If you are in the United States:

If you are in the United States and your green card has been lost or stolen, apply for a replacement on form I-90, “Application for Replacement Card”. Make sure you send it to the right place and you keep copies of everything you submit. All correspondence with the United States Citizenship and Immigration Service should be sent by certified mail with a return receipt requested. You can also file your I-90 online at www.uscis.gov.

If you are not in the United States:

If your green card has been lost or stolen, you will need to apply for either a waiver of the document or a transportation letter that will permit you to apply for entry into the United States.

Shannon and Dublin airports allow you to apply for a green card at the airport if you arrive 4 hours before your flight is due to depart and you have the applicable filing fee.

If you will be in direct route to the U.S. from Dublin or Shannon, you may file a Form I-90, “Application for Replacement Card” at the airport. You should bring with you a valid passport, a police report and proof that you have not been outside the United States for more than one year, for example, an entry stamp in your passport or an airline ticket.

You should also be prepared to show the immigration inspector adequate identification to substantiate your claim. This means that you should be able to prove that you have maintained your lawful permanent resident status. This can be hard to do if you have been outside the United States for more than 6 months. The immigration inspector will examine the purpose of the trip; the duration of the trip and whether or not you maintained the intention to return to the United States. Bring evidence such as affidavits; US tax returns; leases or mortgages to the airport with you.

The fee for filing a Form I-90 is $450.00 USD; however, this fee is subject to change so you should double check the fee and the preferred method of payment a few days before you plan to leave. You can fill out your form and pay the fee when you leave the country at the USCBP pre-inspection at Dublin or Shannon airports. You will then be required to report in person to your local USCIS District Office in the United States for completion of the card replacement process.

If you have a card, but it is NOT in your possession right now, for example, you left the card at home the last time you left the U.S., you will need to apply for either a waiver of the document or a transportation letter that will permit you to apply for entry into the U.S.

Because the US has pre-flight inspection facilities in Ireland, a transportation letter can only be issued in the country of final departure to the U.S., the U.S. Embassy in Dublin does not issue transportation letters. If you are traveling from Dublin or Shannon airports, directly back to the U.S., you are required to file a Form I-193, “Application for Waiver of Passport and/or Visa”. The fee for this is $585.00 US. Again, this fee is subject to change so you should double check it in advance. You can fill out your form and pay the fee when you leave the country at USCBP pre-inspection at Dublin or Shannon airports. If you are transiting another country en route to the U.S., including the UK, you must make arrangements to apply for a transportation letter at the U.S. Embassy in that country. Remember to bring plenty of evidence with you to substantiate your claim. If possible, have someone in the US fax or e-mail you a copy of your green card. If you’€™ve been outside the United States for more than 6 months you may want to speak to an immigration lawyer before you attempt to re-enter.

Problems at the airport:

If you are experiencing considerable difficulty at the airport, you may want to consider the following courses of action:

You may ask for “Deferred Inspection.” This means that you will be allowed to enter the United States but you will have to see an immigration officer and clear immigration again a few weeks after you enter the United States. This gives you the opportunity to find lost documents and gather other important evidence and to hire an immigration lawyer to go with you to the inspection if necessary.

If the immigration officer refuses to grant you deferred inspection, it might be a good idea to ask to be allowed to “withdraw your application without prejudice”€. This means that you will not enter the United States that day; however, if you file a new application, you will not have a denial of entry on your record- a flag that can cause a lot of problems. If you chose to withdraw an application, you should get copies of all any document you sign or are given by immigration and then contact an immigration attorney to discuss your best options for returning to the United States.

And finally

Remember that the United States Citizen and Immigration Service may perform background checks if you file a form I-90. Certain criminal or misdemeanor acts may result in the revocation of your green card and removal from or inadmissibility to the United States. Consult an immigration attorney if you are worried about this. Don’€™t enter the US under the visa waiver program if you are a green card holder. Always tell the truth at the inspection point. Be polite. Bring documentary evidence to assist you with admission. Never fabricate or falsify documents. If you know that you will experience difficulty getting back into the United States contact a lawyer who is a member of the American Immigration lawyers Association before you apply for admission.

 

If you would like further information about specific case scenarios or situations, please call our office or email us at ckuck@immigration.net to speak to one of experienced immigration attorneys.
FIANCÉ VISA (K-1) vs. SPOUSE VISA (K-3) vs. TOURIST (B-2)

Many people ask us which is the fastest way to bring their loved one to the United States. The options are to marry in the U.S. (Fiancé (K-1) or Tourist (B-2) visa) or marry in your loved one’s home country (Spouse visa K-3). Every case is unique. We encourage you to NOT focus on the immigration aspects of this important event, but rather to use the immigration laws to serve your desire to marry where you want to marry. Also, know that it is impossible to provide a blanket answer that would apply in every situation. Here is a summary of the options you have, with the advantages and disadvantages highlighted. Understand that the actual processing times of any of these visas, but particularly the K-1 and K-3 will vary greatly depending on both the location of the U.S. citizen in the United States and the country of origin of the foreign national spouse. Whichever way you chose to proceed, we look forward to assisting you with your immigration matters.

FIANCÉ(E) VISA (K-1)

ADVANTAGES

  1. You don’t need to marry immediately in your Fiancé(e)’s country or the U.S.
  2. You bring your loved one to the U.S. as your Fiancé(e), and you have 90 days to get married. This allows you both to get to know each other better and make a decision about whether you want to spend the rest of your lives together.
  3. You deal nearly exclusively with the U.S. immigration system and U.S. immigration officials here in the United States.
  4. You avoid dealing with local foreign procedures of marriage in a foreign country in a foreign language.
  5. Your fiancé has a chance to see the country and get familiar with U.S. customs and language before the marriage. Your Fiancé(e) needs to make a strong effort to convince the Immigration Officer at the U.S. Embassy or Consulate in her home country, that you are both in love and are planning to get married upon her arrival in the U.S.

DISADVANTAGES

  1. Close family and friends will NOT see your Fiancé (e) get married in the U.S. unless they could manage to obtain another type of visa such as a tourist visa, which is hard to obtain.
SPOUSAL VISA (K-3)

ADVANTAGES

  1. You are both together immediately. Your wife’s family and friends are able to attend your wedding without any delay, which is very important for many spouses.
  2. Local marriage in a foreign country can sometimes be accomplished in 10 days, or less.
  3. Depending on the U.S. Consulate, the process could take much less time.

DISADVANTAGES

  1. Extensive supporting documentation is usually necessary for a U.S. Citizen to get married in a foreign country.
  2. It is a two-step process, instead of one. First, you are required to submit a package for the Form I-130. And, second, upon USCIS Notice of Action, you would need to send I-129F Package. It takes time and a lot of patience from both of you.
  3. This process is very document-sensitive which means that if you are missing a document, you may have to fly back to the U.S. in order to obtain a necessary document before process can be completed.
  4. All your documents must be translated into the native language of that country where you are planning to get married. The translation much be certified with attached apostille.
  5. Your might end up with more expenses for the marriage itself and Embassy visa processing charges and fees.
TOURIST VISAS AS AN ALTERNATIVE TO K-1 or K-3 VISA

In adjudicating visa applications, the Consul at the U.S. Embassy or Consulate is guided by U.S. laws and regulations and not laws of your Fiancé home country. The issuance of non-immigrant visas is governed by the U.S. Immigration and Nationality Act (INA).

U.S. immigration law places the burden of proof on the visa applicant to show that he or she is not planning to immigrate to the United States by using a tourist visa. In other words, each non-immigrant visa applicant must prove to the Consul’s satisfaction that s/he will NOT travel to the U.S. in order to reside there permanently. Each applicant must demonstrate that s/he is traveling to the U.S. for ONLY a temporary stay and has strong ties to home country that will compel him/her to return home.

If the officers of the Customs and Border Protection (CBP) at the port of entry believe your prospective or actual spouse is coming as a visitor to avoid the delays associated with the K-1 or K-3 visas, these officers have extraordinary power to bar your significant other from entry to the United States for a minimum of five (5) years; and if they believe fraud or misrepresentation is involved, these officers can impose up to a lifetime bar to entry!

To obtain a visitor visa in most countries, documents that provide evidence of the applicant’s social, economic, and/or family ties to the home country, as well as correspondence from relatives or business associates they plan to visit, may facilitate the consular officer’s decision.

Some examples of documents that may be helpful include:

  • Evidence of employment. A letter from your employer can be useful.
  • Evidence of income (and in some cases evidence of your spouse’s income), such as earnings statements.
  • Evidence of immediate family (spouse, children) in the home country.
  • Evidence of ownership of property.
  • Evidence of ongoing studies if applicant is still a student.
  • Evidence of ongoing projects for those in entertainment fields.
  • Your old passport bearing earlier visas and entry stamps indicating the date on which you returned to the home country (for those who have traveled to the U.S. previously).

However, in these times of strict visa scrutiny, it is almost impossible for a young unmarried woman to obtain this type of visa.

If you would like further information about specific case scenarios or situations, please call our office or email us at ckuck@immigration.net to speak to one of experienced immigration attorneys.

DISCLAIMER: The confidential information provided in this memorandum is for information purposes only and is not intended to be legal advice. This information is not intended to create an attorney-client or other relationship between Kuck Immigration Partners LLC and the recipient. The reader should consult with an immigration attorney before acting in reliance on any such information.

BEWARE OF IMMIGRATION CONSULTANT FRAUD!
This will depend on a variety of factors. In most cases it will be advisable for the visitor to return home to wait for the visa petition approval, then apply for the visa stamp at a local U.S. Consulate. If the individual entered on the “Visa Waiver Program” (indicated by a green-colored I-94 entry card), he or she MUST leave the U.S. and re-enter in the new non-immigrant work visa category. When foreign nationals visit the U.S. as tourists or on business trips, they have stated to the U.S. government that their intentions are to stay temporarily. Therefore, it is not advisable to request to change status shortly after arrival as it suggests that the statements made at the time of entry were not truthful.
Nationals of certain countries do not need to obtain visas for business visits to the U.S. for 90 days or less for purposes acceptable in the B-1 category. They may enter without a visa pursuant to the Visa Waiver Program. An individual who enters the U.S. through this program is NOT eligible for an extension of stay or change to a different status and MUST leave the U.S. within 90 days of entering.

The ability to visit the U.S. without a visa is currently available to citizens of the following countries: Andorra, Australia, Austria, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, The Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, United Kingdom and Uruguay.

 An initial visa stamp for a given non-immigrant classification must be applied for at a U.S. consulate in your home country. Some U.S. consulates may accept non-immigrant visa applications by third-country nationals (individuals who are not citizens of the country in which the consulate is located) as a courtesy to visitors to those countries. U.S. Consulates are not required to accept applications by third-country nationals, and visa issuance is at the sole discretion of the consular officers at the post. You should contact the appropriate American Consulate or Embassy in advance to determine its application process and the current application fee. You may also check the Department of State website at http://travel.state.gov/links.html. Most consulates have instructive web pages.

Requirements vary for each Consulate but typically include:
  • The original Notice of Action approving your employer’s non-immigrant visa petition on your behalf
  • A copy of the petition filed with USCIS
  • Completed and signed Department of State form DS 156 (Non-immigrant Visa Application) which is available at the U.S. Embassy or Consulate or on its website.
  • Completed form DS-157 by male visa applicants between the ages of 16 and 45. Some consulates require all applicants to complete this form.
  • Completed form DS-158 for all applicants for an F, M or J visa.
  • A valid passport
  • One passport-style photograph
  • Appropriate filing fees

Reciprocity agreements between the U.S. and your country of nationality will determine (1) the length of time your non-immigrant visa stamp will be valid, (2) the number of times you may enter the U.S. on the visa, and (3) the fees charged for issuance of the visa.

Note that your passport should be valid for at least six months beyond the validity period of the non-immigrant visa petition. If it is valid for less than that amount of time, you may not be admitted for the full period indicated on the Notice of Action (Form I-797).

Your spouse or unmarried child(ren) under the age of 21 years may accompany you in a dependent visa category (e.g., H-4 if you are in H-1B status, or L-2 if you are in L-1 status) by making their own visa applications at a U.S. Consulate. If your family members are applying with you, required documentation typically includes:

  • Marriage Certificate (to show relationship of you and your spouse)
  • Birth Certificate (for a dependent child)
  • Completed and signed Optional Form 156 (Non-immigrant Visa Application) which is available at the U.S. Embassy or Consulate
  • Valid passport
  • One passport-style photograph
  • Appropriate filing fees for the U.S. Consulate. (This fee differs for each consulate.)
If your family members are NOT applying with you, required documentation additionally includes:
  • A copy of the visa stamp in your passport; or other documentation of your valid non-immigrant status.

Call the following number to schedule an interview appointment with any U.S. Consulate in Canada or Mexico: 900-443-3131 (this is a toll call). Alternatively, you can schedule an appointment through the Internet by going to: http://www.nvars.com which also shows an updated list of necessary documents for the visa application. General information about applying for a visa in Canada or Mexico is available at http://travel.state.gov/tcn.html.

Please note that Canadian and Mexican consulates accept non-immigrant visa applications by third-country nationals (individuals who are not citizens of Canada or Mexico) as a courtesy. They are not required to accept or process applications by third-country nationals, and visa issuance is at the sole discretion of the consular officers at the post. In addition, note that as a third country national you may need a visa to enter Canada or Mexico.

 Your valid visa stamp in your passport should be sufficient, but you may wish to also carry a copy of the Notice of Action (Form I-797). The visa stamp shows that the U.S. State Department has determined that you may be admitted to the U.S. in a particular visa status, and the USCIS approval notice (Form I-797) is evidence of the maximum period for which you may be admitted.

All foreign nationals are issued a new I-94 card at each entry to the United States (with the exception of entries after visits to Canada or Mexico for periods of less than 30 days or for Canadian nationals entering the U.S.) The USCIS officer who admits you to the U.S. will stamp your I-94 card with entry and expiration dates. Please take a moment to check the dates on the I-94 card issued to you upon each readmission to the U.S. The expiration date on the I-94 card will govern your valid period of stay and employment authorization in the United States.

You can revalidate your multiple-entry visa by traveling outside the U.S. Under rules in effect as a result of the events of September 11, 2001, you must apply for revalidation at an American Consulate or Embassy prior to your return (see application process discussed above).
 Unless a request for extension or change of your status is pending, you will be out of status and should leave the U.S.

If you are not eligible for further extensions of your current non-immigrant visa status, are not eligible for a different non-immigrant classification, and have not yet reached the final stage (Form I-485) of the green card process, then you will no longer be authorized to remain in the U.S.

If you overstay the period noted on your I-94 card by even one day, you could be subject to a requirement to return to your home country to obtain all future non-immigrant visas (i.e., you may not obtain any future non-immigrant visa in any U.S. consulate other than the one in your home country, and may not file for reissuance of a visa stamp by mail through the Department of State.) In addition, if you overstay your I-94 card by 180 days or more, then leave the U.S., you could be subject to a three-year bar to re-entering the U.S.; an overstay of more than one year could subject you to a ten-year bar to reentry. Thus, it is absolutely critical that you monitor the expiration date of the I-94 cards for yourself and your family members.

 You will need to contact the consulate of your home country to inquire about the extension process.
Premium Processing Service allows U.S. businesses to pay a $1,000 fee in exchange for the 15-business day processing of their petitions and applications. USCIS guarantees that within 15 days USCIS will issue either an approval notice, a notice of intent to deny, a request for evidence or a notice of investigation for fraud or misrepresentation. If the USCIS fails to process the petition within 15 days, it will refund the $1,000 to the company and continue to process the petition as part of the Premium processing Service. In addition to expedited processing, companies who participate in the program may use a dedicated phone number and e-mail address to check on the status of their petition or ask any other questions they may have concerning their petition.USCIS has designated various forms for Premium Processing. Classifications, including the Form I-129 and the Form I-140. The category of non-immigrant and immigrant visas eligible for premium processing include:

Non-immigrant Visas

  • E-1 Treaty Trader
  • E-2 Treaty Investor
  • H-1B Temporary Worker in Specialty Occupation
  • H-2A Agricultural Worker
  • H-2B Temporary Worker
  • H-3 Trainee
  • L-1 Intra-company Transferee
  • O-1 and O-2 Aliens of Extraordinary Ability or Achievement
  • P-1, P-2 and P-3 Athletes and Entertainers
  • Q-1 International Cultural Exchange Aliens
  • R-1 Temporary Worker in Religious Occupations
  • TN NAFTA Professional

Immigrant Visas

Employment-Based First, Second and Third preference categories.USCIS will continue to review the program and assess its ability to incorporate other employment-based petitions and applications into the program.

If you returned home with your Department of Homeland Security (United States Citizenship and Immigration Services (USCIS)) departure record Form I-94 (white) or Form I-94W (green) in your passport, it means that your departure was not recorded properly. It is your responsibility to correct this record. You must provide the United States Citizenship and Immigration Services (USCIS) sufficient information so we can record your timely departure from the United States. This will close out your earlier record of arrival to this country.

If you do not validate a timely departure from the United States, or if you cannot reasonably prove otherwise when you next apply for admission to the United States, the United States Citizenship and Immigration Services (USCIS) may conclude you remained in the United States beyond your authorized stay. If this happens, the next time you apply to enter the United States, your visa may be subject to cancellation or you may be returned immediately to your foreign point of origin.

In particular, visitors who remain beyond their permitted stay in the United States under the Visa Waiver Program cannot re-enter the United States in the future without obtaining a visa from a United States Consulate. If this occurs and you arrive at a United States port-of-entry seeking admission under the Visa Waiver Program without a visa, United States immigration officers may order your immediate return to a foreign point of origin.

To validate departure, the United States Citizenship and Immigration Services (USCIS) will consider a variety of information, including, but not limited to:

  • Original boarding passes you used to depart the United States
  • Photocopies of entry or departure stamps in your passport indicating entry to another country after you departed the United States (you should copy all passport pages that are not completely blank, and include the biographical page containing your photograph.), and
  • Photocopies of other supporting evidence, such as:
  • Dated pay slips or vouchers from your employer to indicate you worked in another country after you departed the United States
  • Dated bank records showing transactions to indicate you were in another country after you left the United States
  • School records showing attendance at a school outside the United States to indicate you were in another country after you left the United States
  • Dated credit card receipts, showing your name, but, the credit card number deleted, for purchases made after you left the United States to indicate you were in another country after leaving the United States

Your statement will not be acceptable without supporting evidence such as noted above.You must mail legible copies or original materials where possible. If you send original materials, you should retain a copy. The United States Citizenship and Immigration Services (USCIS) cannot return original materials after processing. To help us understand the situation and correct your records quickly, please include an explanation letter in English. You must send your letter and enclosed information only to the following address:

ACS – United States Citizenship and Immigration Services (USCIS) SBU
P.O. Box 7125
London, KY 40742-7125
USA

Do not mail your departure Form I-94 or supporting information to any United States Consular Section or Embassy, to any other United States Citizenship and Immigration Services (USCIS) office in the United States, or to any address other than the one above. Only at this location are we able to make the necessary corrections to United States Citizenship and Immigration Services (USCIS) records to prevent inconvenience to you in the future.

 The permanent residency process will vary in length, depending on which method is appropriate for your case and where you work (which state). In addition, government processing times are extremely inconsistent and subject to change. The entire process has three major steps.

Step 1:

Labor Certification: Your employer must demonstrate to the Department of Labor that it is unable to locate qualified or available U.S. workers for your position in the geographic area where you work. This process is currently taking six to twelve months.

Step 2:

I-140 (Immigrant Visa Petition): Your employer must then file a petition with the USCIS and demonstrate that you qualify for the position as described in the labor certification. This may take two to twelve months.

Step 3:

I-485 (Adjustment of Status): This is the application filed by you and your family members to “adjust” your status from temporary worker to permanent resident. This step currently takes six to eighteen months. Some permanent residence categories do not require labor certification (intracompany managers and executives, and “outstanding” researchers, persons of “extraordinary” ability and persons of “exceptional” ability whose work is in the “national interest”).

  Reduction in Recruitment (RIR) is a process in which the employer will not have to recruit for your specific position. Instead, the employer must show the Department of Labor that the company has engaged in substantial recruitment for similar positions over a six-month period immediately preceding the application for labor certification. Companies can establish a pattern of recruitment by submitting copies of print advertisements, Internet listings, headhunter information, and other relevant recruitment efforts. RIR is Kuck Casablanca LLC’s preferred labor certification processing method.
Congress has designated two groups, family-based and employment-based, which have preference in immigrating to the U.S. Employment-based applications are broken down into five preference categories. Each preference category is subject to an overall numerical limitation of immigrant visas.

The first employment-based preferences (EB1) do not require labor certification. EB-1 is set aside for priority workers falling into one of the following categories:

  • Individuals demonstrating “extraordinary ability” in the arts, sciences, education, business, and athletics (EB1-1).
  • “Outstanding researchers” and professors (EB1-2).
  • “Multinational managers” and executives transferred to the U.S. from a foreign affiliate, subsidiary, branch or parent of the U.S. office (EB1-3).

The second employment-based preference (EB2), which usually requires labor certification, is set aside for the following:

  • Individuals who possess “exceptional ability” in the sciences, arts and business who are entering the U.S. to fill a position which requires an individual of exceptional ability.
  • Individuals who possess an advanced degree (defined as any U.S. academic or professional degree above a bachelor’s degree level OR a bachelor’s degree and at least five years of progressive experience) who are entering the U.S. to fill a position that requires an advanced degree.

Labor certification is required for the second employment-based preference category, unless it can be demonstrated that your entry will benefit the U.S. national interest to such a high degree that it is not in the interest of the country to recruit U.S. workers for the position. The standard of proof required to demonstrate “national interest” is difficult to meet.

The third employment-based preference (EB3), which always requires labor certification, is set aside for the following:

  • “Professionals” with a bachelor’s degree (actual U.S. degree or foreign degree equivalent).
  • Skilled workers (filling positions requiring at least 2 years of training and experience).
  • Unskilled workers (filling positions that require less than 2 years of experience).

Which preference category is appropriate for you is dependent upon your qualifications and the position duties.

1. Qualifications for classification as an individual of extraordinary ability (EB1-1)

To qualify as an individual of extraordinary ability in the sciences, arts, education, business or athletics, you must be able to document sustained national or international acclaim and that you are coming to the U.S. to continue work in the area of your extraordinary ability, by providing evidence of:

  1. Receipt of a major internationally recognized award, such as the Nobel Prize; OR
  2. At least three of the following requirements:
    • Documentation of receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor (selection criteria must be provided).
    • Documentation of membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields (selection criteria must be provided).
    • Published material about you in professional or major trade publications or other major trade media, relating to your work.
    • Evidence of your participation, either individually or on a panel, as a judge of the work of others in your field or an allied field.
    • Evidence of your original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in your field.
    • Evidence of your authorship of scholarly articles in your field, in professional or major trade publications or other major media.
    • Evidence that you have been employed in a leading or critical role for organizations or establishments that have a distinguished reputation.
    • Evidence that you have commanded a high salary or other significantly high remuneration for services, in relation to others in your field.

The USCIS strongly encourages submission of reference letters from credible sources that evidence how you have risen to the very top of your field. The letters should also describe your abilities and accomplishments in your field. Your employer should also provide a description of the nature and importance of the duties that you are performing and why the position requires the services of an individual possessing extraordinary ability.

2. Qualifications for classification as an outstanding researcher (EB1-2)

In order to establish that you qualify as an outstanding researcher or professor, the USCIS requires evidence of at least two of the following:

  • Documentation of receipt of major prizes or awards for outstanding achievement in the academic field (selection criteria must be provided).
  • Documentation of membership in associations in the academic field which require outstanding achievements of their members (selection criteria must be provided).
  • Published material in professional publications written by others about your work in the academic field. Such material must include the title, date, and author of the material, and any necessary translation.
  • Evidence of your participation, either individually or on a panel, as the judge of the work of others in the same or allied academic field.
  • Evidence of your original scientific or scholarly research contributions to the academic field.
  • Evidence of your authorship of scholarly books or articles (in scholarly journals with international circulation) in the academic field.

In addition, you will need to establish that you possess at least three years of research and/or teaching experience. This experience can include time spent towards an advanced degree so long as you acquired the degree, and if the research conducted while working toward the degree has been recognized within the academic field as “outstanding.” Letters from academic advisors or former employers should be used to confirm your contributions to your field.

3. Qualifications for classification as a multinational manager or executive (EB1-3)

In order to qualify as a multinational manager or executive, you must have been employed with the petitioning employer or an affiliate company abroad for at least one full year in the three years immediately prior to your employment in the U.S., in a managerial or executive capacity. The permanent position with the U.S. employer must also be at a managerial or executive level. This immigrant visa classification is similar to the L-1A nonimmigrant visa category, except that the immigrant (permanent residence) option requires that the employee have filled a managerial or executive role with the company abroad as well as in the U.S. The USCIS definition of “manager” includes the traditional managerial responsibilities (e.g. supervision of professional personnel, authority over personnel decisions, responsibility for budget and planning aspects of operations, etc.) The USCIS regulations also take into consideration the role of “functional” managers who manage an essential function within the organization and exercise direction over the day-to-day operations of the activities or function for which they have responsibility.

During the first two steps of the immigrant visa process (labor certification and immigrant visa petition) an H or L nonimmigrant may continue to travel on a valid H or L nonimmigrant visa.

During “Adjustment of Status” (AOS) processing in the U.S., H-1B or L-1 employees (and their derivative family members) may continue to travel on their valid H or L visa OR may travel pursuant to USCIS travel permission [“advance parole”].

While the AOS is pending, an H-1B or L-1 nonimmigrant may obtain an Employment Authorization Document (EAD) to continue to work at their sponsoring employer after the expiration of his or her H or L visa petition, or work at an employer other than the sponsoring employer. (Note, however, that a permanent resident application does not become “portable” to another employer until six months after filing the AOS.) While the AOS is pending, family members may also work after being issued an EAD.

If the principal applicant or a family member works pursuant to an EAD, he or she would no longer be maintaining nonimmigrant (H-1B, H-4, L-1, or L-2) status and thus may not utilize and H or L visa to re-enter the U.S. Individuals who work on an EAD for another employer and any dependent family members in H-4 or L-2 status who works after being issued an EAD must obtain an advance parole for travel outside the U.S. If individuals in this situation leave the U.S. without an advance parole, the USCIS will consider their AOS applications “abandoned.” If you are able to re-enter the U.S. in another status, your must file a new AOS application and supporting documents to re-start the process.

E, TN, or O visa employees (and their derivative family members) who file AOS applications may travel ONLY on advance paroles; they may not travel on their nonimmigrant visas. The advance paroles must have been obtained prior to leaving the U.S. The USCIS considers leaving the U.S. without an advance parole as abandonment of the AOS.

Processing time for advance paroles is approximately three months. Thus, there is a period of approximately three months after filing the AOS application and advance parole during which AOS applicants previously in E, TN, or O status may not travel. While the AOS is pending, the previous E, TN, or O nonimmigrant and their derivative family members (all of them are now considered “adjustment applicants”) may obtain EADs.

 Yes, your spouse and unmarried children under 21 can be included with you. If you have a child 18 years of age or older, you should notify Kuck Casablanca, LLC immediately so that steps may be taken to ensure they will be included in the green card process prior to the child turning 21.
 You will need to provide the following for yourself and each family member:

  • Birth Certificate: This must be a “long form”, with names of BOTH parents of each applicant, with an English translation. (See additional information in 12 below regarding birth certificates).
  • Marriage certificate, if applicable. PLEASE NOTE: If you are not married at this time, but intend to get married in the next few years, it is in your best interest to be married BEFORE you become a U.S. permanent resident, so that your spouse may immigrate with you. U.S. permanent residents do NOT have the immediate right to immigrate a foreign national spouse (it currently takes approximately five years to immigrate the spouse of a U.S. permanent resident).
  • Divorce decree or death certificate for previous marriages, if applicable.
  • Medical examination documents completed by an USCIS-approved physician, including evidence of certain vaccinations (Mumps, Measles, Rubella, Polio, Tetanus and diphtheria toxoids, Pertussis, Influenza type B, Hepatitis B, Varicella (chickenpox), Haemophilus influenza type B, and Pneurnococcal). If you have not previously received these vaccinations or cannot provide evidence of your immunization history, please consult your personal physician at this time.
  • Copies of all previous U.S. immigration documents covering all periods of stay in the U.S. This includes but is not limited to: Forms I-20 if you held F-1 status, EAD cards, Forms IAP-66 if you held J-1 status, previous nonimmigrant petition approval notices, and copies of I-94 cards.
  • Complete copy of your current passport including a copy of your current Form I-94.
  • 8 USCIS-style photographs.
  • Complete criminal records, if applicable. Please contact Kuck Casablanca, LLC immediately if you have ever been arrested, indicted or convicted in any country, as this may have an effect on your eligibility for permanent residence.
You will need to have in your possession the following original documents for yourself and each family member:

  • Passport
  • Birth certificate
  • 4 passport-type color photographs
  • Vaccination record if available
  • Police certificates covering each local area in your home country where you have resided for more than six months since reaching the age of sixteen. In addition, you must have Police Certificates from each country (other than your home country or the U.S.) where you have resided for more than one year since reaching the age of sixteen. Finally, you must have a Police Certificate from ANY country in which you were ever arrested.
  • Marriage certificate (and divorce decree or death certificates for any previous marriages for yourself and your spouse, if applicable)
  • Military record, if applicable.

An acceptable birth certificate must be issued by a government entity and contain the following information:

  1. Your name
  2. Your birth date
  3. Your place of birth (city and country)
  4. Names of both parents

In cases where a birth certificate is unavailable or contains insufficient information regarding the birth or the parents, a sworn affidavit executed by either the parents, if living, or other close relatives older than the applicant, may be submitted. The affidavit should set forth:

  1. The relationship between the deponent and the applicant
  2. How well the deponent knows the applicant
  3. The date and place of the applicant’s birth
  4. The names of both parents
  5. Any other related facts

The affidavit must be accompanied by a document from a competent governmental authority confirming that the certificate does not exist, or no longer exists. Note that the affidavit alone is not a conclusive record of birth.

If you do not already have a social security number, you can apply for one at the U.S. Social Security Administration (SSA) office. If you hold nonimmigrant visa status that allows you to work in the U.S. (e.g., H-1B), the SSA will issue a social security card which indicates that you are authorized to work with USCIS authorization only. Your dependents will not be issued SSNs, but they can apply for a federal identification number at a local IRS office.

For more information about applying for a social security number and office locations, you can visit the SSA website at www.ssa.gov.

For the past several years, the Department of State has conducted a “diversity lottery” for nationals of certain countries who wish to become permanent residents. 50,000 immigrant visas are available annually to persons from countries with low rates of immigration to the United States. The application process occurs in October. The Department of State website will contain information about the process.  
Individuals who satisfy the residence, physical presence and other requirements are eligible to apply for U.S. citizenship after they have been permanent residents (green card holders) for five years. If you are married to a U.S. citizen, you are eligible to apply for citizenship after three years of marriage as long as residence, physical presence and other requirements are met. An applicant for U.S. citizenship must demonstrate good moral character, English literacy, and knowledge of U.S. history. In addition, there are U.S. residence and physical presence requirements which must be met. In brief, the applicant for naturalization must have been physically present in the U.S. for at least half of the qualifying period (5 or 3 years as described above) and must have maintained his or her primary place of abode in the U.S. for the entire qualifying period (e.g. extended absences from the U.S. may interrupt the qualifying period).  
The E, H, L, TN and O nonimmigrant visas are employer-specific. Therefore, if you leave your current employer and wish to remain in the U.S., you will need to immediately find another U.S. employer who will sponsor you. The permanent residence process requires that you intend to work with the petitioning employer on a permanent at-will basis. Nonetheless, a permanent resident application can become “portable” to another employer six months after filing the adjustment of status application if any new employment is substantially similar to the labor certification/visa petition employment.  
Although not entitled to a derivative nonimmigrant visa, your significant other may be able to obtain a B-2 (“tourist”) visa to accompany you during a temporary stay in the U.S. if you can show that he/she is your dependent. For the permanent resident process, only spouses are eligible for derivative immigrant visas.  
In order to maintain your U.S. permanent residence, you must continuously hold an intent to make your primary residence in the U.S. USCIS examines a number of criteria as evidence of your intention to maintain U.S. permanent residence. To demonstrate the requisite continued maintenance of ties to the U.S., you are strongly advised to maintain a U.S. address (even if it is the home of a relative or friend); property (i.e., a person assigned abroad should consider renting out their U.S. property, rather than selling it); U.S. bank accounts; U.S. credit cards; a current U.S. driver’s license, among others. In addition, you must continue to file U.S. tax returns as a U.S. resident and claim your worldwide income (even if not required to pay income tax based on tax treaties and foreign tax credits); failure to follow this rule can lead to loss of permanent resident status.  
 Nonimmigrant Visa Holders

All nonimmigrant visa categories will allow your spouse and children (under 21) to enter the United States and to live here lawfully as dependents (derivatives) to your status. For example, an L-1 visa holder may bring his wife and children under L-2 status. An H-1 visa holder may bring her husband and children on H-4 status.

Spouses of L-1 and E nonimmigrant workers are eligible for employment during their valid stay in the U.S. They can apply for Employment Authorization Document (EAD) with USCIS. The process takes about 90 days.

However, other nonimmigrant visa categories do not allow your spouse or children to work in the United States while they are here as dependents. Only the principal visa holder is eligible to work in the U.S. This is true for the most common visa classifications such as H, O, P, and TN.

Your dependents may be eligible to work if they qualify for a nonimmigrant visa category (most typically H-1B), and can locate a U.S. employer willing to act as a sponsor. In this case, the employer can file the appropriate petition with the USCIS to grant your family member the proper nonimmigrant visa category. Upon approval of a change of status, your family member will be authorized to work.

Immigrant Visa Applicants

If you and your family process your permanent residence application through consular processing abroad rather than adjustment of status in the U.S., your spouse and children will not have work authorization until the permanent resident visa is issued by the U.S. consulate and your family members enter the U.S.