Articles Posted in Professionals

In this video attorney Jacob Sapochnick discusses a frequently asked question regarding the E-2 Investor Visa: Are loans or gifts a legitimate source of funds for the E-2 visa?

In order to get an E-2 visa as an investor in the United States, you must demonstrate that you will make a substantial investment in a new business enterprise or an existing business. As part of the application process, you must show the origin of the source of funds for that investment, and the source of those funds must be legitimate. Not all sources of funds will qualify for the E-2 visa. Many of our clients ask whether a gift of funds or a foreign bank loan will qualify as a legitimate source of funding for the E-2 visa.

Overview: 

Are gifts a legitimate source of funds for the E-2 visa?

Yes, provided the investor has possession of the funds, and the funds are irrevocably committed to the investor by the giver of the gift. The person that has given the gift to the investor must provide documentation showing the source of those funds to prove that the funds came from a legitimate source.

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In this video attorney Jacob Sapochnick talks visa options for entrepreneurs.

Overview:

In this video we cover four visa options that allow foreign entrepreneurs to live and work in the United States. These visa options also allow the foreign entrepreneur to bring his or her dependents to live with them in the United States.

Option #1 L-1 Visa for Executives, Managers, and Essential Employees:

There are two types of visas available under the L-1 category: 1) L-1A Intracompany Transferee Executive or Manager and 2) L-1B Intracompany Transferee Specialized Knowledge.

The L-1A category is a non-immigrant visa classification for aliens seeking to work in the United States in an executive or managerial capacity on an assignment of a temporary nature for a U.S. subsidiary or parent company of their foreign employer.
The L-1A visa classification allows a foreign company to transfer an executive or manager to the U.S. subsidiary or parent company. If an affiliated U.S. subsidiary or parent company does not yet exist, the L-1A classification allows the foreign company to send the executive or manager to the United States for the purpose of establishing the affiliated subsidiary or parent company.
L-1B: If the alien is not employed in an executive or managerial capacity, the L-1B visa classification comes into play. To be eligible for the L-1B visa, the petitioner must demonstrate that although the alien is not employed in an executive or managerial capacity with the company, the alien possesses specialized knowledge and can represent the organization’s interests in the United States.

Both the L-1A and L-1B require the beneficiary to have worked abroad for the foreign employer for at least one year within the proceeding three years.

Pro: the L-1 visa leads to a green card

Option #2 E-2 Investor Visa:

The E-2 treaty investor visa is a non-immigrant visa that allows foreign entrepreneurs from treaty nations to enter the United States and carry out investment and trade activities. Investment activities include the creation of a new business in the United States or investment in an existing enterprise. The investment must be significantly proportional to the total investment, that is, usually more than half the total value of the enterprise or, if a new business, an amount normally considered necessary to establish the business.

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What are some alternatives to the H-1B visa?

By now you know that the H-1B cap has been reached for Fiscal Year 2019. But what happens if you were not selected in the H-1B visa lottery?

In this post, we will discuss some alternatives to the H-1B visa that will allow you to stay and work in the United States.

  1. The O-1 “Extraordinary Ability” Visa:

This visa type is for aliens of extraordinary ability in the sciences, education, business, athletics, motion picture, television, or arts industries who have received national and/or international acclaim in their field. An alien on an O-1 visa may live and work in the United States for a period of up to three years.

An O-1 visa is a great visa for people in the start-up world and technology sector. This visa is for people holding an advanced degree (at least a master’s degree) who have either started their own business, have patented inventions, are leading experts in their fields, and/or have gained notoriety in their fields as evidenced by awards and other national recognitions.

  1. TN Visa for Mexican and Canadian Nationals

The TN visa allows nationals of Mexico and Canada to work in the United States, provided their profession is on the NAFTA list. The maximum period of initial admission to the US is three years, but visa holders may apply for extensions in amounts of one year.

  1. E-3 Visa for Australian Nationals

Similar to the H-1B visa, the E-3 classification allows Australian nationals to travel to the United States to work in a specialty occupation. Applicants must have a bachelor’s degree or its equivalent to qualify and must work in a specialty occupation often associated with the STEM occupational fields. The E-3 visa is issued for an initial period of no more than 2 years, with extensions granted in 2-year increments.

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In this post, we discuss the top most commonly denied specialty occupations for the H-1B visa program. Don’t be caught in the dark. For more information just keep on watching.

0:19 – Marketing Manager

0:47 – Business Development Manager

1:12 – Technical Writer

1:37 – Computer Programmer

1:56 – Financial Analyst for Business

2:36 – Sales Positions

2:56 – Arts and Fashion

These occupations have been repeatedly denied over the years during H-1B filing season.

  1. Marketing Manager: It is very difficult to receive an approval with this occupation because USCIS has claimed that on the Occupational Outlook Handbook (OOH), the occupation of marketing manager does not require the individual to have a specific degree or a bachelor’s degree at all.
  2. Business Development Manager: This occupation falls under the Market Research Analyst category. We have seen quite a few denials associated with this occupation within the past 2 years. It is difficult to receive an approval for market research analysts, and the rate of requests for evidence issued for this occupation have increased tremendously.
  3. Legal Technical Writer/Technical Writers: We have seen increasing denials associated with this occupation since the last filing season. Extensions have also proved difficult to receive for this occupation. The common reason for denying this occupation is also that the OOH does not require the individual to have a specific degree or a bachelor’s degree at all.
  4. Computer Programmer: Based on recent memos issued by USCIS it is very difficult to receive an approval for this occupation because USCIS does not think that a bachelor’s degree is required for this position.
  5. Financial Analyst for Business: We have seen denials for financial analysts seeking to work for a business that isn’t involved in the financial sector. This applied in a situation where the beneficiary was seeking a financial position within a large restaurant. In this situation, USCIS has questioned whether the degree is a specialty occupation because although the position requires a bachelor’s degree, within the restaurant industry it is not common to require a degree for the position.
  6. Sales Positions: It is very difficult to receive an H-1B for a sales position. We would recommend reconsidering applying for the H-1B visa, or changing your position based on your job description.
  7. Arts and Fashion: Positions that are not specifically geared toward fashion design or graphic design are increasingly scrutinized by USCIS.

If you have questions regarding your H-1B position, please contact our office for a free consultation.

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In this video, attorney Jacob J. Sapochnick sits down with international business students studying at INSEAD, a graduate business school in France. Jacob asks them a burning question: Despite all of the obstacles foreign workers face in immigrating to the United States, and the President’s hard-line stance on immigration, are foreign workers still interested in living and working in the United States? Click here to join the conversation.

Why do you want to live and work in the US?From INSEAD 🇫🇷 France

Posted by San Diego Immigration Lawyer, Jacob J. Sapochnick on Tuesday, November 21, 2017

To learn more about the different visa services we offer please visit our website.

For a free first time consultation please contact our office.

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In this segment, attorney Jacob J. Sapochnick, discusses what an L-1A visa is, the requirements, and eligibility.

Overview: 

The L-1A visa classification allows a foreign company to transfer an executive or manager to the U.S. subsidiary or parent company. If an affiliated U.S. subsidiary or parent company does not yet exist, the L-1A classification allows the foreign company to send the executive or manager to the United States for the purpose of establishing the affiliated subsidiary or parent company. The L-1A requires the beneficiary to have worked abroad for the foreign employer for at least one year within the proceeding three years. The great thing about the L-1A visa is that there is no annual limit on the number of L-1A visas issued, and the L-1A visa is a “dual intent” visa meaning that the applicant may apply for a green card and become a permanent resident without jeopardizing his or her L-1 status.

To read more about the L-1A visa please click here.

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In this video, our clients speak about their unique experience with the Law Offices of Jacob J. Sapochnick. Our law office specializes exclusively in immigration and nationality law. We work with a broad range of clientele including entrepreneurs, investors, business visitors, foreign workers, U.S. employers, asylees, students, athletes, performers, families seeking to immigrate their family members and much more. Throughout the years, we have established a proven track record of success and a high level of customer service that is unparalleled in the legal industry. Contact our office today to schedule your free first time consultation.

For more information please visit our website.

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In this video, attorney Jacob J. Sapochnick discusses the Final International Entrepreneur Rule recently published by USCIS effective July 17, 2017. Approximately 2,940 foreign entrepreneurs are set to benefit from the new rule on an annual basis beginning July 17.

What will it do?

The rule will make it easier for eligible start-up entrepreneurs to obtain temporary permission to enter the United States for a period of 30 months, or 2.5 years, through a process known as “parole,” for the purpose of starting or scaling their start-up business enterprise in the United States. The decision about whether to “parole” a foreign entrepreneur under this rule will be a discretionary determination made by the Secretary of Homeland Security on a case-by-case basis (INA Section 212(d)(5), 8 U.S.C. 1182(d)(5)).

“Parole” will be granted to eligible entrepreneurs who can demonstrate that their company’s business operations are of significant public benefit to the United States by providing evidence of substantial and demonstrated potential for rapid business growth and job creation. Such demonstrated potential for rapid growth and job creation may be evidenced by: (1) significant capital investment from U.S. investors with established records of successful investments or (2) attainment of significant awards or grants from certain Federal, State, or local government entities.

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The H1-B visa season is fast approaching. In this video, Attorney Ekaterina Powell, Esq.,  shares our top tips on how to prepare for the H-1B visa lottery and the eligibility requirements for this popular visa.

To read more about the H-1B visa please read our H-1B guide.

For more information and eligibility questions please contact our office.  Remember to follow us on FacebookYoutubeTwitter, and Instagram 

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In this video attorney Jacob J. Sapochnick discusses the new decision in Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016) handed down by the USCIS Administrative Appeals Office (AAO) which has changed the analytical framework for determining eligibility of national interest waivers. This new decision will affect foreign nationals who are pursuing a green card based on employment in the EB-2 category, and who are eligible for a “national interest waiver.”

The new decision reached in Dhanasar, will invalidate and replace the three prong-test established in the prior AAO landmark decision reached in Matter of New York State Department of Transportation (NYSDoT), a case which governed the adjudication of national interest waivers since 1998.

The new three-prong test established by Matter of Dhanasar is a more flexible standard that will allow a broader population of foreign nationals in the EB-2 category to qualify for the discretionary national interest waiver. Under the new test, the EB-2 petitioner must meet all criteria established by the new test by a preponderance of the evidence. USCIS must determine whether on the whole the petitioner demonstrated by strong evidence that the requirements for the discretionary waiver were met.

The NEW three prong-test established by Matter of Dhanasar is as follows:

  1. The foreign national’s proposed endeavor must have both substantial merit and national importance. Dhanasar indicates that under this first criterion, a wide number of employment fields may qualify for a discretionary waiver such as: business, entrepreneurialism, science, technology, culture, health and education.  Dhanasar does not require that the petitioner show that the endeavor will bring immediate or quantifiable economic benefit to the United States. Providing such evidence however may help meet the preponderance of the evidence standard to the petitioner’s benefit.  Under this criterion, the petitioner is still required to show that the proposed endeavor has “national importance,” or is “national in scope” as in Matter of New York State Department of Transportation. Endeavors that may be considered as being national in scope are those that have a significant potential impact for job creation or substantial potential for economic growth, and which are focused in an “economically depressed area” such as an area of unemployment, or economically disadvantaged region.
  1. The foreign national must be well positioned to advance the proposed endeavor.This criterion will be analyzed by assessing the foreign national’s education, skills, knowledge and proven record of success in related or similar efforts. Other ways in which this prong can be proven is by providing a model, diagram, or plan for future activities, evidence of progress in reaching the endeavor, and evidence demonstrating interested stakeholders. The petitioner does not need to assess whether the endeavor will succeed.
  1. On balance, it would be beneficial to the United States to waive the job offer and labor certification requirements of the EB-2 category. In assessing this prong, the endeavor’s importance will be weighed against the national interest and be based upon the overall benefit the United States will receive from the foreign national’s contributions. USCIS may also consider other factors to determine whether granting the discretionary waiver would be beneficial to the United States taking into consideration whether there are any qualified U.S. workers who can undertake the endeavor, and whether there is a sufficient national interest to justify a waiver of the job offer and labor certification requirement.

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If you have questions about this new decision contact us for a free consultation.

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