<br>"Immigration Status Newsletter," Alice M. Yardum-Hunter, Law Corp., Fall, 2008<br>
Yardum-Hunter Immigration Status Newsletter
Volume 3, Number 1, Fall, 2008
Welcome to Alice M. Yardum-Hunter's Immigration Status Newsletter.
Immigration Status is a quarterly newsletter that covers
a few select, timely immigration law and procedural issues with each publication and addresses them in-depth.
TABLE OF CONTENTS:
1. E-1 and E-2 Investor Visas: Treaty Trader and Investor Status
2. EB-1 Permanent Resident Status for International Managers and Executives
3. Interested Government Agency Waivers for Physicians
4. M Visas for Vocational Students
5. Announcements on seminars with Alice Yardum-Hunter: Ilw Teleconferences for Universities & Students (9/11/08 & 10/30/08) & American Immigration Lawyers Assn. seminar on Advanced Issues Family Processing (9/24/08)
6. How to check processing status of your case, change your address with CIS, or schedule a consultation with Ms. Yardum-Hunter.
Treaty trader and treaty investor nonimmigrant status is available for nationals of countries with a treaty of commerce and navigation with the United States. Anyone wishing to go to the United States to carry on trade, principally between the United States and country of his/her nationality (by birth or later acquisition of nationality), may apply for an E-1 treaty trader visa. Someone who has invested or is in the process of investing a substantial amount of capital and is going to the United States to develop the operations of an enterprise may apply for an E-2 treaty investor visa. Unlike the L-1 category, E visas can be renewed without limits and it is not necessary to maintain a business outside the United States. Each stay, once entry to the U.S. is made, is permitted for up to two years at a time. Thereafter, if the visa itself (document in the passport issued by a U.S. Embassy or Consulate abroad) remains valid, travel abroad and simple re-entry can be made to lengthen the stay, two years at a time. Extensions of stay, a more involved process, filed in the U.S. when the person chooses to remain in the U.S. rather than depart and return, are permitted up to two years at a time.
E-1 treaty trader applications include details of the nature of the business and the applicant's position and demonstrate the applicant's entitlement to E-1 status based on "substantial" trade between the United States and the country of the applicant's nationality. The applicant must depart the United States when E-1 status ends. The person can maintain the E-1 status for however long he/she will carry on substantial trade. This can go on for many years.
The following nationalities are permitted E-1 treaty trader status: Argentina, Australia, Austria, Belgium, Bolivia, Bosnia and Herzegovina, Brunei, Canada, Chile, China (Taiwan), Colombia, Costa Rica, Croatia, Denmark, Estonia, Ethiopia, Finland, France, Germany, Greece, Honduras, Iran, Ireland, Israel, Italy, Japan, Jordan, Latvia, Liberia, Luxembourg, Macedonia, Mexico, Netherlands, Norway, Oman, Pakistan, Paraguay, Philippines, Poland, Singapore, Slovenia, South Korea, Spain, Suriname, Sweden, Switzerland, Thailand, Togo, Turkey, United Kingdom, and the former Yugoslavia (Kosovo, Montenegro, and Serbia).
E-2 treaty investor applications require the company's most recent financial statement, even if it is at the beginning of the business. The money must be "at risk" of being lost due to investment fortune reversal. They also require details about the nature of the investment and the extent of the alien's participation. E-2 investors must manage and direct the enterprise. The applicant must depart the United States when E-2 status ends. In theory, a person can remain in the U.S. for as long as he/she manages and directs the business. This can go on for the duration of a career.
With the exceptions of Brunei, Denmark, Greece, and Israel, all countries with E-1 trader status also have E-2 investor status. Additional countries with E-2 treaty investor status are Albania, Armenia, Azerbaijan, Bahrain, Bangladesh, Bulgaria, Cameroon, Congo (Brazzaville and Kinshasa), Czech Republic, Ecuador, Egypt, Georgia, Grenada,
Jamaica, Kazakhstan, Kyrgyzstan, Lithuania, Moldova, Mongolia, Morocco, Panama, Romania, Senegal, Slovak Republic, Sri Lanka, Trinidad and Tobago, Tunisia, and Ukraine.
E-1 and E-2 applicants must submit the usual visa application and an additional application form just for E visas when applying at a U.S. consulate or embassy for the first time. If the applicant is a male between the ages of 16 and 45 years, a third application is required for applications at an embassy. It is best to have a passport valid
well into the future after the arrival date in the U.S. to avoid unnecessary complications. Sometimes the person is not permitted to stay beyond six months of his/her passport's expiration. Those who process from abroad will be interviewed. When applicants apply to change status to E-1 or E-2 in the U.S., they are not interviewed and there is one application, not up to three. Until recently, changes of status in the U.S. were viewed negatively by consular officers abroad who felt the adjudication of E-1 and E-2 applications should be within their purview at a consulate or embassy abroad, and not that of the U.S. Citizenship and Immigration Services. But, the State Department has come to view CIS adjudications as helpful rather than feeling bound by their decisions when in fact, consuls have broad discretion to approve or deny visas.
Applicants must also submit documents demonstrating that their investment or trade between the United States and treaty country is "substantial," including various documents concerning the business formation and location, business plan, capitalization and other financial and tax documents such as marketing documentation, sales contracts, customer lists, etc. Additionally, documents are also required about the proposed U.S. position and the background of the employee.
The First Preference Employment-Based Immigrant (EB-1) category includes three groups:
A. Aliens of extraordinary ability;
B. Outstanding professors and researchers; and
C. Multinational managers and executives.
The last group within this category is reserved for executives and managers of multinational companies. Because there is no need for a labor certification, this is a popular green card strategy for business executives. This category not only saves the time needed to process a labor certification, but also is given preferential quota treatment and takes sometimes several years fewer than a traditional case involving labor certification. To qualify as an EB-1 executive or manager, the alien must have worked for the overseas company for at least one year of the previous three in an executive or managerial capacity. If the person is already in the U.S., the time frame is measured from before the date of entry as a nonimmigrant. Also, the alien must be coming to the United States to work in an executive or managerial capacity. The U.S. business must have been established for at least one year before filing the petition.
For a person to be considered an executive, the applicant must: manage an organization or major component; have authority to make policy and establish goals; have discretionary decision-making authority; and be subject to only general supervision from higher executives, the board of directors, or stockholders. The overall size of the organization is a factor in determining executive capacity. The larger the organization the more reasonable it will be to require the international transfer.
The person could alternatively be considered a manager. For that position, the applicant must: manage an organization or department; supervise and control other managers or professional-level personnel; have authority to make personnel decisions; and have discretion to make decisions about operations. As with executives, the size of the business is an important factor.
If this category sounds familiar it is because it is very similar to the L-1 nonimmigrant category, but with a few differences. Most important is that EB-1 culminates in permanent residence, immigrant status ("green card"), whereas the L-1 is a temporary, nonimmigrant status. EB-1s are only available to managers and executives, not to workers with specialized knowledge, which are available to L-1s. Also, unlike L-1s, the U.S. branch of the business must have been in operation for one year before petitioning for an immigrant manager or executive.
A foreign medical graduate (FMG) who receives graduate medical education on a J-1 visa is automatically subject to a two-year foreign residency requirement. This two-year period must be spent in the alien's home country or last country of residence. FMGs who receive a waiver of this requirement are allowed to remain in the United States. While there are several types of waivers, the most commonly used by FMGs are those based on a request from an interested U.S. government agency (IGA). Here are a few entities which could be the basis of the waiver:
The Appalachian Regional Commission (ARC) is a joint federal-state program that recommends waivers for primary care physicians only. The waiver request must be sponsored by a state within the ARC: Alabama, Georgia, Kentucky, Maryland,
Mississippi, New York, North Carolina, Ohio, Pennsylvania, South Carolina, Tennessee, Virginia, or West Virginia. To qualify, the place of employment must be located in a Health Professional Shortage Area, the physician must agree to work a minimum of 40 hours a week for three years, and the employment contract cannot include any estrictive clauses.
Delta Regional Authority (DRA) serves a 240 county/parish area comprising parts of Alabama, Arkansas, Illinois, Kentucky, Louisiana, Mississippi, Missouri, and Tennessee. The program is available to both primary and specialty care physicians. Physicians seeking a waiver must commit to providing medical care for three years or more, and for at least 40 hours per week in a Health Professional Shortage Area or Medically Underserved Area/Population. There is a fee payable to the government entity of $3,000 to apply for this waiver program.
Department of Health and Human Services (HHS) has two distinct programs. The first is the research waiver, which requires the physician to be involved in a program of national public interest and to be essential to the program's continuance. Because of the requirement that the physician be involved in a program, most physicians will need to be
engaged in a research project to qualify.
The second HHS program is available to primary care physicians working in underserved areas. Primary care training must be completed within a year of applying, which prevents those pursuing a specialty from using this program. The Veterans Administration (VA) facility employing the FMG makes the initial waiver request to a regional VA director. The request must include efforts to recruit U.S. workers and includes a statement from the facility director describing the proposed employment and how employment of the physician will help the facility address patient care needs.
Conrad State 30 program allows states to sponsor up to 30 FMGs for a waiver each year. While each state can regulate the program as it sees fit, some elements are the same for each state. The employment location must be in a Health Professional Shortage Area or Medically Underserved Area/Population, and the contract must require the physician to work 40 hours a week for three years. Some states will sponsor specialists, but the majority of positions in each state are reserved for those who will practice primary care only. Also, each state is allowed to use five waivers ("Flex Five") per year to sponsor physicians who will be employed outside federally designated shortage areas if they can demonstrate that they will be serving the residents of shortage areas.
Waivers for physicians are needed in order to acquire immigrant and some nonimmigrant statuses in the U.S. To do this seamlessly without physical interruption of stay in the U.S., the waiver should be started well in advance of the immigrant petition process.
The M visa is available to students who wish to pursue a full-time course of study approved by U.S. Citizenship and Immigration Services (USCIS). To qualify for an M-1 visa, the course of study must lead to a specific educational or vocational objective. The student must engage in a full course of study, the definition of which depends on the type of institution. Note that most students come to the U.S. on F-1 students, which is a separate category than the M-1 with some of the same but many different attributes:
Community and junior colleges: A full course of study consists of at least 12 semester hours of instruction per academic term, except in cases where the student requires fewer hours to complete the course of study.
Other postsecondary schools, e.g. art institutes: A full course of study consists of 12 hours of study per week.
Vocational and nonacademic programs: A full course of study consists of at least 18 hours of study per week if classroom instruction is the dominant part of the course or 22 hours of study per week if the dominant part of the course is in a laboratory or workshop.
Vocational and nonacademic high schools: A full course of study consists of the minimum hours the school sets for progress toward graduation.
The student is issued an I-20 form by the school, which is necessary to apply for the M visa at a U.S. consulate. To apply for the visa, a student must present visa applications, I-20, passport good into the future, and proof of financial support. A prospective student who has not yet decided on a school and plans to visit more than one school can request a B-2 prospective student visa and can seek M-1 status from within the United States. Note, however, that if a prospective student does not make his/her intentions clear at the time of entry, USCIS could deny the application made to change to M-1 status in the U.S.
After receiving the M-1 visa, the student may travel to the United States. Upon entry, the student must present his/her passport, visa, proof of financial support, and I-20. If admission is granted, USCIS will keep one copy of the I-20 and return a copy to the student. If the student changes status within the U.S. once accorded M-1 status, studies at the appropriate vocational school may begin.
M-1 students are admitted for a period of one year or for the amount of time needed to complete the course of study. They also have a 30-day grace period in which to depart following completion of the course.
M-1 students are not permitted to change schools after six months unless there are circumstances beyond their control. Before six months are up, students may apply to transfer schools.
Failure to do any of the following will render the student out of status: transfer to a new school without submitting an I-539 form; enrolling in the new school before USCIS approves the transfer, unless 60 days have passed since submission of the application; and failure to pursue the full course of study at the approved school, as well as not violating criminal laws or other general admissibility issues. Students have limited ability to request reinstatement to M-1 status when they have violated their status.
To obtain an extension of stay, an application must be filed. The student must show that he/she has maintained valid M status and will continue to do so if the extension is approved. The extension may be granted for a period of up to one year or the length of time required for completion of the program, for a maximum of three years.
While M-1 students are not authorized to accept any employment, they are allowed to participate in practical training following the completion of their course of study. A request for practical training must be submitted no more than 60 days before the completion of studies and no later than 30 days after completion. An M-1 student may receive one month of training for each four-month period of study; however, the total practical training may not exceed six months.
Join Alice at ilw.com, the largest immigration portal on the internet, as she leads two teleconferences for universities and students titled "Back to School" on September 11 and October 30, 2008. Sign up by clicking here: http://www.ilw.com/seminars/julyB2008.shtm
Alice is also pleased to announce she will speak at the American Immigration Lawyers Assn. regular meeting at the Marriott Hotel in downtown Los Angeles on September 24, 2008. She will cover fraud and medical waivers in this seminar on Advanced Family Processing Issues. To attend click here:
http://www.socalaila.org/calendar/event_register1.asp?id=375&ch=9&y=2008
Check processing times or the status of a particular immigration case
Report your change of address to CIS
File your change of address electronically
Schedule a consultation with Ms. Yardum-Hunter
Until Winter, Happy Immigrating!
Sincerely,
Alice M. Yardum-Hunter
Certified Specialist, Immigration & Nationality Law
State Bar of California, Bd. of Legal Specialization
15915 Ventura Blvd., Penthouse #1
Encino, CA 91436
Telephone: (818) 609-1953
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