FAQ

• • What is a visa?
    • A visa is an entry document.  It is issued by the Department of State (“DOS”) at a U.S. consulate or embassy.  The visa contains the class symbol which indicates the type of visa that you have (e.g. B1/B2, F1, H1B, L1, J1, etc.).  A visa can be issued for a single, two, or multiple entries. The number of entries determines how many times you can use the visa to enter the U.S. during its validity period.  You must have a valid visa to enter the U.S. country, unless you are from a visa-exempt

• • • It is important to understand that having a visa does not guarantee entry into the U.S.   The possession of a visa does mean that you have the proper document to enter the U.S. or that an airline will allow you to board the plane.  The decision of whether to admit you rests on the shoulder of the immigration officer at the port of entry, which is a part of the CBP (Customs and Border Protection).  A lot of people are turned away at the airport even though they have valid visas, because the CBP officers decide that the person’s visa is inappropriate for what he/she plans to do. 

• • What is your status?
    • Your status is noted on your I-94 admission record.  For example: A tourist is on B2 status.  An international student is on F1 status.   Your status determines what you can do in the U.S.  It is important to confirm that you have been admitted in the correct status.  A person may present an H1B visa to enter the U.S. but the officer at the airport may inadvertently admit him/her on a B2 visitor visa. 
    • A person can also receive status on their I-797 approval notice.  If you are already in the US, the I-797 can also extend the I-94. Under certain circumstances, you can change status within the US through an application to USCIS.

• • What is the significance of the I-94 admission record?
    • The I-94 admission record can be obtained online via this site:  https://i94.cbp.dhs.gov/I94/ It shows you your status and how long you can remain in the U.S.  It is the key evidence of your valid status in the U.S. Every time you enter the U.S., you should download a copy of your I-94 admission record to verify your admission status and duration you can stay in the U.S.
    • If you change your status inside the U.S., it will not be reflected in the online database, however the rule of thumb is that the last action is what counts. If you extend your status through USCIS, that is the last action and the I-94 is valid. If you subsequently leave the US and return, the electronic I-94 is what will govern.

• • Do I need all three documents?
    • To stay in the U.S., you should have a valid I-94 and valid status. You can remain in the U.S. with an expired visa if the I-94 and status are valid. However, if you leave the U.S. you will need to visit a U.S. embassy to obtain a new visa in order to enter in the proper status, for the proper amount of time.

• Can a student work in the U.S.?
  • No, a student generally cannot work in the U.S.

• • Are there exceptions?
    • Yes, a university student can work on campus (e.g. cafeteria or bookstore) without any additional work permit or authorization.  They may also work under the curricular practical training (“CPT”) and optional practical training authorization (“OPT”).

• • H1B
    • What is H1B work status?
      • H1B is for “specialty occupations,” meaning occupations that require at least a bachelor’s degree in a specific field.  For example, an electronic engineer usually qualifies for the H1B work status, because to become an electronic engineer, one usually needs to have at least a bachelor’s degree in electronic engineering. 

• • • How long can I hold H1B status?
      • You may have up to 6 years on H1B status.  You can obtain it initially for 3 years and extend it for another 3 years.  If you change job, you need to transfer your H1B to your new employer.  You don’t lose any time because of it, but you don’t gain any time either.  You still have a total of 6 years.

• • • Can I have H1B for more than 6 years?
      • Yes, you can under three situations.   
        • First, you have H1B for six years, and you leave the U.S. for at least 1 full year.  The absence from the U.S. for over 1 year will allow you to have a new 6-year period on H1B.
        • Second, if you have filed a labor certification application or an I-140 petition prior to your 5^th year anniversary on H1B, you will be allowed to extend your H1B beyond the 6-year limit. However, if your labor certification or I-140 is denied, you will not be able to get more H1B time, but you may stay till the end of your current H1B time.
        • Third, if you have an approved I-140 petition but your priority date is not current, you can extend your H1B beyond the 6 years limit as well.
  • L1
    • What is L1 work status?

• • • • It is for intracompany transfers between a U.S. company and its affiliates or subsidiaries abroad.
      • There are two types of L1 work status: L1A is for managers or directors.  L1B is for individuals with specialized knowledge of the company

• • • Who qualifies for L1A status?
      • The employee must have worked for a qualifying entity outside of the U.S. for at least one year and is entering the U.S. to assume a managerial position or as a director.  The law does not require the employee to be already in a managerial position outside of the U.S., but it always helps. 

• • • Who qualifies for L1B status?
      • The employee must have worked for a qualifying entity outside of the U.S. for at least one year in a position that requires specialized knowledge of the company, such as processes, technology, pricing, client requirements, etc.  USCIS has generally required the employee to possess a bachelor’s degree in a relevant field for the L1B status.

• • • How long can I stay on L1 status?
      • One can have a maximum of 7 years on L1A status, and 5 years on L1B status.

• • • Is there any exception to the 5-and-7-year limit?
      • Unfortunately, there is no exception to it.  If a person needs more time to go through the green card process, we often transfer the person to H1B so that he/she can take advantage of the exception to the 6 years limit on H1B.

• • TN

• • • What is TN work status and who qualifies for it?
      • TN stands for Trade NAFTA. It is work status for professionals.  Only Canadians and Mexicans may apply for TN work status.

• • • What positions qualify for TN status?
      • You may find a list of qualifying positions and their requirements on this list:  https://www.nafsa.org/_/file/_/amresource/8cfr2146.htm

• • • How long can I stay on TN status?
      • TN can be issued for up to 3 years.  The law does not set a limit on how long you can stay on TN status.  However, because TN status does not allow “dual intent”, meaning that the person must always plan to leave the US at the conclusion of the TN stay, a person who has been on TN for more than 6 years may start having problems at the port of entry, because the CBP officer may question whether the TN holder plans to stay permanently in the U.S.

• • O1

• • • What is O1 status?
      • O1 status is for individuals with “extraordinary ability or achievement”.

• • • How many types of O1 are available?
      • There are three types:
        • O1A for individuals with an extraordinary ability in the sciences, education, business, or athletics (not including the arts, motion pictures or television industry)
        • O1B: individuals with an extraordinary ability in the arts or extraordinary achievement in motion picture or television industry
        • O2: individuals who will accompany an O1, artist or athlete, to assist in a specific event or performance.  For an O1A, the O2’s assistance must be an “integral part” of the O1A’s activity. For an O1B, the O2’s assistance must be “essential” to the completion of the O1B’s production. The O2 worker has critical skills and experience with the O-1 that cannot be readily performed by a U.S. worker and which are essential to the successful performance of the O1

• • • How do I qualify for the O1A status?
      • You must have received a major, internationally recognized award, such as a Nobel Prize.
      • Or, you must meet at least three of the following:
        • Receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor
        • Membership in associations in the field for which classification is sought which require outstanding achievements, as judged by recognized national or international experts in the field
        • Published material in professional or major trade publications, newspapers or other major media about the beneficiary and the beneficiary’s work in the field for which classification is sought
        • Original scientific, scholarly, or business-related contributions of major significance in the field
        • Authorship of scholarly articles in professional journals or other major media in the field for which classification is sought
        • A high salary or other remuneration for services as evidenced by contracts or other reliable evidence
        • Participation on a panel, or individually, as a judge of the work of others in the same or in a field of specialization allied to that field for which classification is sought
        • Employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation
      • If the above criteria do not readily apply to the beneficiary’s occupation, the petitioner may submit comparable evidence in order to establish the beneficiary’s eligibility.
    • How do I qualify for O1B status?
      • You must have received, or been nominated for, significant national or international awards or prizes in the particular field, such as an Academy Award, Emmy, Grammy or Director’s Guild Award

• • • • Or, you must meet at least three of the following: 
        • Performed and will perform services as a lead or starring participant in productions or events which have a distinguished reputation as evidenced by critical reviews, advertisements, publicity releases, publications, contracts or endorsements
        • Achieved national or international recognition for achievements, as shown by critical reviews or other published materials by or about the beneficiary in major newspapers, trade journals, magazines, or other publications
        • Performed and will perform in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation as evidenced by articles in newspapers, trade journals, publications, or testimonials.
        • A record of major commercial or critically acclaimed successes, as shown by such indicators as title, rating or standing in the field, box office receipts, motion picture or television ratings and other occupational achievements reported in trade journals, major newspapers or other publications
        • Received significant recognition for achievements from organizations, critics, government agencies or other recognized experts in the field in which the beneficiary is engaged, with the testimonials clearly indicating the author’s authority, expertise and knowledge of the beneficiary’s achievements
        • A high salary or other substantial remuneration for services in relation to others in the field, as shown by contracts or other reliable evidence
      • If the above standards do not readily apply to the beneficiary’s occupation in the arts, the petitioner may submit comparable evidence in order to establish eligibility (this exception does not apply to the motion picture or television industry).
  • H1B-1

• • • What is the H1B-1 work status? 
      • The H1B-1 work status is nearly identical to the H1B work status.  However, only citizens of Chile and Singapore may qualify for it.

• • • What are the main differences between the H1B and H1B-1 status?
      • There are two main differences:
        • H1B allows “dual intent”, meaning that it is not a violation of the H1B status if he/she pursue a green card.  However, H1B-1 does not allow dual intent. 
        • H1B-1 is issued in 2-year increments, and there is no time limit.   However, it does run into the same problem that that TN has.  If a person has been on H1B-1 for “too long”, he/she may have problems at the airport or at the time of extension. 

• • E3
    • What is the E3 work status?
      • The E3 work status is very similar to the H1B, except it is only for citizens of Australia.
    • What are the main differences between the H1B and E-3 status?
      • There are two main differences:
        • H1B allows “dual intent”, meaning that it is not a violation of the H1B status if he/she pursue a green card.  However, E-3 does not allow dual intent. 
        • E-3 is issued in 2-year increments, and there is no time limit.   However, it does run into the same problem that that TN has.  If a person has been on E-3 for “too long”, he/she may have problems at the airport or at the time of extension. 

• • E2 visa
    • What is an E2 visa?
      • An E2 visa is for treaty investors.  Citizens of qualifying countries can invest in the U.S. and open a business to operate it. 
    • What are the basic requirements for the E2 visa?
      • You will need to meet the following requirements:
        • You are a citizen of a qualifying country
        • You have made a substantial investment
        • Your investment will benefit the US economy (e.g. create at least one job)
        • You should have a business plan projecting income and expenses for the next five years
        • You should account for the source of your investment funds, including the paths the founds came into the US
        • You should demonstrate that you have the ability to operate the E2 business
    • What is considered substantial amount of investment?
      • The law does not identify a minimum amount.  The amount varies depending on the nature of the business as well.  I have seen successful cases with as little as 40K of investment.  However, we generally advise our clients to invest at least 100K. 
    • Do I have to spend the 100K before I apply for my E-2 visa?  What if I don’t get my E-2 visa?
      • We get this question a lot.  From the E-2 investors perspectives, they do not mind spending the money if they know they will get the visa.  However, the visa officer’s perspective is completely opposite.  The visa officer will not issue the E-2 visa unless the investment is “irreversibly committed”.  Money in the bank does not count towards the investment.   
    • What kind of business qualifies for an E2 visa?
      • Any legal business can be an E2 business.  We have helped individuals in the real estate industry, retail business, food business, etc.  However, business that does not require a lot of upfront investment tend to have a harder time with the E2 visa, such as consulting business. 

• • E1 visa
    • What is an E1 visa?
      • An E1 visa is for treaty trader.  Citizens of qualifying countries who have been trading with the U.S. may qualify for the E1 visa.
    • What are the basic requirements for the E1 visa?
      • You will need to meet the following requirements:
        • You are a citizen of a qualifying country
        • You have substantial trade with the U.S.
        • You should have a business plan projecting for income and expenses for the next five years
        • If you plan to also invest in the US, you should account for the source of your investment funds, including the paths the founds came into the US.  However, the requirements for the investment is not as stringent as the E2 visa.
        • You should demonstrate that you have the ability to operate the E1 business
    • What is considered substantial trade?
      • You will need at least 12 months of regular trade with the U.S.  The frequency of the trade is more important than the dollar value of the trade.  In other words, it will be better to have 12 transactions of smaller amounts over 12 months, than to have one large amount in the past 12 months.

• • Where is the list of the qualifying country?
    • You may find the list here:  https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/fees/treaty.html

• • EB-5 Investment Immigration
    • What is EB5 investment immigration?
      • In simple terms, a person who invests in the requisite amount of money in the U.S. ($900,000 or $1,800,000) and creates 10 full time jobs may obtain a green card through the investment.

• • Who can file a family petition?
    • Immediate relatives or someone with a preference category.

• • Who are “immediate relatives” for immigration purposes?
    • Immediate relatives refer to only three groups of people: 
      • Spouses of U.S. citizens
      • Parents of U.S. citizens
      • Children under 21 years old of U.S. citizens.

• • What are the advantages of “immediate relatives”? 
    • Immediate relatives do not need to wait for a “green card quota”.  The process will take only the length of time required by USCIS to process the case. 

• • What are “preference categories”?
    • These are family relationships that allow for sponsorship, but they are not considered “immediate relatives”.  They are:
      • Unmarried sons and daughters of U.S. citizens (F1 category)
      • Spouses and children (under 21 years old) of permanent residents (green card holders) (F2A category)
      • Unmarried sons and daughters (over 21 years old) of permanent residents (F2B category)
      • Married sons and daughters of U.S. citizens (F3 category)
      • Brothers and sisters of U.S. citizens (F4 Category)

• • What is the difference in wait times between an immediate relative and a relative in the “preference category”?
    • There is no wait for an immediate relative.  However, a relative in the “preference category” must wait for his/her priority date to become current.  It is like waiting for a green card quota to become available.   Some categories have a relative short wait of a few years.  Some categories have a very long wait.   The country of birth of the applicant also determines the length of the wait as well. 

• • Can my uncle sponsor me?
    • No, because an uncle is not an immediate relative or in the “preference categories”. 

• What are the steps for the employment based green card process?
  • For most employees, they must go through three steps: (1) labor certification, (2) I-140 immigrant petition, and (3) I-485 adjustment of status application or consular processing.

• What is labor certification application?
  • We apply for a labor certification (also known as PERM) through the Department of Labor (DOL). DOL requires the employer to test the labor market to see if there are any “qualified, available, and willing” US workers for the position.  We will need to run some ads on newspaper, Internet, job bank, etc. for about 35 days. We work closely with both the employer and employee to prepare a set of job duties and requirements.  We also need to obtain a “prevailing wage” determination from the DOL based on the job duties and requirements.  If our requirements are very tough, DOL may return a very high wage.  As such, it is a careful balance.  If the ads do not result in any qualified US workers, we can submit the application.  We do have to keep careful documents of the recruitment, including the resumes and interview notes for all applicants, if DOL audits the application.  If the labor market testing yields a fully qualified US worker, the employer is not required or expected to hire the US worker and terminate the foreign worker.  However, identifying a fully qualified US worker will not allow us to attest that the employer is unable to find a qualified US worker.  Therefore, we cannot submit the application.   
  • The preparation generally takes about 6 to 8 months, and the current processing time is approximately 4 to 6 months.

• What is an I-140 petition? 
  • The petition is submitted to USCIS (US Citizenship and Immigration Services).  In this step, we must prove that the employer has the financial ability to sponsor a visa employee for a green card. USCIS will expect to see tax returns and payroll records.  Also, we will need to prove that the employee qualifies for the position.   We will have usually collected all the credentials already during the labor certification application process.   USCIS can be very picky on the employer’s “ability to pay” the foreign workers.  Smaller employers whose tax returns are not “robust” may be more susceptible to USCIS’s challenges.
  • This preparation generally takes about 2 to 4 weeks, and the standard processing time is about 4 to 6 months.   Premium processing is currently available for this process.

• What is the I-485 application for adjustment of status?
  • After the I-140 petition is approved, and when your priority date becomes current, we can submit the I-485 application.   You and each of your family member will need a separate I-485 application.   You will be required to provide a lot of personal data and go through a medical exam as well.  However, this is a fairly straight forward step, unless you have had previous immigration violation or criminal arrest and/or conviction.  Your employer usually only needs to complete a short form and provides proof of continued job offer.  We typically will submit a work permit and travel document in connection with the I-485 application.  There will also be an interview at the local USCIS office before the application can be approved.
  • The preparation generally takes about 4 weeks, and the current processing time is approximately 6 to 12 months.

FAQs ON FILING A “DOWNGRADE” EB-3 I-140 PETITION

Background:  On 9/24/2020, the October Visa Bulletin came out and showed a significant movement on many family- and employment-based categories.  This FAQ focuses on the significant difference between EB-2 and EB-3 categories under the “Date for Filing” chart, especially for individuals who were born in India:

EB-2:  15 May 2011

EB-3:  01 Jan 2015

What is the difference between the “Dates for Filing” chart and “Final Action Dates” chart?

The “Final Action Dates” chart indicates that one’s priority date is actually current, and an immigrant visa is available.  The “Dates for Filing” chart only indicates when a person may file an I-485 application.  An immigrant visa is not available to that person.

Can someone use either the “Final Action Dates” chart or “Dates for Filing” chart?

Depends.  The Department of States publishes the “Visa Bulletin”. However, it is up to USCIS whether to use the “Final Action Dates” or “Dates for Filing” chart.  USCIS publishes which chart they will use to allow people to file I-485 applications.  A person whose priority date is current under the “Dates for Filing” chart must still check whether USCIS will allow the filing of I-485.  As of the time this FAQ is written, USCIS is allowing the use of the “Dates for Filing” chart for October 2020.

What is downgrading an I-140 from EB-2 to EB-3?

If you have an approved I-140 petition based on an approved PERM in the EB-2 category, and if you are still with the same employer, it is possible for your employer to file another I-140 petition under the EB-3 category.  When approved, you will have an I-140 petition in both the EB-2 and EB-3 category.  You can then use it to submit the I-485 application under either category when your priority date becomes current.

Do I lose the approved EB-2 petition if I submit a downgrade I-140 petition to EB-3?

Usually Not. USCIS typically just adjudicates the EB-3 I-140 petition independently.  USCIS does not usually revoke any approved I-140 unless there is fraud, or if the employer seeks to revoke it.

I have an NIW in EB-2, can I downgrade it to EB-3?

Unfortunately, no.  You are locked in EB-2 under NIW, because your NIW is a stand-alone petition, and there is not an underlying approved PERM to support a downgrade I-140.

I am no longer with the employer who filed the EB-2 I-140, can I still file a downgrade I-140 EB-3 petition?

Unfortunately, No.   The downgrade I-140 has to be based on a valid PERM from a valid employer.  Because you do not work for the employer who had filed the underlying PERM, you cannot submit a downgrade I-140.  Your current employer will need to file a new PERM, and when it is approved, you may then file an I-140 under EB-3.

I already have a pending I-485 under EB-2, but my priority date is not current.  Can I still file a downgrade petition request to make my priority date current?  

Depends.   If you are with the same employer who filed the PERM and the I-140, then the answer is Yes.  However, if you have changed employer or ported your I-485, you cannot.  You will have to first obtain a PERM and an I-140.  Then, you may notify USCIS of your decision to downgrade.

Should I file a downgrade EB-3 I-140?  

That is really hard to say.   In many ways, there is no downside to it.  However, many employers may not be willing to pay again for another I-140.  As such, you should be prepared to pay for it.   However, please keep in mind that there are probably thousands of people who are going to be filing downgrade I-140 EB-3 petitions.  Therefore, it will probably affect the cutoff date in coming months.  The effect may be a total wash, or the EB-3 may retrogress to where it was.

Can I premium-process the downgrade I-140?

Unfortunately, no. We cannot use premium processing because we do not have the original PERM approval.   USCIS will need to contact the DOL to verify or retrieve the approved PERM, and that will take time.  As such, no premium processing is allowed.

If I am already preparing a PERM under EB-2, do I need to start again if I want it to be EB-3?

No.  After the PERM is approved, you can always elect to file your I-140 under EB-3.  You just cannot upgrade an I-140 to EB-2 if your PERM was filed under EB-3.

Does filing an I-485 under “Dates for Filing” chart keep my children from aging out? 

Unfortunately, no.  Your children’s age will only “freeze” if you have an immigrant visa available to you, i.e. filing an I-485 under “Final Action Dates” chart.  Filing an I-485 under “Dates for Filing” chart does not do that.

Does filing an I-485 under “Dates for Filing” chart affect my ability to extend my H-1B beyond six years? 

Fortunately, no, because an immigrant visa is still not available to you.   You will still be able to benefit from the provisions under AC21 to extend your H1B beyond six years.

Can I submit an I-140 petition to “downgrade” my approved I-140 petition from EB-2 to EB-3, and file an I-485 concurrently? 

In theory, yes.  However, if the I-140 is denied for any reason, the concurrently filed I-485 and related I-765 and I-131 applications will be denied automatically.  A conservation and safer approach is to obtain the I-140 petition in EB3 category first.