If USCIS has denied your I-140 petition, you are undeniably asking yourself whether anything can be done to save your immigration case. In this blog, we outline the options that may be available to you after an I-140 denial.
Your next steps and legal remedies will depend on who filed the I-140 petition. If the petition was filed by your prospective or current employer, the I-140 petition belongs to the petitioning employer, and it will be up to them to decide which of the below options to pursue. If you filed an I-140 in a category that permits self-petitioning, such as EB-1A, the I-140 petition, and the decisions about what steps to take after a denial, will remain with you.
File a Motion to Reconsider or Motion to Reopen
If you have received a denial of your I-140 petition, your denial notice will advise you of your right to file a Motion to Reconsider or Motion to Reopen on Form I-290B within 33 days.
If you believe that your I-140 denial was based on an incorrect application of the law, you may submit a Motion to Reconsider. In support of your Motion to Reconsider, you should submit a legal brief, citing to the relevant authorities and explaining how the decision was legally wrong. The Motion to Reconsider is not the correct vehicle to cure a deficient filing. It is also not the time to submit new substantive evidence that should have been included with the I-140 petition at the time of filing.
A Motion to Reopen asks USCIS to reopen the case because new facts that would establish eligibility at the time of filing of the I-140 have come to light. Like the Motion to Reconsider, this is not an opportunity to merely restate the facts and arguments already included in the denied case. You must support a Motion to Reopen with evidence of new facts that show you were eligible for the I-140 classification at the time of filing.
In practice, USCIS rarely overturns its own decisions. Therefore, filing a Motion to Reconsider or Motion to Reopen is not always a wise option, especially when you consider the hefty filing fee of $675.00 and the long processing times. It often takes 6 months or more to receive a decision on a Motion to Reopen or Motion to Reconsider, and there is no Premium Processing (expedite) option associated with the I-290B.
Re-file the Case with Better Evidence
The second option to consider if your I-140 Petition has been denied is re-filing the case. When you receive a denial on your I-140, the decision includes detailed information about why your case was denied. It will discuss why evidence you submitted was not sufficient or why you are not legally eligible for the category of immigration you are seeking.
If a review of the denial with your immigration attorney reveals that you can cure the problems identified in your denial, re-fling the case may be worthwhile. Strategies involved in a re-filing case may include:
- Adding new evidence, which was not previously available, but that helps establish eligibility;
- Making legal arguments in the legal brief or attorney cover letter that directly address the points in the denial; or
- Presenting the existing evidence in a new and better light.
This re-filing of a denied I-140 petition may be better than filing a Motion to Reopen for several reasons. First, the government filing fee for refiling a Form I-140 is $700.00, which around the same amount as the $675.00 for the I-290B, the form used for a Motion to Reopen or Reconsider Second, if your I-140 petition is filed in a category that allows Premium Processing, such as EB-1A for Aliens with Extraordinary Ability, you can get a new decision in as little as 15 days.
File an Appeal of the Denied I-140 With the AAO
An alternative to the Motion to Reopen/Reconsider and the Re-filing strategies discussed above is to file an appeal with the Administrative Appeals Office (AAO). An AAO appeal is also filed on Form I-290B, and the $930.00 government filing fee applies.
The AAO conducts administrative review of certain types of immigration decisions, including most types of I-140 petitions. Before filing an appeal with the AAO, it is critical to ensure that the case qualifies for review by the AAO.
An appeal with the AAO should be accompanied by a detailed legal brief, setting forth the arguments to reverse the original decision. These arguments should be supported by citations to such authorities as the Immigration & Nationality Act, the applicable regulations, case law, and USCIS policy memoranda. Processing times at the AAO vary, according to its own published statistics, most cases receive a decision in 6 months or less.
The AAO affirms the overwhelming majority of denials that it reviews. However, every case is different and you should consult with your immigration attorney to assess your chances and develop an appeal strategy based on the individual facts of your case.
Litigate Your Denied I-140 in Federal Court
Federal litigation involves the filing of a complaint in federal district court. The complaint will typically be filed alleging violations of the Administrative Procedures Act and arguing that the decision of USCIS in your case is “arbitrary and capricious” and thus not supported by law. An attorney is not required to litigate your case in federal court, but having an attorney with experience fighting unjust denials by USCIS can be a tremendous asset.
Federal litigation is the only solution to a denied I-140 that involves the review of USCIS’s decision by an independent body. Remember, Motions to Reopen and Reconsider are reviewed by the USCIS itself, and the AAO has been part of USCIS since 2003. In federal litigation, the federal judge reviews the facts of the case and applicable law and makes an impartial determination as to whether the denial you received was supported by law.
The time to get a final decision in federal litigation of your denied I-140 varies and depends on the facts of your case and whether the government is willing to settle the claim before the case reaches trial. In some cases, where the federal court rules that the government committed an error in denying your case, you may be entitled to an award of attorney’s fees, meaning that the court would force USCIS to pay for your lawyer.
One of the primary advantages of litigating your denial in federal court lies in the fact that you do not first have to exhaust administrative remedies by first filing an appeal with the AAO. You can file your case directly in federal court, without first pursuing a Motion to Reopen, Motion to Reconsider, or AAO appeal. Strategically, many attorneys recommend going directly to federal litigation, because filing appeals with USCIS or bodies under the control of USCIS only gives the agency the opportunity to perfect its denial, diminishing your chances of success in federal court.
A Word of Caution About Maintenance of Status
None of the options discussed in this article automatically grant or extend your immigration status. As a result, even if your I-140 denial seems to merit one of these appeal options, it is important that you consult with an attorney regarding maintenance of status issues. If at the time of your I-140 denial you do not have another valid immigration status, waiting for the decision on your motion in the US can be very risky. Improper handling of this issue can result in ineligibility for a green card.
Blogs cannot be used in lieu of legal advice
This blog is for informational purposes only. It is not intended to give you any legal advice or otherwise suggest the correct course of action in your specific case. General information found on the internet does not replace legal advice from an experienced attorney. Our experienced immigration attorneys can advise you on the best options in your individual circumstances. If your I-140 was denied and you would like to discuss your options with one of our immigration attorneys, please contact us directly to schedule a consultation.
The “Fairness for ‘High-Skilled’ Immigrants Act of 2019″ (H.R. 1044) Will Destroy Employment-Based Immigration to the United States
The “Fairness for High-Skilled Immigrants Act of 2019” H.R. 1044, S. 386, has unintended consequences that are contrary to the intent of the legislators.
While this bill attempts to make the employment-based green card process fair by treating applicants from all countries equally by removing the annual per-country cap of 7%, the result is:
● An immediate stoppage in green card issuance for an estimated seven years for all other countries that are not India and China.
● Changed incentives that will result in increased labor supply from India and China and decreased labor supply from everywhere else. This is likely to lead to another bottleneck in a few years, because it does not increase the total number of visas available annually.
● Only foreign workers who are eligible for the few categories of “dual intent” nonimmigrant visas will be eligible to work for their U.S. employers on a temporary basis while their applications are pending – which will start at an estimated 7 years on the first day that this bill takes effect (and as set out above, is likely to grow longer). Not all will be get renewals that will cover the wait.
● No H-1B nonimmigrants waiting for their green cards will be able to do three-year extensions past the initial six year maximum time limit.
● Instead, all H-1B nonimmigrants will have to renew their H-1B temporary visas annually after six years, increasing expense, burden and uncertainty for the H-1B workers and their employers, while dramatically increasing the workload of the already overburdened U.S. Citizenship and Immigration Services.
● Increasing costs, burdens and uncertainty for employers may lead employers to rotate out H-1B employees rather than sponsoring anyone for a green card at all.
● S. 386 further: removes EB-5s from the bill, which limits the benefit to Chinese applicants; and the Grassley amendment will completely change H-1B visa processing by adding a new recruitment requirement.
The current system of employment-based (“EB”) immigration has an annual cap on the total number of EB visas issued (“green cards”), as well as a 7% per country cap. In other words, India and China each get the same total number of immigrant visas every year as Andorra, Luxembourg, and the Maldives.
The high number of applications for Indian and Chinese workers, and the practice of counting the applicant’s accompanying spouse and children against the quota for workers (not mandated anywhere in law or regulation), have caused lengthy backlogs. For China and India, the current
backlogs are decades long. As a result, Indian and Chinese H-1B holders become tied for years to their US employers to maintain immigration status while they await EB green cards. The problem is real, and it is serious.
The “Fairness for High-Skilled Immigrants Act of 2019” (H.R. 1044, S. 386):
This bill eliminates the 7% per country cap for employment-based immigrant visas. Because the green card are issued in the order for which they were applied, and hundreds of thousands of Indian and Chinese citizens are already “in line,” they would be processed ahead of any new
applicants for years. “Green cards” would be unavailable for years to anyone else.
Effects of H.R. 1044 on ALL Employment-Based applicants:
● In an attempt to alleviate backlogs for China and India, the bill redistributes the backlog for those two countries, and creates immediate backlogs for all other countries. U.S. employers who require foreign workers to meet the gaps in the US market will have to wait many years for their sponsored employees to receive green cards.
● Employees who are ineligible for dual-intent visas will be forced to wait for years in the home country, US employers can’t utilize them in the meantime.
● Virtually ends extraordinary ability immigration for athletes, including MLB and NBA players, whose entire careers span less than the wait time this bill will create.
● Children accompanying parents on work visas who reach age 21 during the backlogs will become ineligible for a green card as part of the parent’s process. This will add to backlogs in the family-based immigrant visas and other categories, and lead to unnecessary family separations.
Effects of H.R. 1044 on H-1B employers:
● Ends three-year extensions of H-1B nonimmigrants under the American Competitiveness in the 21st Century Act. H-1B’s will need to be extended annually rather than every 3 years after the initial 6 years. The change significantly increases the administrative burden and cost of compliance for all US employers who have already sponsored or want to sponsor any of their foreign workers for green cards.
● Eliminates the employers’ ability to draw employees from non-backlogged countries to meet the shortage of qualified employees in the US market.
● Senator Charles Grassley’s amendment requiring recruitment of U.S. workers for H-1Bs coupled with USCIS’s new “no deference” policy (treating extensions like brand new petitions) will likely lead to many denials for extension of stay even for workers for whom US employers have obtained multiple prior approvals of temporary visas and approval of an immigrant visa petition. This could leave US employers without a means to lawfully
employ nonimmigrant workers to compensate for US labor market shortfalls.
A practical alternative solution
We encourage legislators to consider the proposals offered in the “Believe Act of 2019” (S.2091) introduced by Senator Rand Paul. This bill eliminates the backlog for citizens of India and China without the unintended consequence of creating years-long backlogs for all applicants.
The following immigration attorneys authored this document and are available to provide clarifications and comments:
Ksenia A. Maiorova
Maiorova Law Group, PLLC
6965 Piazza Grande Ave., Suite 207
Orlando, FL 32835
Law Office of Amy Maldonado
333 Albert Ave., Suite 610
East Lansing, MI 48823
Law Offices of Karin Wolman
48 Wall St., 11th Floor
New York, NY 10005
Adding another victory to her list, Orlando sports immigration attorney Ksenia Maiorova secured a P-1A visa for Dmitrii Vorotyntsev. Vorotyntsev, who has a cult following on Instagram, competes in the Men’s Classic Physique division. Dmitrii is famous for his unique proportions – a tiny waist and massive shoulders.
Vorotyntsev’s first US competition
Dmitrii Vorotyntsev used his new P-1A visa to compete at the 2019 Yamamoto Nutrition Cup Tampa Pro. Ksenia, who is known for traveling to support her clients in sports competitions, was there to cheer him on. He easily advanced to the final and was awarded 6th place in the competition.
A first-place finish would have automatically qualified him for the top competition in bodybuilding, the world-famous Mr. Olympia. The Tampa IFBB pro was his last chance this season to qualify. However, following the competition, Votortynsev remained optimistic. He expressed his gratitude for the collegial competitive atmosphere and reiterated his commitment to qualifying for Mr. Olympia 2020.
Next up: San Antonio
Undeterred by the temporary setback, Vorotyntsev immediately made his way to the Powerhouse Gym in Tampa to refine his form and prepare for his next competition in San Antonio. A win in San Antonio would help him secure a trip to Mr. Olympia 2020 in Las Vegas.
Already well-known in Russia and Europe, Dmitrii and his primary sponsor, Dragon Pharma, look forward to his US competition schedule and Olympia 2020 prospects. For more information about collaborating with Dmitrii Vorotyntsev, contact his marketing team at Dragon Pharma.
“How extraordinary do you have to be to get a green card?” and Other Questions for an Extraordinary Ability Immigration Lawyer
Editor’s note: this interview was published, in Russian, in the January 2018 edition of the Russian Speaking Newspaper.
Not many attorneys focus on the sports aspect of Extraordinary Ability immigration. Can you tell us how you got started in sports immigration law?
Well, I’ve always loved sports and respected not only the physical, but also the intellectual discipline required of athletes. That said, I was never athletically gifted, so in college, rather than playing sports, I tutored athletes at my university. I also became close friends with two runners, who went on to complete and win medals at multiple Olympic Games (Deedee Trotter – 400m) and Justin Gatlin (100m and 200m). It was through my friendships with them that I discovered my love for Track & Field. When I became an immigration attorney, it seemed natural to combine my interest in sports with my profession. My first sports immigration clients were runners, but since then, I’ve branched out into other sports – bodybuilding, martial arts, figure skating, and others.
Would you say you become a fan of the athletes you work with?
Definitely! I think it’s impossible not to! When I’m doing my research on the client and start making lists of all their accolades for the legal brief I’ll be submitting with their case, sometimes it’s difficult to believe, to wrap your mind around what they’ve accomplished. Only 124 men in the history of humanity have run the 100-meter race in under 10 seconds and 4 of them are my clients! That feels surreal. And I must confess that when I’m watching the Olympics or World Championships, I’m not only cheering for the Americans. I traveled to London earlier this fall to watch my clients compete at the World Championship, as well as to meet with other athletes, coaches, agents and Nike representatives.
So, do you work only with athletes?
No, not at all. While athletes certainly make up most of the clients in my Sports and Extraordinary Ability practice, I do also work with people of extraordinary ability from other fields. US immigration law makes Extraordinary Ability visas and green cards available to those who have achieved very high levels of acclaim in Business, Education, Science and Arts, in addition to Sports. In the last year, for example, we have worked with a fantasy author and with a permanent makeup artist. It can be any field that broadly fits under one of those three categories. Extraordinary ability immigration isn’t just reserved for famous athletes, singers and actors.
How “extraordinary” does someone have to be to get an extraordinary ability visa or green card?
It depends on the immigration category. The law provides several options. The P visa for athletes and entertainers is the most easily attainable option of those available. It requires that the applicant be “internationally recognized.” Every case and every field is a little different but as an example, someone ranked in the top 10% in their country in their sport, and who competes internationally in major competitions, might qualify for a P visa. For the O visa, the level of distinction required is higher than the P. It requires “sustained national or international acclaim.” For example, I have gotten the O visa for an athlete who was a national record holder, and who had competed in the Olympics, but had not won a medal. For the green card, the standard is also sustained national or international acclaim, but as a practical matter, getting the green card is still a bit tougher than the O. We were successful with an extraordinary ability green card for a continental record holder in multiple events, who had advanced to the Olympic finals. Candidates with major internationally recognized awards in their field generally have a good chance of winning an extraordinary ability green card, but the final analysis is case-specific.
What about individuals from somewhat obscure fields? Can they qualify?
Yes, they can, though their cases are tougher. It’s fairly easy to explain why someone who runs at record-breaking speed is extraordinary, but the less known or more complicated the field, the more difficult it becomes to explain to the immigration officer how a particular candidate stands out among others in his or her field. It’s important to remember that the field itself doesn’t have to be well-known or even extraordinary; the requirement is that the applicant has to stand out as among the most accomplished and recognized in his or her field. In theory, one could qualify as one of the world’s leading specialists in waste management. The challenge is in identifying the evidence that meets the requirements of the law and fully conveys the applicant ‘s accomplishments.
What’s the most unusual Extraordinary Ability visa you have seen be granted?
A humanist educator.
What strategies do you use with applicants from these “nonstandard” fields?
I start with hours of research on the field of endeavor. With these cases, I almost have to become an expert in the field. I have to understand how the field works, it’s politics and hierarchy, the client’s body of work and how it fits into this larger structure. Then, I develop the case strategy accordingly. I think that’s why I have had so much success in the Track & Field area of my Extraordinary Ability immigration practice. Of all the fields I have worked with throughout my career, that is the field I know and understand best.
From what we hear, you have a pretty astounding win record. To what do you attribute that?
Thank you. I am proud of our Sports and Extraordinary Ability immigration practice and the results I’ve been able to achieve for my clients. I think certainly part of it is that my clients’ achievements motivate the perfectionist in me. I also personally develop the case strategy and manage each of my Sports and Extraordinary Ability cases cases. I don’t have paralegals or assistants drafting my legal arguments or making critical case decisions. My clients come for me, they pay for me, and they get me; not an associate or a paralegal. The clients appreciate this approach and I think it results in a better filing.
Speaking of filings, we’ve seen pictures of massive stacks of paper on your firm’s social media pages. How thick is an average Extraordinary Ability case?
I’d say average is probably 400-600 pages.
What’s your record?
29 lbs of paper.
If you could file an extraordinary ability case for anyone in the world, who would it be and why?
Hmmm, good question! Probably Justin Trudeau. I’m a huge fan! Too bad there’s not a category for Extraordinary Ability in politics!
If you would like to find out whether you qualify for extraordinary ability immigration to the United States, call us at 407-705-3345 today to set up your case analysis with our award-winning Orlando immigration lawyer, Ksenia Maiorova!
Athlete Green Cards Under EB-1A in Jeopardy: Pending Legislation That Could End the Path to Residency for Athletes
Earlier this week, the House of Representatives passed the “Fairness for High-Skilled Immigrants Act of 2019,” which could effectively end the path to green card applications under EB-1A for professional athletes. The bill, HR 1044, proposes a redistribution of the annual quota for employment-based green cards, including EB-1A green cards for individuals with extraordinary ability in Athletics.
Immediate multi-year backlogs for EB-1A green cards
HR 1044, which is now under review in the Senate Judiciary Committee, attempts to solve the problem of a years-long backlog in the allocation of employment-based green cards to citizens of India and China. This backlog is created by the relationship between an annual numeric cap on the number of employment-based green cards that can be issued each year and the high number of applications for these green cards by citizens of India and China.
However, the proposed solution will have the perhaps inadvertent, but nonetheless immediate, effect of creating a backlog in green card applications made by nationals of all other countries. Some analysts predict that the backlog could be as long as 7 or more years.
Forced O and P applications for those who meet the criteria for EB-1A
The immediate consequence of the new backlog would be that athletes who already meet the criteria for EB-1A green cards would be unable to apply for green cards, without waiting in line for years. Given the need to train and compete in the US in the meantime, athletes would need to obtain a “bridge” status, such as a P-1 or O-1 visa.
Unlike the EB-1A green card, which permits self-petitioning, P-1 and O-1 visas are required to be submitted by an employer or a petitioner. Additionally, these visas restrict the athlete’s authorized employment to specific competitions, games, or events outlined in his or her petition, and do not provide employment authorization for the athlete’s accompanying spouse.
These visas also bind the athlete to the petitioner and changes in petitioner, the terms of the athlete’s employment and other details regarding the athlete’s work in the US often require the submission of an amended or a new petition. Athletes from countries like Brazil, with short-term validity for O-1 and P-1 visas, will either be stuck in the United States or will have to reapply for a visa stamp at a US Consulate abroad virtually every time they travel outside the US.
What was once a one-step process for highly-qualified athletes could turn into a multi-step and multi-year affair, as the EB-1A qualified athlete struggles to maintain interim status while waiting for the green card.
Maximum Periods on O and P may be insufficient
Further complicating the situation of extraordinary ability athletes who would be affected by this legislation, O-1’s and P-1’s are subject to limitations on the maximum admission period, of 3 years and 5 years, respectively. If the EB-1A backlog lasts longer than the validity of the athlete’s O-1 or P-1, extensions will need to be secured to meet the gap. In some cases, multiple extensions of the O-1 or P-1 nonimmigrant visa will be required.
Multi-year backlogs could mean no green card for short athletic careers
Multi-year backlogs can also entirely cut off the possibility of a green card for certain athletes. An EB-1A green card requires that the athlete be coming to the US to “continue work in the field of endeavor.” For athletes, the field of endeavor is narrowly construed as competing in his sport. Unless the EB-1A was approved for coaching, an athlete who retired as a competitive athlete and took up coaching while waiting for the backlog to resolve will be ineligible to receive a green card under that category.
This presents a problem for MLB and NBA players, as well as other sports where the average duration of a professional career is relatively short. Athletes could attain the accolades required for an extraordinary ability green card during their competitive career, only to be retired and ineligible by the time they can apply for adjustment of status.
EB-1A green card eligible athletes should obtain legal advice
The bill includes provisions that may protect athletes who filed their EB-1A applications before the law goes into effect. However, it is unclear whether these protections will be included in the final version of the legislation, if it passes. Athletes whose accomplishments make them eligible for EB-1A should consult with an experienced sports immigration lawyer to develop an individualized legal strategy.
This post was co-authored by our Managing Partner, Ksenia Maiorova, whose sports visa practice is primarily focused on Track & Field, and by Amy Maldonado, whose sports immigration practice focuses on MLB athletes and coaches.
When you schedule a consultation with an immigration attorney, you expect to hear whether the attorney can help resolve your matter, and if so, how he or she will do it, how long it will take, and what the legal fee will be. Below are some very important questions that you may not think to ask during your consultation, but should.
1. How much of your practice is dedicated to immigration?
Immigration & Nationality Law is widely recognized as one of the most complex areas of federal law. A capable immigration practitioner must be familiar with tens of thousands of pages of regulations and statutory language, policy memoranda, and developments in case law. There are important developments in Immigration & Nationality Law on a daily basis. The more time an attorney dedicates to the practice and study of immigration law, the better equipped he or she is to handle your case. The most highly-regarded attorneys in the immigration field generally practice exclusively in the area of Immigration & Nationality Law. An attorney who “dabbles” in immigration is not likely to have the same level of knowledge and expertise as someone who practices immigration law exclusively.
2. How long have you been practicing immigration law?
When you inquire about an attorney’s experience, it is as important to know how long they have been practicing in the area of immigration law as it is to know how long they have been a licensed attorney. Has the attorney handled hundreds of cases or only a handful? It is also important to the attorney about the extent of his or her experience with specific agencies and types of cases and to consider how this experience might be applicable to your case.
3. How much will my case cost?
A clear understanding of the fees involved in your case benefits both you and your attorney. Some attorneys bill on an hourly basis, while others offer flat fees on certain types of matters. If your attorney bills on an hourly basis, have the attorney estimate how many hours he or she expects to spend on your case, and whether there is a cap, or an upper limit, to the hourly fee. In an hourly billing scenario, it will also be prudent to learn the hourly rates of any attorneys or paralegals that may be working on your case. Whether the attorney bills on an hourly or on a flat fee basis, ask when the fee will be due, and consider whether you will be able to make the payments as scheduled.
When discussing attorney’s fees, be sure to ask whether the fees include additional costs (for items like copies, express mail, or travel). Most attorneys will not include USCIS filing fees in their legal fee. For planning purposes, you should also ask the attorney how much you should set aside for filing fees and when you will be expected to pay them.
4. What can I expect in return for my money?
As surprising as this may sound, different attorneys will do different amounts of work for the same type of case. Have the attorney explain in detail what he or she will do for the fee. Will the attorney help you sort through and organize your documentary evidence? Will he or she review and comment on your affidavits or psychological reports, if applicable? Will he or she prepare you for your interview and/or hearing? If your case is called for interview, will there be an extra fee?
Also be sure to ask about what you can expect to pay if there are unexpected contingencies in your case, such as the government asking you to come back for another hearing/interview, requesting additional evidence, or issuing a Notice of Intent to Deny your case.
5. What is your communication policy?
Effective communication with your attorney is among the most important factors affecting your case. Inquire about the attorney’s office hours, the attorney’s preferred method of communication (telephone or email), whether an appointment is necessary to see the attorney, as well how you should submit documents for the preparation of your case (generally, by mail, email or fax).
While the L-1A visa remains a popular investor visa, it has one major limitation: it requires that for at least a year of the last three, the applicant occupied an executive or managerial position in a business outside the US. For those individuals who are seeking investor visas to the US, but do not satisfy the L-1A requirement concerning employment as an executive or manager in a company outside the US, there may be other options available. One such option is the E-Visa, which can be subdivided into two varieties: the E-1 Visa for Treaty Traders and the E-2 Visa for Treaty Investors.
Both the E-1 visa for Treaty Traders and the E-2 visa for Treaty Investors are treaty-based visas, meaning that in order for an applicant to be eligible for the visa, his or her country of citizenship must have entered into a certain type of treaty with the United States. Some countries have a treaty with the US which permits applications for the E-1 and E-2 visa, while other countries may only allow one or the other. Many countries do not have the appropriate treaty with the US at all, meaning that citizens of those countries cannot apply for E-visas, unless they have another citizenship from a country with an E-1 or E-2 treaty. The full list of E-Visa treaty countries can be found on the website of the US Department of State.
In order to be eligible under the E-1 category for Treaty Traders, in addition to having citizenship from a country with a qualifying E-1 treaty, the applicant must demonstrate that he is coming to the US to carry on substantial trade in goods, including but not limited to services and technology, principally between the United States and the foreign country of which he is a citizen or national. As a practical matter, E-1 visa criteria is more difficult to meet than the criteria for the more liberally granted E-2 visas, therefore, to the extent that an applicant’s citizenship makes him eligible to apply for both E-1 and E-2, as a matter of strategy, it is sometimes strategically wiser to apply for the E-2.
To demonstrate eligibility for the E-2 investor visa, an applicant must establish that:
- he is coming to the United States to develop and/or direct the operations
- of an enterprise in which they have invested, or are actively investing,
- a substantial amount of money.
In order to demonstrate that the investor is coming to develop and direct an enterprise/business, the investor will need to establish that he has a controlling stake in the business. Although under certain circumstances a 50% stake may be sufficient, a majority stake is generally advisable.
The regulations require that the applicant’s capital investment be “at risk,” however there are strategies that seasoned attorneys can develop to appease those investors who are hesitant to make an irrevocable financial commitment to a US enterprise prior to knowing whether their visa will be approved. One relatively common practice, is to place the capital investment in an escrow account, with the escrow conditions specifying the release of the capital investment funds only if the E-visa is approved, thus minimizing the risk exposure for the investor. Escrow may also be used as a vehicle not only for the initial capitalization of the US enterprise, but also for the purchase of equipment, furniture, and other items that may be required for the business.
One of the advantages that the E-visa shares with the L-1A is that the law does not specify the minimum capital investment required for the visa. Under the law, the E-2 investment amount must be “substantial.” US immigration authorities interpret “substantial” by applying a set of legally complex rules, however, as a practical matter, with sound legal strategy and a good business plan, capital investment amounts of less than $100,000.00 can form the basis for a successful E-2 investor visa application. The investment must also not be “marginal,” which has been interpreted by US immigration authorities to mean that the income the investor derives from the business should have the present or future capacity to generate more than just the minimal living expenses for the investor and his family. Future capacity can be determined on the basis of a 5-year business plan.
The law also does not specify any limits on the type of business that the E-2 investor must engage in, therefore, the investor is free to select his own industry, ideally, based on the advice of a competent financial advisor who has conducted a market analysis. For an investor who has not previously owned or managed a business, the purchase of an established franchise may be a good option.
The E-1 and E-2 are non-immigrant visas, which do not create a direct path to a green card like the L-1A or the EB-5. The initial period for which an E-2 investor visa applicant is admitted to the United States is up to two years, and the spouse and children under age 21, who are included in the principal investor’s application, are granted permission to remain in the US for the same amount of time. The spouse of the investor receives employment authorization, and can work anywhere; there is no requirement that the spouse be employed at the E-2 business. The children of the investor may attend school.
If permanent residency is the investor’s ultimate goal, the applicant will need to develop a long-term strategy with his immigration lawyer, which may involve a combination of the E-2 with other visas or statuses. To learn more about E-1 visas for Treaty Traders or E-2 visas for Treaty investors, call 407-705-3345 to schedule a consultation with one of our award-winning Orlando investor immigration attorneys.
June 22, 2019 – Orlando, FL – Our Managing Partner, Ksenia Maiorova, a nationally-recognized thought leader in sports immigration, spoke at the 2019 Annual Conference of the American Immigration Lawyers Association. Attorney Maiorova, who is also known as The Sports Visa Lawyer, presented on a panel titled “We Are the Champions: Immigrant and Nonimmigrant Visa Options for Athletes, Coaches, and Agents.” The presentation covered topics like P-1 visas, O-1 visas, and EB-1A green cards. Additionally, the experts on this panel focused on current trends in USCIS decisions on sports immigration cases.
On the panel, Ksenia shared her experience and tips for putting together winning sports immigration cases for athletes who compete in individual sports.
The American Immigration Lawyers Association is the largest professional organization for immigration attorneys in the United States, uniting approximately 15,000 members. Speakers at the AILA Annual Conference are selected based on their professional reputations and in-depth knowledge of immigration law.
Attorney Maiorova is a frequent speaker on sports immigration and extraordinary ability immigration at various national conferences. In the last year, she has presented at four major conferences, and has accepted invitations to several more.
For media inquiries or to invite The Sports Visa Lawyer to speak at your event or conference, please submit an inquiry here.
If you are an immigrant who obtained his or her residence in the US through marriage to a lawful permanent resident (green card holder) or US citizen, you probably already know that you will need to file a Form I-751 to remove your conditions on residence during the 90-day period before your 2-year green card expires.
What you may not be aware of is that the US Citizenship and Immigration Services (USCIS) has been making it much more difficult for your I-751, Petition to Remove Conditions on Residence, to be approved. While you may expect that if your application for a 2-year green card was approved without any problems, you can expect a similar result for your 10-year green card application, USCIS is now using official sounding language to deny cases that, based on applicable law, should be approved.
The “not enough joint assets” denial
One of the most common reasons that USCIS has been using to deny cases is that the spouses “did not establish, in sufficient detail, joint ownership of assets, joint responsibility for liabilities, and active co-mingling of finances for the duration of [the] marriage.” This, in simpler language, means that USCIS is taking the position that, to be approved, you and your spouse should be jointly responsible for bills, share your money through joint bank accounts, and own assets in both of your names.
However, this position is not supported by the law. The law applicable to I-751 petitions states that shared bills and jointly owned assets are merely one of the ways you can prove that your marriage is bona fide, but this type of proof is not required. The government must consider all the evidence submitted and determine if is “more likely than not” that your marriage is not a sham. This means that if you submit other types of evidence which demonstrate that you entered into your marriage in good faith, and not solely for the purpose of obtaining your green card, USCIS cannot require you to submit evidence of financial co-mingling or joint ownership of assets. The law takes into account that modern-day America, where both spouses typically work, couples may wish to keep their finances separate, therefore, it extends the courtesy of this lifestyle choice to immigrants applying for their permanent green cards.
USCIS’s boilerplate request for evidence (RFE) and denial, which include the financial co-mingling language discussed above, very commonly make claims that have no basis in the law, and applicants who receive these notices often assume that the government’s interpretation of the law must be correct. However, in addition to misstating the law, the government also frequently misapplies it. For example, we often see cases where the couple has submitted jointly filed tax returns, but USCIS claims that they have no joint assets of liabilities. This argument by USCIS is flawed, because if taxes are owed on a jointly filed return, both spouses are responsible for payment, which creates a joint financial liability. Similarly, if the jointly filed tax return results in a refund, the money belongs to both spouses, which creates a joint asset.
What to do after receiving an RFE or Denial in your I-751 case
If you have made the common lifestyle choice of keeping most or all of your finances separate, or you simply have limited documentation of shared financial liabilities and assets, you can still win your I-751 case. What you can to do protect your rights depends on the stage your case is currently in. If you have received a Request for Evidence, you are in a good position, because you still have the option of making a case for approval without submitting a new application, which would require the payment of government fees once again.
If your I-751 has been denied, the law does not allow you to appeal it, but it is possible to file a new I-751 petition with a new filing fee, and this can be done at any time before the Immigration Judge issues a Final Order of Removal (a deportation order) in your case. Luckily, immigration authorities are currently slow to place immigrants who do not have a criminal history into removal proceedings, so there is usually an option to re-file a denied I-751, sometimes even years after the first one was denied.
In the last year, we have handled many cases where the government either denied or threatened to deny applicants based on a lack of financial comingling. By presenting other strong evidence that demonstrated the bona fide marriage, and citing to the applicable statutes, regulations and precedent case law, we were able to create winning strategies for our clients’ cases and keep them out of Removal Proceedings.
If you have received an RFE or a denial of your I-751 for any reason, remember that the government is not always right. Call us today for a consultation with one of our award-winning immigration attorneys!
P-1 visa win in a complicated case
Our Sports & Extraordinary Ability practice got off to a great start in 2019, with a P-1 approval for Canadian Tremaine Harris. Harris, a 400-meter Olympic sprinter, uses his P-1 to train with the world-renowned Altis group in Phoenix, AZ and compete in the US.
This case was complicated by a brief, inadvertent status violation by the athlete. Attorney Ksenia Maiorova crafted a legal strategy to overcome the violation and worked overtime to secure the approval, enabling the athlete to resume training in Arizona as soon as possible.
Athlete boasts about his client experience
Harris, who delivered the keynote speech at the nation’s first Sports Immigration Law Conference, shared his immigration story with an audience of nearly 100 immigration lawyers. He also shared his impressions about working with Attorney Ksenia Maiorova on his sports visa case. He cited the ease of communication and the positive outcome in his complicated case the best aspects of his client experience.
“The best part about it was that she kept me up to date. It was easy to contact her, and I always felt like I was involved in the process…I’ve been sending her referrals nonstop!”Tremaine Harris, on working with The Sports Visa Lawyer
If you are a professional athlete with questions about your US immigration options, Contact Us for a consultation with The Sports Visa Lawyer.