Immigration Law

Helping you find the best path to your goal.

What do most clients want from their Immigration Lawyer?

• Understanding the client’s goals.

• Identifying possible paths to reach those goals.

• Avoiding or overcoming obstacles along the way.

Immigration Law is extremely complicated, and there are no guarantees.

Good communication and cooperation increase the chances of getting good results.

About Bruce H. Weitzman

• Received my B.A. from Northwestern University and my J.D. from Harvard in the previous century.

• Litigation attorney for 22 years at global law firm McDermott Will & Emery, and formed Bruce H. Weitzman, P.C.

• Then partnered with a real estate developer and helped with his firm’s plans to enter the Japanese market;

• then partnered with one Japanese entrepreneur to create Global Prospect Partners LLC for various investment activities;

• then partnered with another to create global2j Co., Ltd., a finance & economics translation services company in Tokyo; and

• then partnered with Escorts Finance to create India’s first Legal Process Outsourcing firm, and trained lawyers for the LPO work.

• Then gave guest lectures at Indian universities and taught advanced Writing Skills to lawyers from India’s top law firms; and

• wrote Writing Skills for the Current Century, an acclaimed but not-yet-bestselling book, available on amazon.com.

• Later Of Counsel for 4 years at Global Migration Law Group PLLC, a business immigration law boutique.

• Now drawing upon all my skills and experience to help clients at Bruce H. Weitzman, P.C.

Click Here for Some Things to Know About U.S. Immigration Law

A trusted advisor with a full view of a complicated maze can suggest how best to proceed through the twists and turns to reach your goal.

But please do not get into an actual hot air balloon to cross a U.S. border!

Some things to know about U.S. Immigration Law:

Applying for a Visa

F-1 then H1-B

About 1.5 million international students are currently in the U.S. Most of them entered on an F-1 visa. The largest number of them, about 420,000, are from India.

As you may already know, students must be enrolled full-time in an approved academic program to qualify for F-1 status. They must be proficient in English or enrolled in courses leading to proficiency. They must have sufficient funds available for self-support during the entire time. They must maintain a residence abroad which they have no intention of giving up. And they may not work off-campus in the first academic year but may accept certain on-campus employment.

After that first year, students may engage in three types of off-campus employment:

• CPT (Curricular Practical Training)

• OPT (Optional Practical Training)

• STEM OPT (Science, Technology, Engineering, and Mathematics Optional Practical Training extension)

Employment must be related to the student's area of study and must be authorized by the Designated School Official before any work is started.

Applying the basic points can be complicated, and if they are not applied properly there can be unfortunate consequences. For example, students must be extremely careful about any period of what might be considered unemployment when they are in OPT or STEM OPT.

Also, especially in the current environment, students must be careful about their social media content and anything that might possibly be considered by anyone in any way a threat to U.S. national security.

International travel while in F-1 status can involve some special challenges. For example:

• Even when the student is outside the U.S., they must be attentive to how many days of unemployment they are accruing — so they don't exceed the number of days allowed.

• Also, students must think carefully about the documents they should carry when traveling outside the U.S., especially now. If a student leaves without all the documents that might be necessary, they might not be able to get back in.

Of course, students talk with other students, and sometimes they share information that is not entirely accurate — and this can sometimes turn out to have severe consequences.

For example, suppose a student proceeds with everything as if there is no urgency. When his OPT starts, he does not carefully keep track of the unemployment days he is accruing, which are strictly limited under the law. He does not know when the limit is exceeded. He does not realize that he has now violated his F-1 status and that this is a serious matter — and he probably has friends who tell him not to worry.

He hears stories about people like him who did not promptly go back home when they should and were not promptly removed by the U.S. government. He even hears stories about some people like him who went home and then returned to the U.S. without being challenged at the border. But such good fortune cannot continue forever, especially in the current environment. The next time the person in this example travels outside the U.S. and then tries to re-enter, he will probably be detained at the airport — and immediately deported — and permanently barred from entering the U.S. again.

The point here is that failing to comply with the law — including parts your friends feel are not very important — will probably end badly. Consider talking to a lawyer before bad things happen.

Now let’s suppose that a student is in the U.S. with their F-1 status, and they are on track to getting a degree. They know all about the work authorization available to students, and they know that the work authorization is limited, it is temporary, it will come to an end at some point. Even though they have many other things to think about, smart students start thinking as soon as possible about possible next steps. They know that when their F-1 status ends — and their temporary work authorization ends — they will have to leave the U.S. And if they might want to stay in the U.S., they start considering possible next steps — the sooner the better.

Fortunately, there are options for those students to consider. And the most popular option is H-1B.

As you may already know, H-1B is a temporary work visa for foreign nationals who have at least a Bachelor's degree or its equivalent in a certain field. The H-1B employer's proposed job opening must require theoretical or technical expertise in that field.

And a common path for F-1 students is to look for and find a good employer willing to offer a good H-1B job — and willing to file an H-1B petition before the student's F-1 status ends. But the search for such a good employer is not always quick and easy. Many students make their OPT decisions in light of H-1B possibilities.

Because the H-1B program attracts large numbers employers and prospective employees (called "beneficiaries"), USCIS each year conducts an electronic registration process (a "lottery") to determine which employers are allowed to file H-1B petitions.

The number of H-1B visas issued through the lottery is limited to 85,000 each year. Of those, 65,000 are called "regular cap" — and a further 20,000 are called "advanced degree exemption" for prospective employees who have earned a U.S. Master's degree or higher.

H-1B employers are either "Cap Subject" or "Cap Exempt." Cap-Exempt employers include higher-education institutions and affiliated non-profit organizations; governmental or non-profit research organizations; and private Cap-Subject employers who intend to place the foreign worker at one of those Cap-Exempt entities.

Cap-Subject employers must register their prospective H-1B employees in the lottery opening in early March and closing in about the third week of March. The results of the lottery are declared in the last week of March. By the end of March, employers are notified which of their prospective employees have been selected, and those employers are given 90 days to file their H-1B petitions.

When someone becomes a beneficiary selected through the lottery while their F-1 status is still valid at least until April 1 of that year — and if their prospective employer timely filed a petition requesting a change-of-status for them — they are allowed to stay and work in the U.S. until October 1 of that year, until their status changes to H-1B. This is called a "cap gap extension." But there are limitations on the beneficiary's travel while the employer's petition is pending.

There are other possible paths to H-1B. For example, if someone is or will be a business owner, they can apply for an H-1B work visa — and they won't need an employer to apply for them. Of course, there are additional legal requirements when someone is both the owner and an H-1B employee, and it's a good idea to discuss this with a lawyer.

When someone obtains H-1B status, they are allowed to work in the U.S. and there is an additional benefit. H-1B is a "dual-intent" visa — so they can legally pursue permanent residency by applying for a Green Card without jeopardizing their employment status.

However, that path to getting a Green Card can take an extremely long time. But there are other options that can be considered. For example, an EB-5 investor visa can more quickly lead to a Green Card for them and their family members, regardless of employment or further education. Consider talking to a lawyer about all this.

L-1 and Blankets

When a business owner wants to expand the business into the U.S. — and wants to have non-U.S. workers be transferred to the U.S. on a long-term basis — and the owner has formed or is about to form a U.S. entity for this, L-1 is the most commonly used visa option.

To get an L-1, there must also be an abroad entity that has been doing business for a sufficient number of years — and there must be sufficient support from the abroad entity to the U.S. entity — and there must be a qualifying relationship between the two entities.

When the U.S. entity is ready to transfer a non-U.S. worker to the U.S., it must first file an L-1 petition with USCIS. The petition can be either an L-1A (for a manager or executive position) or L-1B (for a specialized-knowledge position). The non-U.S. worker must have worked for at least one year out of the three years immediately before the filing of the L-1 petition. Any time that the non-U.S. worker travels during that one-year period will be subtracted in considering whether the requirement has been met.

After the petition is approved, the non-U.S. worker can apply for an L-1 visa at a U.S. Consulate abroad and then enter the U.S. with the L-1 visa stamp in their passport. The worker's spouse and children under the age of 21 qualify for a related visa called an L-2.

If the U.S. entity can qualify for a "Blanket L" approval, it does not have to go through the expensive, time-consuming process of filing a separate L-1 petition with USCIS each time a non-U.S. worker is transferred into the U.S. Instead, a petition for each worker is filed directly with the applicable U.S. Consulate, and each of those workers goes through a Blanket L interview at the Consulate, conducted by a U.S. Consular officer.

To get a Blanket L, the U.S. entity must have three or more branches, subsidiaries, or affiliates, whether domestic or foreign, with combined annual sales of at least $25 million. Companies that qualify typically find that having a Blanket L is worth the effort.

EB-1A or/and EB-2 NIW

F-1, H-1B, and L-1 are non-immigrant visas for a limited duration. People who want to stay in the U.S. permanently have a number of options. Two of them are similar to each other but not identical — EB-1A and EB-2 NIW ("National Interest Waiver"). (“EB” means the visa is Employment Based.) Some applicants may decide to pursue both of those paths at the same time. It's one of the many things an applicant usually discusses with their lawyer.

EB-1A

For an EB-1A immigrant petition, an applicant must be one of the few at the top of their field and have achievements that will sufficiently impress USCIS. The applicant must show they have been recognized for their "Extraordinary Ability" in science, art, education, business, or athletics — and they intend to continue to work in their field of expertise — and this will benefit the United States.

This is relatively easy to do if:

(a) the person has won an Oscar, a Pulitzer Prize, an Olympic medal, or other major internationally recognized award; and

(b) the person will continue to work in their area of expertise.

But if an applicant does not have that type of impressive one-time achievement, they must meet other multiple criteria listed by USCIS. No offer of employment or labor certification is required.

To get an EB-1A immigrant petition approval, the applicant will typically need the help of a lawyer —

• when deciding exactly how to describe the field of expertise;

• when preparing the relevant and persuasive recommendations that will be needed from experts in the field;

• when gathering evidence showing the extraordinary things achieved so far;

• when gathering evidence showing how the applicant will continue to do similar sorts of things in the field in the future; and

• when preparing a comprehensive memo likely to persuade decision-makers at USCIS that the EB-1A petition should be approved.

What the EB-1A petition says about who knows the applicant — and who the applicant knows — is also important. It sets the tone of the petition.

EB-1A is especially attractive for people from India who have been waiting for many years to file for a Green Card in other employment-based categories such as EB-2 (for certain professionals with advanced degrees or having exceptional ability) and EB-3 (for certain skilled workers, professionals, or other workers).

An applicant does not need an employer or sponsor for EB-1A. The applicant can “self-sponsor.” But it is more difficult to show how the applicant will succeed in the future without an employer.

The EB-1A process encourages the applicant and their lawyer to work together as a team. Together they compile essential documents — and obtain necessary letters of recommendation — and find experts to provide impressive expert opinions. And the lawyer helps the applicant stay away from anything that USCIS might consider to be fabricated.

The EB-1A process involves the preparation of a long persuasive memo, presenting a compelling narrative in support of the applicant's petition. The memo should be structured in a way that flows smoothly from each of the EB-1A criteria to the next. The content of the memo should go hand-in-hand with the legal requirements.

If USCIS has questions or doubts about a petition, it is likely to issue to the applicant a “Notice of Intent to Deny” or an “RFE” (Request for Additional Information) — and the applicant's lawyer would then be expected to provide a response that is detailed and persuasive.

When the petition is approved, certain family members may be eligible to apply for admission to the U.S. in E-14 immigrant status (for the spouse) or E-15 immigrant status (for unmarried children under the age of 21).

EB-2 NIW

For EB-2 NIW, a professional must show that they either (1) have an advanced degree, higher than a Bachelor's degree, or (2) have Exceptional Ability — "a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business."

And what is the difference between that "Exceptional Ability” for EB-2 NIW and the "Extraordinary Ability" required for EB-1A? It is widely believed that the EB-1A standard is higher. And the processing time for EB-2 NIW has historically been longer.

For the advanced-degree part of EB-2 NIW, a U.S. Bachelor's degree or foreign equivalent, followed by at least five years of progressive experience in the specialty, is considered to be the equivalent of a Master's degree. The offered position must be a professional occupation.

Eligibility for a National Interest Waiver (NIW) has three prongs:

• evidence that your endeavor has substantial merit and national importance;

• evidence that you are well-positioned to advance your endeavor; and

• evidence that on balance, it would be beneficial to the United States to waive the job offer and the Permanent Labor Certification requirements.

While not required, letters from interested government agencies or quasi-governmental entities in the U.S. (for example federally-funded research and development centers) can be helpful evidence and, depending on the contents of the letters, can be relevant to all three NIW prongs.

A basic EB-2 immigrant petition (without an NIW) usually requires going through the Program Electronic Review Management (PERM) process and getting a Labor Certification from the Department of Labor before the petition can be filed. PERM is a multi-step, time-sensitive process, and an applicant almost always asks their lawyer to help with this.

An EB-3 immigrant petition is for (1) professionals with at least a Bachelor’s degree or foreign equivalent; (2) skilled workers where the position requires at least two years of training or experience; and (3) unskilled workers with less than two years of training or experience. EB-3 usually requires completion of the PERM process.

To file any immigrant petition, the applicant does not need to be in the U.S. The filing and approval of the EB immigrant petition does not confer any immigration status. A further step is required. If the applicant is in the U.S., they can file a Green Card application, Form I-485. And while that application is pending, the person can stay in the U.S., with the status of “Green Card Application Pending,” until the Green Card is issued or denied. If it is denied, and the applicant does not have any other status to remain in the U.S., the applicant must depart the U.S.

If the applicant is outside the U.S., they can apply at a U.S. Consulate abroad for an “Immigrant Visa” to enter the U.S. However, the applicant cannot file the Form I-485 or the application for an Immigrant Visa abroad until they have a visa immediately available, based on their EB category. For many applicants from certain countries, there is a multi-year wait before the visa is available to them to apply for a Green Card.

An applicant usually discusses all this and more with their lawyer.

EB-1B

An outstanding professor or researcher might be able to get a Green Card at the end of the EB-1B immigrant petition process. The person must be internationally recognized for their outstanding achievements in a particular academic field. They must have at least three years experience in teaching or research in that field. They must be entering the U.S. to pursue tenure or tenure-track teaching or a comparable research position at a university, institution of higher education, or private employer.

To demonstrate that the person is an outstanding professor or researcher, they must meet at least two of six specified criteria, or comparable evidence if any of the criteria do not readily apply. Because USCIS uses very high standards for EB-1B, it's a good idea to try to present as much evidence as possible regarding as many of these criteria as possible:

• Receipt of major prizes or awards for outstanding achievement;

• Memberships in associations that require members to demonstrate outstanding achievement;

• Published material in professional publications written by others about the person's work in the academic field;

• Participation, either on a panel or individually, as a judge of the work of others in the same or allied academic field;

• Original scientific or scholarly research contributions in the field;

• Authorship of scholarly books or articles (in scholarly journals with international circulation) in the field.

The person must also have an offer of employment from the prospective U.S. employer.

A private EB-1B employer must show documented accomplishments and that it employs at least three full-time researchers. No labor certification is required.

The EB-1B process encourages the applicant and their lawyer to work together as a team.

EB-1C

EB-1C is for certain multinational managers or executives. The applicant must have been employed outside the U.S. for at least one year in the three years preceding either the filing of the petition or the most-recent lawful non-immigrant admission if the person is already working for the U.S. petitioning employer.

The U.S. petitioning employer must have been doing business for at least one year, must have a qualifying relationship with the entity the individual worked for outside the U.S., and must intend to employ the individual in a managerial or executive capacity. No labor certification is required.

EB-1C is generally a segue — a transition without interruption — for employees who are in the U.S. on a non-immigrant L-1A status. The legal requirements for both L-1A and EB-1C are similar. Also, there may be an option for an employee who has L-1B specialized knowledge status in the U.S. Employees usually discuss this with a lawyer. The EB-1C process encourages the applicant and their lawyer to work as a team.

EB-5

USCIS administers the EB-5 Program that allows investors (and spouses and their unmarried children younger than 21) to apply for a Green Card if:

(a) they make the necessary investment in a commercial enterprise in the U.S.; and

(b) a plan exists to create or preserve 10 permanent full-time jobs for qualified U.S. workers.

The Green Card is typically received in about 1½ to 2 years, and there is no need for further education or employment. Currently, the Green Card application can be filed along with the EB-5 petition — and this includes receiving work authorization and travel permit usually within 3 to 6 months of filing.

EB-5 requires from the investor a lot of money, all derived through lawful means, for an at-risk capital investment of $800,000 to $1,050,000 — in addition to the substantial attorney fees and expenses to be paid by the investor. The EB-5 investor might receive some modest monetary return on their investment — but they typically are most interested in the significant non-monetary benefits that come with having a Green Card.

In assembling the money to be invested, the investor can use loans or gifts from family members and friends, as long as each amount loaned or gifted was derived through lawful means.

The most popular form of capital investment involves investing in a real estate project through a "Regional Center" approved by USCIS based on proposals to promote economic growth. Depending on the project, such investments can be made in installments.

Typical Regional Center EB-5 projects have a projected repayment timeline of 5 to 7 years, often after the investor's conditional residency period ends and the project achieves its job-creation goals. However, investors are not given any repayment guarantees. EB-5 investments must be "at-risk."

If a potential EB-5 investor does not want to start residing in the U.S. immediately, the EB-5 can be in the name of one of their children — and then the child can live, work and/or study anywhere in the U.S., with benefits such as potential in-state tuition and scholarships — and family reunification in the U.S. can be a possibility at a later point.

Green Card holders are considered U.S. tax residents, and this has many aspects. One is that they can be subject to U.S. income tax on all their income, regardless of where it is earned. But compared to other options, EB-5 can be a simpler, more straightforward path to permanent residency in the U.S.

International Entrepreneur Rule

The U.S. Department of Homeland Security (DHS) has authority under the International Entrepreneur Rule (IER) to grant a period of authorized stay, on a case-by-case basis, to entrepreneurs from other countries who show (1) that their stay in the U.S. would provide a significant public benefit through their business venture, and (2) that they merit a favorable exercise of discretion. This period of authorized stay is called “parole.”

Those entrepreneurs are eligible to work only for their startup business. The entrepreneur's spouse and children may also be eligible for parole.

Here are more details from USCIS:

• Entrepreneurs may be either living abroad or already in the U.S.

• Startup entities must have been formed in the U.S. within the past five years.

• Startup entities must show substantial potential for rapid growth and job creation by showing at least $311,071 in qualified investments from qualifying investors, at least $124,429 in qualified government awards or grants, or alternative evidence.

• The spouse of the entrepreneur may apply for employment authorization after being paroled into the U.S. (Children are not eligible for employment authorization.)

• The entrepreneur may be granted an initial parole period of up to 2½ years. If approved for re-parole, based on additional benchmarks in funding, job creation, or revenue, the entrepreneur may receive up to another 2½ years, for a maximum of 5 years. At that point or earlier, there are other options for the entrepreneur to work in the U.S.

• Up to 3 entrepreneurs per startup can be eligible for parole under the IER.

Applicants for IER parole usually discuss all this with their lawyer.

How to Learn More

Ask more questions. We can help.

And by the way, comedian and real-life immigrant Felipe Torres Medina recently wrote a great book: America, Let Me In. (It’s available on amazon.com.)

The book tells entertaining stories about the U.S. immigration system and includes information about many types of visas. But first, readers are asked to “Select a Difficulty Level,” to introduce discussions about how difficult legal immigration can be — and four alternatives are listed on page 9. The first one says: To come to America the “easy” way, turn to page 11. And when you turn to page 11 it says:

There is no easy way to move to America….

THE END

RETURN TO PAGE 9

But whether an immigrant’s path is easy, medium, hard, or very hard, every year large numbers of people very much want to come to America. Why? Mr. Medina’s book says this in its final chapter: