A.
A Few General Remarks.
1. According to the U.S. law,
immigration is a privilege granted by American authorities to a
foreigner. This privilege can be denied to those who are not U.S. citizens,
even if it had been granted to them before.
2.
The United States
Citizenship and Immigration Service (USCIS) may deny entry to the USA even to
people who had lived here dozens of years as legal resident aliens. USCIS,
therefore, can deny a request for a visa from a foreigner who does not
possess such status. There can be no guarantee as to
the outcome of any immigration
case, because USCIS has almost complete discretion in this area.
В. Entry with a Non-Immigrant Visa
The most interesting and popular visas
to live and work in the USA
among our clientele are visas E1/E2 and L-1A/L-1B.
1. Non-immigrant visa L-1.
This visa is used by international companies to bring in managers (L-1A) and
highly qualified specialists (L-1B). The maximum terms of validity are seven
years and five years, respectively, but often the visa is issued for up to three
years with the option to extend. A visa can also be issued for a new
entity which is a branch of an existing and established foreign firm, but
USCIS is very strict with this type of application; those visas are issued
- if at all - for one year only. After that, in order to obtain
their extension, the US
entity must present clear evidence of viability of the new US business.
L-1 is a "dual intent" visa which allows the applicant not to declare
his intent to return to his own country. Visa L-1 holders and their
immediate family members can become permanent residents of the United States
by applying for and being qualified as EB-1C immigrants.
2. Non-immigrant Е1/E2
visas.
These visas are issued on the basis of an existing "qualifying
treaty" between the applicant's country and the United States. At least 50%
of the company stock must belong to a citizen of a "qualifying
treaty" country; only citizens of that country can obtain visa E1 or E2.
The qualifying treaty may be of one of two varieties:
Visa Е-1 is for
countries maintaining a treaty of commerce and navigation or a bilateral
agreement of this nature with the U.S.; and
Visa Е-2 is for nations
having a mutual investment treaty with the United States.
Visa E1 and E2 holders cannot obtain the status of permanent resident of the United States,
but they have certain advantages - for example, there is no limitation on the
number of visa extensions.
3. Non-immigrant visas H-1B and H-2B.
These visas can be obtained only when a potential client has a qualifying job
offer in the United States
and the parties agree to our legal representation of both the visa
applicant and his/her employer. The particulars of our work on either
visa as well as the USCIS requirements will be explained during an exploratory
consultation.
4. Non-immigrant visas "F", "J",
"О", and "Р".
Those require the applicant to declare his intent to return to his own country
before entry in the United
States.
Visa "F" is a "student visa.” It is issued to those
wishing to obtain an education in the United States (but not with US
government funds) and for the duration of the course of intended studies.
The applicant must demonstrate ability to pay tuition and coincidental expenses
(books, room, board, student fees, etc.) for himself and his family (if they
accompany him to the US) for
at least one year. Usually, the "F" student is not allowed
to work during the course of studies, but there are exceptions.
Visa "J" is issued to those aliens who come to America in conjunction with an
established scientific, educational, or cultural exchange program.
It also can be used to obtain an education and has no limitation as to the
origin of funds ( e.g., grants from the US Government can be used).
However, in this case a two-year foreign residence requirement would usually
prevent the J-1 visa holder from staying in the US after the course of studies is
completed and/or applying for a permanent resident status.
With regard to the level of applicant's professional skills, visas
"O-1" and "P-1" are analogous to the EB-1A
requirements. Therefore, if an applicant plans to settle in the US, it's
preferable to proceed with the EB-1 petition.
5. Non-immigrant "K" visas.
The
number of “fiancé” visas processed by our firm increases steadily from year to
year and has become an important part of our immigration practice. Therefore, the
information below may prove useful to some visitors of our site.
FIANCE(E) CLASSIFICATION
To establish K-1 visa classification for an alien fiance(e), an American
citizen must file a Petition for Relative or Fiance(e), with the Regional
Service Center of USCIS which serves the place of petitioner's residence in the
United States.
The approved petition will be forwarded by USCIS to the American consular
office where the alien fiance(e) will apply for a visa. A petition is valid for
a period of four months from the date of USCIS action, and may be revalidated
by the consular officer.
VISA INELIGIBILITY/WAIVER
Applicants must be refused a visa if:
they have a communicable disease;
they have a dangerous physical or mental disorder;
they are drug addicts;
they have committed serious criminal acts (including crimes of moral turpitude, drug trafficking,
and prostitution);
they are likely to become a public charge;
they have used fraud or other illegal means to enter the United States;
they are ineligible for citizenship.
The
two-year foreign residency requirement for former exchange visitors also applies.
If an applicant is found ineligible, the consular officer will advise the
applicant whether the law provides for a waiver.
APPLYING FOR A FIANCE(E) VISA
Upon receipt of an approved petition, the American consular officer will notify
the beneficiary and give him or her the necessary forms and instructions to
apply for a "K" visa. Since a fiance(e) visa applicant is an
intending immigrant, he or she must meet most of the same requirements of an
immigrant visa applicant.
In addition to the prescribed application forms, the following documents are
normally required:
- Valid
passport
- Birth
certificate
- Divorce
or death certificate of any previous spouse
- Police
certificate from all places lived since age 16
- Medical
examination
- Evidence
of support (including Form I-134, recent income tax returns, banks
statements)
- Evidence
of valid relationship with the petitioner
- Photographs
The
petitioner may establish his/her American citizenship either through a birth
certificate evidencing his or her birth in the United States or through a
Certificate of Naturalization or Citizenship.
OTHER DOCUMENTATION
Both petitioner and beneficiary must be legally able and willing to conclude a
valid marriage in the United
States. They must have previously met in
person within the past two years. The fact of their meeting may be established
by photos of the petitioner and beneficiary together, airline tickets, entry
stamps in passports, etc. In rare circumstances the Attorney General may waive
the requirement of the parties’ meeting in person. As soon
as the processing of a case is completed and the applicant has all necessary
documents, a consular officer will interview the fiance(e). If found eligible,
a visa will be issued, valid for one entry during a period of six months.
ENTRY INTO UNITED STATES
At the port of entry, the alien fiance(e) will receive a stamp in his or her
passport giving temporary permission to work pending marriage to the U.S.
citizen. The marriage must take place within 90 days of admission into the United States.
Following the marriage, the alien spouse must apply to USCIS for conditional
permanent residence status (Form I-485). Pending adjudication of this
application, the alien spouse will be authorized to work in the United States.
Two years following issuance of the conditional resident status, the alien may
apply to the USCIS for removal of such conditional status (Form I-751). Upon
positive adjudication of the I-751 petition, the alien spouse will be accorded
the permanent resident status. Three years after the issuance of the
conditional resident status, provided the spouses are still married, the alien
spouse may apply for Naturalization in the United States (Form N-400).
FIANCE(E)’S CHILDREN
The unmarried, minor children of a K-1 beneficiary derive "K-2"
nonimmigrant visa status from the parent so long as the children are named in
the petition. A separate petition is not required if the children accompany or
follow the alien fiance(e) within one year from the date of issuance of the K-1
visa. Thereafter, a separate immigrant visa petition is required.