We have assisted our clients in obtaining immigrant and nonimmigrant visas, permanent residence in the United States, citizenship and naturalization.
Serving businesses and individuals, our firm’s expertise is valued for its thorough guidance on complex immigration matters. These include establishing foreign business operations in the U.S., providing immigration services for employees moving to U.S.-based locations and assisting companies with U.S. investment opportunities. Additionally, we offer comprehensive immigration support for startup companies and entrepreneurs. Other areas of expertise include offering strategies for family-related immigration support, and helping individuals with extraordinary abilities who are seeking visas.
The global pandemic significantly disrupted U.S. visa operations, which are only now getting back to normal in the first quarter of 2023. In many cases, applicants are experiencing longer than normal wait times for appointments, and a disruption to other previously routine consular operations. Phillips Lytle’s immigration team maintains close working relationships with the U.S. Citizenship and Immigration Services (CSIS), U.S. Customs and Border Protection (USCBP), and other related federal and state agencies and processing offices, and can offer up-to-date guidance on all of your immigration and visa questions.
We routinely offer legal support for the following visas, petitions and forms:
Foreign visitors holding a B-1 temporary business visa may enter the U.S. for temporary business-related activities such as conventions, conferences and consultations. B-1 visitors may not engage in gainful employment in the United States. Permissible B-1 activities include:
While the B-1 visa is among the easiest to obtain, processing time is difficult to predict and can range from an average of 90 days to quite a bit longer.
Spouses and children under age 21 may receive B-2 visa status for the same duration as the B-1 Visa Business Visitor.
The B-2 visa, commonly known as the tourism visa, is one of the most requested visas. With a B-2 visa, foreign visitors may enter the U.S. on a short-term basis for recreational activities such as:
Foreign visitors can stay up to 180 days unless, upon entry, the U.S. Border Protection and Customs officer established a shorter time. B-2 Visa visitors may not engage in any employment or enroll in a full course of study.
The E-1 nonimmigrant classification, sometimes known as the Treaty Trader Visa, allows a national of a treaty country—that is, a country with which the United States maintains a treaty of commerce and navigation—to enter the U.S. solely for the purpose of engaging in international trade on their own behalf. Certain employees of such a person, or of a qualifying organization, may also be eligible for this classification. Applications for an E-1 visa are made directly to a U.S. consulate and there is no limitation on the number of E-1 visa extensions available to applicants, which are for two years each.
Employment conducted under an E-1 visa must be consistent with the terms and conditions of the activities forming the basis for their E-1 visa status. There are also strict requirements on the nationality of individuals and the level of trade necessary to qualify for E-1 visa status.
In order to qualify for an E-1 visa, the applicant must engage in so-called “substantial trade,” which is defined as a continuous flow of international trade between the U.S. and the treaty country, entailing numerous transactions over time. If the visa holder has a small business, the income from international transactions must be sufficient enough to support the treaty trader and their family. Trade can be proven by bills of lading, customer receipts, letters of credit, sales contracts and comparable documentation.
Foreigners who qualify for both the E-1 visa and the E-2 visa (see below) are generally counseled to apply for the E-1 visa, both because it requires less documentation and has no requirement for job creation. In addition, if an individual has an inadmissibility problem, an E-1 visa may be the most expeditious way of obtaining a waiver.
The E-2 visa classification, also known as a Treaty Investor Visa, permits a foreigner to enter the United States temporarily to develop and direct the operations of a business investment in the U.S. Applications for an E-2 visa are made directly to a U.S. consulate and there is no limitation on the number of E-2 visa extensions, which are for a period of two years.
A holder of an E-2 visa may only engage in employment that is consistent with the terms and conditions of the activities forming the basis for their E-2 visa status. There are strict requirements that must be met to qualify for E-2 visa status. The requirements govern both the nationality of individuals and the level of investment being made.
E-2 visa investors are subject to a number of strict requirements, including:
The E-3 visa classification applies exclusively to nationals of Australia, their spouses and children under the age of 21. E-3 principal applicants must be going to the United States solely to work in a “specialty occupation.” A “specialty occupation” is one that requires the theoretical and practical application of a body of specialized knowledge, and the attainment of a bachelor’s degree or higher in the specialty.
An applicant’s spouse and children need not be Australian citizens.
The EB-1 visa is a first-preference, employment-based visa for foreign nationals who can demonstrate extraordinary ability in their field. Qualifying areas can be science, arts, education, business or athletics, and the work must substantially benefit the United States.
There are three broad EB-1 visa types:
A petition for status as an EB-1 worker with extraordinary ability must be accompanied by clear evidence and documentation that the foreign national is coming to the United States to continue work in the area of expertise. Such evidence may include letters from prospective employers, evidence of prearranged commitments such as contracts, or a statement from the foreign national detailing plans on how he or she will continue his or her work in the United States.
The EB-1A visa is an employment-based green card available to foreign nationals who demonstrate extraordinary ability in their field, whether athletics, the arts, business, education or science. Evidence proving extraordinary ability is by “sustained national or international acclaim.” To satisfy the legal criteria for an EB-1A, applicants must present one of two types of evidence: either a one-time, major international award such as a Nobel Prize or Pulitzer, or fulfilling at least 3 out of 10 of the following qualifications:
The EB-1B visa is an employment-based green card available to outstanding professors and researchers seeking to pursue tenure or tenure-track teaching or research positions at a university or comparable educational institution. Applicants must demonstrate they have achieved international recognition for outstanding achievement in their field, and have a minimum of three years of experience either in teaching or in research in the same academic area.
The EB-1C visa is an immigrant visa classification for multinational managers and executives. The EB-1C visa allows a foreign company to transfer a manager or executive to a related U.S. company. The U.S. company does not need to get an approved Labor Certification to hire the foreign worker. Instead, the U.S. company can simply hire the foreign worker through a job offer. The EB-1C visa allows executives or managers of multinational corporations to live and work in the United States permanently.
The EB-2 visa is the second preference employment-based green card category that grants permanent residency to foreign nationals with advanced degrees or exceptional ability. There are three categories under EB-2:
The Department of Labor’s (DOL) certification process is typically the first step in the three-step process of obtaining employment-based lawful permanent residence (LPR) status. The second stage of the LPR process is for the employer to file an I-140 Immigrant Petition with USCIS. The third stage is the application for permanent residency, filed by the employee either as an Adjustment of Status application with USCIS, or through the appropriate U.S. consulate abroad.
The DOL’s Program Electronic Review Management (PERM), allows employers to file electronically or by mail. Employers who wish to submit their applications electronically must register in advance with DOL, providing various information about the employer. Registration is linked to the employer’s federal Employer Identification Number (EIN), so companies that have divisions with separate EINs will have an additional step at registration.
Labor certification requires the employer to set forth the minimum requirements for the position, including any degree required, the specific number of years of experience required, if any, necessary training or special requirements. The employer may use only these minimum requirements to evaluate candidates who respond to recruitment for the labor certification. Any labor certification must meet the following tests:
In filing an application for a labor certification, the employer must commit to pay the prevailing wage for the position at the time that permanent residence is approved. The prevailing wage is determined by the applicable State Workforce Agency. In some circumstances, alternative wage surveys may be used.
Employers must also commit to advertising the proposed position. This includes running newspaper ads, posting on the company website, and using all internal media and other methods normally used in recruitment.
Schedule A lists job classifications that have been designated by the U.S. Department of Labor as not adversely affecting U.S. workers. Therefore, no advertising or recruitment to test the job market is required for Schedule A jobs.
EB-3 Visas are third-preference, employment-based visas. Foreign nationals may be eligible for this immigrant visa preference if they are skilled workers, professionals or other workers.
A DOL labor certification is required for EB-3 visas.
The fifth employment-based preference, EB-5, offers approximately 10,000 “green cards” (permanent resident status) annually to immigrants who invest in U.S. businesses that benefit the economy and create or save jobs. The standard required minimum investment is $1 million, but can be reduced to $500,000 if the investment is made in a high unemployment area. In 2022, USCIS issued 10,885 EB-5 visas.
Investment may be in an existing entity or in a new start-up. Once approved by USCIS, the applicant obtains conditional residence status for two years. After two years, the immigrant may obtain permanent residency status if he or she can prove they maintained the investment and created or saved at least 10 jobs.
The F-1 Visa nonimmigrant classification may be obtained by foreigners who wish to temporarily pursue a full course of study in an academic program that leads to the attainment of a specific educational or professional objective. A student who drops below a full course of study without the prior approval of his or her designated school official (DSO) is considered out of status unless approved by the DSO due to academic difficulties or medical conditions.
If a student is admitted in F-1 status, the spouse and minor children accompanying the F-1 student are eligible for admission in F-2 status, though they may not attend school full time without changing their status to F-1. An exception is for children, who may attend elementary school through 12th grade. The F-2 spouse and the minor children of the F-1 student may not accept employment.
F-1 visa students are permitted to engage in practical training when in a full course of full-time study. An F-1 student may be authorized by the DSO to participate in a curricular practical training program that is an integral part of an established curriculum.
The training must be either alternate work-study, an internship, cooperative education, or any other type of required internship or practicum that is offered by a sponsoring employer through a cooperative agreement with the school.
Generally, students may participate in an unlimited amount of curricular practical training, although students who have completed one year or more of full time curricular practical training are ineligible for post-completion academic training.
A student may apply for twelve months of temporary optional practical training, which must be directly related to the student’s major area of study.
A graduate professional with an H-1B visa may enter the United States temporarily to engage in employment in a specialty occupation. A “specialty occupation” means an occupation that requires theoretical knowledge and the attainment of a bachelor’s or higher degree in the specific specialty. Alternatively, if an applicant does not possess a U.S. Bachelor’s degree, one of the following is acceptable:
H-1B applications are subject to an annual cap, and rules and procedures surrounding processing and fees change frequently. However, 501(c) non-profit corporations are able to qualify for an exemption to the annual cap. H-1B visas are approved for three years. In 2022, USCIS issued 206,000 new and initial H-1B visas.
Form l-130, officially called “Petition for Alien Relative,” establishes that a valid family relationship exists between a U.S. citizen or green card holder and a person seeking a green card.
In the context of a marriage or spousal visa, the I-130 Petition is filed to prove that a marriage is legally valid. This is also the phase of the marriage-based green card process in which documents are submitted to prove the marriage is authentic. Filing the I-130 Petition also establishes an applicant’s place in line. A spouse, parent or unmarried child under the age of 21 may skip the line entirely.
If a foreign national marries a U.S. citizen, the foreign national becomes an immediate relative of the U.S. citizen spouse and may be able to apply for U.S. permanent residency as a result of the marital relationship.
The main requirements for a foreign national to apply for adjustment of green card status from within the U.S. based on marriage to a U.S. citizen are:
If the foreign national is not physically present in the U.S., or did not last enter the U.S. lawfully, they may be able to apply for lawful permanent resident status through Immigrant Visa Processing (IVP). If the foreign national is inadmissible to the U.S. as a result of previous criminal or immigration violations, they may be able to apply for waivers to waive those grounds of inadmissibility.
Sponsoring U.S. citizen spouses must also file Form I-864, Affidavit of Support, to demonstrate that the U.S. citizen will be able to provide sufficient financial support to avoid having the foreign national spouse become a public charge. The processing time for an I-130 Petition will depend on the family relationship and the place where the visa is applied from. For immediate relatives (spouse or unmarried child) of a U.S. green card holder, as of March 2023, processing times for Form I-130 may take 24 months or more.
Caution: Once a Form l-485, Application for Adjustment of Status (see below) has been filed, the applicant may not be able to depart the U.S. until advance parole is issued. Should an applicant depart the U.S. while the application is pending, but before advance parole is issued, they may be considered to have abandoned their Application for Adjustment of Status.
If a foreign national spouse’s Application for Adjustment of Status has been approved, but the couple has been married for less than three years, the approved beneficiary will be admitted as a Conditional Permanent Resident and only receive a green card valid for two years. In order to remove the conditions on his or her permanent residency and receive a full 10-year green card, the couple must file Form I-751, Petition to Remove Conditional Permanent Resident Status, within 90 days of expiration of the conditional green card.
Direct Consular I-130 Visa
U.S. citizens or permanent residents who reside abroad with their immediate relatives, and who demonstrate an urgent need to relocate to the U.S., may be able to file a Form I-130 Petition in the U.S. Embassy or Consulate abroad. Each consular post has its own requirements for this process.
Once the consular post is notified that a Form I-130 Petition will be filed locally, consular officials will schedule an interview date. The consulate will typically issue a decision within one to two weeks and will notify the beneficiary that he or she may proceed with Immigrant Visa Processing. Not all applicants will qualify as there must be a compelling reason for the consulate to allow a direct consular application to proceed.
Form I-485, known as Application for Adjustment of Status, is the application form to register permanent residence or to change status. An individual or non-U.S. citizen files this to obtain permanent resident status in the United States. Form I-485 is for non-U.S. citizens who are in the United States and who are eligible to apply for a green card based on sponsorship by a family member, employer or based on their refugee status/asylum.
Filing for I-485 or Adjustment of Status is complex and must be followed according to USCIS guidelines. This process is the final step to obtaining a green card. Once this step is completed, the individual becomes a lawful permanent resident.
If an immigrant petition, whether family-based or employment-based, requested immigrant visa processing (IVP) instead of adjustment of status, is approved by USCIS, it is forwarded to the U.S. Department of State’s National Visa Center (NVC) for processing.
The NVC has a significant role in the next steps of the immigrant visa process. They provide instructions to petitioners, sponsors, and visa applicants throughout the documentation gathering process. The NVC reviews required Affidavit of Support forms from sponsors to ensure compliance and receives fees, application forms, and other required documents from visa applicants.
Upon receipt of the approval notice from USCIS, the NVC will send an acknowledgement to the beneficiary that the approval notice has been received. If the foreign national’s priority date is not current, the NVC will contact the foreign national beneficiary and hold the petition until the priority date is current. If the foreign national beneficiary’s priority date is current (or they are not subject to one), the NVC will issue login credentials and notify the beneficiary that they may begin paying their required immigrant visa fees and uploading documentation to their online Consular Electronic Processing Center portal.
After receiving and reviewing the visa application and supporting documentation, the NVC will request additional information, if necessary, and subsequently hold the visa petition until an immigrant visa interview can be scheduled at the U.S. Embassy or Consulate having jurisdiction over the foreign national beneficiary’s place of residence. There can sometimes be long waits for an interview appointment to be issued, depending on specific consular backlogs and country conditions.
After the interview, if approved, the foreign national will receive their immigrant visa which they can use to enter the United States as lawful permanent residents. Immigrant visas are valid for a maximum period of six months. Therefore, the foreign national should plan on entering the United States within six months after being issued their immigrant visa.
Once admitted into the United States, USCBP will stamp the alien’s passport with a temporary Form I-551 (i.e., green card), which will evidence the alien’s lawful permanent resident status until his or her permanent Form I-551 is available. The foreign national may use the passport stamp for employment authorization and/or travel permission until their green card arrives.
The J-1 Exchange Visitor Visa Program is used to host students, scholars, trainees, teachers, professors, specialists, foreign medical graduates, international visitors, government visitors, camp counselors, and au pairs to the United States to participate in educational and cultural programs. One of the purposes of the J-1 visa program is to provide foreign nationals with the opportunity to acquire skills in the United States, which can then be used in their home countries.
The J-1 Exchange Visitor Visa Program prohibits certain J-1 exchange visitors from changing to certain other nonimmigrant classifications, or obtaining an immigrant visa, until they have spent two years in their home country. However, a waiver may be obtained for this requirement in certain situations.
A K-1 Visa, a nonimmigrant visa for a fiancé(e), requires a two-step process that must be initiated by the U.S. citizen. The first step is to file a Form I-129F petition with USCIS. If approved, the U.S. Embassy or Consulate having jurisdiction over the foreign national’s residence will schedule a visa appointment.
If approved, in most cases a K-1 visa is valid for six months from the date of issuance. The K-1 visa is also for single admission only, so the foreign national cannot leave and re-enter the United States until they have obtained special travel permission from USCIS.
After the U.S. citizen petitioner and foreign national fiancé(e) are married, they should file I-485 Adjustment of Status paperwork to apply for the foreign national’s green card. They should also concurrently file applications for travel permission and work authorization so that, after approval of these applications, the foreign national may have travel privileges and work authorization during the adjudication process.
An L-1 is intra-company transfer status for an individual, employed for at least one continuous year out of the last three by an international firm or corporation, who seeks to enter the United States in a capacity that is primarily managerial, executive, or involves specialized knowledge.
There are two types of L-1 visas: L-1A visas are available for managers or executives, and L-1B visas are available for employees possessing specialized knowledge.
An individual serving in a managerial capacity is one who:
An individual serving in an executive capacity is who one:
An employee who possesses “specialized knowledge” is one who:
In order to qualify for L-1 status, the foreign company where the L-1 applicant works must meet the qualifying relationship of either a parent, branch, affiliate or subsidiary of the U.S. company, meaning there must be common ownership and control of the two companies. Small companies that transfer employees to a U.S. location must show that the foreign company is still operating and generating business. Therefore, companies cannot simply transfer their entire operations to the U.S. without maintaining their operations abroad.
The O-1 Extraordinary Worker Visa classification provides nonimmigrant workers the opportunity to work temporarily in the U.S. if they have extraordinary abilities in the fields of athletics, arts, business, education, motion picture and television productions or science.
The O-1 Visa classification is not subject to any numerical limitations and a labor condition application does not need to be filed in a petition for an O-1 Visa. However, very high standards must be met to prove that worker has qualifying extraordinary ability in field by the submission of the following:
The P-1 Visa is a nonimmigrant entertainment visa that allows foreign nationals who are athletes, artists and entertainers to enter into the U.S. for a specific event, competition or performance. The P-1 Visa classifications cover individuals who compete at an internationally recognized level.
The TN Visa is a nonimmigrant United States-Mexico-Canada Agreement (USMCA) Professional Visa for qualified applicants who are citizens of Mexico or Canada. Applicants must:
Canadian citizens are not required to apply for a visa with a U.S. consulate or file a petition with USCIS. They may, however, request admission as a TN nonimmigrant at a U.S. port of entry and show the following documentation:
Mexican citizens are required to obtain a visa to enter the United States as a TN nonimmigrant, and should apply for a TN visa directly at a U.S. embassy or consulate in Mexico.
Once approved for a TN visa, the applicant should apply for admission at a United States port-of-entry.
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