Foreign nationals living abroad who intend to marry a U.S. citizen and live with their U.S. citizen spouse in the United States have a number of visa options available to them.  They may enter the United States as a fiancé to marry and then apply for lawful permanent residence.  They may also marry abroad and apply for an immigrant or nonimmigrant visa after the marriage.  Each of these options is slightly different and has its own advantages and disadvantages.  This article will discuss those differences in an effort to help foreign nationals understand which option is best for them.

K-1 Visas

K-1 visas are set aside for the fiancés of U.S. citizens.  They are technically a nonimmigrant visa in that they allow entry into the United States for only a temporary period of time.  But in reality they are more like immigrant visas in that the people who receive them will, for the most part, all end up applying for immigrant status in the United States soon after their arrival.  To apply for a K-1 visa, the U.S. citizen must first file a nonimmigrant visa petition for his or her fiancé.  This petition is known as Form I-129F and is filed with U.S. Citizenship and Immigration Services (USCIS) in the United States.  U.S. citizens filing these petitions must show that they and their fiancé are legally free to marry and that they have met in person within the last two years.

When USCIS approves the petition, it notifies the consulate in the fiance’s country of nationality, and the fiancé may then submit his or her nonimmigrant visa application.  Because the point of a K-1 visa is to allow the fiancé to enter the United States for the purpose of marrying a U.S. citizen and applying for lawful permanent residence based on that marriage, K-1 applicants, unlike most nonimmigrant visa applicants, must show they are eligible to immigrate to the United States.  Thus they will be expected to provide results of a medical exam and evidence that they will not become a public charge similar to what they would submit if they were applying for an immigrant visa.

Once granted, the K-1 visa will allow the foreign national to enter the United States for up to 90 days.  During those 90 days, he or she must marry the K-1 petitioner.  After the marriage, the K-1 visa holder will be able to apply for adjustment of status to a lawful permanent resident by submitting Form I-485.

The advantage of the K-1 visa is that it allows the foreign national to enter the United States before the marriage.  This means the foreign national and his or her spouse will not have to be separated at any time after the marriage while waiting for paperwork to be processed.  It also allows a foreign national to marry his or her spouse in the United States even if he or she is not already living there at the time of the engagement.  A disadvantage of the K-1 visa is that it forces a fairly strict deadline on the marriage.  K-1s must marry their petitioner within 90 days of arriving in the United States.  In addition, K-1s are scrutinized twice to ensure they are eligible to immigrate, once at the consulate when applying for the K-1 visa and then again when they apply for adjustment of status.  Finally, the law imposes strict limits on the ability of K-1s to apply for adjustment of status once they are in the United States.  They may adjust only on the basis of a marriage to the U.S. citizen fiancé who filed the K-1 petition for them.  As a result, they have no recourse if the marriage breaks up before they are able to adjust their status.

K-3 Visas

A second option is the K-3 visa.  K-3 visas are for the spouses of U.S. citizens who are eligible to immigrate but cannot travel to the United States on an immigrant visa because their visa petition has not yet been approved.  To apply for a K-3 visa, the U.S. citizen must first file an immigrant visa petition, known as Form I-130, for his or her spouse.  Then the U.S. citizen may file Form I-129F, the nonimmigrant visa petition, with proof that the I-130 is pending.  When Form I-129F is approved, the foreign national spouse may file an application for a nonimmigrant visa at the consulate.  Like applicants for K-1 visas, K-3s must show that they are eligible to immigrate to the United States and must supply medical exam results and evidence that they will not become a public charge.

K-3 visas allow entry into the United States for up to two years.  During that time and after the I-130 is approved, the K-3 visa holder may apply for adjustment of status.  If the I-130 is not approved in the first two years after the K-3 visa holder’s admission, K-3 status may be extended in two-year increments until an approval is issued.  K-3 status may also be extended if the K-3 visa holder can show good cause for failing to file for adjustment of status within the original two-year period.  If the I-130 is denied, K-3 status expires within 30 days.

For most foreign nationals who want to marry in the United States, the K-1 visa is probably the best option.  But for those who want to marry abroad, the K-3 visa has one particular advantage over applying for an immigrant visa: it is sometimes faster and allows the foreign national to be reunited with or accompany his or her spouse to the United States sooner than if he or she waited to receive an immigrant visa.  This is particularly true if processing of the I-130 becomes delayed, since applicants for immigrant visas must have an approved I-130 in hand before their visa may be issued.  Applicants for K-3 visas, by contrast, need only be the beneficiary of a pending I-130.  The main disadvantage of the K-3 is that the spouses may still have to be separated for some period after the marriage while the K-3 petition and nonimmigrant visa application are being processed.  The other disadvantages are similar to those of K-1 visas.  The applicant’s eligibility to immigrate will be scrutinized twice, once at the consulate and once when the applicant applies to adjust status.  Additionally, K-3s have no recourse if they divorce before they can adjust status.  They may only adjust based on marriage to the U.S. citizen who petitioned for their K-3 visa.

Immigrant Visas

Another option for foreign nationals who want to marry abroad is the immigrant visa.  To apply for an immigrant visa, the U.S. citizen spouse must file Form I-130.  Once the I-130 is approved, the National Visa Center will send the foreign national instructions for submitting the immigrant visa fees and required forms. When it has collected all of the fees and forms, the National Visa Center sends this information to the consulate in the foreign national’s home country which will schedule the foreign national for a visa interview.  If the foreign national successfully establishes at the visa interview that he or she is eligible to enter the United States as an immigrant, the consulate will issue an immigrant visa.  Once admitted to the United States on the immigrant visa, the foreign national automatically becomes a lawful permanent resident and will receive a green card in the mail.

The advantage of the immigrant visa process is that the foreign national becomes a permanent resident immediately after arriving in the United States.  Unlike with the K-1 or K-3 visa there is no additional step or scrutiny the foreign national has to undergo to receive lawful permanent residence.  Furthermore, because foreign nationals who enter the United States on immigrant visas do not have to apply for adjustment of status, they are spared having to pay the considerable fees associated with such applications which now total over $1,000.  The main disadvantage of applying for an immigrant visa is that the spouses may have to be separated after marriage, and possibly for a longer period of time than if the foreign national applies for a K-3 visa.  Additionally, denials of immigrant visas at consular posts are often harder to challenge than denials of applications for adjustment of status.  There is no formal system of administrative review for consular visa denials nor are applicants for visas allowed to have legal representation with them at the interview as is permitted at interviews for adjustment applicants.

Scott D. Pollock & Associates, P.C. has extensive experience in assisting spouses of U.S. citizens in applying for adjustment of status, K-1, K-3, and immigrant visas.  For more information, please contact us at (312) 444-1940.

© 2010 Scott D. Pollock & Associates, P.C.

Contact Us

For questions and/or to arrange a consultation with one of our attorneys, please call (312) 444-1940 or send us an e-mail at info@lawfirm1.com.  You may also visit our Contact Us page for more detailed contact information.

Disclaimer

The materials contained in this website have been prepared by Scott D. Pollock & Associates, P.C. for informational purposes only and are not legal advice or counsel.

The Immigration and Nationality Act (INA) contains a number of provisions that are particularly beneficial to professors, researchers, and other academics.  These include more generous rules regarding applications for immigrant visas by certain academics and an exemption for employees at institutions of higher education from the limitations on certain non-immigrant visas.

EB-1 Visas for Outstanding Professors and Researchers

With respect to immigrant visas for academics, the INA contains a special provision for professors and researchers of outstanding ability.  These academics may qualify for an employment-based immigrant visa in the EB-1 category.  There are a number of advantages of qualifying for an EB-1 visa as an outstanding professor or researcher.  The first is that, although these applicants must have a job offer, unlike most other applicants for employment-based visa categories, their petitioning employer does not have to go through the difficult and expensive labor certification process.  In addition, the number of EB-1 visa petitions filed each year generally does not exceed the number of EB-1 visas available.  Therefore beneficiaries of EB-1 petitions do not have to wait several years for a visa to become available to them.

To qualify in this category, professors and researchers must show that they have at least three years of experience teaching or performing research in their particular academic area and that they are seeking entry to work in one of three different types of positions: 1) a tenure or tenure-track teaching position; 2) a comparable position at a university or institute of higher education to conduct research; or 3) a comparable position to conduct research at a private employer if such employer employs at least three people full-time in research activities and is recognized as accomplished in an academic field.  Professors and researchers also need to submit evidence showing that they are recognized as outstanding in their field which may include: 1) evidence that they have won major awards; 2) evidence that their work has been cited or discussed by others in professional journals; 3) evidence that they are a member of an organization requiring outstanding achievement; 4) evidence that they have judged the work of others; and 5) evidence of their original research or publications.

EB-1 Visas for Persons of Extraordinary Ability

In addition to qualifying for visas as outstanding professors and researchers, extraordinarily talented academics may qualify for an EB-1 visa as a person of extraordinary ability.  The standards for this type of EB-1 visa are higher than the standards for outstanding professors and researchers and require a showing of sustained national or international acclaim through extensive documentation.  However, EB-1 extraordinary ability applicants receive even greater privileges than those applying as outstanding professors and researchers.  In addition to being exempt from the labor certification requirements, these applicants do not need to a job offer or employer and may file their own immigrant visa petitions.

EB-2 Visas for Holders of Advanced Degrees and Persons of Exceptional Ability

Even professors and other academics who cannot qualify for EB-1 visas are often afforded special benefits under the INA.  For example, most academics qualify for immigrant visas in the EB-2 visa category which covers people who hold an advanced degree and who are seeking entry to the United States to work in a position for which an advanced degree is required.  This would include most university professors and many other academic researchers.  They may also qualify in the EB-2 category as a person of exceptional ability, again a lower standard than extraordinary ability.  The EB-2 category is not quite as privileged as the EB-1 category.  There are currently backlogs in this category for applicants from China and India.  In addition, EB-2 applicants usually must have a petitioning employer who has to get an approved labor certification prior to filing the petition.  Both the employer and labor certification requirements may be waived, however, if the EB-2 applicant can show a waiver would be in the national interest.  Among the professors and academics who might benefit from this waiver are those performing research in areas impacting national health, public safety, or national security.

Special Handling Process for Labor Certifications Involving Professors

Even when a professor must undergo the labor certification process, special and more generous rules apply to employers petitioning for university teachers.  The normal labor certification process requires employers to undertake a lengthy list of recruitment activities for the position, many of which they would not ordinarily do when filling a job.  But employers pursuing a special handling labor certification are only required to place one ad in a national professional journal and to undertake a competitive recruitment and selection process, which in many cases can be the same as the employer’s normal process for hiring professors or instructors.  In addition, while a normal labor certification application will be denied if any minimally qualified U.S. worker applies for and is willing to take the job, under the special handling provisions; the employer only has to show that the prospective immigrant is the most qualified applicant for the position.

H-1B Cap Exemption for Institutions of Higher Education

Finally, academics benefit from the exemption from numerical limits on H-1B visas which is afforded to institutions of higher education.  Because their employees are not subject to the H-1B cap, cap-exempt employers, like universities, need not file their petitions by the normal April 1st H-1B filing deadline, and their employees do not have to wait until the beginning of the fiscal year following their petition approval to begin work.  Rather, they may file H-1B petitions at any time of the year, and their H-1B employees may begin work in H-1B status immediately following petition approval.

The cap exemption is not limited to traditional institutions of higher education like universities and colleges.  It also applies to non-profit organizations affiliated with these institutions (a university hospital is one example) and to non-profit and governmental research organizations.  As such it benefits not only professors and instructors working directly for a university but also scholars engaged in pure research for other institutions affiliated with a university.

Scott D. Pollock & Associates, P.C. has extensive experience in obtaining visas for professors, researchers, and other academics.  For more information, please contact us at (312) 444-1940.

© 2010 Scott D. Pollock & Associates, P.C.

Contact Us

For questions and/or to arrange a consultation with one of our attorneys, please call (312) 444-1940 or send us an e-mail at info@lawfirm1.com.  You may also visit our Contact Us page for more detailed contact information.

Disclaimer

The materials contained in this website have been prepared by Scott D. Pollock & Associates, P.C. for informational purposes only and are not legal advice or counsel.

Earlier this year, U.S. Citizenship and Immigration Services (USCIS) issued a memo clarifying for its officers what sorts of positions qualify a worker for an H-1B visa.  The memo is widely regarded as setting stricter standards for when an H-1B petitioner can be considered to have the required employer-employee relationship with the beneficiary.  In particular, the memo appears to sharply restrict if not eliminate the ability of staffing companies and consulting firms to petition for H-1B workers as well as the ability of companies to petition for an H-1B worker who owns a significant stake in the company.

Restrictions on Employers who Place Employees at Worksites of Other Companies

The memo has the greatest impact on companies that make a regular practice of placing their employees at the worksites of other companies, especially those whose sole business is to assist other companies with staffing requirements by providing workers on an as-needed basis.  These types of businesses are common in the information technology industry where a company might employ several software engineers or technicians who do no or very little work for their employer directly but instead are sent by their employer to work for the employer’s clients on particular projects.  These projects are usually temporary, therefore when they end the worker is moved on to a different project for another one of his or her employer’s clients.  The worker is thus employed full-time and paid by the staffing company but does the majority of his or her work for other organizations at their places of business.

In the past, these types of staffing companies were able to obtain H-1B visas for their employees by showing that they hired the employee, paid the employee’s salary and benefits, issued the employee a W-2, set the employee’s assignments, and had the right to terminate the employee or remove him or her from an assignment for poor performance.  USCIS’s recent memo, however, suggests that this may no longer be enough evidence to show that the staffing company exercises sufficient control over the employee to be considered a genuine employer who is eligible to apply for an H-1B visa on the employee’s behalf.  Instead the memo suggests that the employer must regularly supervise the employee’s activities, evaluate his or her performance, or benefit in some way from the employee’s work besides just receiving a fee for placement of the worker.  Therefore, H-1B petitioners whose H-1B employees will be working primarily for other organizations should expect to be asked to show at least one of the following: 1) the beneficiary will have regular contact with a supervisor from the petitioning organization who will provide direction and instruction on how the beneficiary is to carry out his or her duties; 2) the petitioner will conduct regular performance evaluations of the beneficiary; 3) the beneficiary’s work will involve the petitioner’s proprietary information or be otherwise related to the petitioner’s line of business, for example if the petitioner must send the beneficiary to client sites to assist the client in setting up and operating products the petitioner has created.  As discussed above, these changes appear to be targeted at the IT industry where staffing firms are common, but they could affect H-1B employers in any industry whose workers spend most of their time working somewhere other than their employer’s place of business, including certain government contractors and health care employers.

Restrictions on the Ability of Owner-Workers to Obtain H-1B Visas

The other principal change made by USCIS’s memo is to restrict the ability of people who are self-employed or who own a significant share of the organization that employs them to receive H-1B visas.  In the past, these workers could get H-1B visas if they could show that they worked for an organization that was incorporated as a separate entity and paid them a salary even if they had an ownership interest in that entity.  But the memo suggests that they will now have to make an additional showing that they are supervised by another person or group of people within the company who have the authority to terminate them if they do not perform their job duties in a satisfactory manner.

Additional Documentary Requirements

Besides placing restrictions on who may receive H-1B visas, USCIS’s new memo may also lead to requirements that H-1B employers provide more extensive documentation of their relationship with their employee than they have done in the past.  In particular, the memo might lead to USCIS demanding that employers produce more detailed itineraries for H-1B employees, particularly those who will be placed at the worksites of other businesses, to show that the employee will be fully occupied with projects for the entire three-year validity period of the H-1B petition.  USCIS might also increasingly demand contracts between the H-1B employer and its client businesses for this same purpose as well as to show that the petitioner maintains some day to day to control over its employees under the terms of the contract.  Obviously, producing contracts or itineraries that cover a three-year timespan will be difficult for most employers, since it is hard to predict what projects a particular employee will be working on or what business a company might have three years in advance.

The memo also states that USCIS, when deciding requests for extensions of H-1B status, will be evaluating whether the employer-employee relationship was maintained for the entire validity period of the previous petition.  Therefore, the memo raises the possibility that USCIS could reevaluate the terms and conditions of the H-1B worker’s employment under the stricter standards laid out in the memo and deny the extension request, even though the terms and conditions of empoyment have not changed since the initial petition was granted.

This memo is still relatively new, so it remains uncertain just how much H-1B practice will change.  But H-1B employers and workers should be aware of the possibility for significant differences in the way H-1B petitions are decided in the future and should prepare accordingly.

Scott D. Pollock & Associates, P.C. has extensive experience in assisting employers in petitioning for H-1B visas.  For more information, please contact us at (312) 444-1940.

© 2010 Scott D. Pollock & Associates, P.C.

Contact Us

For questions and/or to arrange a consultation with one of our attorneys, please call (312) 444-1940 or send us an e-mail at info@lawfirm1.com.  You may also visit our Contact Us page for more detailed contact information.

Disclaimer

The materials contained in this website have been prepared by Scott D. Pollock & Associates, P.C. for informational purposes only and are not legal advice or counsel.