitions that meet the essential legal requirements will most likely be approved.  A careful screening by the immigration lawyer at the outset will often identify potential complications that could reduce the probability of prompt approval. Immigration counsel in collaboration with the employer may be able to suggest ways to prevent or resolve potential complications.  The earlier an employer contacts our firm, the more likely it is that expectations will be met.  Recruiters and hiring managers should be trained to contact the immigration processing team before an offer is extended to a foreign candidate.

  1. Is there a minimum salary requirement?

Yes.  The employer must pay the H-1B employee at least as much as it pays similarly employed workers.  The wage cannot be less than the prevailing wage paid to similarly employed workers in the geographic area where the beneficiary will be employed.  The prevailing wage can be determined through a private wage survey, through a collective bargaining agreement, or through a state workforce agency.

  1. Who usually pays the filing fees?

A Department of Labor regulation effective since January 2001 requires that the employer must pay the H-1B filing fees.  The optional Premium Processing fee (paid to obtain faster processing) may in some cases be paid by the employee or a third-party. 

  1. Who usually pays the legal expenses?

As with the filing fee, a Department of Labor regulation generally requires the employer to pay.  The regulation states that all costs in connection with preparation and filing of the LCA and H-1B petition are considered the employer’s business expenses and must be paid by the employer, and the employer cannot be reimbursed by the employee.  There appear to be only very limited exceptions to this rule.

  1. Can the H-1B employee’s spouse and children also get visas?

Yes.  H-1B workers’ family members may accompany them in H-4 status.  A separate application for the spouse and children may be needed—H-4 status is not automatic.  H-4 status is not intended for children 21 years of age or older, or for extended family members such as parents or siblings of the H-1B worker. 

  1. Can the H-1B’s spouse and children get permission to work in the U.S.?

Employment authorization for family members is not included in H-4 status.  Sometimes a spouse will change to H-1B status through an H-1B petition by his or her own employer.  If the employee is in the ‘green card’ process it may be possible for the spouse and children to obtain employment authorization during the last stage of that process.

  1. Can the H-1B’s spouse and children get permission to attend school as part-time or full-time students in the U.S.?

Yes.  Spouses and children in H-4 status may attend school.  No special additional permission is required.

  1. Can an H-1B worker change employers?

Workers in H-1B status are only allowed to work for a petitioning employer.  There is no restriction on changing employers, so long as the new employer follows proper H-1B petitioning procedures.  Employers hiring workers already in H-1B status under certain circumstances may be allowed to commence the employment upon filing their H-1B petition, rather than waiting for approval.

  1. Can the employer promote, transfer, or otherwise change the terms of employment stated in the employer’s H-1B petition?

Material changes in the terms of employment may be considered a status violation.  Material changes may require preparation and filing of new or amended H-1B petition documents.  Check with qualified immigration counsel before making any changes.

  1. Can the H-1B employee travel outside the U.S.?

Yes, but any travel should be carefully coordinated with the immigration lawyer.  Since 9/11, enhanced security clearances and other procedures can lead to unexpected disruptions in employment and visa processing delays.  H-1B workers who do not have both a currently valid H-1B approval notice and an unexpired H-1B visa in their passport may be required to go through a lengthy nonimmigrant visa process while outside the U.S.  Advance planning with the immigration lawyer before any international travel by the H-1B employee is strongly urged (a minimum of 4 months advanced planning is suggested, if possible).  Furthermore, the employer’s cooperation in preparing for the employee’s nonimmigrant visa application is essential to reduce the probability of severe disruptions in employment and visa delays.

  1. Are there special procedures to follow if the H-1B employee voluntarily or involuntarily terminates the employment relationship?

      Yes.  If the employment relationship is terminated for any reason (whether voluntarily or involuntarily, with or without cause), the employer must send written notification to the U.S. Citizenship and Immigration Services Service Center that approved the petition, or risk continuing liability for back payment of wages until the end of the approved petition period.  Furthermore, if the employee is dismissed involuntarily, the petitioning employer will be liable for the reasonable costs of return transportation to the worker’s last place of foreign residence.  It is therefore recommended that the employer check with qualified immigration counsel before terminating an H-1B worker.

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Frequently Asked Questions About
H-2 Temporary Work Status

   

  1.  What is an H-2 visa?

An H-2 visa is a visa that allows a foreign worker to work for a U.S. employer in a job that is temporary or seasonal.  There are two types of H-2 visas, one for agricultural workers (H-2A) and one for non-agricultural workers (H-2B).

  1. When would an employer use an H-2 visa?

An employer would use an H-2 visa when there are no U.S. workers available to fill the position and the position is not permanent.  In other words, the employer’s need for the worker is a one-time occurrence, a seasonal need, a peakload need, or an intermittent need.  Generally, the H-2 visa is most useful for unskilled positions and other positions that do not require the worker to have a bachelor’s degree.  Note: the H-2 cannot be used for doctors.  For skilled positions, it is often to the employer’s and the employee’s advantage to use a different category, such as the H-1B visa, or some other work visa.

  1. What legal requirement must the employer satisfy to be eligible to use an H-2 work visa?

First, the employer must demonstrate that there is no U.S. citizen or permanent resident worker available to fill the job.  The employer does this by conducting recruitment for the position that produces no willing and qualified U.S. workers.  The employer also has to show that hiring foreign workers will not adversely affect the wages and working conditions of U.S. workers in similar positions.  In addition, the position has to be of a temporary or seasonal nature and the time requested for the visa must be reasonable for the job.

  1. What legal requirements must the employee satisfy to be eligible to use an H-2 work visa?

Because the H-2 visa is a non-immigrant category, the employee must not be coming to the U.S. with the intention of staying permanently.  In addition, in the case of non-agricultural workers (H-2B), the worker cannot have been in the U.S. already for 3 years in any H or L visa category.  If that is the case, then the worker has to reside and physically be present outside the U.S. for at least 6 months before being allowed to get an H-2B visa.

  1. How long is H-2 status valid?

The H-2 cannot be valid for longer than one year.  However, the actual time will be based on the employer’s request, which must be a reasonable time for the temporary position.  The Department of Labor makes the initial determination as to whether the employer’s request is appropriate.

  1. How long does it take to obtain approval of H-2 status?

For agricultural workers (H-2A), the employer has to file an application for Labor Certification with the Department of Labor (DOL) at least 45 days before the job starts, but can do so earlier.  For non-agricultural workers (H-2B), the Labor Certification application has to be filed between 60 to 120 days before the date the worker is needed.  After the DOL approves the application, the employer files a petition with the USCIS to approve bringing the foreign worker to the U.S. in the H-2 category.  For both agricultural and non-agricultural workers, it is best to file the Labor Certification Application sooner, rather than later, because the USCIS step can take several weeks to complete.

  1. Can an H-2 status be extended?

It is possible to extend an H-2 for up to 12 months at a time, but in no case for longer than a total of 3 years, unless the worker leaves the country for at least 6 months.  Also, the employer has to justify the need for an extension despite the fact that the job is of a temporary or seasonal nature.

  1. Does an H-2 status automatically turn into a green card?

No.  In fact, a worker in the H-2 category is generally not eligible to get a green card on the basis of the H-2 job.  However, it is possible for the employer to sponsor the worker for a green card in a different position.

  1. How much administrative work by the employer is required?

The employer must review and sign several government forms, and work with the State Workforce Agency for the state in which the job is located to ensure that the job meets the relevant labor and immigration regulations.  It is generally most efficient for an employer to designate an administrative staff person who will

  1. What government agencies are involved?

There are three government agencies involved: (1) the State Workforce Agency for the state where the employment will take place, which oversees the employer’s recruitment for U.S. workers, (2) the U.S. Department of Labor, which processes the Labor Certification Application, and (3) the USCIS, which processes the employer’s petition to employ the temporary worker.  In addition, if the employee is not already in the U.S., the employee will have to obtain an H-2 visa at a U.S. consulate abroad.

  1. What is the role of the employer in the H-2 work visa process?

The employer must cooperate with the State Workforce Agency in conducting the required recruitment for the job, provide basic information about the H-2 worker’s intended job duties, normal minimum requirements for the position, and the employer’s financial condition.  We can quickly appraise the potential viability of an H-2 process with the information typically found on a candidate’s résumé or employment application and the employer’s internal job description.  We may ask the employer to complete a simple one-page questionnaire, then review and sign draft forms and documents, which we will submit to the government on the employer’s behalf.

  1. What is the role of the immigration lawyer in the H-2 work visa process?

It is natural for the foreign employee or candidate and the employer’s human resources staff to focus on the immediate task of obtaining H-2 authorization as soon as possible.  The immigration lawyer’s role is to protect the employing entity and the employee from doing long-term legal damage to themselves, and to facilitate H-2 approval within an acceptable time frame.  The lawyer will first screen the terms of employment and the candidate’s immigration history to evaluate the probability of H-2 approval within the proposed time frame.  A good immigration lawyer will identify strategic options and assist the employer in choosing the optimal strategy; gather and analyze evidence for suitability; draft forms and supporting letters maximizing the probability of approval and minimizing the risk of collateral damage; prepare the employer for potential government audit of their H-2 program; assist in the required recruitment phase; evaluate potential processing complications and consult with the employer and employee as needed to coordinate visa application and travel plans; and explain legal requirements and procedural matters. The lawyer will submit the case on the employer’s behalf, and follow up with the government as needed until the case is concluded. On an ongoing basis, the immigration lawyer can help plan for employment changes and the additional procedures that will be needed to continue the employment relationship without interruption.

  1. What is the role of the employee in the H-2 work visa process?

The foreign employee or candidate must provide accurate information and documentation at the lawyer’s and the government’s request.  We generally ask the employee to complete a detailed questionnaire and to gather items from a list of personal documents. The employee must keep the lawyer apprised of any intended changes in employment or travel plans in order that the lawyer can adjust strategies as needed.  If the employee is outside the U.S. or needs to travel outside the U.S., the employee should work with the lawyer to complete a visa application form and to prepare for the employee’s interview at an U.S. embassy or consulate abroad.

  1. Who is on the employer’s H-2 work visa team?

Typically the H-2 team will include an immigration lawyer and a case manager from the employer’s outside immigration law firm as well as the foreign employee, the employee’s immediate supervisor or manager and an HR staff member.  At a minimum the foreign employee and a human resources staff member must be available to assist in preparation of the necessary documents. The employer can designate any staff member with appropriate authority to sign the government forms. 

The H-2 petition materials will contain information about the job duties and employer’s minimum education requirements, and basic information about the employer’s number of employees and financial condition.  If a human resources or legal department staff member can readily obtain the necessary information, it is most efficient to have the same staff member responsible for all H-2 cases.  It is often useful if the employee’s immediate supervisor is available to answer detailed questions about the position. Where a large employer will have multiple H-2 cases over time, an effort should be made to educate at least one executive and one legal department staff member about the basic legal requirements and procedures of the H-2 program. Senior executives who are often involved in oversight of the employer’s immigration compliance responsibilities include Vice President of Human Resources, or Vice President of Administration, COO, or General Counsel.

  1. What are the chances of success of a typical H-2 case?

Well-documented H-2 petitions that meet the essential legal requirements will most likely be approved.  A careful screening by the immigration lawyer at the outset will often identify potential complications that could reduce the probability of prompt approval. Immigration counsel in collaboration with the employer may be able to suggest ways to prevent or resolve potential complications. 

  1. Is there a minimum salary requirement?

Yes.  The employer has to pay the employee a minimum of the “prevailing” wage paid to U.S. workers employed in that position in the same geographic region.  The wage also has to be at least as high as the “adverse effect wage rate,” which is a rate determined for each state.

  1. Who usually pays the filing fee?

The employer typically pays the filing fee.  In addition, for agricultural workers, the employer pays a certification fee if the Labor Certification Application is approved.

  1. Who usually pays the legal expenses?

The employer typically pays the legal expenses.

  1. Can the H-2 employee’s spouse and children also get visas?

Yes.  An H-2 employee’s spouse and children can get dependant H-4 visas to accompany the employee.

  1. Can the H-2’s spouse and children get permission to work in the U.S.?

The H-2’s spouse and children cannot get permission to work in the U.S. on the basis of accompanying the H-2 employee in the H-4 category.  However, it may be possible for the spouse or children to obtain work permission independently of the H-2 employee’s status.

  1. Can the H-2’s spouse and children get permission to attend school as part-time or fulltime students in the U.S.?

                   Yes.

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Frequently Asked Questions About

Immigration & Travel

  

1.  What do I need to consider if I am traveling to or from the U.S.?

 

That depends on your immigration status and whether you are traveling into or out of the U.S.  This section gives some basic answers to some of those considerations.  However, if you are traveling to or from the U.S. and you are not a U.S. citizen, it may be prudent to consult with an experienced immigration lawyer before traveling to make sure you have the proper documents to facilitate your return to the U.S.  If you are in doubt as to your past lifetime history of U.S. immigration compliance, it may be prudent to consult an experienced immigration lawyer before departing the U.S. to assess the immigration risks associated with travel from the U.S.  The consequences of past periods of “unlawful presence” can be especially harsh, resulting in bars to re-entry for 3 or 10 years.

 

     2.  What if I am traveling to the U.S.?

 

If you are coming to the U.S., you may need to apply for a visa from a U.S. consulate in your country.  (In some countries, there is no U.S. consulate, in which case there is usually a U.S. consulate in another country that handles visa applications and other immigration matters for the country without a consulate.)

 

       There are two broad categories of visas: immigrant and nonimmigrant.

 

    2a.  Immigrants traveling to the U.S.

 

An immigrant visa means you are coming to the U.S. to live permanently and will get a “green card” in the U.S.  For example, if you had a U.S. employer sponsor you for a “green card”, or you married a U.S. citizen, and as a result of the employment or marriage you had your permanent residence approved,

 

you would apply to the U.S. consulate for an immigrant visa.  You will probably be interviewed at the consulate to make sure you are eligible to enter the U.S. as an immigrant.  Once you have your visa, you may travel to the U.S. and will be “inspected” at the U.S. airport or the sea or land port of entry at which you enter the U.S. by a U.S. Customs and Border Protection official.  If everything is in order, you will have your passport stamped with a notation that you are a permanent resident.  This stamp is, in effect, the same as having a “green card,” until your actual “green card” is mailed to you. 

 

    2b.  Nonimmigrants traveling to the U.S.

 

If you are coming to the U.S. as a nonimmigrant, you generally still must apply to the appropriate U.S. consulate for a visa, but you will use a form called a DS-156 (Application for Nonimmigrant Visa).  Since the events of September 11, 2001, many people also have to fill out a supplemental form (the DS-157), when they apply for a nonimmigrant visa.  All male applicants between the ages of 16 and 45 have to fill out this form.  Some U.S. consulates require some or all other applicants to fill out the supplemental form.  Since July 25, 2002, there is yet another form (the DS-158 – “Contact Information and Work History for Nonimmigrant Visa Applicant”) that all applicants who are coming to the U.S. as students must fill out.  As with immigrant visas, you will have to go through customs and immigration inspections when you arrive in the U.S.  The officer should stamp your passport with the date you entered and will staple a card (I-94) to your passport, which will show the immigration classification you are assigned in the U.S. (such as an F-1 student, B-2 visitor, or H-1B worker), which should match the visa you entered on.  The I-94 is the document that shows how long you are allowed to be in the U.S. and in which category. 

 

    2c.  Nonimmigrants from Visa Waiver countries traveling to the U.S.

 

If you are from certain countries, you can enter the U.S. without having to get a visa first.  This Visa Waiver program applies to several countries, many of which are Western European countries, such as the United Kingdom, Germany, and others.  You still must be coming to the U.S. for a valid purpose and you must not engage in any activities that are not allowed in your category.  For example, if you are coming as a tourist, you are not allowed to work in the U.S.

 

 

    3.  What if I am already in the U.S. and need to travel out of the U.S. and return?

 

    3a.  Immigrants traveling out of the U.S.

 

If you are an immigrant, and have a “green card”, you should be able to travel from and to the U.S. freely, assuming you have not done anything to violate your immigration status in the U.S.  If you are going to be outside the U.S. for an extended period of time, such as 4 months or longer, you should apply for a Re-Entry Permit before departing the United States.  As a permanent resident, you must maintain residence in the U.S. in order to continue to be considered a permanent resident.  If you interrupt your residence for too long, or if you depart the U.S. without a definite intent to return, you may be considered to have abandoned your permanent residence.  Therefore, it could be important that you travel with documentation that shows you are not abandoning your residence in the U.S., such as proof of property ownership, bank accounts, regular mail to your U.S. address, and other documents.

  

    3b.  Applicants for “green cards” traveling out of the U.S.

 

For persons who are not yet permanent residents, but who have applied for a “green card” while in the U.S., it is also very important that you make sure you have the proper paperwork to re-enter the U.S.  Such a person (an Adjustment of Status applicant) is generally deemed to have abandoned the Adjustment of Status Application if he or she leaves the U.S. while the application is pending with the USCIS.  However, if the applicant has a travel document issued by the USCIS, called Advance Parole, then the applicant is allowed to travel out of the U.S. and re-enter using the Advance Parole document.  Applying for Advance Parole can take some time.  Therefore, it is best to apply for Advance Parole at the same time as the Adjustment of Status Application is filed with the USCIS so that the applicant can travel, even if there is no travel expected in the near future.  That way, if unplanned travel becomes necessary, there will not be a problem with traveling and abandoning the Adjustment application.  Certain H and L nonimmigrants with pending Adjustment of Status applications may depart and reenter the U.S. without the need for Advance Parole.

 

    3c.  Nonimmigrants traveling out of the U.S.

 

If you are a non-immigrant in the U.S., such as a student or someone with a work visa, and are going to be traveling out of the U.S. and returning, then your situation depends on whether you have a current visa.

 

If you have a valid visa that has not expired and that visa is valid for the immigration category that you are going to be re-entering the U.S. in, then you generally will be able to travel freely out of the U.S. and return using that visa.  For example, if you are working for an employer in the H-1 category and have a valid H-1 visa in your passport that will not have expired by the date you return to the U.S., you may return using the visa.  Similarly, if you are a student with a valid F-1 visa and are returning to the U.S. to continue your studies, you should be able to use your F-1 visa to re-enter the U.S.

 

On the other hand, if you do not have a current visa, or if your current visa is not in the category that you will be seeking upon re-entering the U.S. (e.g., you changed your immigration category while you were in the U.S.), then you must generally apply for a new visa at a U.S. consulate abroad. 

 

Note that if you are on a Visa Waiver, you do not have to obtain a visa, if you are still eligible to enter the U.S. under that program and if you are seeking to enter the U.S. for a purpose permitted under the Visa Waiver program.

           

      3d.  Nonimmigrants subject to Special Registration

                       

In September 2002, a program called National Security Entry-Exit Registration System (NSEERS) or “Special Registration” was put into place.  Under this program, many nonimmigrants, especially male adults from certain countries (mostly in the Middle East and the Far East), were required to register their presence in the U.S., as well as their entries into and exits from the U.S.  While many of the original provisions no longer apply, persons subject to Special Registration are still registered upon entry to the U.S. and are required to go through a “Departure Registration” process at a designated port of departure before leaving the U.S.  It is important to note that not all ports of departure (whether land, air or sea) are designated ports of departure for purpose of conducting the required Departure Registration process.  Therefore, it is vital for persons subject to Special Registration to ensure that their departure from the U.S. is at a designated port of departure.  Failure to comply with the Departure Registration requirements could result in serious penalties and difficulties in future travel to the U.S., including possibly not being allowed to enter the U.S.

 

      4.  What other considerations should I keep in mind when traveling?

 

No matter what your immigration status is, whether immigrant or non-immigrant, whether in the U.S. as a student, visitor, for employment, or some other category, you should keep with you documents that prove you are eligible to be admitted to the U.S. in that category.  For example, if you are an employee in the H-1 category, you should have copies of recent pay stubs from your job and a current letter from your employer that confirms that you are still employed in the H-1 position for which you were approved.  Students may want to keep copies of their current transcripts and class registration.

 


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Frequently Asked Questions About

Immigration & Marriage

 

 

    1.  What do I need to know about marriage to a U.S. citizen or permanent resident by a person who is not a U.S. citizen?

 

There are many different situations having to do with marriage by a non-U.S. citizen to a U.S. citizen or permanent resident.  The answer depends on many factors such as whether the non-U.S. citizen is already in the United States or is in another country, whether the couple is going to get married in the U.S. or somewhere else, whether the U.S. spouse is a citizen or a Permanent Resident (i.e., one who has a “green card”), and several other factors.  This section gives some basic answers to some of those considerations.  However, if you are part of a couple made up of a U.S. citizen or permanent resident who is married to or marrying a non-U.S. citizen, you should consult with a competent immigration lawyer to make sure you know what you need to know.

 

    2.  I am not a U.S. citizen and have a U.S. citizen fiancé(e); what are our options?

 

    2a.  The K-1, Fiancé Visa

 

If you are outside the U.S., you and your fiancé(e) have a few options.  First, your U.S. citizen fiancé(e) can file a petition with the USCIS on your behalf for a fiancé (K-1) visa, using the USCIS’s Form I-129F.  After the USCIS approves the petition, you would go to a U.S. consulate in your country and apply for the K-1 visa.  This visa allows you to come to the United States for up to 90 days, during which time you must get married to the fiancé(e) who sponsored you, or depart the U.S.  If you decide not to get married during that time, you generally are not allowed to stay in the United States beyond the 90 days.  If you do get married, then you are allowed to stay in the United States with your spouse and should apply for Adjustment of Status (see below) so that you can become a Permanent Resident.

 

    2b.  Obtaining an Immigrant Visa Abroad

 

You can also get married outside the U.S. and then apply at a U.S. consulate for an Immigrant Visa.  If the consulate approves your visa, you will be able to enter the U.S. as a Conditional Permanent Resident and will not have to apply for Adjustment of Status once you arrive.  You will, however, need to apply to remove the conditions later (see question 5 below).

 

In either case, you will be able to apply for employment authorization so that you can work in the United States.

 

    3.  What if I am not a U.S. citizen, I am outside of the U.S., and I am already married to a U.S. citizen?

 

If you are not in the U.S., then your U.S. citizen spouse should file a petition with the USCIS on the USCIS’s Form I-130 (called a “Petition for Alien Relative”).  You then usually have two options.

 

    3a.  The Nonimmigrant K-3 Visa for the Spouse of a U.S. Citizen

 

One option is that when the USCIS notifies your spouse that the I-130 has been received (but not processed yet), your spouse can file another petition on your behalf for a K-3 visa (using the same I-129F Form discussed in question 2 above).   When then I-129F is approved, you would go to a U.S. consulate in your country and apply for the K-3 visa.  This is similar to the K-1 visa option described in question 2, but in this case the K-3 visa allows you to come to the U.S. as the spouse (as opposed to the fiancé(e)) of the U.S. citizen.  Because the K-3 visa is a nonimmigrant visa, you will need to apply for Adjustment of Status after arrival in the U.S. (see below).

 

    3b.  Obtaining an Immigrant Visa Abroad

 

The other option is to wait until the USCIS approves the I-130 petition, and then apply at a U.S. consulate for an Immigrant Visa.  If the consulate approves your visa, you will be able to enter the U.S. as a Conditional Permanent Resident and will not have to apply for Adjustment of Status once you arrive.  You will, however, need to apply to remove the conditions later (see question 5 below).  This is the same process as that described in section 2b above.

 

Besides avoiding having to apply for Adjustment of Status, this option may take longer from the time of the I-130 petition being filed until you are able to come to the U.S. to join your spouse.  That is because the I-129F petition is supposed to be processed more quickly than the I-130.  Therefore, which option you choose partly depends on how important it is for you to arrive in the U.S. quickly.

 

Again, with either the nonimmigrant K-3 visa or the immigrant visa, you will be able to apply for employment authorization so that you can work in the United States.

 

    4. What if I am a non-U.S. citizen already married to a U.S. citizen and I am already legally in the U.S. in a non-immigrant category such as F-1, H-1B, etc…?

 

If you are a non-citizen, are legally in the U.S. and are already married to a U.S. citizen, you are generally eligible to apply for Adjustment of Status.  In other words, you can apply for a “green card” inside the U.S. and may not need to go to a U.S. consulate abroad to obtain an immigrant visa.  You do this by filing an Adjustment of Status Application (Form I-485) with the USCIS.  There are a number of other forms and documents that need to be filed with the I-485 and the process can be complicated.  While your application is pending, you can apply for work authorization and will usually be allowed to work in the U.S. while you are waiting for your “green card”.  Processing time usually ranges from six months to one year or more.

 

The USCIS will probably ask you and your spouse to come in for an interview as part of the application process.  If the USCIS approves the application, you will become a Conditional Permanent Resident and will have to apply to Remove the Conditions (see question 5 below).

 

    5.  What do I need to do if I am a Conditional Permanent Resident?

 

A Conditional Permanent Resident (CPR) is as much a Permanent Resident as anyone who has a “green card”, but must apply to “Remove the Conditions” of his or her permanent residency.  This is done to make sure that the marriage is not a “sham” marriage.  In other words, you must demonstrate to the USCIS that you did not get married solely for immigration benefits.  Therefore, during the period between 21 and 24 months after the date you became a CPR, you must file a “Petition to Remove the Conditions on Residence” (Form I-751) with the USCIS.  You and your U.S. citizen spouse must both sign the petition, except in limited situations where you cannot get your spouse to sign the petition.

 

You may be asked to come in for an interview at the USCIS, along with your spouse, as part of the petition process.  When the USCIS approves the petition, you will have the conditions removed and will be a Permanent Resident (i.e., without condition).  You should also receive a new “green card” that does not show the date your CPR status expires.

 

    6.  How do I become a U.S. Citizen if I am married to a U.S. Citizen?

 

In most cases, a Permanent Resident (PR) has to wait 5 years before being eligible to apply for naturalization as a U.S. citizen.  However, Permanent Residents who are married to a U.S. citizen may apply for naturalization after only 3 years of marriage to a U.S. citizen.  This is true even if you originally became a Permanent Resident based on a different reason than marriage to the U.S. citizen.  For example, it is possible that a non-U.S. citizen becomes a PR based on an employer’s sponsorship and the person subsequently marries a U.S. citizen.  In such a case, the person still must have been married to a U.S. citizen for at least 3 years before being eligible to apply for naturalization.  The Application for Naturalization (Form N-400) may actually be filed up to 90 days before the date the applicant is eligible for citizenship.  Therefore, one could file approximately 2 years and 9 months after becoming a Permanent Resident if married to a U.S. citizen.  Note that time as a Conditional Permanent Resident counts toward the time needed before applying for citizenship.

 

 
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Frequently Asked Questions About
L-1 Temporary Work Status

 

  1. What is an L-1 Status?

           L-1 status is intended for foreign employees temporarily transferring to the U.S.  The L-1 is a nonimmigrant visa available to      employees who will work in the U.S. for an employer that is structurally affiliated with a company the employee worked for outside of the United States.

  1. When would an employer use an L-1 visa?

The L-1 visa category is appropriate for many situations where the employer must quickly fill a management position that is likely to continue for up to several years or even longer.  The category is also appropriate for employees with “specialized knowledge” of the employer’s business.  Unlike the H-1B category, the L-1 does not require a bachelor degree or equivalent, there are no wage requirements, there is no annual limit on the number issued, and spouses of L-1’s may apply for work authorization.  For certain managers, there is a closely related permanent residence category that can substantially speed up the green card process.

  1. What legal requirements must the employer satisfy to be eligible to hire an L-1 worker?

The foreign employer and the US employer must have a “qualifying relationship.”  The relationship can be that of a parent, branch, subsidiary, or affiliate with common majority ownership, or common control by the same person or entity.  The intended U.S. job must be that of a manager, executive or “specialized knowledge” employee. “Specialized knowledge” refers to employees with a special knowledge of the company’s products and their applications in world markets or an advanced level of knowledge of the company’s processes or procedures.  Typical manager and executive positions may qualify, but the U.S. Citizenship and Immigration Services (USCIS) has an aversion to “first-line supervisors” of low-level employees.  The category may also be used for managers of a business “function” who do not supervise other people.

  1. What legal requirements must the employee satisfy to be eligible for L-1 status?

The L-1 worker must have been continuously employed abroad for at least one of the last three years by the related employer outside the U.S., in a position meeting the L-1 definition of manager, executive or “specialized knowledge” employee.  In some cases, the employer may be eligible to use a ‘blanket’ petition for multiple L-1 workers.  The L-1 worker must meet the normal screening criteria for entering the U.S. or changing from another immigration status in the U.S.  If a candidate has a history of immigration violations or criminal activities, the L-1 status may be denied. 

  1. How long is an L-1 status valid?

Initial L-1 petitions may be approved for up to three years.  If the U.S. entity is less than one year old, the initial period will be limited to one year.  If there are material changes in the terms of employment or in the ownership or corporate structure of the employer or the related foreign entity during the petition period, the L-1 may become invalid.  Also, changes in the legal relationship between the U.S. office and the overseas affiliate can affect the continued validity of L-1 status.  If the employee engages in work activities not authorized on the petition, the employee is in violation of U.S. laws and potentially deportable.

  1. How long does it take to get approval for L-1 status?

Recently, L-1 processing times have ranged from about two weeks to two months.  The USCIS attempts to process L-1 petitions somewhat faster than H-1 petitions.  Each L-1 petition revolves around facts pertaining to the individual candidate, the related employing entities and the position.  Recently created entities, employers with complex affiliate relationships, or positions other than top management may require significant additional legal preparation time.  By paying an extra Premium Processing fee to the USCIS, an employer can currently anticipate L-1 petition processing within two to three weeks of opening a file.  If the candidate is outside the United States, processing time can be increased by several days or weeks while the U.S. government completes security clearances at the U.S. consulate.  For Canadian citizens, NAFTA created an expedited procedure that in certain cases can reduce case preparation and processing time to a matter of days.

  1. Can L-1 status be extended?

L-1 petitions may be renewed in two-year increments, with a total limit of seven years for managers and executives (L-1A’s), or a total limit of five years for specialized knowledge employees (L-1B’s). 

  1. Does an L-1 automatically turn into a green card?

No.  Many employers sponsor their L-1B “specialized knowledge” workers for permanent resident (“green card”) status, starting the process at least several years prior to the end of the fifth year, in order to obtain alternate employment authorization before the five year limit is reached.  Employers can sponsor L-1A managers and executives in a more streamlined green card process, but it is often more cost effective to begin the process early and forego the expense of multiple L-1 extensions.

  1. How much administrative work by the employer is required?

The administrative burden connected with L-1A’s is often substantially less than that connected with H-1B’s.  The employer must review and sign a government form, but need not maintain special documentation beyond that required for other employees.  A typical L-1 case may take a few hours of a human resource staff member’s time.  As with any temporary foreign work status, the employer should maintain a tracking system so any changes in job duties will trigger a call to the employer’s immigration law firm.

  1. What government agencies are involved?

The USCIS is responsible for examining L-1 petitions.  Depending on the location of the job site, the petition must be filed at one of four USCIS Regional Service Centers.  For employees working in the Midwest and Northwest, L-1 petitions are filed at the USCIS Regional Service Center in Lincoln, Nebraska.  If the candidate is outside the United States, the U.S. Department of State may also be involved in the process.  Under the North American Free Trade Agreement (NAFTA), a Canadian citizen can ‘file’ the employer’s petition with a Department of Homeland Security (DHS) Customs and Border Protection (CBP) inspector when seeking entry to the U.S. at an airport or other port of entry, normally receiving a decision within a few hours.

  1. What is the role of the employer in the L-1 work visa process?

The employer must provide basic information about the L-1 worker’s intended job duties, the legal relationship between the foreign and U.S. entities, and the employer’s financial condition. We may ask the employer to complete a simple one-page questionnaire, then review and sign a draft form and support letter that we will submit to the government on the employer’s behalf. 

  1. What is the role of the immigration lawyer in the L-1 work visa process?

The lawyer should lead the L-1 processing efforts.  First, he or she should screen the terms of employment, the candidate’s immigration & employment history, and the relationship between the U.S. and foreign entities, to determine the probability of L-1 approval within the proposed time frame.  A good immigration lawyer will identify strategy options and assist the employer in choosing the optimal strategy; gather and analyze evidence for suitability; draft forms and supporting letters maximizing the probability of approval and minimizing the risk of collateral damage, evaluate possible processing complications; and consult with the employer and employee as needed to coordinate visa application & travel plans, explain legal requirements and procedural matters.  The lawyer will submit the case on the employer’s behalf, and follow up with the government as needed until the case is concluded.  On an ongoing basis, the immigration lawyer can help plan for employment changes and the additional procedures that will be needed to continue the employment relationship without interruption.

  1. What is the role of the employee in the L-1 work visa process? 

The foreign employee or candidate must provide accurate information and documentation at the lawyer’s and the government’s request.  We generally ask the employee to complete a detailed questionnaire and to gather items from a list of personal documents.  The employee must keep the lawyer apprised of any intended changes in employment or travel plans so that the lawyer can adjust strategies as needed.  If the employee is outside the U.S. or needs to travel outside the U.S., the employee should work with the lawyer to complete a visa application form and to prepare for the employee’s interview at an U.S. embassy or consulate abroad.

  1. Who is on the employer’s L-1 work visa team?

Typically the L-1 team will include an immigration lawyer and a case manager from the employer’s outside immigration law firm as well as the foreign employee, the employee’s immediate supervisor or manager and an HR staff member.  At a minimum the foreign employee and a human resources staff member must be available to assist in preparation of the necessary documents. The employer can designate any staff member with appropriate authority to sign the government forms. 

The L-1 petition materials will contain information about the job duties and employer’s minimum education requirements, and basic information about the employer’s number of employees and financial condition.  If a human resources or legal department staff member can readily obtain the necessary information, it is most efficient to have the same staff member responsible for all L-1 cases.  It is often useful if the employee’s immediate supervisor is available to answer detailed questions about the position. Where a large employer will have multiple L-1 cases over time, an effort should be made to educate at least one executive and one legal department staff member about the basic legal requirements and procedures of the L-1 program. Senior executives who are often involved in oversight of the employer’s immigration compliance responsibilities include Vice President of Human Resources, or Vice President of Administration, COO, or General Counsel.

  1. What are the chances of success in a typical L-1 case?

Well-documented L-1 petitions that meet the basic legal requirements are likely to be approved. A careful screening by the immigration lawyer at the outset will normally uncover most potential complications that would reduce the probability of prompt approval. The chance of smooth approval may be somewhat reduced in cases involving recently created entities, employers with complex affiliate relationships, or employees other than top management. 

  1. Is there a minimum salary requirement?

No.  However, L-1’s are intended for people with valuable knowledge.  An unusually low salary could lead to closer scrutiny of the petition and a reduced chance of smooth approval.

  1. Who usually pays the filing fees?

           Anyone or any entity may pay the filing fee.  In most cases, the employer chooses to pay the filing fee, but the employer
            is not required to do so.

  1. Who usually pays the legal expenses?

Since the employer is the L-1 petitioner, the employer generally pays the legal costs and related expenses.  The law does not prohibit reimbursement by the employee.

  1. Can the L-1 employee’s spouse and children also get visas?

            Yes. L-1 workers’ family members may accompany them in L-2 status. A separate application for the spouse and unmarried children may be needed—L-2 status is not automatic. L-2 status is not intended for children 21 years of age or older, or for extended family members such as parents or siblings of the L-1 worker.

  1. Can the L-1’s spouse and children get permission to work in the U.S.?

           The L-2 spouse may apply for permission to work by filing a relatively basic USCIS application form and paying a small fee.  The spouse will receive an employment authorization document, which may be renewed annually while in L-2 status. The L-1 worker’s children are not eligible for employment authorization.

  1. Can the L-1’s spouse and children get permission to attend school as part-time or full-time students in the U.S.?

Yes, spouses and children in L-2 status may attend school.
 

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Frequently Asked Questions about
Consular Processing for Nonimmigrant Visas (Temporary Visas)

  

1.   What types of documents and evidence are required as part of the nonimmigrant visa application? 

The specific documents required will vary depending on the type of visa application and the procedures at a given U.S. consulate abroad.  Some of the commonly required documents are Form DS-156 (the standard nonimmigrant visa application form), a valid passport, a photograph of the applicant to be used in making the visa, an application fee, a machine-readable visa fee, and any supporting documentation that establishes the applicant’s eligibility for the nonimmigrant visa classification sought.  In some circumstances evidence of prior approval by the USCIS of a related petition or application will also be required.  

2.   Where should someone submit a nonimmigrant visa application? 

Generally, an individual can apply for a nonimmigrant visa at any visa-issuing U.S. consulate abroad – it need not be located in that person’s home country.  However, if an individual was previously issued a nonimmigrant visa and remained in the U.S. beyond the authorized period of stay, he or she must apply for all subsequent nonimmigrant visas at the U.S. consulate in his or her home country.   

3.   How long does it take to get a nonimmigrant visa after submission of the application?               

The processing times vary among consulates.  Recently, processing times have ranged from one day to more than three months depending upon multiple case factors.  Because of additional consular security measures in effect since September 11, 2001, it is becoming increasingly rare to receive the nonimmigrant visa the same day.  Most individuals are required to schedule an appointment so that the consular officer may ask questions about the application.  It is best to check with the individual consulate to determine the current processing times for nonimmigrant visa applications at that location.  At some consulates, interview appointments are not available until several months in the future.  Consular websites often have useful information about local visa procedures.               

4.        4.    Does a person need to get a new visa every time he or she leaves the U.S. and wants to reenter?               

It depends on whether the nonimmigrant visa was issued for one entry or multiple entries and the validity period of the nonimmigrant visa. The validity period of nonimmigrant visas varies depending on the visa classification and the applicant’s nationality.  It is important to note that the validity period of a nonimmigrant visa in a passport often differs from the validity period of authorized stay in the U.S. granted by the Department of Homeland Security on Form I-94.  The validity period of the visa only relates to the time during which an individual may use that visa to apply for re-admission to the U.S. (e.g. to board an airplane bound for the U.S.).                 

5.   If a person changes employers after admission to the U.S., is the nonimmigrant visa on which the person entered still valid?              

If the individual was in an H, L, O or P nonimmigrant category, the visa remains valid as long as the individual remains in that same nonimmigrant status and has a currently valid H, L, O or P petition from their current employer.                 

6.   How does one renew a nonimmigrant visa?               

An individual must usually apply to renew a nonimmigrant visa in person at a U.S. consulate in his or her home country or country of last residence.  In some cases, a person in the U.S. may be permitted to apply for a visa at a U.S. consulate in Canada or Mexico or a third country instead of their home country.               

7.   Can a person reapply for a nonimmigrant visa after the original application was denied?             

Yes, however, if the initial application was denied because the applicant failed to prove nonimmigrant intent, some consulates may require that person to wait for some period of time (up to 6 months in some cases) before he or she can apply for a nonimmigrant visa again.  If a nonimmigrant visa application is going to be denied on substantive grounds, the consular officer should give the applicant an opportunity to provide additional evidence before the final decision is made.   Visa denials can sometimes be overcome upon further review.  A person who has been refused a U.S. visa for any reason is wise to seek advice from an experienced immigration lawyer before reapplying for a visa. 

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Frequently Asked Questions About
the Visa Waiver Program

 

1.    What is the Visa Waiver Program?

The Visa Waiver Program (VWP) allows citizens of certain participating countries to enter the United States temporarily for business or pleasure without obtaining a U.S. visa.  Non-citizen permanent residents of these participating countries do not qualify for the program- an individual must be a citizen of a qualifying country.  The permitted activities and rules for visitors in the Visa Waiver Program are similar to the permitted activities and rules for visitors in the B-1/B-2 visa category (i.e. generally, employment and full-time study are both forbidden).

2.   What are the participating countries?

The participating countries are: Andorra, Austria, Australia, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, The Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, and the United Kingdom.

3.   How long can someone remain in the U.S. under the Visa Waiver Program?

Foreign nationals visiting the United States under the Visa Waiver Program may remain in the U.S. no longer than 90 days.  Visa Waiver participants are given a special I-94 card by the CBP in either the “WT” (waiver tourist) or “WB” (waiver business) category.  Individuals who wish to remain in the U.S. longer than 90 days should explore other immigration options. 

4.   Can someone extend his or her stay under the Visa Waiver Program while in the U.S.?

No.  An individual must leave the U.S. before the 90-day expiration date or he or she will be considered out of status. 

5.   Can someone who was admitted to the U.S. under the Visa Waiver Program change status to another nonimmigrant category?

No, an individual may not change status when they were admitted to the U.S. under the Visa Waiver Program.  In order to switch to a different nonimmigrant category, the person must depart the U.S. and re-enter in the new category using the appropriate visa. 

6.   Can an individual admitted to the U.S. pursuant to the Visa Waiver Program work while in the U.S.?

No. 

7.   Can an individual admitted to the U.S. pursuant to the Visa Waiver Program study full-time

while in the U.S.?

No.

8.   What legal requirements, if any, must be satisfied by someone who wishes to enter the U.S. pursuant to the Visa Waiver Program?

An individual must present the following documents to the CBP Immigration Officer at the arrival airport or land border: a valid passport issued by a participating country, a completed and signed Form I-94W, evidence of the individual’s financial ability to support his or herself during his or her stay in the U.S., and a roundtrip transportation ticket of a carrier that is a party to the visa waiver agreement if traveling by sea or air. 

 

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Borene Law Firm, P. A.
Global Immigration Group
3950 IDS Center
Minneapolis, Minnesota 55402
United States of America
Telephone 612.321.0082
Fax 612.332.8368

 

Disclaimer
Copyright © 2016 Borene Law Firm, P. A. All rights reserved.
Revised: March 24, 2016.