EB-1C & the Pandemic & U.S. Green Cards

EB-1C & the Pandemic: Is It Still A Great Option for Foreign Managers and Executives to Obtain U.S. Green Cards?

With the current pandemic and the climbing unemployment rates, the U.S. Administration has already taken steps to limit employment-based visas such as H-1’s or EB-3’s where a foreign national would replace an otherwise qualified U.S. worker.

However, there are other Employment Based categories which would in fact create more jobs in the United States, namely EB-5 & EB-1C immigrant visas.

The Administration appears to welcome visa categories which create jobs as evident from theApril 23rd, 2020 Preside ntial Proclamation where President Trump designated an especial exemption for EB-5 investors, allowing them entry while banning most other Immigrant visa categories.

Being that EB-1C also requires investment and job creation in the United States, we predict that this visa category will also be favored.

There are two different ways to file for EB-1C; most often, it is used in the context of the L-1 visa, and after a foreign Manager or Executive has started a new U.S. office which is an subsidiary,branch or affiliate of an already existing “parent” company overseas.

The second way to use EB-1C is to skip the L-1 altogether, and to purchase an existing company in the U.S. which has beenfully functional for at least one-year.While EB-1C may at first glance appear to be an “easy” option, it is quite complex, and presents challenges which must be carefully planned by utilizing an experienced immigration lawyer.

The most important requirement where allot of EB1-C applicants fall short is the ability to effectively demonstrate “managerial” or “executive” roles.

For this, USCIS will focus on whether the applicant is engaged in day-to-day activities or whether they are managing those activities. The more the applicant is involved at a “functional” level and “hands-on” with the day-to-day activities, the less likely it is that USCIS will find they are in a managerial or executive role.

Often USCIS will deny cases if the applicant is just managing employees unless the applicant is managing professional employees. In our experience, it is often best to build “layers” of management; for instance, a successful EB1-C Manager or Executive may be one who manages other managers who manage other professionals.

Disclaimer:
The content in this newsletter should not be construed as legal advice. We encourage you to contact an Immigration Attorney for any immigration law questions you may have. Furthermore, the content herein is the work product of LAWMAKS and should not be copied or redistributed in any form or fashion by any individual or entity

ESTA / VWP Time Extensions Due To COVID-19

Around the globe people have been able to travel using the Visa Waiver Program (VWP) often referred to as ESTA (Electronic System for Travel Authorization).  However, due to the current COVID-19 pandemic many travelers are unable to return home.

This has serious implications under the strict ESTA guidelines which limits travel time to 90 days. Luckily, there is some flexibility to aid those close to violating the 90-day ESTA time limit, provided you meet the requirements of CBP (Customs & Border Protection). Therefore, certain steps have to be taken in order to successfully request an extension to your ESTA.

If successful, a 30-day extension may be granted. Travelers must apply for this extension before the end of their 90-day VPW deadline. If allotted this extension, a second 30-day extension request can be made allowing for a total of 60 additional days. However, this second extension request must be made during the initial 30-day extension. 

If your ESTA / VWP is not properly extended, and you are considered to have violated ESTA regulations, you may face with having to apply for a US Visa at a US Embassy / Consulate in your home-country next time you intend to visit United States; issuance of said visa is at the discretion of the US Consulate and is not guaranteed.  Therefore, it is recommended to properly extend your stay.

CPB offices are not uniform in their procedures on how to extend your ESTA stay, and each location has different nuances and procedures on how they process these requests.  As such, it is highly recommended to contact a qualified Immigration Attorney for this service.

Contact
LAWMAKS for an evaluation of your individual case.
Disclaimer:
The content in this newsletter should not be construed as legal advice. We encourage you to contact an Immigration Attorney for any immigration law questions you may have. Furthermore, the content herein is the work product of LAWMAKS and should not be copied or redistributed in any form or fashion by any individual or entity.

Effects of Unintended, Lengthy Stay in the United States

The global Coronavirus (COVID-19) pandemic has triggered an array of unpredictable consequences especially for travelers who must worry about maintaining a legal status. With the current cancellation of flights and travel restrictions, many individuals have found themselves wondering how to legally extend their stay in order to remain “in status” of their Visa or ESTA. 

This issue is especially of importance to individuals who may be reaching or surpassing a 6-month “overstay” which may trigger a 3-year bar from returning to the United States. Legal assistance is recommended for individuals affected by the pandemic, due to the rapidly changing protocols and procedures.

Another unintended consequence of COVID-19 has to do with triggering US tax residency for those individuals forced to remain in the US. As a general rule the Substantial Presence Test (SPT) is applied and if an individual (who is not a US citizen or green card holder) is physically present in the US for 183 days (in the aggregate) or more in the calendar year he/she is considered a US tax resident and will be subject to US federal income tax on a worldwide basis. 

While these developments affect many foreign nationals, they are particularly impactful for business sectors that typically have a significant number of foreign nationals in their workforce, such as investment funds, IT businesses, and consulting companies.  

It is highly recommended for foreign nationals and companies who find themselves in this predicament to consult qualified immigration lawyers as well as tax advisors when faced with the unintended consequences of an overstay.

Contact
LAWMAKS for an evaluation of your individual case.
Disclaimer:
The content in this newsletter should not be construed as legal advice. We encourage you to contact an Immigration Attorney for any immigration law questions you may have. Furthermore, the content herein is the work product of LAWMAKS and should not be copied or redistributed in any form or fashion by any individual or entity.

USCIS Reacts to COVID-19 Pandemic

USCIS has announced it will be adopting “Flexibility” measures in response to the COVID-19 pandemic.

This approach which extends certain response timelines has been adopted in order to mitigate health concerns associated with COVID-19. USCIS has closed the field offices and Immigrants no longer have the ability to have their interviews or to address their immigration issues in-person.  In addition the swearing-in ceremonies for would-be citizens are cancelled. 

Although the “front” offices are now closed, USCIS continues to process and adjudicate cases.  That said, in light of the pandemic USCIS has extended deadlines for certain due dates.  

USCIS is granting an extension of 60-days from the response date stated in your Notice for RFE (Request for Evidence), NOID (Notice of Intent to Deny), NOIT (Notice of Intent to Terminate) as well as other, less common types of decisions:  Notice of Intent to Rescind regional investment Centers & Continuations to Request Evidence.  

Additionally, if an adverse decision is received and an Applicant is allowed the right to file an Appeal or a Motion to Reopen, said Applicant would normally have to file the form I-290B within 30-days of the decision date; the deadline for form I-290B (Notice of Appeal or Motion) has been extended by 30-days from the normal deadline, instead giving the Applicant a total of 60-days from the decision date, within which the form may be considered.  

It is critical to note that said extensions are allowed, provided the Notice / Request / Decision is issued between March 1, 2020 and July 1, 2020.

Contact
LAWMAKS for an evaluation of your individual case.
Disclaimer:
The content in this newsletter should not be construed as legal advice. We encourage you to contact an Immigration Attorney for any immigration law questions you may have. Furthermore, the content herein is the work product of LAWMAKS and should not be copied or redistributed in any form or fashion by any individual or entity.

Latest Travel Ban Issued in April, 2020 by Lawmaks

us-travel-ban

The Real Purpose & Effect of the Latest Travel Ban Issued in April, 2020
At 11:59 pm, eastern daylight time on April 23, 2020, President Trump’s latest Travel Ban went into effect, substantially limiting entry into the United States.

This latest Presidential Proclamation is intended to reduce the risk of exposure to COVID-19 caused by border crossings; however, its real intent is to preserve the U.S. labor market. As the COVID-19 pandemic has caused many businesses to shut down worldwide, said Proclamation’s goal is to keep foreign workers from taking U.S. jobs.

This Travel Ban prohibits entry for 60-days, but many experts predict that it will be extended both in time and in the scope of who it impacts.

Who does this Presidential Proclamation Impact?
Interestingly, this Presidential Proclamation, unlike the previous ones does not target certain nationalities and instead is applicable to all countries worldwide. However, certain individuals are exempt and may still enter United States. These include:
 U.S. Citizens;
 Spouse of a U.S. citizen seeking entry via Immigrant Visa;
 Children under 21 year of age seeking entry via Immigrant Visa;
 U.S. Legal Permanent Residents are allowed back in, however their immediate relatives
(spouse or children) will not be issued any immigrant visas for 60-days;
 Physicians, nurses, or other healthcare professionals, researchers preforming medical research or other research intended to combat the spread of COVID-19 are exempt; so are their spouses and children under the age of 21;
 Surprisingly, EB-5 Visa meant for high net worth investors is also exempt;
 Individuals who are already inside the United States and who seek a Change in Status (from one visa category to another) or Adjustment of Status (from a Nonimmigrant visa to an Immigrant visa) are not impacted;
 Certain other individuals (i.e. holders of Special Immigrant visa, appropriate boarding foil, or an advance parole document, etc.) are also exempt*.

Latest Travel Ban Issued in April, 2020 by Lawmaks
It is very important to note that only individuals who seek Immigrant Visas from outside the United States (at an embassy or consulate) are adversely affected. This Proclamation has no impact on individuals seeking change or adjustment of status on U.S. soil.

Furthermore, your “Immigrant Intent” makes the difference; in addition to the F2, F3 & F4 family visa categories, other visas with Immigrant Intent, such as H-1’s (sponsored work visa) are impacted, while the Nonimmigrant visa categories are not impacted at all. As stated previously, the U.S. labor demand is the true motivation for this Travel Ban.


Therefore, Nonimmigrant visas where there is a presumption and requirement of “no Immigrant Intent,” are not impacted. As such E-2 and L-1 visa applicants are still permitted to seek these visas at U.S. consulates or embassies.

Please beware that these individuals my want to consider moving up their plans, as many believe that this Travel Ban will expand in scope, and eventually adversely affect Nonimmigrant visa categories as well.

While some say that because all the U.S. embassies and consulates are closed due to the Pandemic, this latest Presidential Proclamation is more of a political move rather than having any practical effect. However, we believe that this Proclamation must be taken very seriously as it lays the groundwork for an expansion into covering Nonimmigrant visas such as E-1, E-2 and L-1’s.

*This is not a complete list of individuals who may be exempt from this Travel Ban.

Contact
LAWMAKS for an evaluation of your individual case.
Disclaimer:
The content in this newsletter should not be construed as legal advice. We encourage you to contact an Immigration Attorney for any immigration law questions you may have. Furthermore, the content herein is the work product of LAWMAKS and should not be copied or redistributed in any form or fashion by any individual or entity