H1B Visa Stamping for Researchers and Scientists

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My company recently filed my H1B application which was quickly approved by USCIS. I went to the US Consulate in Chennai for stamping and they asked me to complete a detailed questionnaire about my research, my qualifications and how my trip to the US will benefit my research. I wasn’t expecting this and they told me that my answers could result in an indefinite wait for the visa stamp. Is there anything you can do to help?

While these questionnaires would appear to be more applicable to EB1 or NIW beneficiaries, they are actually for a Security Advisory Opinion from the US Department of State. These lengthy questionnaires are becoming more and more common for persons coming to the US to do any sort of research whether the application is for H1B visa, O-1 visa or EB1 or NIW. .Most of our clients are getting clearance in about 1-2 months and we are instructing applicants to plan ahead.

Is an O1 Visa or P1 Visa More Appropriate for a Rock Band?

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Hi, we have a well known band in the UK and are looking to tour the US. I’ve spoken to several different lawyers and they are all giving me different advice. Can you tell me if we should be looking to get an O visa or P visa?

While it is technically possible for the lead in the band to procure an O1 visa and the rest to procure O2 visas, the simple rule is that the O is for individuals and the P is for groups. You would be much better off applying for the P visa.

P3 Visa Denial

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I am the leader of a small band from the Dominican Republic that sings Perico ripiao. We applied for a P3 visa so we could perform at several locations in the US. Our case was denied by INS because they said our performances were not culturally unique. We received a notice that we could appeal but I don’t know if we should. Can you get this case approved for us?

Unfortunately, these types of decisions are becoming more and more common. There are certain visa classifications such as the P3 visa which USCIS, and some Service Centers in particular, feels are often abused. Although, I have not yet seen your denial notice, I am quite certain that this decision was made by the California Service Center.

Merengue tipico or Perico ripiao is certainly a culturally unique singing style which is common in the Dominican Republic. This type of case can easily be won on appeal. However, appealing this type of case is often more expensive than refiling, as appeals are generally more complicated than filing the first time and the processing times are generally longer. You may consider refiling but it is ultimately your decision.

Travel After Asylum Approval

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My asylum was approved in 2007 and I want to travel. My old passport is still valid but I heard I shouldn’t use it. If I don’t use the passport, how can I travel?

Definitely do not travel on your old passport. Using the passport may cause your asylee status to be revoked and you may be unable to obtain permanent residency or US citizenship when you are otherwise able to apply. The USCIS offers a refugee travel document which may be used in place of a passport for asylee travel. Be sure to obtain the document before traveling and do not return to your home country.

EB5 Investment Based Green Card

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How long does it take to get a green card through the EB5 program? As long as I make the required investment, the visa is guaranteed, right? I also read that the EB5 program will end soon, is that true?

Current processing times are about 4-6 months for both Form I-526 and Form I-829. According to USCIS figures, there were 692 EB5 cases filed from October 2008 through May 2009 and 608 were approved so your chances are good but not guaranteed. There are many factors which can lead to a denial so you must be sure to prepare your application very thoroughly. The EB5 program is scheduled to sunset in September but it is widely expected that the program will be extended but because applications are taking 4-6 months to get approved.

LPR Travel Outside the US for More Than One Year

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I’ve held my green card since 1995. I was recently laid off due to the slowing economy and am considering moving back to England. I don’t know if I will return but I would like to keep that option open if I do decide to come back. What can I do?

In order to maintain your permanent residency in the US, you must evidence your intention to remain a permanent resident. This is normally shown through presence in the US. If you anticipate being outside of the US for more than one year, you should at the very least, apply for a re-entry permit before you leave and make some regular trips to the US during your time outside. There are a few other options to maintain residence but they do require some effort and expense.

Company Relationship Requirements for the L1 Visa

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I have a B1 visa right now and I am in negotiations to purchase a US company. I have a company in Brazil that is looking to expand and found some opportunities here. What kind of visa can I get if I buy this company?

If you have worked for the Brazilian company for one year out of the last three in a managerial or executive position then you will be able to obtain an L1A visa. Many people believe that L1 visas are impossible in new acquisition scenarios but that is not the case. There is no time requirement for the relationship between the US company and the foreign company.

H1B Approved but Change of Status Denied

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I think my lawyer screwed me up. He told me that my H1B was approved but in the I-797C, it says that my change of status was denied! Can I appeal this?

Yes, this may be something that should be appealed but without more information about you case, I don’t see any evidence that your lawyer made a mistake. The requirements to obtain an H1B approval and a change of status are completely separate. In order to show that you qualify to change your status, you must show that you were in a valid nonimmigrant status at the time you filed your H1B petition AND if your H1B start date was October 1, that your status was valid through October 1 or that you qualified for an exception such as the F1 cap gap rule.

Marriage Green Card and School

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I am currently on a F1 visa and am going to school at University of Indiana. My boyfriend and I are getting married and I want to apply for green card. Do I keep my F1 visa or can continue without?

Most schools will allow admission with evidence that you have filed your Form I-485. It is a school issue and the vast majority of schools only ask for evidence that you are in legal status and some don’t even ask for that. The USCIS does not prohibit attending school while your marriage green card is pending.

E2 Visa Investment Requirements

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I have $100,000 to $200,000 to invest in a new company. Is this enough to get E2 visa?

Immigration law does not identify a specific minimum required for an E2 investment visa. However, in our experience an investment of less than $50,000 will not be approved and an investment less than $100,000 may be difficult depending on the USCIS Service Center or US Consulate where the E2 application is filed.

In most cases $100,000 to $200,000 will be considered sufficient but you must be able to show that the amount is both “substantial” and not “marginal.” A substantial investment is an investment that is:

  • Substantial in the proportional sense, i.e. , in relationship to the total cost of either purchasing an established enterprise or creating the type of enterprise under consideration;
  • Sufficient to ensure the treaty investor’s financial commitment to the successful operation of the enterprise; and
  • Of a magnitude to support the likelihood that the treaty investor will successfully develop and direct the enterprise.

Whether an amount of capital is substantial in the proportionality sense is understood in terms of an inverted sliding scale; i.e. , the lower the total cost of the enterprise, the higher, proportionately, the investment must be to meet these criteria.

A marginal enterprise is an enterprise that does not have the present or future capacity to generate more than enough income to provide a minimal living for the treaty investor and his or her family. An enterprise that does not have the capacity to generate such income but that has a present or future capacity to make a significant economic contribution is not a marginal enterprise. The projected future capacity should generally be realizable within five years from the date the alien commences normal business activity of the enterprise.