Definition

Adjustment of Status is the final stage of the green card process allowing certain foreign nationals already in the U.S. to apply for immigrant status.  Foreign nationals admitted to the U.S. in a nonimmigrant category may have their status changed to that of lawful permanent resident if they are eligible to receive an immigrant visa and one is immediately available.

Eligibility

To be eligible to apply for permanent residence through the adjustment of status process, the following criteria must be met:

• The applicant and qualified dependents must be physically present in the U.S. at the time the application is filed;
• The foreign national must be the beneficiary of an approved I-140 immigrant petition;
• The applicants must have entered the country legally;
• The terms of the foreign national’s non-immigrant status must not bar adjustment of status;
• The applicants must not be, or ever have been, “out of status” or engaged in any unauthorized employment.

Immediate Availability of an Immigrant Visa

An immigrant visa must be immediately available to the employee at the time his or her application for adjustment is filed.  The Department of State Visa Bulletin shows the priority date for each immigrant category.  Please click here for more information on the Visa Bulletin, priority dates, and retrogression.

Ø      Can I stay in the U.S. if my priority date retrogresses after my I-485 AOS application is filed?

If an adjustment application is properly filed at the time that the individual’s visa priority date is current but the priority subsequently retrogresses before the case is adjudicated, the adjustment cannot be completed.  However, the applicant will be permitted to remain in the United States until the priority date becomes current again, provided that he or she remains eligible for adjustment.

Procedures and Forms

Form I-485 Adjustment of Status Application: The adjustment of status application is filed with the regional USCIS Service Center having jurisdiction over the foreign national’s place of residence on Form I-485. The foreign national must also file “Supplement A” to this form if paying a penalty fee in order to adjust status. This application must be accompanied by biographic information (Form G-325A), tax information (IRS Form 9003), Affidavit of Support (Forms I-134 for applicants with approved Employment Based petitions and the I-864 for applicants with approved Family Based petitions), results of a medical examination, and various supporting documentation such as marriage and birth certificates, records of non-immigrant status and employment verification letters. The USCIS will notify the foreign national of a scheduled time to have his or her fingerprints taken by a USCIS official (Form FD-258).

AOS Interview: The USCIS will then review the application for permanent residence and schedule an interview. Generally, the USCIS will waive the requirement of an interview for beneficiaries of an Employment Based petition (I-140). If the USCIS finds the evidence satisfactory, it will approve the application for permanent residence. At that time, the USCIS will place a permanent resident stamp (I- 551) in the foreign national’s passport. The foreign national is, at that moment, a permanent resident, but will not receive his or her actual alien registration card, also known as a “green card,” until the USCIS completes “card processing.” (See “Replacement of Green Card”).

Employment and Travel: It is usually wise to also file applications for employment authorization and travel permission for each family member with the Adjustment of Status Application.

Ø      Question: Who will contact me about starting the I-485 application (variations: Should I contact my Avani attorney or my outside counsel about my green card process? I have contacted my outside counsel, but they have not contacted me, so what should I do now?)?

Answer:  The Department of State generally announces the next month’s Visa Bulletin in the middle of the current month. The dates in this new Bulletin go into effect on the first day of the next month. Outside counsel will contact you within a few days of the release of the next month’s Visa Bulletin if your priority date will be current as of the first day of the next month. They will ask you for the documents they need to file your I-485 application.

While you are waiting to be contacted, please start scheduling your medical appointments and obtaining the necessary documents for your I-485 process. Please note that these steps are the most time consuming parts of the I-485 process for most people, so your efforts now to collect these documents will help outside counsel to file your case faster. Please see the information below for detailed guidance on how to prepare the documents for your AOS application.

Ø      Question: What do the adjustment of status documents look like? Can I look at them, so I know what information I must provide to outside counsel?

Answer: Please click here to review or download the documents used in the adjustment of status application process.

1. I-485: Application for Adjustment of Status
2. G-325A: Biographic Information
3. Form I-765 – Application for Employment Authorization
4. Form I-131 – Application for Travel (Advance Parole)

Ø      Question:  When do I need to be in the U.S. during the I-485 process and when can I and my dependents be out of the country? How soon can I leave the U.S. if I need to travel abroad?

Answer: The answers to these questions depend on where you are in the I-485 process:

• Pre-I-485 filing: You and your dependents do not need to be in the U.S. the entire time that work is being done on the I-485 application, but you will need to be in the U.S. at some point in this time to complete the medical exam, as you must have your exam in the U.S. If you are going to be out of the U.S. while outside counsel is preparing your I-485 application, you will still need to be accessible by e-mail and/or phone to address any additional needed documents or information.
• At the time of the I-485 filing: You and your dependents who are filing I-485 applications MUST BE IN THE U.S. on the day that USCIS receives your I-485 application. Otherwise, USCIS will reject the application, either now or when they realize that you were not here on the day that your I-485 application was filed.
• After the I-485 application is filed: For individuals in H-1B/H-4 or L-1/L-2 status, you and your dependents should remain in the U.S. until the receipt notice for the I-485 application is issued by the USCIS. This may take several weeks or more. Upon issuance of the I-485 filing receipt, you will be able to travel using the original I-485 filing receipt and all documents currently required for travel using a valid visa stamp (example, visa-exempt Canadian nationals). If you and your dependents are in nonimmigrant status other than H-1B/H-4/L-1/L-2 at the time that your I-485s were filed, you will need to remain in the U.S. until the advance parole travel document application is approved, or you will be deemed to have abandoned your I-485 application. This may take several months or more.

Ø      Question: I recently changed jobs within my company. I had an I-140 petition approved based on my old job, but my new job required a new PERM filing. This PERM application is still pending. When can I file the I-485 application?

Answer: You have to wait until the PERM application that matches your current job is approved. You cannot file your I-485 application based on your already approved I-140 petition because you no longer intend to work in that job. Once your new PERM application is approved, an I-140 petition and I-485 application can be filed at the same time as long as your priority date is still current.

Ø      How can I check the status of my Adjustment of Status application?

You may check visa status by using the USCIS visa status service.

Ø      How do I apply for Adjustment of Status in the U.S.?

The documents required for the I-485 process may vary based on each person’s facts. However, the following documents are required for all I-485 applicants. For the I-485 application, your attorney will need COPIES of the following documents for you and all family members who will be applying with you (i.e., your spouse and any unmarried non-U.S. citizen children who are under age 21).  Your attorney will NOT need originals of the documents, except for the photos in item 1.  You should not cut any copies down to the actual size of the document copied. All copies should be on 8½” by 11” paper.

Outside counsel will guide you through the document collection process and provide a questionnaire to you for collecting the required information.  In general, the following documents must be prepared for a typical I-485 Adjustment of Status Application.

I. Form I-485 Application to Adjust Status to Permanent Resident:

1. Two photographs;
2. Sealed medical examination results (Form I-693);
3. Form G-28, Notice of Entry of Appearance as Attorney for the employee and each dependent;
4. Form I-485, Application to Adjust Status as Permanent Resident;
5. Copy of the I-140 Immigrant Petition Approval Notice (Form I-797) for the primary applicant. If you do not have an I-140 approval notice, you may also provide the I-140 Receipt Notice. If the I-140 petition has been filed for you, but you have not yet received your receipt notice, then please provide a copy of your I-140 petition filing.
6. One copy of your pay stub for the last two months;
7. Copy of marriage certificate (spouse’s application only);
8. Copy of your proof of birth;
9. Form G325A, Biographic Information (4 signed originals);
10. Copy of complete passport, including all entry stamps;
11. Copy of your most recent I-94 card; and,

II. Form I-131 Application for Advance Parole Travel Document:

1. Two photographs;
2. Form G-28, Notice of Entry of Appearance as Attorney for the employee and each dependent;
3. Form I-131, Application for Advance Parole Travel Document;
4. Copy of biographic page of passport;
5. Copy of the I-140 Immigrant Petition Approval Notice (Form I-797) for the primary applicant. If you do not have an I-140 approval notice, you may also provide the I-140 Receipt Notice. If the I-140 petition has been filed for you, but you have not yet received your receipt notice, then please provide a copy of your I-140 petition filing.
6. Copy of marriage certificate (spouse’s application only);
7. Copy of your proof of birth;
8. Copy of your most recent I-94 card; and,
9. Copy of your I-797 Approval Notices.

III. Form I-765 Application for Employment Authorization:

1. Two photographs;
2. Form G-28, Notice of Entry of Appearance as Attorney;
3. Form I-765, Application for Employment Authorization;
4. Copy of biographic page of passport;
5. Copy of the I-140 Immigrant Petition Approval Notice (Form I-797) for the primary applicant. If you do not have an I-140 approval notice, you may also provide the I-140 Receipt Notice. If the I-140 petition has been filed for you, but you have not yet received your receipt notice, then please provide a copy of your I-140 petition filing.
6. Copy of marriage certificate (spouse’s application only);
7. Copy of your proof of birth;
8. Copy of your most recent I-94 card; and,
9. Copy of your I-797 Approval Notices.

Additional Documents Needed to File (Your outside counsel attorney may require fewer copies)

1. Every page of your current and former passports, including pages without any stamps or visas.  If a Form I-94 is stapled in your passport, please make sure to copy the passport page underneath the Form I-94.
2. THREE (3) copies of your most recent Form I-94 (front and back sides).
3. THREE (3) copies of all non-immigrant (such as H-1/H-4 or L-1/L-2) approval notices (Forms I-797) issued in connection with your employment and at any former employers in the U.S.
4. THREE (3) copies of   Please refer to the attached document entitled “Birth and Marriage Certificate Requirements” to ensure that you have the correct version of the document(s).  The birth certificate must include your full name, place and date of birth, and parents’ names, and should be registered close to the time of your birth.  Please let us know if you think you may not be able to provide us with birth a certificate meeting these requirements, so that we can discuss alternate forms of documentation.
5. THREE (3) copies of your marriage certificate and any dissolution decrees from prior marriages, if applicable.
6. THREE (3) copies of any employment authorization document(s) (EAD cards) previously issued to you.  You may have received an EAD card if you have ever applied to the immigration service for employment authorization as an F-1 student (optional practical training) or as the spouse of an L-1 or E-3 non-immigrant.
7. THREE (3) copies of all I-20 forms issued by your school, covering the entire period you were a student.
8. If you and/or any family member were ever in J-1 exchange visitor status, provide THREE (3) copies of all IAP-66 and/or DS-2019 forms issued to you.

Ø      Question: I have not kept copies of all of the immigration status documents that Avani indicates I need.  What options do I have to obtain these documents?

Answer: If you have previously provided a copy of any of these immigration status documents to your Gravidian attorney or paralegal, please contact your Gravidian attorney or paralegal to ask that a copy of the missing documents be forwarded to your outside counsel. If  Gravidian has the documents, they will forward them to outside counsel for you.  Please note that you should only make this request if you actually do not have the document.  For all other documents, the process will be faster for you if you directly provide the documents to outside counsel.

Ø      Question: My documents are in a foreign language, should I have them translated into English?

All documents not in English must be accompanied by a certified English translation.  You may translate the documents yourself, but you will need to ask someone (not a family member) who is fluent in both English and the language of the document to certify the accuracy of the translation.  The individual certifying the translation should complete and attach the following certification language for each translation:

I,   [printed name]  , certify that this is an accurate translation of the attached document, and that I am qualified to render this translation, being proficient in both the English and   [insert language]   languages.

Dated: ___________________ at [city, state].

[signature]_______________________________________

Ø      Question: For the translations of foreign documents, the most common way seems to be for a friend to the sign the translation saying it’s the correct translation. However, when I was preparing my AOS paperwork, someone told me that as long as I get it notarized by a notary public, it’ll be fine for me to translate it and sign it myself. Is that correct?

Answer: The best method to submit documents in a language other than English is to provide a copy of your document in the original language, an English translation, and a translation certificate signed by someone who is outside your immediate family who is familiar with both languages. You should not just have your own translation notarized, as this may result in a request for evidence for a translation, and this will delay when your I-485 application will be approved.

Birth Certificates and Marriage Certificates

You will need to provide a photocopy of your birth certificate and a photocopy of the birth certificate of each family member applying with you.  Please be advised that each birth certificate must include all of the following information:

• Applicant’s Full Name.
• Full Date of Birth (Month, Day, Year).
• Place of Birth (City, Province/State if applicable, Country).
• Full Name of Mother (BOTH First Name and Last Name – maiden or married name.)  Both first name and last name must be spelled out. An initial is not sufficient.
• Full Name of Father (BOTH First Name and Last Name.)  Both first name and last name must be spelled out.  An initial is not sufficient.

If a birth certificate does not exist or it does not contain all of the required information as stated above, a sworn affidavit executed by both parents (mother and father) may be submitted. See Sample. If one of the parents is not living, then the surviving parent should execute a sworn affidavit. See Sample.

If neither parent is living, then the affidavit can be signed by a close relative at least 10 years older than the applicant who is not party to the application and who has direct knowledge of the birth event and circumstances. See Sample. The affidavit must specify the relationship between the signer and the applicant, how the signer knows the applicant, date and place of the applicant’s birth, the names of both parents, and any other related facts. The affidavit must be signed and notarized.  The affidavit can be modified accordingly.

When a birth certificate does not exist, an affidavit of birth should be accompanied by a “Certificate of Non-availability” issued by a competent governmental authority confirming that the birth certificate does not exist. There is no set format for certificates of non-availability, but the document must indicate the reason the record does not exist, and indicate whether similar records for the time and place are available.  See Sample.

Note that if the birth certificate or any other document submitted in support of your I-485 application is in a language other than English, you should have a translation of the document. Only a third party (i.e., non-family member) should translate your foreign documents.  Any document containing a foreign language submitted to the USCIS must be accompanied by the full English translation, which the translator has certified as complete and accurate, and the translator must certify that s/he is competent to translate from the foreign language into English (see sample certification language below).

Certification of Translation

I,   [printed name]  , certify that this is an accurate translation of the attached document, and that I am qualified to render this translation, being proficient in both the English and   [insert language]   languages.

Dated: ___________________ at [city, state]. [signature]_______________________________________

Ø      Question: I am putting together my I-485 application, and I am missing the birth certificate. What alternate documentation can I provide? How about if I am missing my marriage certificate?

Answer: The I-485 adjustment of status application requires a copy of your foreign birth certificate or other record of your birth that meets the requirements of secondary evidence.  If your spouse is applying with you, you will also need to submit a copy of your marriage certificate.  These documents must also be accompanied by a certified English translation, if necessary.  Please use your best efforts to obtain these documents.  If you are unable to obtain these documents, please obtain affidavits of marriage or birth. To avoid receiving a “Request for Evidence” or “RFE” for these documents, you should continue efforts to obtain the documents as soon as possible.

Ø      Question: My marriage certificate was issued by the church where we were married in my home country. As per the law in my home country for Christians, the marriage certificate from the church constitutes a legal record of our marriage, and the country does not require any further registration with the government. Will that certificate do for green card purposes here, or should I get the wedding registered with the government in my home country and get them to issue a marriage certificate? If my current marriage certificate is not sufficient, is there some alternate that does not require registration in my home country? Should I register my marriage here in the U.S.?

Answer: If you travel to your home country before your adjustment of status application is approved, it is a good idea to register your marriage with the government in your home country and obtain a registration certificate so that you can be ready if the USCIS issues a request for evidence (RFE) for further proof of marriage.  For country specific guidance on what is an acceptable birth document, you can visit http://travel.state.gov/visa/frvi/reciprocity/reciprocity_3272.html.

Ø      Question: The information on my birth certificate is wrong. The local authority in my home country said that they do not provide an affidavit for the birth certificate and that the only solution is for me to fly back to my home country and make appropriate changes to the birth certificate. Is there any other option?

Answer:  The U.S. Department of State provides information on the documents that can be obtained from the home country on http://travel.state.gov/visa/frvi/reciprocity/reciprocity_3272.html. The USCIS generally prefers that you provide the documents that are listed on the DOS’ list for each country. However, in this circumstance, it may be acceptable to file with a copy of the available birth certificate and birth affidavits from your parent(s) that provide the correct information.

When the USCIS does not receive the expected documents, the USCIS can either use its discretion to determine that the documents it received are sufficient, or the USCIS can issue a request for evidence (RFE) for the documents it expected to receive. Therefore, we recommend that anyone whose home country has a mechanism to correct errors on a birth certificate use that mechanism as soon as possible to be ready to respond to any potential RFE.

Ø      Question: My spouse’s birth certificate has her birth date wrong. Can we just use affidavits to “fix” this problem?

Answer:  Again, this depends on whether the home country provides a mechanism to fix the documents in other ways. However, in some cases, it may be possible to file with the incorrect document and affidavits that provide the correct information and obtain the proper documents as soon as possible to be prepared for a RFE.

Ø      Question: My birth certificate is missing my full name and I need to get an affidavit for it. Since my parents are here in the U.S., can I get the affidavit done here or does someone in my country of birth need to provide an affidavit? If I have to get the US affidavit, what is the process for it?

Answer:  If your parents are in the U.S., they can execute affidavits in the U.S. There is no need for someone in your home country to provide an affidavit. We recommend that you start with our samples provided above.  Your parent(s) should then sign the affidavit(s) in front of a notary.

Ø      Question: Can I submit a copy of my original birth certificate in my native language along with a “Certification of Translation?”  Do you know if this translation and certificate of translation can be on plain paper and anyone can do this or do I need some official translator?

Answer: You should provide a copy of your birth certificate in your native language, an English translation of the birth certificate, and a translation certificate. The translation certificate can be on plain paper and can be completed by anyone outside of your immediate family who can attest to understanding both your native language and English.

Ø      Question: Is a photocopy/ fax of a Birth Certificate affidavit sufficient, or do I need to submit the original for the affidavit?

Answer:  A copy of the affidavit is sufficient for filing. You should not need to submit the original affidavit. However, it is a good idea to keep the original in case the USCIS unexpectedly issues a Request for Evidence (RFE).

Ø      Question: My driver’s license does not reflect my latest address. Do I need to update my address for I-485 documentation purposes?

Answer:  There is no I-485 filing requirement that the address on the driver’s license match your home address for your I-485 application.  However, most states have a legal requirement that you update your home address with the state’s motor vehicle department, and it is best to comply with every state and federal law.  To find out how to change information on your driver’s license in your state, go to http://www.usa.gov/Topics/Motor_Vehicles.shtml and click on the state where you reside.

Immigration Medical Examinations

Each applicant for adjustment of status to a permanent resident must have a physical and mental examination with an authorized physician (designated Civil Surgeon).  Examinations by other physicians are not acceptable.

To find a designated Civil Surgeon, you may call the USCIS National Customer Service Center at 1 (800) 375-5283. When you provide your zip code, you will receive the name, address and phone number of the Civil Surgeon nearest to you.  Be sure to have a pen or pencil ready to write down the name and telephone number when you call. You can also find a database of designated Civil Surgeons at the USCIS web site: http://uscis.gov/graphics/exec/cs/Index.asp.

Your employer’s health care benefit program may be used to help defray the cost of the immigration medical examination. You may choose any designated Civil Surgeon (see USCIS web site link and phone number above).

The following information may be helpful to you as you select a designated Civil Surgeon. The medical examination is conducted to determine whether there are any disorders for which you should be denied permanent residence. The medical grounds of excludability for immigrant visa applicants are:  communicable disease of public health significance; lack of required vaccinations; physical or mental disorders with harmful behavior; and drug abuse/drug addiction.

The physician will determine through examination and tests whether you have a communicable disease of public health significance such as active tuberculosis, HIV infection, sexually transmitted diseases, leprosy, or SARS.  The physician will determine through questioning and observing your behavior whether you have had a physical or mental disorder that is likely to pose a threat to the property, safety or welfare of yourself or others. The physician will determine through questions whether you are addicted to or abuse narcotic drugs or alcohol.  No drug testing is done — the determination of the doctor is based on your statements.  You should bring written documentation, if available, that you are current with vaccine-preventable disease immunization. The doctor will discuss with you immunizations required by the USCIS, which immunizations are medically appropriate based on your age and medical condition, and options for meeting the USCIS vaccination requirements.  In general, vaccinations are required for mumps, measles, rubella, polio, tetanus, diphtheria, pertussis, influenza type B, and hepatitis B.  All applicants 2 years of age and older are required to have a tuberculin skin test (TST). All applicants 15 years of age and older are required to have serologic (blood) tests for HIV and for syphilis. Applicants under age 15 can be tested for HIV or syphilis if there is reason to suspect the possibility of infection. Civil Surgeons and Panel Physicians are required to provide pre-test counseling to all applicants who take the HIV test. If you are found to have HIV infection, the Civil Surgeon must provide you with post-test counseling.

If you have your immunization records, please take them with you to your medical examination. If you do not have your immunization records, but can get them from your home country, it is a good idea to do so before the medical examination. Please bring your available vaccination records with you to your immigration medical exam so that a determination can be made whether the records satisfy immunization requirements. If you believe that all your vaccinations are current, but you do not have records, you may either get new inoculations or request a blood test, which will show antibodies if you are immune to these diseases. If you prefer, you may visit your own physician for this before you visit the USCIS-approved doctor, since your personal doctor is perhaps more familiar with your medical history.

Please be sure to take your passport with you to your medical examination, as the USCIS-approved doctor needs information from your passport to complete the necessary form (I-693).

Ø      Question: I had a BCG (tuberculosis / gruźlica) vaccination in my home country.  According to the CDC website, “Diagnosis of Latent Tuberculosis Infection” section my TST (Tuberculin Skin Testing) will be positive and I might be incorrectly diagnosed with latent tuberculosis.  What additional tests I would need to do?  What is the potential delay/impact for my AOS filing?

Answer:  If a person tests positive for TB but has a reaction to the TST of 4 millimeters or less, no further testing is required. If the TST shows more than 4 millimeters of reaction, the doctor will conduct X-rays. If the X-rays are negative (which usually occurs if there was a false positive on the TST), no further action is required. Assuming either the results of the TST or X-rays are negative, there should be no delay to your AOS filing.

Ø      Question: How long are the medicals from the civil surgeon valid?

Answer:  Medicals are generally valid for one year. However, the USCIS has a long history of extending the validity of medical exams that are filed together with the I-485 application when the processing of the I-485 application takes more than one year. Therefore, we expect that your medical exam will remain valid throughout the duration that your I-485 application is pending if your medical is included with your I-485 application.

Ø      Question: I looked at the I-693 form and one of the checkboxes says “Applicant is not current for recommended age-specific immunizations and I have encouraged that appropriate immunizations be obtained.”  Does a USCIS approved surgeon merely encourage me to get appropriate immunizations or do I have to take the shots in order to get all the necessary documents?

Answer: In situations where recommendations are made that are age inappropriate, then those specific immunizations are not required.

·         Question: Are we supposed to send the Medical Evaluation packet to your Gravidian attorney?  Should I mail the Medical Evaluation to USCIS myself to save time?

Answer: You should mail the medical evaluation packet (sealed) to outside counsel. However, you should also ask the doctor for a copy of your medical exam to also provide to outside counsel so that they can make sure that there will be no medical problems in obtaining an I-485 application approval for you.

Do not mail your medical exam or any other documents directly to USCIS. This can cause confusion and delays in your case. You should send all documents to your outside counsel in the manner that outside counsel describes in their intro e-mails to you.

Family members are eligible to also file their I-485 applications

Your legal spouse and your unmarried children under age 21 are permitted to file I-485 applications at the same time as you.  Your dependents can either file at the same time as you or after you as long as your priority date remains current.  Your dependents cannot file their I-485s before you file your I-485.

• Please note the USCIS requires that an I-485 applicant be physically present in the U.S. when the I-485 is filed. Neither you nor your dependents who are filing I-485s should be outside of the U.S. on the day that the USCIS receives your I-485 applications.
• Please also note that naming your dependents on your I-140 petition and/or your I-485 application does not automatically include them in your application for a green card.  Each of your dependents must file an I-485 application separately that is based on your green card process.  Gravidian also provides assistance on I-485 filings for you and your dependent family members.

Ø      What is an Aging Out case for the purpose of Adjustment of Immigration Status?

An Aging Out case is a situation referring to a person’s petition to become a legal permanent resident as a child, and in the time that passes during the processing of the application, the child turns 21, and ages-out.  If you believe that your case may have a child that will turn 21 before your Adjustment of Status case is approved, please contact your Gravidian attorney.

Ø      Question: I am getting married in the fall. After my marriage, will my spouse be able to immediately file an I-485 application?

Answer: This depends on whether your priority date is current once your spouse arrives in the U.S. as your dependent.  If the priority date is not current, your spouse will not be able to file. If the priority date remains current, your spouse will be able to file.

We recommend that our single employees who are considering marrying a non-U.S. citizen or lawful permanent resident, or who have dependents who are currently abroad, maintain their H-1B or L-1 status so that their dependents can enter the U.S. in H-4 or L-2 status.  If priority dates retrogress again before dependant family members file I-485 applications, then the first time that the priority dates become current again, the dependents should file their I-485 applications. They can only maintain H-4 or L-2 status as long as you have H-1B or L-1 status, and once your I-485 application is approved and you are a green card holder, they are no longer H-4s or L-2s. They will need their I-485 applications pending to be able to stay in the U.S., or they will need their own nonimmigrant status (e.g., your spouse will need his/her own H-1B or L-1).

Ø      Question: My spouse and I work for two different companies, and we will both now have current priority dates. Should we each file two I-485 applications?

Answer: The USCIS does not like more than one I-485 application to be active. However, from a practical perspective, the USCIS does not seem to require the withdrawal of one of the two employment based green card application sets. However, we do recommend that only one application set pursue the EAD and advanced parole documents because the USCIS does take action on multiple sets of EAD and advanced parole applications.

Ø      Question: My children are outside the U.S. for the summer. I can file when they get back, right?  If not, will they be able to stay in the U.S.?

Answer: This depends on whether your priority date is current at the time that your children arrive in the U.S.  If the priority date is not current when they return, you and/or your children will not be able to file their I-485 applications. If the priority date remains current when your children return to the U.S., your children will be able to file their I-485 applications.  We cannot precisely predict how long your priority date will remain current as it could retrogress.

We recommend that our employees who have dependents who are currently abroad maintain their H-1B or L-1 status so that their dependents can enter the U.S. in H-4 or L-2 status.  If priority dates have retrogressed, then the first time that the priority dates become current again, the dependents should file their I-485 applications. They can only maintain H-4 or L-2 status as long as you have H-1B or L-1 status, and once your I-485 application is approved and you are a green card holder, they are no longer H-4s or L-2s. They will need their I-485 applications pending to be able to stay in the U.S., or they will need their own nonimmigrant status (e.g., some children become F-1s).

Ø      Question:  When do I need to be in the U.S. during the I-485 process and when can I and my dependents be out of the country? How soon can I leave the U.S. if I need to travel abroad?

Answer: The answers to these questions depend on where you are in the I-485 process:

• Pre-I-485 filing: You and your dependents do not need to be in the U.S. the entire time that work is being done on the I-485 application, but you will need to be in the U.S. at some point in this time to complete the medical exam, as you must have your exam in the U.S. If you are going to be out of the U.S. while outside counsel is preparing your I-485 application, you will still need to be accessible by e-mail and/or phone to address any additional needed documents or information.
• At the time of the I-485 filing: You and your dependents who are filing I-485 applications MUST BE IN THE U.S. on the day that USCIS receives your I-485 application. Otherwise, USCIS will reject the application, either now or when they realize that you were not here on the day that your I-485 application was filed.
• After the I-485 application is filed: For individuals in H-1B/H-4 or L-1/L-2 status, you and your dependents should remain in the U.S. until the receipt notice for the I-485 application is issued by the USCIS. This may take several weeks or more. Upon issuance of the I-485 filing receipt, you will be able to travel using the original I-485 filing receipt and all documents currently required for travel using a valid visa stamp (example, visa-exempt Canadian nationals). If you and your dependents are in nonimmigrant status other than H-1B/H-4/L-1/L-2 at the time that your I-485s were filed, you will need to remain in the U.S. until the advance parole travel document application is approved, or you will be deemed to have abandoned your I-485 application. This may take several months or more.

Ø      Question: Should we expect to get separate fingerprinting notices for each family member? Will we all have different appointment times? Is there any way to schedule the whole family together?

Answer: The USCIS will issue separate fingerprint notices to each member of the family age 14 and over. These may be on the same day but can also be on different dates. However, the officer at the USCIS fingerprinting location has the discretion to permit your family members to take their fingerprints at the same time. All family members should go to the earliest appointment and ask if the officer will permit them all to submit their fingerprints that day. Many officers will allow this in the interest of convenience.

Ø      Question: My dependent is finishing a degree and wants to file for OPT while the I-485 application is pending. Can my dependent do this?

Answer: No, your dependent should file the EAD application with her I-485 application.  Once your dependent files the I-485 application, s/he is permitted to remain in the U.S. based on the pending I-485 and should obtain the correct work authorization.

Ø      Question: What is the condition under which someone’s green card (or some stage of AOS filing) approval can prevent their spouse from entering the US and for how long?

Answer: If your green card is approved before you marry, your spouse has to be sponsored by you for a family-based green card rather than joining you on your employment-based green card process as a dependent. If your spouse does not have independent means to obtain a nonimmigrant visa (eg, H-1B or L-1), you may be separated from your spouse for many years (currently, this is about five years) while you are waiting for the family-based priority date to become current.

Note that your spouse would face extreme challenges in obtaining a nonimmigrant intent visa (e.g, B, F-1, TN, E-3) to come to the U.S. during this period because these visas do not permit the visa applicant to plan to obtain a green card, and your spouse would be married to a U.S. green card holder. Therefore, we recommend that you plan carefully to avoid long-term separation.

Note that spouses of H-1B and L-1 classification holders do not face these challenges, as the H-4 and L-2 dependent classifications do not require a showing of nonimmigrant intent (i.e. no showing that the visa applicant will return to the home country at the end of the authorized stay in the U.S.).

Adjustment of Status vs. Consular Processing

Adjustment of status refers to the procedure for becoming a lawful permanent resident without having to leave the United States.  It should be distinguished from the traditional method of gaining permanent residence, which involves applying for an immigrant visa at a U.S. consular post abroad.  For more information on consular processing, please consult an Gravidian attorney.

Ø      Question: What are your thoughts on Adjustment of Status vs. Consular Processing? I am considering Counselor processing as it is faster but would like to understand the risks involved.

Answer: Gravidian does not recommend consular processing for the following reasons:

1. There is no guarantee that consular processing is faster than adjustment of status processing. However, consular processing is riskier. If you go to the consulate for consular processing, Avani can assist you to appeal any bad decisions the consulate may make to deny you an immigrant visa.

1. Consular processing does not provide you with work authorization or permission to remain in the U.S. It does not provide work authorization for your dependents. If you have a consular processing application pending, it does not permit you to remain in the U.S. independent of having nonimmigrant status.

Ability to Work While Adjustment is Pending

If you are inside the U.S. and have filed Form I-485, Application to Register Permanent Residence or Adjust Status, you are eligible to apply for a Work Permit while your case is pending. You should use Form I-765, Application for Employment Authorization to apply for a work permit.

Note: You do not need to apply for a Work Permit once you are granted an immigrant visa or adjust to permanent resident status. As a legal permanent resident, you should receive a permanent resident card that will provide evidence that you have a right to live and work in the U.S. permanently.

EAD cards

Definition

An employment authorization document (“EAD”) provides the foreign national with a pending adjustment of status application authorization to work between the time the adjustment of status application is filed and the time the USCIS approves the application for permanent residency. While the foreign national’s non-immigrant status may still be valid for a period after the adjustment of status is filed, an EAD may be necessary to bridge the gap between the time the non-immigrant status expires and the permanent residency application is approved.

In addition, an EAD is required as proof of employment authorization for some non-immigrant categories, such as F-1 engaged in optional practical training and J-2s approved to work in the United States.

Eligibility

To apply for an EAD, the foreign national must be filing or have filed, an adjustment of status application.

Procedures and Forms

The request for an EAD must be filed on USCIS Form I-765.  It can, and should, be filed concurrently with an adjustment of status application.

Ø      Question: Is it true that if we don’t get a EAD in 3 months (after filing 140), can individuals get an EAD from the local office? Are EAD applications affected by the latest news? Can I simply upgrade my EAD or I-140 to premium?

Answer: To clarify, the USCIS does not accept EAD applications in conjunction with I-140 petition filings. EAD applications must be filed together with the I-485 application. Premium processing the I-140 petition will not have an impact on how quickly you receive the EAD card. In addition, the USCIS is not accepting premium processing for I-140s in July 2007. EAD and I-485 applications are never eligible for premium processing.

If the EAD application has been pending for 180 days, then you should schedule an Infopass appointment at your local district office to apply for the Interim EAD. Unfortunately, the local office no longer issues the Interim EAD, and it may be 7-10 days before the Interim EAD is delivered to your home from a USCIS Service Center.

Advance Parole

If a foreign national leaves the United States between the time he or she files an adjustment of status application with the USCIS and the date the USCIS approves the application, the application for permanent residence is deemed abandoned. The advance parole document is the exception to this rule, and it allows a foreign national to travel outside of the United States for business or personal reasons while his or her adjustment of status application is pending. The foreign national should not leave the United States while he or she has an adjustment of status application pending unless he or she has an approved advance parole.

Eligibility

The foreign national cannot file for an advance parole unless he or she is also filing, or has already filed, an adjustment of status application. The foreign national must be in the United States at the time of filing the advance parole application.

If the foreign national has been “out of status” in the United States for more than 180 days, he or she should not apply for an advance parole or leave the United States while his or her adjustment of status application is pending.  Even though the foreign national may be eligible to adjust status, he or she may be barred from re-entering the United States for a period of three to ten years once he or she leaves the United States, as a result of being “out of status” for more than 180 days.

Procedures and Forms

The advance parole is filed on Form I-131. It must be accompanied by four photographs and a letter explaining the need for travel. It can, and should, be filed concurrently with the adjustment of status application.

The Mechanics of Traveling with a Pending AOS

Several thousand foreign nationals and their dependents recently filed their adjustment of status (AOS) applications with USCIS, and the receipt notices for these applications continue to arrive. We have previously addressed the minimum documents employees must have to travel abroad and return to the U.S. This article walks you through what you need to know about each method of returning to the U.S. Note that even though this article follows a substantial volume of filings, the content of this article applies to all AOS filers, whether your AOS was filed before, after, or during July to August 2007.

Re-Entering the U.S. in H or L Status Using an Original I-485 Receipt Notice When a Visa Is Required

Company employees who are currently holding H or L status can travel outside the U.S. as long as their status is current, and they are returning to the U.S. to work with the same employer.

To minimize the risks of facing problems at the port of entry, we recommend that you have the following documents with you before traveling abroad, as these are the documents you should have at the port of entry:

• Your H/L approval notice;
• Your passport, valid at least 6 months beyond the expiration of your H/L status;
• An unexpired H/L visa in your passport; and
• An employment verification letter from your employer (Please request at least 3 weeks prior to your travel.).

If you must obtain an H or L visa while abroad, then you will need to follow standard procedures to obtain the visa. Please click here for information on our website regarding this topic.

If you need to obtain a new visa, ideally, you should wait to travel until you have your advance parole document so that you can still re-enter the U.S. if you have any unexpected problem in obtaining your visa. However, at the port of entry, you should have your advance parole in a carry on bag and should not show it to the port of entry officer unless there is any problem entering the U.S. on the H or L. Otherwise, as the port of entry officer may decide to admit you on advance parole if you give the officer a choice.

Re-entering the U.S. with the Original I-485 Filing Receipt When No H or L Visa Is Required

There are two groups of H and L status holders who can travel abroad without a visa: (1) Canadians and (2) citizens of most countries who are traveling to Canada or Mexico for less than 30 days.

Canadians only need their H or L approval notice, their passport valid for at least 6 months beyond the validity date of the H-1B or L status, and an employment verification letter from your employer to travel. Note that Canadians in a status other than H or L need their advance parole documents and should not assume they can travel abroad before the advance parole is approved and in hand.

For non-Canadians, the “30-day rule” allows for short trips (30 days or less) to contiguous territories (i.e., Canada or Mexico). You may enter the U.S. using an expired nonimmigrant U.S. visa (even a visa in another classification than H or L) as long as the following requirements are met:

1. You have maintained and intend upon re-entry to resume valid nonimmigrant (temporary) status;
2. You are applying for readmission within the authorized period of initial admission or extension of stay;
3. You have not applied for a new visa stamp during the trip abroad; and
4. You are not a national of a country identified by the Department of State as supporting terrorism.

If you have an expired visa stamp, you can use that stamp along with your valid I-94 card for re-entry back to the U.S. for a short trip to Canada or Mexico.  Individuals who use the 30 day rule to travel should have the following documentation with them before they re-enter the US:

1. Your Original H-1B/L-1 approval notice (Form I-797);
2. Your passport, valid at least 6 months beyond the expiration of your H-1B/L-1 status;
3. Your valid unexpired I-94 card;
4. Copy of your H or L petition and supporting documents; and
5. Proof of employment.  Your assigned U.S. Team paralegal can prepare an employment verification letter for you to take with you on your trip.  Please contact your Gravidian attorney and paralegal at least 3 weeks prior to your trip. You should also take along all of your documents to ensure a smooth re-entry into the United States.  Your Gravidian attorney can assist you with putting this document packet together.

*Note that you need to check Canadian and Mexican visa requirements before you attempt to enter either country.

Traveling on Advance Parole Documents

The AOS applications filed for Gravidian clients and their dependents generally include an application for employment authorization and an application for an advance parole document. When the advance parole document is received, individuals not in H or L status will be able to travel without running the potential risk of being deemed to have abandoned their AOS applications, and individuals in H or L status will have the choice of how they wish to travel abroad (i.e. their H or L status or with advance parole).

When you travel on advance parole, you should have your advance parole document(s) and your passport, valid at least 6 months beyond your desired U.S. entry date, with you. When the advance parole is approved, you will receive 2 to 3 copies of the advance parole document. The first time you travel with your advanced parole, the port of entry (POE) immigration inspector may take one of your copies of your advance parole document when you re-enter. However, the POE officer generally will not take the last copy of your advance parole document. Once you only have one copy of your advance parole left, you will need to inform the POE officer that you are using the last copy of your advance parole document. If the immigration inspector does take your last advance parole document, then contact your Avani attorney so that we can apply for a new advance parole document for you.

If you use the advance parole documents to travel, you likely will be sent to secondary inspection at the port of entry. This process usually delays departure from the port of entry by at least 30 minutes, so if someone is picking you up, you will want to add some time to your estimated departure from the airport or other port of entry. It is legally permissible for a company employee to travel via H or L classification while their dependent travels via advance parole. However, the dependent will likely go through secondary inspection while the employee likely will not. Be prepared to be separated at the airport if one is traveling via H or L and the other is traveling on advance parole. Plan where you will reunite in the airport after the secondary inspection and which of you will take various carry-on luggage with them.

When it comes to the global mobility of their workforces, we believe that many companies have one foot planted firmly in the future and one stuck in the past. Clearly, expansion into new markets around the world is one of the most effective ways for executives to meet investor demands for high growth. It’s also clear to us that soaring global competition and worldwide demographic changes are driving up the number of key employees who cross borders to work – a trend that is accelerating quickly.

In fact, according to a 2005 survey,1 47 percent of companies reported an increase in the size of their expatriate populations in 2004, and 54 percent anticipated further growth in the coming years. As further substantiation of the trend, the survey results indicated that two-thirds (62 percent) of companies reported an overall workforce expansion at their companies, and 84 percent also reported that there has been an increase in expatriate activity
in locations where there was expansion. In both instances, these results were record highs for the survey, which has been conducted for 11 years. What’s more, shifting needs are forcing companies to deploy workers in new markets faster than ever before to take advantage of emerging opportunities before their competitors.

To address these 21st-century changes and challenges, companies must search for effective new human capital strategies to complement their business strategies. In particular, they must look for more effective ways to manage the global mobility of their workforces – the new mix of global projects, short-term assignments, commuters, permanent moves, and global careerists requires careful management.

In the meantime, most companies are coping by relying on conventional expatriate workforce strategies that, in some cases, are decades old. What worked well in a much different world of business – one in which the main expatriate problem was how to send a few people from established markets and businesses across a few borders to work – is no longer efficient. In this decade, we are witnessing the beginning of the baby boom retirement
phenomenon, and by 2010, American businesses will face a labor shortage of more than 10 million workers.2 As a result, most companies will be under increasing pressure to source and develop talent outside of established markets and deploy that talent to emerging business opportunities.

In this new world of global talent management, reliance on traditional mobility approaches, models, and tactics may end up hurting some companies’ bottom lines and could well pose significant compliance and other problems in the near future. Therein is a potential opportunity for forward-looking companies: if they take a new, more encompassing approach that aligns their global mobility programs with their core business objectives, they
could soon outdistance competitors that fail to jump into the future in the same way. This paper describes the components of such an approach.

Conventional expatriate workforce strategies worked well for many companies when the main problem was how to send a few people from established markets and businesses across a few borders to work. Today, most companies are looking for policies that help them manage the global mobility of their workforce – the new mix of global projects, short-term assignments, commuters, permanent moves, and global careerists.

What you don’t know can hurt you
Companies should seek new approaches to mobility when their conventional programs and policies make it very difficult to keep a handle on their globally mobile workforce. Even where the traditional expatriate population is tightly managed, the same rigor is often not applied to mobility on a broad or comprehensive basis: How many mobile employees are there? Who’s involved in what projects? Who’s involved in short-term and rotational
assignments? Who’s commuting? For what and why?

In a survey conducted in 2005,3 62 percent of the companies responding were seeking alternatives to long-term assignments. Ninety-three percent of those companies cited cost as the main decision driver behind this trend away from the traditional expatriate assignment. Among the alternatives cited by the respondents were such tactics as localization (57 percent), local talent development and hiring (48 percent), short-term assignments (39 percent), business travelers (36 percent), and permanent transfers (26 percent). However, these “solutions”
tend to focus on moving employees across borders in a reactive, short-term goal oriented fashion. In that regard, the basic global mobility model remained unchanged – it was simply being dressed up in new clothes, as it were.

Information, of course, is the most basic requirement of effective management and business performance. Companies forced to rely on conventional expatriate HR policies find it difficult, if not impossible, even to know the costs of global mobility, let alone control them or report them. That in turn adversely impacts their
ability to calculate their return on investment in global mobility.

Most conventional expatriate policies also make it difficult for even the most conscientious global companies to know whether their HR practices around the world are in compliance with local tax and labor laws. This can be especially risky in the post-9/11 era, when local governments, armed with better technologies and fueled by fears of terrorism, have increased their scrutiny of expatriate workers and immigrants to simultaneously protect
workers’ rights and their citizens in general. At the same time, local tax authorities have heightened enforcement of tax compliance by both individuals and corporations to increase tax revenue and contribute to government coffers.

In addition, because conventional approaches to expatriate employees typically focus on handling individual cases, they make it extremely difficult for companies to make a global evaluation of their workforce needs. Knowing what works most effectively for one mobile executive doesn’t help companies know if their
most productive and cost-effective talent is working in areas that provide the highest ROI. Companies may also do a good job of moving a single executive overseas, but find it impossible to quickly scale up a workforce to seize a hot opportunity in another country.

Finally, and most fundamentally, conventional approaches to expatriate employees often prevent top executives from getting critical information about whether the way they use their globally mobile workforce is aligned with their business objectives.

Out of the past, into the future
The good news is that many companies are finding ways to leave behind outdated processes and procedures, and are seeking to implement new and effective global mobility strategies and programs. To embrace the new era of global talent management, they are refocusing, transforming, and realigning their approach to employee mobility.

Some specifics to consider:
Refocus. Companies need to improve how they develop the information that will help them understand the costs,
requirements, and opportunities presented by a global workforce that encompasses thousands of employees a year moving across borders. Critical activities in this refocusing process include:

Defining global mobility support for initiatives and aligning
global mobility programs to support the business’ strategic
priorities
• Refocusing vendor partners to provide strategic and consultative
global mobility services to executives and line managers
• Providing strategic, design, and consultative global mobility
services to vendor partners and assisting in resolving complex
issues
• Responding to employee inquiries and processing global
mobility transactions to reduce vendor partner and center of
excellence involvement in routine administrative tasks and
inquiries
• Ensuring that vendor partners provide contracted activities,
measuring performance against the service level agreement, and
coordinating vendor activity to meet current operational, future
capacity, and project needs
• Outsourcing non-core-competency functions and/or those that
are more efficiently delivered by a third party

Transform.

Companies then need to get down into the gritty details of their operations. They must make changes to technology platforms, human capital management processes, human resource policies procedure and programs, vendor management, and compliance management. Above all, they need to transform the focus of their global mobility programs from addressing the needs of the expatriates to addressing the needs of the global business,
thereby recognizing that the needs of the workforce are a key element of the effectiveness of that transformation. This involves:

Identifying technology changes and enhancements to support the long-term global mobility strategy
• Providing tools to help the business plan for assignment costs
• Leveraging an HR portal to provide manager and employee selfservice capabilities
• Using a global mobility intranet or portal to find policy and process information, view assignment-related information, and conduct basic transactions
• Defining reports and analytics to measure global mobility effectiveness and assignee experience over the course of an assignment
• View global mobility talent movement, aggregate trends, and performance as a result of assignments
• Standardizing policies across global mobility service offerings
• Streamlining procedures to support global mobility service delivery
• Establishing service level agreements to ensure an effective relationship between global mobility and the business

Realign. Finally, companies need to realign their global mobility
programs. That is, they must make sure that everyone in the
business understands the new capabilities the company has
brought on board in order to better manage expatriate workers
and make them assets that contribute directly to company
performance. This means:

Focusing on risk and cost management to drive the brand and value of global mobility
• Understanding services and capabilities of global mobility and communicating the value and brand of global mobility
• Providing talent management services that effectively address the demand for global talent
• Supporting positive assignee and family experience
• Understanding global mobility solutions and their capabilities to support their assignment
• Viewing global mobility as a provider of valuable, high-quality services

A well-managed global mobility program can help companies pursue …
Improved compliance and better managed risk, by providing more information about local labor and tax laws and facilitating a compliance mechanism. Better managed and potentially reduced costs, by introducing structures to support cost-efficient and globally consistent and compliant programs and to provide executives with detailed data on the total costs of the global workforce. Increased return on investment, by providing executives with information needed to more effectively deploy human capital to projects with high rates of return.
More efficient global sourcing of talent, by providing more information about what talent is available where and when around the globe. The 2005 Global Relocation Trends Survey results indicated that 48 percent of companies are looking to hiring locals to attempt to decrease their dependence on expatriate talent.4 While this number is promising, this strategy will be ineffective if it is not pursued as part of an integrated and comprehensive talent management strategy.More effective talent management, by making it possible to quickly gear up or gear down to meet the demand for talent. Better alignment with business objectives, by providing executives critical information about how well the global workforce is being used to help boost business performance. Better customer service, by making it possible for companies to use the global workforce to more effectively respond to changing customer needs.

Beyond borders step by step
Through our work with forward-looking companies, we have found that moving a company’s global mobility policies into the 21st century first requires a thorough self-assessment. This involves gathering as much information as possible about the current state of the organization’s expatriate workforce, including numbers of workers, compensation and benefits, support costs, trends, and local laws and regulations. The chances are good that the information is available, but widely dispersed.

The next step is to take this data and analyze it through the prism of the company’s near- and long-term business objectives – the ultimate question being, is our global workforce helping us reach those objectives?

This will lead to step three, setting objectives for the global workforce that will help the company achieve its business goals. Finally, a company should lay out a step-by-step plan for bridging the gap from where its global mobility policies are today to where it wants them to be.

What’s in it for me?
Simply put, taking a more strategic approach to global mobility can help transform a mystery into a business asset. By refocusing, transforming, and realigning their global mobility policies, companies will have the transparency and knowledge they need to help them navigate the dangers that cling to the current
approach – compliance problems, lack of equitable treatment, hidden costs, and missed opportunities.
More importantly, companies will be able to move people across borders more efficiently to pursue their business objectives. Strong global mobility programs will enable companies to more effectively attract, retain, and reward high-value employees who want to work across borders.

The expatriate profile is shifting. As the 2005 Global Relocation Trends Survey5 reported:
• Female participation is at an all-time high, and for the first time, women have broken the 20 percent barrier and
constituted 23 percent of the expatriate population.

• Over half (54 percent) of expatriates are between the ages of 20 and 39, compared to a historical average of 41 percent.
• The number of married men, which has traditionally been the largest segment of the expatriate population, is at an all time low, as is the percentage of assignees with accompanying children (51 percent).

The onus is on global businesses to identify, capture, and retain this talent on a global scale. With a global mobility program, they will also finally have the management tools they need to seek to obtain a higher ROI from the expatriate workforce. Finally, the conventional approach to moving workers across borders worked well when the business requirements were more basic: send a relatively small number of expatriates overseas, keep them in their positions for an extended period of time, and provide them with special benefits. In the 21st century, companies need an approach that is more like a modern army’s mobile strike force. Because major opportunities can appear so quickly anywhere in the world, companies must be able to shift the “right” people rapidly into the “right” place at the “right” time for as long as necessary. A realigned global mobility program provides that capability.

Think of the possibilities
Shedding old ways of doing things can be hard, but the rewards can be great. Companies that embrace the potential of new approaches must first align their global mobility policies with their core business objectives. In an increasingly global marketplace, that will give them a huge advantage over competitors.

Exit Now Easier Than Entry

It was not always this way: until the nineteenth century, it was easier to enter another country than to leave one’s own, because the latter had an incentive to keep its people, its workforce, and its future thought leaders within its borders. It was only with the development of migration and visas, and with the broadening of the opportunity to hold a passport, that entrance became more difficult than exit. Borders then became the obsession of officials of migratory policy–as well as those who wanted to erase the boundaries. Walls went up: in Berlin, between East and West, in 1961; in Ceuta, the Spanish enclave in Morocco, in 1999. Along the American-Mexican border, the fences and walls grow higher and longer with each decade. Other barriers are erected at a distance, in countries of departure and transit. The outer European countries, for instance, effectively act as sentries to the continent, while North African nations and Turkey have become centers of transit.

The Nature of Borders

Borders have become omnipresent, for those entering legally by the front door as well as for the illegal migrants who slip through the back way, but borders are also invisible, for many forces transgress them with ease. The mass media offer people a glimpse of the world on the other side, and often feed the imaginations of those who feel that there is no prospect of improving their lives at home and seek employment abroad to improve their lot in life.

The Changing of Borders – The Erasing of Borders

A revolutionary “border-crossing economy” has emerged over the last twenty years, and it is made all the more prosperous by the increasing restrictions imposed by institutional barriers, which drive up prices and impede the ability of companies to achieve global mobility in their workforce. Avani offers the capability to allow companies to experience a more fluid the migration of employees. By being able to move human assets to the locations where they will have the most impact, companies can realize more potential in their local markets and become more globalized at a lower cost. This value proposition is at the core of Avani’s mission, and Avani will aggressively advocate for the elimination of borders that impede economic growth.

To obtain a nonimmigrant visa, an applicant must first obtain the required documentation required under the visa category being applied for and then request an appointment with a U.S. Consulate or Embassy abroad.  The documents needed to apply for a nonimmigrant visa are listed below, with links to the necessary forms, photograph requirements and fees.  The applicant’s immediate family members (spouse and children) may be eligible for “derivative” nonimmigrant visas as dependents.

Being issued a visa to the United States does not a guarantee of entry into the country.  Admission to the U.S. depends on the decision of the U.S. Customs and Border Protection (“CBP”) inspector who questions individuals and examines documents when travelers request admission at a port of entry or pre-flight inspection post.  If a traveler is granted admission, the CBP official will issue the individual a Form I‑94, Arrival Departure Record, which documents status and the authorized length of stay in the United States.  Individuals receiving a new Form I‑94 should inspect it immediately while in the presence of the CBP inspector in order to make sure that the correct visa status and period of authorized stay was granted.

Certain individuals may be ineligible to receive a visa, based on past crimes, previous immigration violations, security concerns, health reasons or other reasons.  Waivers of grounds of ineligibility may be available in some situations.

For more information on this topic, please contact Avani. Avani provides detailed information on each immigration topic as part of our service to our clients. Here is an outline of the additional information that will be provided.

• When a New Visa Is Required
• Exceptions to Visa Requirements
• Notify A U.S. Team Attorney 4 to 6 weeks before Travel
• Requesting a Visa Appointment
• Contact an Avani Attorney if:
• Applying for a Visa
• Filing Process
• Processing Times
• Travel
• Supporting Documents (Varies Depending on Class of Nonimmigrant Visa)
• Status of Family Members
• Length of Stay
• Visa Application Forms – How to fill out the DS-156, DS-157, or the DS-160)
• Issuance of Visa Stamp
• Multiple or Single Entry Visas
• Fees for Visa Application
• Visas for Family Members
• Visas from a Prior Employer
• Denial of a Visa Application
• Admission to the United States
• Visa Voidance for Unlawful Presence
• Visa Ineligibility or Inadmissibility to the U.S.
• Crime
• Negative Immigration History
• Unlawful Presence in the United States
• Security Precoutions Before Travel
• Health Care While Traveling Abroad
• Waivers

This memorandum contains general information on applying for a B-1 nonimmigrant visa stamp at a U.S. Embassy or Consulate.  Because application processes and timelines are subject to change, it is recommended that in addition to reviewing this document you also review the latest information to be found at the U.S. Embassy or Consulate’s website.

A related issue that often arises is the question of if an individual can seek a B-1/B-2 visa at the same time (as the B-1 is for business travel, and the B-2 is for personal travel).  The answer to that question is yes, at the time of the B-1 interview you should indicate to the consular officer a desire to have a B-1/B-2 visa, as you may visit the U.S. for personal travel as well.

What Do I Do First?

If you have not done so already, you should schedule a visa application appointment at a U.S. Embassy or Consulate.  Note that due to delays of 30 days or more between scheduling an appointment and the actual appointment, please schedule your appointment as early as possible.

Documents Required For the B-1/B-2 Visa Stamp Application

For a complete application, it is recommended that each applicant submit the following documents:

• An original valid and unexpired Passport.  Note that your passport must be valid for a minimum of six months from the date of application for your visa stamp.
• Form DS-160.   Many U.S. Embassies and Consulates now require the submission of Form DS-160 (the previous form required was DS-156).  The Form DS-160 must be completed and submitted electronically.  After completion and submission you must also print, sign, and date the form even though it has been submitted electronically, and carry the signed printout to the B-1 visa stamp appointment.
• Two passport-size photographs which you will attach to the lower right-hand corner of the Form DS-156 as instructed on the form.  The link to the passport photograph specifications:  Passport Photo Specifications.
• Original support letter from your employer, confirming your employment and briefly describing the valid business travel activities you will engage in while in the U.S.
• As of January 1, 2008, the Machine-Readable Visa (MRV) Application fee has increased to US$131.00.  For details please review the information found at this Department of State link: http://travel.state.gov/visa/temp/types/types_1263.html.

• Visa Issuance fee per visa reciprocity schedule (if applicable) plus a Machine-Readable Visa (MRV) Application fee. The reciprocity fee varies by country; please confirm the required amount directly with the Consulate or check the Department of State website for further details: Visa Stamp Fees.
• Additional evidence of employment, such as your four (or less if have not received four at the time of filing) most recent paystub printouts, and your employee identification.
• Evidence to show that you have a residence in home country that you intend to return to at the end of your stay in the U.S., such as a copy of your lease or mortgage.
• Other ties to establish your residence in your home country, such as bank account statements, evidence of family members remaining in your home country during your trip such as passport ID page and a copy of the citizenship documents, etc.;
• If applicable, family member applications must also include original evidence of relationship to the applicant and evidence of valid status in the country that the application is submitted.

COMPLETING FORM DS-160

All applicants applying for nonimmigrant visas in Vancouver, Montreal, Hong Kong, Monterrey and Nuevo Laredo must use the new DS-160 application form, which is accessible on https://ceac.state.gov/genniv/ (More locations are added often, so check the U.S. Consulate’s website).   If the U.S. Embassy or Consulate that you are applying at still uses the DS-157, please contact an Avani attorney for detailed instructions.  After completing the new DS-160, the applicant will electronically submit the application and will be provided with a confirmation page that includes only limited biographical information and a bar code. Applicants must bring this confirmation page with them to their interview. Please note: if the online application has not been completed fully and properly, your visa application cannot be processed and a new interview appointment will be required.

For all other U.S. Consulates, applicants should complete the other Electronic Visa Application Forms (DS-156, DS-157) accessible on http://evisaforms.state.gov/. While other US embassies and consulates worldwide will likely require the DS-160 in the future, please do not use the new DS-160 unless you know that it is accepted by the US embassy/consulate where you will be applying.

Family Members

If your spouse and/or children (under 21 years of age) are coming with you, you must fill out a separate Form DS-160 and attach two passport size photographs and pay the required fee for each person.  All immediate family members should apply with the U.S. Embassy or Consulate at the same time.  Original evidence of your relationship with your family members must be presented (i.e. – Marriage Certificate with Spouse, Birth Certificate of Children, and any additional evidence as may be requested by the Consular Officer). Please note that some Consulates require separate appointment for family members, so please review the U.S. Embassy or Consulate website for details.

Issuance of The Visa Stamp

Following a successful B-1 (or B-1/B-2) Visa Stamp interview the U.S. Consulate will return the applicant passport with affixed B-1 (or B-1/B-2) visa stamp within (on average) a 2-3 day period.  Upon receipt of the visa stamp in your passport please carefully review the expiration date and classification granted (i.e. B-1, L-1, etc.).

Note: The length of validity of the B-1 (or B-1/B-2) business visitor visa stamp validity is controlled by “visa reciprocity”, based upon an individual’s country of nationality/citizenship. Some individual will receive ten year B-1 visa stamps good for ‘multiple’ entries to the U.S. whereas others will be issued B-1 visa stamps valid for only several months and good for only a few entries to the U.S.

You should review the information at the following website to ensure you were granted the appropriate period of validity based upon visa classification and your country of birth:
http://travel.state.gov/visa/frvi/fees/fees_1341.html

Important Delivery Note! To best ensure that your passport is safely returned to you by the U.S. Embassy or Consulate, when provided the materials for mailing please double check your mailing address and check the box requiring signature upon delivery.If you are not at home when the post attempts delivery you will be left a notice of where to pick up your passport.  Although this additional step may feel like an imposition, it is better than having a misdelivery by the postal service and a lost passport.

Entry into the U.S.

When you arrive in the U.S. you will present your passport with affixed visa stamp to a U.S. immigration official, and if they find you admissible will issue you a Form I-94 card, a small white card that is generally stapled in your passport.

Because the U.S. inspecting officer has discretion to review the purpose of your entry into the U.S., you should carry all materials used to apply for the B-1 visitor visa stamp with you and if the U.S. inspecting officer has any concerns regarding your admission you should provide him/her with these documents.  It is important to remember that you are coming to the U.S. for legitimate B-1 business visitor activities such as meetings or trainings, not to engage in work, and that you will at all times need to demonstrate your willingness to abide by the terms and conditions of this classification

Upon entry please review the Form I-94 carefully, particularly the length of your authorized stay.  Please contact an Avani attorney promptly if the period of authorized stay for you (or for any of your family members) is shorter than the period listed on your approved B-1 petition.

The E-3 classification was established by the REAL ID Act of 2005 allowing for the admission of a temporary worker who is national of Australia and is entering the U.S. to perform services in a “specialty occupation.”  The E-3 visa classification currently applies only to nationals of Australia as well as their spouses and children.  To qualify for E-3 classification, an employee must, among other things, be an Australian national who is seeking employment in a specialty occupation requiring possession of a bachelor’s degree or higher (or its equivalent), and possess the appropriate degree (or its equivalent) in the field in which the employee will work.

Four major advantages of the E-3 over the similar H1B:

The E-3 classification is similar to the H-1B classification, although unlike the H1b, the E-3 application does not need to file a petition with the USCIS.  Consulate filing is acceptable.  Here are some of the advantages of the E-3 classification:

• Not subject to the H1b quota;
• Can extend your stay indefinitely (opposed to 6 year limit for the H);
• A spouse can work with an approved work permit (H spouse does not qualify for work permit); and
• Individuals may apply directly at either the US Consulate in Australia, or in some cases U.S. Consulates or Embassies outside of Australia (no need for prior approval Form USCIS as is required with the H).

Disadvantages of the E-3 over the similar H1B (No Dual Intent):

The E-3 classification is a single intent classification.  When applying for an E-3 visa, a Microsoft employee is not required to show that he/she will maintain a residence in Australia. However, applicants do need to attest that they intend to depart the United States when their E-3 status terminates. This means that filing a green card petition could cause travel complications.  If you are a Microsoft employee on E-3 status, and you wish to file for a U.S. green card, please contact your Avani attorney to discuss the best strategy to obtain a green card.

Numerical Limitation of “New Workers”

The E-3 visa classification is numerically limited.  The U.S. Congress has established a yearly cap of 10,500 new E-3 work visas.  For purposes of the cap, “new E-3 workers” are those who, coming from abroad, are admitted initially in E-3 classification or those who change their nonimmigrant status to the E-3 classification from another valid work visa status.  This numerical limitation does not apply to spouses or dependents of the principal E-3 visa applicant.

Labor Condition Application (LCA)

A Labor Condition Application (LCA), containing attestations by Microsoft related to wages and working conditions must be filed with and approved by the Department of Labor (DOL).  The definition of a “specialty occupation” under the E-3 visa is similar to the definition of a “specialty occupation” under the H-1B visa.

Duration & Renewal

E-3 nonimmigrant status is initially granted for a period of no more than two years (not to exceed the expiration date of the LCA).  Extensions of stay may be granted indefinitely in increments not to exceed two years.  The E-3 visa can be extended indefinitely as long as the worker continues employment in the proffered position at the required wages.

Status of Spouse and Minor Children

Spouses of E3 principals are not required to be Australian nationals, and the dependent spouse of an E-3 status holder may apply for and receive work authorization.  Such spousal employment may be in a position other than a specialty occupation.  Spouses and children do not count against the numerical limitation nor are they required to possess Australian citizenship.

Visa and Documentation Requirements

U.S. Consular Processing

No petition is required to be filed to USCIS for an E-3 visa.  The application can be made directly at the U.S. Consulate.  However, a Labor Condition Application that reflects the job offer at the appropriate prevailing wage rate is required as part of the E-3 application.  In addition to the Form DS-156 and fee, applicants must include the following documentation:

• Proof of Australian nationality,
• A letter from the employer describing the occupation, anticipated length of stay, and salary,
• Evidence that the Australian national employee meets the educational requirements for the position to be filled (a bachelor’s degree or higher or its equivalent in the specific specialty occupation),
• Evidence that the Australian national employee meets any licensing or other occupational requirements, and
• Evidence that the company has filed with the Department of Labor a labor condition application (LCA) specifically designated for E-3 Specialty Occupations.

Change of Status Processing

Australian national employees already in the United States may request a change of status to E-3 or extend their E-3 status by filing a Form I- 129 (Petition for a Nonimmigrant Worker) directly with the Vermont Service Center. In addition to the Form I-129 and fee, applicants must include the following documentation:

• Proof of Australian nationality,
• A letter from the employer describing the occupation, anticipated length of stay, and salary,
• Evidence that the Australian national employee meets the educational requirements for the position to be filled (a bachelor’s degree or higher or its equivalent in the specific specialty occupation),
• Evidence that the Australian national employee meets any licensing or other occupational requirements, and
• Evidence that the company has filed with the Department of Labor a labor condition application (LCA) specifically designated for E-3 Specialty Occupations.

FAQ: E-3 Australian Professionals

What is an E-3 Visa?

The E-3 classification was established by the REAL ID Act of 2005 allowing for the admission of a temporary worker who is national of Australia and is entering the U.S. to perform services in a “specialty occupation.”  The E-3 visa classification currently applies only to nationals of Australia as well as their spouses and children.  To qualify for E-3 classification, an employee must, among other things, be an Australian national who is seeking employment in a specialty occupation requiring possession of a bachelor’s degree or higher (or its equivalent), and possess the appropriate degree (or its equivalent) in the field in which the employee will work.

Can I start my green card while in E-3 status?

The E-3 classification does not recognize dual intent, i.e., the intent to simultaneously pursue E-3 nonimmigrant and immigrant (green card) status, but there is no foreign residence requirement.  Applicants need to attest that they intend to depart when their status terminates.  Since dual intent is not recognized with the E-3 classification, employees in E-3 status may need to change to another visa classification that does recognize dual intent (such as the H-1B) before filing an application for a green card.    If you are an employee on E-3 status, and you wish to file for a U.S. green card, please contact your Avani attorney to discuss the best strategy to obtain a green card.

I am a permanent resident of Australia but don’t have Australian citizenship.  Can I apply for an E-3 visa?

No.  E-3 visas are only available for Australian nationals.  If you are a new Australian citizen or are in the process of becoming one, please note that you will need to possess an Australian passport by the time of your visa interview.  However, spouses of E-3 status holders are not required to be Australian citizens and may still obtain E-3 dependent status and work authorization in the U.S.

If I do not yet have a job offer, can I enter the United States under the Visa Waiver Program and change to E-3 status while in the United States?

You may only enter the U.S. under the visa waiver program for short trips (maximum of three months) for business or pleasure.  If you have entered under the Visa Waiver Program, you may not work in the United States.   If you entered the U.S. under the Visa Waiver Program, you also may not change your status to E-3 within the United States.  You would be required to apply at a U.S. Consulate or U.S. Port of Entry.

Can I apply for an E-3 visa from outside Australia?

You can apply at any U.S. Embassy or Consulate which processes non-immigrant petition-based visas, but you cannot apply from within the U.S.  Please contact your Avani attorney if you plan to apply for an E-3 visa at a U.S. Consulate or Embassy outside of Australia.

If I am already in the U.S. on a valid work visa status, can I change status to the E-3 classification?

Yes,  Australian national employees already in the United States on a valid work visa status may request a change of status to E-3 or extend their E-3 status by filing a Form I- 129 (Petition for a Nonimmigrant Worker) directly with the Vermont Service Center.  If you think that you may need to change status to an E-3 classification, please contact your Avani  attorney.

Do I need a petition by my employer to the Department of Homeland Security (DHS)?

No, the United States-based employer of an E-3 principal is not required to submit a petition to the Department of Homeland Security as a prerequisite for visa issuance. However, the employer must obtain a Labor Condition Application (LCA), ETA Form 9035 or ETA Form 9035E, from the Department of Labor.

Do applicants need to demonstrate a “residence abroad?”

The E-3 classification is a single intent classification.  When applying for an E-3 visa, an employee is not required to show that he/she will maintain a residence in Australia. However, applicants do need to attest that they intend to depart the United States when their E-3 status terminates.

What is the process to apply for an E-3D (dependent) visa?  How do I demonstrate that I qualify for an E-3D (dependent) visa?

Individuals wishing to apply as an dependent of an E-3 status holder must submit a separate visa application, which involves most of the same steps as the principal applicant’s application.  The dependent does not need to provide the principal applicant’s Labor Condition Application (LCA) or evidence of employment, but needs to show that the principal applicant is the recipient of an E-3 visa by providing a copy of the visa or, if the applicant has obtained E-3 status in the U.S., the I-797 Approval Notice.  Dependents of E-3 visa applicants can apply and arrange a visa interview at the same time as the principal applicant, or can apply and be interviewed later, once the principal applicant’s E-3 visa is issued. The principal applicant does not need to be present at the dependent’s interview.  Each dependent must make a separate visa application, but children under 14 who are Australian citizens or permanent residents of Australia are not usually required to attend an interview.

To qualify as a dependent, the applicant must demonstrate to the consular officer that the established relationship exists.  Usually this can be accomplished with a marriage certificate for spouses or a birth certificate for dependent children.  Please note that the U.S. does not recognize De Facto relationships or same-sex Civil Partnerships.   You must also show that the principal applicant is the recipient of an E-3 visa.

May spouses work in E-3 dependant status?

E-3 spouses are entitled to work in the United States and may apply for an Employment Authorization Document (Form I-765) through U.S. Citizenship and Immigration Service (USCIS).  The spouse of a qualified E non-immigrant may, upon admission to the United States, apply with the Department of Homeland Security for an employment authorization document, which an employer could use to verify the spouse’s employment eligibility.  Such spousal employment may be in a position other than a specialty occupation, and spouses can obtain E-3D status if though they are not citizens of Australia.

Can my domestic partner qualify for E-3 dependant status?

The U.S. does not recognize De Facto relationships or same-sex Civil Partnerships for the purposes of immigration.  To qualify as a spouse you will need a marriage certificate from the Department of Births, Deaths and Marriages.

If I get an E-3 visa, how long before I start my job can I enter the U.S.? How long can I stay in the U.S. after I finish my job?

You can enter the U.S. 10 days before you start your job. You can stay 10 days after you finish your job.

Can I travel outside the U.S. while on my E-3 visa?

An E-3 visa is a multiple-entry visa, so provided you made any changes to your immigration status (such as applying for a green card), you may travel outside the U.S. and reenter on a valid, unexpired E-3 visa.

How long can I stay out of the U.S. if I have an E-3 visa?

There is no limit to how long you can stay outside the U.S. or how many times you can travel outside the U.S. during the validity of your E-3 visa.

Can I renew the E-3 visa? Is there a limit to the amount of times I can renew?

E-3 applicants are admitted for a two-year period renewable indefinitely, provided the employee is able to demonstrate a continued intent not to remain or work permanently in the U.S.

How do I apply for an E-3 visa?

If you are applying for a change of status from a current valid work visa status to E-3 status, then your Avani  attorney will submit a for I-129 (nonimmigrant Visa Application) for you together with the necessary documentation.

If you are not on a current valid work visa status and are applying for an E-3 visa at a U.S. Consulate or Embassy, then the application for an E-3 visa is made using the Form DS-156.  If you have any question about how to fill out this form or what documents to submit, please contact your Avani attorney.  The wait times for interview at each U.S. Consulate or Embassy vary, so please check the current wait times at the U.S. Consulate or Embassy where you intent to apply and schedule an appointment well in advance to coincide with your travel plans.

What requirements and documentary evidence are needed for the application?

In addition to the Electronic Visa Application Form (EVAF) DS-156, completed online (http://evisaforms.state.gov/) and printed out, and, for male applicants aged between 16-45, Supplemental Application Form DS-157, the following documentary evidence must be submitted for an application for an E-3 visa:

• A job offer letter or current employment letter from your employer.
• Form ETA 9035, clearly annotated as “E-3 – Australia – to be processed,” or an ETA 9035E dated after January 4th, 2006, specified for E-3 Australia. Now either form is acceptable. This is the notification of an approved Labor Condition Application (LCA) that your employer obtains from the Department of Labor.
• Evidence of academic or other qualifying credentials as required.  If your degree and higher-level qualifications are from an Australian institution, you do not usually need to provide certified copies or evidence of their U.S. equivalent, but please bring to your visa interview the original certificates, and if possible, transcripts for the course of study. If your qualification(s) are not from an Australian institution, a certified copy of the foreign degree and evidence that it is equivalent to the required U.S. degree could be used to satisfy the “qualifying credentials” requirement, but you may prefer to wait until your visa interview to confirm whether this is necessary. You should take your original certificates and transcripts to your visa interview, and if it is also necessary to produce certified copies of certificates and evidence of U.S. equivalence, you can send these to the Consulate after the interview, although your visa will not be approved until this is received. Likewise, a certified copy of a U.S. baccalaureate or higher degree, as required by the specialty occupation, would meet the minimum evidentiary standard.
• In the absence of an academic or other qualifying credential(s), evidence of education and experience that is equivalent to the required U.S. degree.
• Evidence establishing that the applicant’s stay in the United States will be temporary.
• A certified copy of any required license or other official permission to practice the occupation in the state of intended employment if so required or, where licensure is not necessary to commence immediately the intended specialty occupation employment upon admission, evidence that the employee will be obtaining the required license within a reasonable time after admission.
• Evidence of payment of the application fee.  If payment is made at a Post office in Australia, applicants should bring the post office receipt to the interview as evidence of payment.  If you are applying for an E-3 visa outside of Australia, then please visit the website of that U.S. Consulate or Embassy for instructions on pay of the application fee.

E2 Investor Visa Minimum Investment Amount

In most cases, the dollar amount of cash investment normally should exceed $100,000, depending on the type of business. This is an approximated amount and applicants must be aware that additional investment may be required. Also, it may be possible to make the investment with less. Your Avani attorney will study the proposed business model and make a recommendation based on past expierience. The dollar amount should only be money spent on the business. Any expenses not directly spent on the actual business itself will not count toward the required amount.

Capitalization

The investment must be large enough to start and operate the business. The amount of investment varies on the type of business. The $100,000 dollar amount would not be a substantial investment for a business such as the construction and management of a shopping center or office complex. The investment will not be considered substantial if it is not large enough to capitalize the venture. The USCIS will use an ‘Inverted Sliding Scale’ to determine whether the investment is substantial in proportion to the overall cost of the enterprise.

The holder of an E-2 visa may leave the United States at anytime but not over the time limit of 6 months.

Dependents

Spouses and unmarried children under 21 years of age, regardless of nationality, may receive derivative E-2 visas in order to accompany the principal alien.  Dependents may seek employment in the US by applying for Employment Authorization using Form I-765, Application for Employment Authorization. Children under 21 cannot apply for work , only the spouse of the E2 holder.

Required documentation

Each visa applicant must pay a nonrefundable US$100 application fee (application processing fees for nonimmigrant visas and border crossing cards increased from $100 to $131 starting January 1, 2008) and submit:

• Application Forms DS-156 and DS-156E, completed and signed.
• A passport valid for travel to the United States and with a validity date at least six months beyond the applicant’s intended period of stay in the United States. If more than one person is included in the passport, each person must complete an application.
• One (1) 2×2 photograph.
• All male non-immigrant visa applicants between the ages of 16 and 45, regardless of nationality and regardless of where they apply, must complete and submit a form DS-157 in addition to the Non-immigrant Visa Application (DS-156E).
• As part of the visa application process, an interview at the embassy consular section is required for almost all visa applicants.

Strategic E-2 Visa Considerations

The Investor Must Show That It Has Either Made a Substantial Investment or Is Actively in the Process of Making a Substantial Investment in the Enterprise: To be “in the process of investing” for E-2 purposes, the funds or assets to be invested must be committed to the investment, and the commitment must be real and irrevocable. For the alien to be “in the process of investing”, the alien must be close to the start of actual business operations, not simply in the stage of signing contracts (which may be broken) or scouting for suitable locations and property. Merely intending to invest, or having possession of uncommitted funds in a bank account, or even prospective investment arrangements entailing no present commitment, will not qualify an applicant for E-2 status.  A qualifying investment must be a real and active commercial or entrepreneurial undertaking, producing some commodity or service. The enterprise cannot be a paper organization or an idle speculative investment held for potential appreciation in value, such as undeveloped land or stocks held by an investor without the intent to direct the enterprise. Uncommitted funds in a bank account do not represent an active investment, unless other evidence of business activities exists to demonstrate that the funds are used in the routine operation of the business- i.e., reserve funds.

The Applicant for the E-2 Visa Should Be In a Position to “Develop and Direct” the Enterprise Via His/Her Executive and Supervisory Duties:

• It must be shown that nationals of a treaty country own at least 50 percent of an enterprise. It must also be shown that a national (or nationals) of the treaty country, through ownership or by other means, develops and directs the activities of the enterprise. “Developing and directing” the enterprise activities generally refers to executive and supervisory responsibilities. Consequently, the following factors must be considered:
• The title of the position in which the applicant shall be employed, its place in the firm’s organizational structure, the duties of the position, the degree to which the applicant will have ultimate control and responsibility for the firm’s overall operations or a major component thereof, the number and skill levels of the employees the applicant will supervise, the level of pay, and whether the applicant possesses qualifying executive or supervisory experience;
• Whether the executive or supervisory element of the position is a principal and primary function and not an incidental or collateral function. If the position chiefly involves routine work and secondarily entails supervision of low-level employees, the position could not be termed executive or supervisory.

The Foreign Investor Must Make A “Substantial” Investment: A “substantial” amount of capital for E-2 visa purposes constitutes that amount that is:

• Substantial in a proportional sense- i.e., in relationship to the total cost of either purchasing an established enterprise, or creating the type of enterprise under consideration;
• Sufficient to ensure the treaty investor’s financial commitment to the successful operation of the enterprise; and
• Of a magnitude to support the likelihood that the treaty investor will successfully develop and direct the enterprise. No set dollar figure constitutes a minimum amount of investment to be considered “substantial” for E-2 visa purposes.

The value (cost) of the business is clearly dependent on the nature of the enterprise. Generally, the cost of an established business is its purchase price, which is normally considered to be the fair market value.

The Enterprise Must Be More Than Marginal: The foreign individual or company must not be investing in a marginal enterprise solely for the purpose of earning a living. An applicant is not entitled to E-2 status if the investment, even if substantial, will return only enough income to provide a living for the applicant and family. In determining whether an investment is marginal, two important factors are to be considered:

• Additional Funds That Are Not Intended For The Enterprise: If the investor can support himself/herself and family with funds that will not be used for the enterprise and/or if the income derived from the enterprise exceeds what is necessary to support the investor and his/her family, then the enterprise is not marginal.
• Economic Impact of the Business: The business must have the capacity, present or future, to make a significant economic contribution. The projected future capacity should generally be realizable within five years from the date the alien commences normal business articulates. It is recommended that applicants submit a reliable 5-year profitability business plan.

An Individual or Company Must Demonstrate Possession and Control of the Capital Assets, Including Funds Invested: If the individual or corporate investor has received the funds by legitimate means, e.g., savings, gift, inheritance, contest, etc. and has control and possession over the funds, the proper employment of the funds may constitute an E-2 investment. (It should be noted, however, that inheritance of a business does not constitute an investment.) Moreover, the source of the funds need not originate from outside the United States.

Initial E-2 Applications Where An Applicant Will Not Change His/Her Status in the U.S. to E-2 Will Require Consular Processing: Filing abroad at U.S. consulates abroad results in a totally new and independent adjudication by the consular offices; the standards used by consular offices abroad are often more demanding and difficult to meet.

Change/Extension of E-2 Status Within the U.S. Might Be Favorable: for instance, changing to E-status may happen when a foreign national is entitled to enter the U.S. in B-1 business visitor status in order to take initial steps to conduct trade in this country. The individual may be in a position in which the trading activities move more quickly than expected and require his or her immediate and continued presence. Now, with the new Premium Processing Service fee of $1,000, E-1 visa petitions can be adjudicated in the U.S. within fifteen days. Moreover, generally, as long as the treaty-trader maintains the intention to leave the United States at the end of his or her lawful stay, his or her presence here for prolonged periods is permissible.

The Spouse of an E-2 Visa Holder is Eligible for Employment Authorization.

How to Apply

The first stop in the application process is to contact an Avani attorney. Applications will generally be submitted at the U.S. Embassy or Consulate with jurisdiction over your place of permanent residence. As part of the visa application process, an interview at the embassy consular section is required for visa applicants  During the visa application process, usually at the interview, an ink-free, digital fingerprint scan will be quickly taken. Some applicants will need additional screening, and will be notified when they apply. The E-2 visa application process vary from Consular Posts in one country to another country as there is often difference in policies and visa processing procedures. Your Avani attorney will review all necessary regulatory requirements before submitting the E-2 visa application.

Country Specific Notes

List of E-2 Treaty Countries

“Individuals of Extraordinary Ability” (EB-1A) are in the first preference category for employment-based green cards.  This category is available to individuals who are in the small percentage of people at the very top of their fields.  There is both a temporary version of this visa (called an O-1 visa) and a permanent (i.e., green card) version.

This page gives an overview of the green card version of “Individuals of Extraordinary Ability.”  For temporary work visa options, please see our O-1 visa page. The requirements for the temporary and permanent options are similar, but are not exactly the same.

Qualifications

You may qualify for a green card as an Individual of Extraordinary Ability if you have won an internationally recognized award, such as a Nobel Prize, a Fields Medal an Oscar, or a similarly prestigious prize.  If you have not won such an award, you may still qualify if you meet at least 3 of the following 10 alternative criteria:

• Received lesser nationally or internationally recognized prizes or awards;
• Invited to be a member in associations that require outstanding achievement (as judged by recognized experts);
• Had significant published material (written by others) about you and your work;
• Served as a judge of the work of others in your field;
• Made major contributions to your field (such as patents or significant research);
• Wrote scholarly articles or publications;
• Held artistic exhibitions or showcases;
• Held leading or critical role for distinguished organizations;
• Earned high salary or remuneration (compared to others in the field); and/or,
• Enjoyed commercial success in the performing arts.

Note: You can also use other comparable evidence to show that you meet the criteria as an Individual of Extraordinary Ability, but most achievements and awards fit within these existing categories.

Procedures for Filing

The petition for a green card as an Individual of Extraordinary Ability is filed using the Form I-140 Immigrant Petition for Individual Worker.  This petition and supporting documents are filed directly with the appropriate Service Center of the U.S. Citizenship and Immigration Services (“USCIS”).  You may also file your permanent residency application (Form I-485) at the same time as your I-140 Petition, as well as request work and travel authorization (Form I-765 and I-131). Because this is a first preference category, a labor certification application is not required.

Processing Times

Processing times for the Individual of Extraordinary Ability petition depend on the Service Center’s case load, which can vary greatly over time.  As of February 10, 2005, the processing time for this type of petition was approximately 6 months at the Nebraska Service Center, which serves Washington State and most of the Northwest states.

You can review current processing times on the USCIS website by determining the appropriate USCIS Service Center and finding the processing times for the Form I-140, Individuals of Extraordinary Ability.  Please remember that these dates are only estimates, and processing times for your case may be different.

Advantages and Disadvantages

There are several advantages and disadvantages of this type of green card petition over the usual employment-based method of the labor certification application.

Advantages Over the Labor Certification Process

The EB-1A category for Individuals of Extraordinary Ability has the following advantages in obtaining a green card:

• Does not require a permanent job offer in the United States.  Unlike most other types of petitions for an employment-based green card, you may self-petition as an Individual of Extraordinary Ability.  That is, the petition does not require the signature of anyone at the company.
• Does not require a labor certification, which saves considerable time and expense.
  • Faster than the labor certification process, because you do not have to go through the labor certification process before filing.
  • More flexible than the labor certification process, because it gives you greater ability to change jobs and titles compared to the labor certification process.
• Faster work and travel authorization for you, your spouse and children.
  • You may file your I-140 petition as an Individual of Extraordinary Ability at the same time as your application to become a permanent resident.  (This is called “concurrent filing.”)
  • You may also file applications for work and travel authorization for you and your family members, including your spouse and children.  This means that you and your family may obtain your work and travel authorization much sooner than if you had to go through the labor certification process.

Disadvantages Compared with the Labor Certification Process

There are some disadvantages of the Individual of Extraordinary Ability process over the usual labor certification process:

• You have to be extraordinary, not just good, to qualify for this type of green card.  Not everyone qualifies.
• This process can be less predictable than cases filed through the labor certification process.  Because this decision is up to the discretion of the immigration officer who reviews the case, it may be difficult to tell whether it will be approved.

Outstanding Professor or Researcher Overview

“Outstanding professors or researchers” (EB-1B) are in the first preference category for an employment-based green card.  This category is for professors and researchers who are recognized internationally as outstanding in their academic fields.

A company’s employees may qualify for this category if they have a permanent job offer from the company as a researcher and meets the other qualifications for this type of petition.  This page discusses the filing procedures, processing times, and the advantages and disadvantages of this type of green card petition.

Qualifications

To qualify as an Outstanding Professor or Researcher as a company employee, you must meet the following basic requirements:

• Have a permanent job offer from the company as a researcher; and,
• Have at least 3 years of prior teaching or research experience.
  • This may include Ph.D. or postdoctoral research if that research has been recognized as “outstanding.”

In addition, you must also meet at least 2 of the following 6 alternative criteria:

• Received major prizes or awards for outstanding achievement;
• Belong to associations that require outstanding achievement;
• Published material (written by others) about your research;
• Served as judge of the work of others in your field;
• Contributed original work to your field, such as through patents or other major research efforts; and/or,
• Authored scholarly articles or publications.

Filing Procedures

The petition for a green card as an Outstanding Professor or Researcher is filed using the Form I-140 , Immigrant Petition.  This petition and supporting documents are filed directly with the appropriate Service Center of the U.S. Citizenship and Immigration Services (“USCIS”).

You may also be eligible to file your permanent residency application (Form I-485 ) at the same time as your I-140 Petition, as well as request work and travel authorization (Form I-765 and I-131 ).  This process is called “Concurrent Filing.”

Because this is a first preference category, a labor certification application is not required.

Processing Times

Processing times for the Outstanding Professor or Researcher petition depend on the Service Center’s case load, which can vary greatly over time.  As of February 10, 2005, the processing time for this type of petition was approximately 8 months at the Nebraska Service Center, which serves Washington State and most of the Northwest states.

You can review c urrent processing times on the USCIS website by selecting the appropriate USCIS Service Center and finding the row that lists the processing times for the Form I-140, Outstanding Professor or Researcher, on the processing times chart.  Please remember that these dates are only estimates, and processing times for your case may be different.

Advantages and Disadvantages

There are several advantages and disadvantages of the Outstanding Professor or Researcher petition over the usual employment-based green card method of the labor certification application.

Advantages over Labor Certification

A green card petition as an Outstanding Professor or Researcher does not require a labor certification application.  This makes the Outstanding Professor or Researcher process faster and less expensive than obtaining permanent residency through the labor certification process.

You may be eligible to file your I-140 petition as an Outstanding Professor or Researcher at the same time as your application to become a permanent resident.  This is called “concurrent filing.”  You may also file applications for work and travel authorization for you and your family members, including your spouse and children.  This means that you and your family may obtain your work and travel authorization much sooner than if you had to go through the labor certification process.

Disadvantages Compared with Other Options

You have to be outstanding – not just very good – to qualify for this category.  Not everyone qualifies.
You must also hold a position at the company as a Researcher.  Many positions at many companies would not qualify for this category.

Unlike the Individuals of Extraordinary Ability (EB-1A) category, the Outstanding Professors or Researchers (EB-1B) category requires a permanent job offer.  This means that you cannot self-petition under the Outstanding Professors or Researchers category.

Overview:  Multinational Executives and Managers

Certain company executives or managers may be able to obtain lawful permanent residence in the United States under the employment-based EB-1(3) immigrant visa category.  In order to qualify, the candidate for permanent residence must show that he or she was employed full time for at least a specially-defined one-year qualifying period outside of the United States in an executive or managerial position with a company subsidiary or affiliated company.  This employment-based immigrant visa category also requires the individual to prove the existence of a regular, full time job offer from the company to work in an executive or managerial position in the United States.

There is both a temporary version of the multinational manager or executive visa category (called an L-1A nonimmigrant visa) and a permanent version for permanent residents (commonly known as the “green card”).  This page gives an overview of the green card option for multinational executives and managers.  For temporary work visa options, please see our L-1 Overview and FAQs about the L-1A visa. The requirements for the temporary and permanent options are similar, but not exactly the same.

Company employees may qualify for a green card as a multinational executive or manager if they meet the specific qualifications for the appropriate employment-based immigrant visa petition.  This page discusses the filing procedures, processing times, and the advantages and disadvantages of this type of green card petition.

Qualifications

To qualify for a green card as a company executive or manager, you must show that you were employed on full-time basis outside of the U.S. by a company subsidiary or affiliate in a managerial or executive position for at least one year during the three-year period before either:

• The date of your transfer to the United States as a nonimmigrant (if you are now in the U.S.), or
• The date when the Form I-140 immigrant visa petition is filed with U.S. Citizenship and Immigration Services (if you are presently outside the U.S.).Â

The one-year requirement is calculated in the aggregate.  Thus, if you work seven months for a company foreign subsidiary in a qualifying job, cease working for the company for ten months, then resume the former company job for another five months, you would still meet the one-year employment rule as long as the cumulative seven-month and five-month periods occurred within the required three-year span of time.
An executive is defined as someone who:

• directs the management of an organization or a major component or function of the organization;
• establishes the goals and policies of the organization, component or function;
• exercises wide latitude in discretionary decision-making; and
• receives only general supervision or direction from higher level executives, the board of directors or stockholders.

A manager is defined as someone who:

• manages an organization, department, subdivision, function, or component of the organization; and
• supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function.

For supervisors of subordinate personnel, the individual must have the authority to hire, promote, perform evaluations of performance, authorize leaves of absence, terminate employment or recommend such actions. First-line supervisors of non-professional employees generally are not considered managers, without other evidence of their qualifications. First-line supervisors of “professionals,” however, may be eligible for the EB-1(3) manager category.  To meet this standard, the individuals supervised must possess the educational or work-experience equivalent of at least a bachelor’s degree as an entry-level requirement for the position, and the job the individuals perform must require at least a bachelor’s degree or equivalent work experience.

For those who manage a function of the organization, the person must be employed at a senior level within the organizational hierarchy or with respect to the function managed and exercise discretion over the day-to-day operations of the activity or function.

NOTE: An individual is not considered to be acting as an executive or manager merely on the basis of the number of employees that the person supervises, directly or indirectly.  U.S. Citizenship and Immigration Services (“USCIS”) considers the reasonable needs of the organization, the overall purpose of the company and function, and the company’s stage of development in determining whether a position qualifies.

Multinational Managers and the L-1A work visa

The EB-1(3) multinational executive or manager category for employment-based green cards closely resembles the L-1A nonimmigrant work visa category. Therefore, many people who qualify for an L-1A visa as a manager or executive would also qualify for legal permanent residence in the United States without a labor certification application.  In one instance, however, an L-1A nonimmigrant would not qualify for the EB-1(3) green card category.  A person is ineligible for EB-1(3) designation if the individual entered the U.S. under the L-1B specialized knowledge category, did not possess the necessary one year of managerial or executive experience with a qualifying employer abroad, but then was promoted to the position of manager or executive in the U.S. and approved by USCIS for L-1A status.

Please note that some L-1B employees with “specialized knowledge” may be eligible for the EB-1(3) green card category if they otherwise can prove that they meet all of the above requirements under the EB-1(3) category.   In other words, even though the person holds L-1B nonimmigrant visa status, EB-1(3) classification is still possible if they were employed abroad by a company subsidiary or affiliate for the required “one-year-out-of-three-year” period as a manager or executive.  In that case, they need not be converted to L-1A nonimmigrant visa status, but may be eligible to have the company file directly for EB-1(3) designation.

Filing Procedures

The petition for a green card as a multinational executive or manager is filed by the company on Form I-140 , Immigrant Petition.  The company must also submit evidence of the qualifying subsidiary or affiliate relationship between the company and the foreign affiliate, as well as organizational charts and other evidence describing the managerial or executive duties of the job abroad and the U.S. position offered.  This petition and supporting documents are filed directly with the appropriate Service Center of the U.S. Citizenship and Immigration Services (“USCIS”).

You may also be eligible to file your permanent residency application (Form I-485 ) at the same time as your I-140 Petition, as well as request work and travel authorization, known as advance parole (Form I-765 and I-131 ).  This process is called “Concurrent Filing.”

Because this is an employment-based first preference category, a labor certification application is not required.

Processing Times

Processing times for the multinational executive or manager immigrant visa petition depend on the USCIS Service Center’s case load, which can vary greatly over time.

You can review current processing times for the Nebraska Service Center, which serves Washington State and most of the Northwest states, and the other Service Centers on the USCIS website by selecting the appropriate USCIS Service Center and finding the row that lists the processing times for the Form I-140, Multinational Executive or Manager, on the processing times chart.  Please remember that these dates are only estimates, and processing times for your case may be different.

Advantages and Disadvantages

The multinational executive or manager option for permanent residency does not require a labor certification. In other words, the company does not need to show that there are no qualified U.S. workers for the position. Avoiding this labor certification process reduces much of the time and expense of obtaining a green card in the United States.  This also speeds up the permanent residency process considerably, allowing you to obtain work and travel authorization for yourself and your family quickly.

There are few disadvantages to this type of permanent residency application for those who qualify.

More Information

For more information about obtaining a green card, please see the following pages:

• Employment-Based Green Cards
• Outstanding Professors or Researchers (EB-1B)
• Labor Certification and PERM

For other information about the permanent residency process, you may want to visit these pages:

• Green Card Options
• Adjustment of Status and FAQs about AOS
• Green Card Sponsorship Policy
• Rights and Responsibilities of Permanent Residents

For specific questions about your particular case, you should email your Avani attorney.

Employment-based green card opportunities may be based on achievement, on a particular occupation or position, or due to a shortage of U.S. workers for a specific job.  The process and requirements vary greatly, depending on which option you will use to apply for permanent residency.

Employment-based green cards are divided into several different preference categories.  These preference categories depend on the level of education and training required for the position, and the type of work performed.  The preference categories determine the availability of immigrant visas using a system of priority dates that regulate the numbers on an annual basis renewing on October 1st.  Once the priority date is available, the next step is to file for adjustment of status to become a permanent resident in the United States.

Options for Employment-Based Green Cards

Employment-based green card opportunities may be based on achievement, on a particular occupation or position, or due to a shortage of U.S. workers for a specific job.

Achievement-Based Green Cards

The Extraordinary Ability option is for a foreign national with “a level of expertise indicating the person is one of the small percentage of individuals who have risen to the very top of their field” of science, education, business or athletics, as demonstrated by sustained national or international acclaim.  To qualify for this type of visa, the individual must demonstrate extraordinary ability in his or her field through the receipt of an internationally-recognized award (such as the Nobel Prize, Fields Medal or an Oscar), or by meeting other criteria.  This other criteria includes receipt of important prizes or awards, membership in associations that require outstanding achievement, articles written by others about your work, service as a judge of others’ work, and major contributions or articles in your field.  More information is available on our Extraordinary Ability Immigrant Visas page.

The Outstanding Professors or Researchers category is for professors and researchers who are recognized internationally as outstanding in their academic field.  For this type of application, individuals must either hold a tenure-track faculty position or have a permanent job offer and have at least three (3) years of prior teaching or research experience.  In addition, the foreign national must show receipt of major prizes or awards for outstanding achievement belong to associations that require outstanding achievement, have contributed original work or authored scholarly publications.  You can review the specific criteria for this type of application on the Outstanding Professors or Researchers page.

National Interest Waivers (NIW) are for individuals with at least a master’s degree or “exceptional ability” in their field who are doing work that will benefit the national interest of the United States.  The work must be of “substantial intrinsic merit” and the benefits must be “national in scope.”  In addition, the person’s past record of achievement must demonstrate that the individual can benefit the national interest to a “substantially greater degree than would an available U.S. worker having the same minimum qualifications.”  If you need further information on National Interest Waivers, please contact your Avani attorney.

Occupation-Based Green Cards

Multinational Executives and Managers may be eligible for permanent residence in this category if they have worked as an executive or manager for at least one year in the three years prior to admission to the United States in another country with the same company, a subsidiary or an affiliated company and have a permanent job offer as a manager or executive from the same company in the United States.  An executive is defined as someone who directs the management of the organization or a major function, establishes the goals and policies, exercises wide latitude in discretionary decision-making, and receives only general supervision or direction.  A manager is defined as someone who manages an organization or department, supervises and controls the work of other supervisory or professional employees, or manages an essential function.  More information about this category is available on our Multinational Executives and Managers page.

Shortage-Based Green Cards

Many individuals seeking employment-based permanent residence in the United States must show that there are no qualified U.S. workers available for the position by submitting a labor certification application.  Labor certification requires a U.S. employer to recruit for the position and evaluate applicants for the position.  If no minimally qualified U.S. workers are available for the position, the employer can submit a labor certification application to the U.S. Department of Labor (â�DOLâ�).

The History of Labor Certification

Before March 28, 2005, labor certification applications could be filed as either “standard” or Reduction in Recruitment (â�RIRâ�) applications.  Standard applications were filed with the State Workforce Agency (â�SWAâ�) who then conducted supervised recruitment.  The RIR process enabled an employer to conduct recruitment for the position before filing the labor certification, which was submitted  to the SWA for review.  Both standard and RIR cases were then forwarded to the regional DOL office.  This review process has often taken years to be completed, and has resulted in huge case backlogs.  In an effort to reduce the backlog of standard and RIR cases, the DOL has consolidated case processing of both types of cases at Backlog Elimination Centers (â�BECsâ�).  (To view the transfer schedule of cases from SWAs and DOL Regional Offices to the BECs, see the DOL website.)

Labor Certification since the Implementation of PERM

Effective March 28, 2005, the DOL has implemented a new automated, attestation-driven labor certification process called Program Electronic Review Management (“PERM”).  PERM applications may be filed directly with the DOL electronically or by mail.  PERM cases generally take a few weeks to a few months to approve (unless an audit is required by DOL).  Employers must satisfy strict requirements for recruitment, including placement of newspaper ads, internal postings, SWA job orders, and other recruitment efforts.  For more information, please review our PERM Overview and FAQs about PERM pages.

Once the employerâ�s labor certification application on your behalf has been approved, your employer can then file a Form I-140, Immigrant Petition for Foreign National Worker, to request an immigrant visa number for you.

Employment Preference Categories

Employment-based immigrant visas (or “green cards”) are classified into five different visa categories.  Each visa category has different requirements, and may have different waiting times for a visa to become available.  More detailed information about the different preference categories is available on our Employment Preference Category page.  For information on how to read the Visa Bulletin to determine visa availability, please see our State Department processing times page.

First Preference (EB-1): Priority Workers

The first preference (“EB-1″) visa is the highest preference category for employment-based immigrant visas. Individuals in this category can petition for permanent residency without having to go through the time consuming and expensive labor certification process. These visas will go to qualified immigrants who are:
Individuals of Extraordinary Ability (EB-1A) in the sciences, arts, education, business, or athletics, who meet the following criteria:

• Have demonstrated extraordinary ability by sustained national or international acclaim;
• Seek to continue their work in the area of extraordinary ability; and,
• Whose entry into the U.S. will substantially benefit the United States.
• Outstanding Professors or Researchers (EB-1B) if they are:
  • Recognized internationally as outstanding in specific academic areas;
  • Worked for at least 3 years in their field of study as a researcher or teacher in the academic area; and,
  • Seeking to enter the United States for a tenured position at a university or institution or for a researcher position in a department, division, or institute of a private employer.
• Multinational Executives and Managers (EB-1C) if they: Have worked abroad for at least 1 continuous year for an affiliate or subsidiary of the company during the 3 years preceding the application; and,
  • Seek to continue to render services to the company in the United States in a managerial or executive capacity.

NOTE: This visa may be used for high level executives or managers even if they do not possess a university degree.

Second Preference (EB-2): Advanced Degrees or Exceptional Ability

The second preference category for employment-based immigrant visas (“EB-2″) are for workers who are members of the professions holding advanced degrees or their equivalent and is generally available to workers who are the beneficiaries of labor certification applications for positions requiring a Masterâ�s degree (or equivalent).

The second preference category is also available to foreign nationals whose exceptional ability in the sciences, arts, or business would substantially benefit the national economy, cultural, or educational interests or welfare of the United States.  This type of green card option, called a National Interest Waiver (“NIW”), does not require labor certification.

Although not explicitly part of the second preference category, individuals of exceptional ability in the sciences, arts (including athletics), or business may be eligible for a green card through the Schedule A, Group II [need link] classification, which also does not require labor certification.

Third Preference (EB-3): Professionals, Skilled Workers, and Other Workers

The third preference immigrant visa category (“EB-3″) is for professionals, skilled workers, and other workers.  The EB-3 visa is available to professionals with at least a U.S. bachelor’s degree or its equivalent, individuals with at least two years of experience as skilled workers, and others with less than two years experience, such as an unskilled worker who can perform labor for which qualified workers are not available in the United States.  Obtaining a green card in this category requires a labor certification application.

Fourth Preference (EB-4): Special Religious Workers

Certain religious workers, ministers of religion, international organization employees, U.S. government employees and their families may obtain an EB4 visa.

To qualify as a special immigrant for this visa as a religious worker, the applicant must show that:
Has been a member for at least two years of a religious denomination having a bona fide nonprofit, religious organization within the United States; and, seeks to enter the U.S. solely for the purposes of carrying on the vocation of minister for that religious denomination. Additionally, special immigrant status can be granted to immigrants who:

• Were lawfully admitted as permanent residents and are returning from abroad,
• Were formerly U.S. citizens and want to apply for reacquisition of citizenship,
• Were/are employed abroad for the U.S. government, for the Panama Canal Company or Canal Zone Government,
• Have graduated from medical school and are qualified to practice medicine, is licensed, entered the U.S. as a nonimmigrant before January 10, 1978, and has been in the U.S. to practice or study medicine since that initial date of entry,
• Are retired officers, the spouse of a deceased employee, or the children of an employee of an international organization and who have been physically present in the U.S. for at least one-half of the seven years before the date of application for a visa or adjustment of status,
• Are present in the U.S. who have been declared dependent by a U.S. juvenile court, placed under the custody of an agency or Department of State for foster care or for the best interests of the child; or,
• Have served honorably on active duty in the Armed Forces after October 15, 1978 and then lawfully enlisted outside of the U.S.

If you need further information on this immigrant visa category, please contact an Avani attorney.

Fifth Preference (EB-5) Employment Creation

The Fifth Preference Category for employment-based immigrant visas (EB5) is for investors who will engage in a commercial enterprise that meets the following criteria:

• The alien has established and/or invested in the enterprise; and,
• The U.S. will benefit economically from the full-time jobs (at least 10) created by the enterprise.

Under the 1990 Immigration Act, Congress has set aside up to 10,000 visas per year for alien investors in new commercial enterprises who create employment for ten or more individuals.  There are two groups of investors under the general program:

• Those who invest at least $500,000 in â�targeted employment areasâ� (rural areas or areas experiencing high unemployment of at least 150% of the national average rate).  At least 3,000 of the annual allotment of visas must go to targeted employment areas; and,
• Those who invest $1,000,000 in any area..  If you need further information on this immigrant visa category, please click here.

Visa Availability by Preference Category

The Department of State’s Visa Bulletin shows whether an immigrant visa is available, depending on the date that the first step in the immigrant process was filed.  Please click here for more information on immigrant visa quotas, the Visa Bulletin and priority dates.

Adjustment of Status

The Adjustment of Status (AOS) process allows certain foreign nationals and their family members to apply for legal permanent residency without leaving the United States and going to a United States Consulate overseas to apply for an immigrant visa.

Eligibility

• The foreign national must be the beneficiary of an approved immigrant petition (Form I-130 or I-140);
  The applicants must have entered the country legally;
• The terms of the foreign national’s non-immigrant status must not bar adjustment of status; and
• The applicants must not be, or ever have been, “out of status” or engaged in any unauthorized employment.

There must be an “immigrant visa number” immediately available to the foreign national.  Please click here for more information on The Visa Bulletin, Preference Categories, and Retrogression. For more information about this process, please visit our Adjustment of Status and FAQs about AOS page.

More Information

For more information about obtaining a green card, please see the following pages:

• Individuals of Extraordinary Ability (EB-1A)
• Outstanding Professors or Researchers (EB-1B)
• Labor Certification and PERM
• Adjustment of Status and FAQs about AOS
• Rights and Responsibilities of Permanent Residents