Providing Immigration Solutions for Employers & Individuals
Providing Immigration Solutions for Employers & Individuals
Providing Immigration Solutions for Employers & Individuals
Providing Immigration Solutions for Employers & Individuals
Immigration Solutions for Employers, Families, and Individuals
J-1 Visa Immigration Lawyers | Foreign Exchange Visitor Visa
What is a J-1 Visa and Who Qualifies?
A J-1 visa allows foreign nationals to come to the US to participate in an exchange program to promote the sharing of knowledge and skills in education, arts, and sciences.
In summary, to be eligible for a J-1 visa, you must
i) be coming to work, study, teach, train, or consult in a specific exchange program approved by the Department of State (DOS) through its Bureau of Education and Cultural Affairs,
ii) have been accepted into the program,
iii) have enough financial ability to cover expenses in the US, and
iv) have sufficient knowledge of English to participate in the program.
The DOS has approved over 1500 exchange programs. Some of the applicants eligible for J-1 visas are: students, teachers, professors, trainees seeking on-the-job training at companies or agencies, international visitors entering the US demonstrate specialized skills, Au Pair domestic workers for host families, and professional trainees in the medical field, including medical school graduates (foreign physicians).
Knowledge of English is proven by taking and passing the Test of English as a Foreign Language (TOEFL), unless the foreigner is from country where English is an official language.
Proof of financial support can generally established an affidavit of support including the affiant’s financial documents, and financial documents of the foreign national’s proving that there are sufficient funds available to cover the expenses for one year of studies.
When can I Obtain a J-1 Visa?
There are no limits set on the number of J-1 visas which may be issued every year; therefore one may apply any time of the year. You would apply at the consulate and the visa is usually issued within a month or two from the date the application is submitted.
What are the Benefits and Limitations of J-1 Visas?
You may enter the US up to 90 days before your authorized program begins. While on J-1 status, you even study part-time, as long as it does not interfere with your program. J-1 dependents may also obtain work authorization as long as employment is not used to support the principal J-1.
The duration of stay depends on the type of program you will be participating in. For example, many trainees may stay for the duration of the program, plus 18 months of practical training. Teacher programs can last up to 3 years. International cultural exchange visitors can stay for 1 year. Foreign medical students can stay in their internship/residency for up to 7 years.* There is a 30 day grace period. The main drawback in J-1 is the 2-year home residency requirement. In many J-1 visa programs, you must return to your home country for 2 years before you can apply for admission to the US, change status, or apply for a green card.
May I Apply for a Waiver to the 2-year Home Residency Requirement?
The home residence requirement may be waived under the following methods:
i) a no objection letter from the foreign national’s home country’s government, (about 5 moths to process)
ii) Interested US Government Agency (IGA, which is a U.S. government agency that financially supports your program or has a strong interest in your area of research or study) requesting that the DOS waive the requirement in which the DOS and USCIS must agree, (around 4.5 months to process)
iii) fear of persecution upon return to home country, (around 8 months to process)
iv) hardship to a US Citizen spouse or child, (around 8 months to process) or
v) a designated state health agency requests a waiver on behalf of doctors who have been offered a full-time position with a medical facility serving areas with a shortage of medical professionals. Waiver procedure and timing to file vary. You should generally apply for a J-1 waiver at least 6-12 months before the end of your residency program if you are a physician.*Note that a waiver is generally not available to medical residents or interns who received medical training in the US, and foreign medical graduates sponsored by the Educational Commission for Foreign Medical Graduates can not apply for a waiver based on “no objection.” Medical residents should try for H-1B Visa ideally, unless your program does not sponsor H-1B visas or if you have not passed USMLE Step 3, which is required for H-1B visa issuance
What is the Attorney’s Role in a J-1 Waiver Application?
Once you enter the US on J-1, and decide you wish to return, change status, you may need to apply for a waiver to the 2-year home residency requirement. Waivers, such as the hardship waiver, are granted based on discretion of adjudication officers, therefore they should be prepared with care. An attorney will be able to ensure the necessary documentation is provided in a waiver application, and is able to assess the chances that a waiver will be successful.
An attorney may be of assistance in preparing a change of status application in the US, but otherwise, an attorney is generally not involved in assisting those who are overseas seeking admission in J-1 status. No legal assistance would be required for J-1 extensions. For effectuating an extension, you should contact the responsible officer of your program.
Contact Us
To discuss J-1 visas and other alternatives with an experienced immigration lawyer from the Shah Peerally Law Group, feel free to contact us by email or call us at 510-742-5887.
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The United States has created an immigration solution for companies with subsidiaries, affiliates, and branches around the world. The L-1 classification allows foreign nationals employed outside of the U.S. to enter the U.S. and work for a qualifying subsidiary, affiliate, or etc. There are two types of L-1 classifications available: (1) L-1A, for individuals employed in a managerial or executive capacity, and (2) L-1B, for individuals with specialized knowledge capacity.
Today, transnational corporation commonly have numerous subsidiaries, affiliates, and branches throughout the world. Subsequently, companies may need to temporarily transfer a high-ranking or uniquely talented employee to an affiliate in another country to handle some specialized business.
Generally, the USCIS initially grants an individual L-1 status for three years. However, an individual’s L-1 status will initially last only one year if he or she is entering the U.S. to work for a start-up company. Once in L-1 status, an individual can extend their status after the initial period expires. Individuals in L-1A status can extend their status for up to seven years, while individuals in L-1B status can extend their status up to five years. Note that since all employees are hired on an “at-will” basis, the L-1 U.S. employer is not required to retain the employee for the entire seven or five year period. Finally, if the employer/employee relationship endures for the entire L-1 period, the individual must spend one full year outside of the U.S. before her or she is eligible to apply for a new period of L-1 status.
Once granted L-1 status, an individual’s spouse and children are eligible for L-2 derivative status. Individuals in L-2 status are not authorized to work unless they apply and receive an employment authorization card (EAD). However, the USCIS allows individuals to attend a U.S. school without changing his or her immigration status.
Requirements
An L-1 candidate must provide the USCIS with (1) proof of employment with a qualifying U.S. company; (2) proof that the L-1 employer generates sufficient business to employ the candidate; and (3) evidence that the candidate will be engaged in a “managerial or executive capacity” or “specialized knowledge capacity.” These three requirements are explored in further detail below.
Proof of Employment with a Qualifying Company
The L-1 candidate must be employed with the petitioning company’s affiliate, parent, or subsidiary for a continuous period of one-year within the three-years prior to filing the petition or entry into the U.S. This employment must have been in either a managerial/executive capacity or specialized knowledge capacity.
The candidate then must submit the required supporting documentation about the petitioning employer:
* Evidence that the company abroad and the petitioning company are related. The critical issue is whether either of the companies exercise control over the other company. This is a relatively flexible requirement, as even a 50/50 joint venture qualifies;
* Detailed written description of the petitioning company’s business, including its history, facilities, resources, and organization;
* Description of the company’s employees along including job titles and duties;
* Evidence that the company will continue to do business abroad during the candidate’s U.S. employment; and
* Documents evidencing the company’s corporate organization and long-term financial viability.
Doing Business in the United States
The L-1 candidate must also include evidence that the petitioning company is engaged in sufficient business to employ the candidate, including:
* Detailed description of the company’s U.S business, including history, number of employees, locations, and any marketing materials. This is especially important if the company is a start up business;
* Corporate documents such as financial statements, incorporation documents, and SEC reports;
* Evidence of assets such as corporate bank account statements;
* Copies of lease or purchase options for buildings or spaces;
* Detailed description of the company’s employees, including resumes, job titles, and job offer letters; and
* Name and title of officer who will sign forms.
Managerial or Specialized Knowledge Capacity
After the candidate establishes proof of employment with a qualifying U.S. company, he or she must submit documentation that the candidate qualifies for either an L-1A or L-1B classification.
The candidate qualifies for an L-1A classification if (1) he or she is employed in a “managerial” capacity, meaning that the candidate primarily supervises or controls the company’s day-to-day operations, or (2) he or she is employed in an “executive” capacity, meaning that the candidate makes the company’s overall business and policy decisions.
An L-1B classification may be appropriate if the candidate possesses “specialized knowledge” essential to the company’s business affairs. This is a relatively broad classification as it can include specialized knowledge of a company’s machinery or operations, or if the individual has expert knowledge on a a company’s processes and organization.
Additionally, L-1A and L-1B candidates may also include the following supporting documentation:
* Evidence of higher education, including degrees, diplomas, transcripts;
* Detailed resume evidencing the candidate’s continuous employment with the company for one-year within the three-years preceding the filing of the petition;
* Evidence that the candidate was employed in either a managerial/executive or specialized knowledge capacity abroad, and that the candidate will continue this employment in the U.S.;
* The candidate’s salary/compensation abroad and in the U.S.;
* Corporate organizational charts detailing where the candidate is employed in the corporate hierarchy;
* Copies of passports and any other supporting documentation.
Filing Procedures
To apply for L-1 status, the candidate must file an I-129 form with the USCIS, along with the supporting documentation listed above. Note that individuals employed outside of the U.S. are advised to attain an L-1 visa before her or she begins employment with a U.S. affiliate. This is because although an individual may be granted L-1 status, that does not necessarily mean an individual has an L-1 visa. Therefore, though the individual may be allowed to stay in the U.S., he or she cannot travel until they get a visa at the appropriate consulate. To avoid any such inconveniences or legal problems, individuals should obtain a visa before beginning employment in the U.S. This is why it is recommended to hire a good lawyer to assist you in the process. The Shah Peerally Law Group PC has been providing L1A and L1B immigration solutions for many years, feel free to contact us at 510 742 5887.
The preparation of an L1 visa or any kind of visas requires a good understanding of immigration laws and regulations. There are other important issues not covered in this article regarding L1 visas such as the petition to obtain a work permit for L2 dependents and L1 blankets. One should consult a licensed and experienced immigration lawyer before moving forward with any immigration case(s)
If you have any questions or concerns, you should contact an experienced immigration attorney for further details. Our office has prepared many similar applications, feel free to contact us on (510) 742 5887, should you need any additional information.
The information contained in this article is provided for informational purposes only, and should not be construed as legal advice on any subject matter. No recipients of content from this article, clients or otherwise, should act or refrain from acting on the basis of any content included in the article without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from an attorney licensed in the recipient’s state.
1) My wife recently got H1b on October and basically for two months she didn’t have a job and November last week she got a job, so I just want to know how if she doesn’t have paystubs for November and October is that ok or how is that?
- Ok did she transfer?
- No, that was a finished h1b and early the project was dead and then later on it was scraped out.
- Ok the first month of the H1b, there’s no real requirement to have what we call a paystub, but after that there might be a problem at a later stage but it’s not about the monthly paychecks, but what they are looking at meeting of the requirements of the total what they are suppose to pay up, for example, let’s say they’re going to pay $100,000 at the end of the year it has to show $100,000, so the reasons they want the check stubs to show that you maintained status in this case it may be a problem but one way to reset is that leave the country and come back, its only one month that they need the paycheck stubs. Later on, when you apply for GC they can come back and question the maintenance of status.
2) My GC is filed under EB category and I been waiting for last 6 years and I’m about to make a decision to do a job change to a new company what would you recommend to file an new H1 transfer or should I go on EAD?
- Well you don’t really have to; your I-140 is approved right?
- Yes, I-140 Approved
- If you’re I-140 is approved then you are not obviously qualified for EB2 probably or even if you do there are few reason why people go on H1b but I always recommend to use your EAD, but there are few reasons for one, for people, for example, who don’t feel like there I-140 is secured, just to let you know once you’re I-140 is approved and 180 days have passed (after filing of the adjustment of status I-485) the previous company cannot revoke the Form I-140, that means you can keep that and move under AC21 (American 21st Century Act ) you can move to another company on EAD.
- Now the question should you keep the H1B? Are you married? Your wife also has EAD?
- Yes I’m married, yeah she is working on EAD
- Then you don’t really need to go on H1b, that is not required, the only reasons I would ask you to do that if you feel like there is some problem with the company and there might be a chance down the road that an I-140 is revoked, not based on the company own stuff but based on the government thinking that there was fraud or something involved but if that’s not the case you don’t need to keep the H1b going and how many years of H1b have you had going so far? Then the other reason is if your spouse need an H4 because the spouse was not able to get an EAD (priority dates not current).
- I have completed 6 years on H1b and I got extension with the present company for 3 more years.
- And when is it Expiring?
- 2015
- Well this is how it works you don’t really need to do that but if at a later stage you need h1b before 2015, you can actually use that do a transfer and keep that 2015 priority date even if I-140 is revoked and if not revoked you can use it to extend with another I-140 you can extend a new h1b, but honestly you don’t really need it. In this case, it is something your can decide depending on how strong is the company who file for your I-140.
- I can change the job on EAD is that what you’re saying?
- Yes, EAD let me explain to you what you are doing right now, EAD is a work permit you can work anywhere actually, you can work at night at another company which is not related, but the AC21 which is parking of the GC, I call it the parking because you need to have the company to go back to , when the GC comes in your hand so that is why the AC 21 is just a parking you have to go there when you get the GC, there is nothing that prevents you from going back to company A, but we need to do AC21 letter, then you can transfer it’s not really a transfer its just your taking the GC from company A and parking it with company B. So the answer is yes you can go ahead and move on the EAD.
- And my educational qualification is 3 years in Bachelors degree in India so that’s why I’m not qualified.
- That’s why you’re not going to get EB2, Keep it on EB3 but make sure your moving to same or similar position.
3) I have a question starting a business in US I’m on H1, am I able to start a consulting company?
- Not really because, the answer is yes and no – you can own a company but you cannot be active in the company like for example you can own shares in Microsoft but you’re not going to be active in the company so its dormant so that’s allowed but if you’re going to do like daily work like signing checks taking orders and things like that no its not allowed – you’re in violation of your H4 this is why we are very upset because the law just locks people on H4.
- Ok, can I even hire the people?
- The problem is what do you consider active, let’s say you set up the system and then you just own the company your just the share holder, you don’t get involved in the day to day running of the business you should be fine but the problem is that if the immigration look at it will say – ok how did you do that? You have to talk to the people owning your business, you have to do the accounting, and you have to do things like that then you are in violation of the H4, so it is very difficult to run a small business on H4. Even if the law allows you to own a business you cannot be participating in it but there is no loophole really because if there was one people would have taken it. I have a very good article on this H4 options on my website www.peerallylaw.com you can read about it, but technically you cannot have a small business because you will have to be active in it.
- Even on H1?
- H1 same problem, unless there’s an H1 attached to that company, you’re not technically allowed to do any kind of active role, you cannot be a director you can not be in a marketing role, you cannot be in sales, many people ask me well how will they know, well that’s an different issue, that’s a matter of proof, if you lie, it is your call, but we don’t advise anybody to lie, but that’s the way that visa is designed, even working remotely while you’re sitting in US can be a problem.
4) I have a question regarding transfer of a status, so when I apply change of status from H1b to F1 from within staying in the US it might take between 3-6 months but does my current employer gets notified or it can affect my current status in any way.
- Ok you’re on H1b right?
- Yes
- Ok there are 2 rules if you’re transferring from one H1b to another under AC21 rule you can start working on the same day you file the transfer even if it is not approved.
- Second rule no they don’t get notified what is happening it goes only with the new company, now if you don’t want to move before it is approved then do premium processing and then as soon as its filed even the employer knows about it and they send a cancellation notice on your current H1b so it doesn’t matter because the transfer has already passed.
- No sir I’m asking from H1b to F1
- Oh yes, no they don’t get informed about it, so you stay on H1 until the F1 is approved, but sometime they might send a letter by mistake to your employer but no they cannot because it has nothing to do with the employer .
The information contained in these answers is provided for informational purposes only, and should not be construed as legal advice on any subject matter. No recipients of content from this article, radios shows, clients or otherwise, should act or refrain from acting on the basis of any content included in the article without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from an attorney licensed in the recipient’s state. Shah Peerally is the managing for the Shah Peerally Law Group PC located in Newark CA. The office main area of practice is Immigration law www.peerallylaw.com Ph:510 742 5887
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No – contrary to popular belief, one does not have to be physically abused to file under VAWA. Mental, physical or even prevention of filing the right immigration papers can be construed as abuse. VAWA is a powerful legislation and it helps women, children and men. The provisions of VAWA (Violence Against Women Act) can also be used in situations of removal of conditional residence – Form I-751.
You should call our office on 510 742 5887, we will be glad to evaluate your case.
No, however, you have only two years after the anniversary of the finalization of the divorce to file the petition. Please make sure that you are filing under the prescribed time.
VAWA is one of the most powerful legislation, however unless you take advantage of it on time, you might miss the chance. Note that your spouse has to be a US Citizen or permanent residence to benefit from the Violence Against Women Act.
In case you are victim of domestic violence, and it was reported to the police, and your spouse is not a US citizen or permanent resident, you might be able to opt for the U Visa.
In case you are victim of domestic violence call 911. And if you want to get some possible immigration benefits, feel free to call us at 510 742 5887
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