The O-1 Visa provides an immigration option to foreign national artists, musicians, & entertainers who have “distinction” within their discipline.
So, what does distinction mean?
Distinction is defined as “a high level of achievement in the field of arts evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that a person described as prominent is renowned, leading, or well-known in the field of arts.” 8 CFR §214.2(o)(3)(ii).
That probably doesn’t help too much, does it? So, how does one demonstrate distinction to the USCIS?
By receiving a significant national or international award (i.e Academy Award, Emmy, Grammy, or Director’s Guild Award), or meeting at least three of the following criteria:
- Has performed, or will perform, services as a lead/staring participant in productions/events with distinguished reputations as shown by critical reviews, ads, publicity releases, publications, contracts, or endorsements;
- National/international recognition for achievements through critical reviews, other published materials by or about the beneficiary in major papers, trade journals/magazines, etc.;
- Has performed in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation evidenced by media articles, testimonials, etc.;
- Has a record of major commercial or critically acclaimed success;
- Has achieved significant recognition from organizations, critics, government agencies, recognized experts; or
- Has commanded or will command a high salary/other remuneration in relation to others in the field.[1]
Knowing what the regulations state, and what they actually mean – or how they apply in reality – are two different things. If you believe you have distinction, please do not hesitate to contact an O-1b visa lawyer.
[1] 8 CFR §214.2(o)(3)(iv)
The USCIS recently issued a precedent decision concerning the P-3 Visa for “Culturally Unique” artists. The precedent decision goes to the heart of the matter – what does “culturally unique” mean?
Since its inception, the P-3 Visa has been used by culturally unique artists and entertainers coming to the United States to develop, interpret, represent, coach, or teach their discipline or art. Culturally Unique is defined by the regulations to mean, “a style of artistic expression, methodology, or medium which is unique to a particular country, nation, society, class, ethnicity, religion, tribe, or other group of persons.”
Most artists or entertainers can easily demonstrate their cultural uniqueness. However, other artists or entertainers ran into difficulties when their discipline involved multiple cultural backgrounds – or were a fusion of different cultures.
The precedent decision (hopefully) clears up any ambiguity and indicates that “culturally unique” includes artistic expression that is a hybrid or fusion of more than one culture or region.
Hopefully the new ruling will open up the visa to more artists and entertainers. As has been reported, many groups have been hindered from performing in the United States due to immigration restrictions.
The USCIS has updated its numbers for the 2013 H-1B Visa Cap. Despite being less than a month and a half into the cap season, only about one quarter of the H-1B Master Cap degrees remain. Less than half of the normal H-1B visas remain. With this pace, it is likely that visa capped H-1Bs will become unavailable during the early summer. If you are depending upon a visa cap petition, act now to ensure it is submitted before the cap is reached.
Please contact an H-1B visa lawyer for further assistance.
The Department of State has just released the June 2012 Visa Bulletin announcement. Major highlights of the bulletin include the unavailability of EB-2 Visas for Indians and Chinese, and the four month advancement for EB-3 Chinese.
It is unlikely that the EB-2 Visa priority date for Indians and Chinese will advance until after the beginning of the new fiscal year – in October 2012.
Below, please find a significant portion of the bulletin – a complete version of the June 2012 visa bulletin is also available.
FAMILY-SPONSORED PREFERENCES
First: (F1) Unmarried Sons and Daughters of U.S. Citizens: 23,400 plus any numbers not required for fourth preference.
Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent
Residents: 114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, plus any unused first preference numbers:
A. (F2A) Spouses and Children of Permanent Residents: 77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;
B. (F2B) Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents: 23% of the overall second preference limitation.
Third: (F3) Married Sons and Daughters of U.S. Citizens: 23,400, plus any numbers not required by first and second preferences.
Fourth: (F4) Brothers and Sisters of Adult U.S. Citizens: 65,000, plus any numbers not required by first three preferences.
On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); “C” means current, i.e., numbers are available for all qualified applicants; and “U” means unavailable, i.e., no numbers are available. (NOTE: Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.)
Family-Sponsored
|
All Charge-ability Areas Except Those Listed |
CHINA- mainland born |
INDIA |
MEXICO |
PHILIPPINES |
| F1 |
22JUN05 |
22JUN05 |
22JUN05 |
15MAY93 |
01JUL97 |
| F2A |
01JAN10 |
01JAN10 |
01JAN10 |
08DEC09 |
01JAN10 |
| F2B |
15APR04 |
15APR04 |
15APR04 |
01JAN92 |
08DEC01 |
| F3 |
01APR02 |
01APR02 |
01APR02 |
15JAN93 |
22JUL92 |
| F4 |
08JAN01 |
15DEC00 |
08JAN01 |
01JUN96 |
22JAN89 |
*NOTE: For June, F2A numbers EXEMPT from per-country limit are available to applicants from all countries with priority dates earlier than 08DEC09. F2A numbers SUBJECT to per-country limit are available to applicants chargeable to all countries EXCEPT MEXICO with priority dates beginning 08DEC09 and earlier than 01JAN10. (All F2A numbers provided for MEXICO are exempt from the per-country limit; there are no F2A numbers for MEXICO subject to per-country limit.)
5. Section 203(b) of the INA prescribes preference classes for allotment of Employment-based immigrant visas as follows:
EMPLOYMENT-BASED PREFERENCES
First: Priority Workers: 28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.
Second: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability: 28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.
Third: Skilled Workers, Professionals, and Other Workers: 28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to “*Other Workers”.
Fourth: Certain Special Immigrants: 7.1% of the worldwide level.
Fifth: Employment Creation: 7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of Pub. L. 102-395.
On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); “C” means current, i.e., numbers are available for all qualified applicants; and “U” means unavailable, i.e., no numbers are available. (NOTE: Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.)
| Employment- Based |
All Chargeability Areas Except Those Listed |
CHINA- mainland born |
INDIA |
MEXICO |
PHILIPPINES |
| 1st |
C |
C |
C |
C |
C |
| 2nd |
C |
U |
U |
C |
C |
| 3rd |
08JUN06 |
08AUG05 |
15SEP02 |
08JUN06 |
22MAY06 |
| Other Workers |
08JUN06 |
22APR03 |
15SEP02 |
08JUN06 |
22MAY06 |
| 4th |
C |
C |
C |
C |
C |
| Certain Religious Workers |
C |
C |
C |
C |
C |
5th
Targeted
Employment Areas/
Regional Centers
and Pilot Programs |
C |
C |
C |
C |
C |
*Employment Third Preference Other Workers Category: Section 203(e) of the Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997, as amended by Section 1(e) of Pub. L. 105-139, provides that once the Employment Third Preference Other Worker (EW) cut-off date has reached the priority date of the latest EW petition approved prior to November 19, 1997, the 10,000 EW numbers available for a fiscal year are to be reduced by up to 5,000 annually beginning in the following fiscal year. This reduction is to be made for as long as necessary to offset adjustments under the NACARA program. Since the EW cut-off date reached November 19, 1997 during Fiscal Year 2001, the reduction in the EW annual limit to 5,000 began in Fiscal Year 2002.
6. The Department of State has a recorded message with visa availability information which can be heard at: (202) 663-1541. This recording is updated on or about the tenth of each month with information on cut-off dates for the following month.
On May 11, 2012 the Department of Homeland Security announced that it had expanded its list of STEM degrees that are eligible for extended OPT status.
The OPT program allows foreign national students graduating from U.S. colleges and universities to remain in the country and work within their field for up to 12 months. Students graduating in a designated STEM degree program can remain for an additional 17 months on an OPT STEM extension.
The DHS believes that the expansion of the STEM degree programs will help attract the most qualified international students to the United States.
A full list of expanded STEM degrees is available on the DHS website.
It is the second month of the H-1B visa season and over half of the annual cap has already been exhausted. Although it is likely that these caps will not be met for another couple of months – there should be no waiting on the part of interested applicants. Once the caps are reached, they will not be available again until April 1 of next year.
Please contact a NYC H-1B lawyer today to discuss your case.
A month into the H-1B visa season, almost 30,000 regular H-1B Visa cap positions have been used and almost 2/3rds of the H-1B Masters Cap has been used. Although it is likely that these caps will not be met for another couple of months – there should be no waiting on the part of interested applicants. Once the caps are reached, they will not be available again until April 1 of next year.
Please contact a NYC H-1B lawyer today to discuss your case.
The popular tv show, House, is in its last few episodes. I would love to tell you what happens in the last few episodes – but I do not know. No spoiler here.
Based upon the recent actions of Dr. House, this is my immigration-biased guess of how the series will end. [I may be a few weeks behind as I am not caught up on my TiVo.]
Background: During the last year, Dr. House has married a foreign national – but not because of love. In exchange for getting married and helping her obtain her immigration benefits, the attractive foreign national helps Dr. House by cleaning and cooking for him. The two are pretty open about the fraudulent marriage and everyone at the hospital appears to know about it. In the most recent episode [that I watched], the foreign national was waiting for final approval from the immigration agency (not knowing that Dr. House had already received the approval notice). Right before the couple share a romantic moment (I don’t watch the show enough to know – but I think it would have been their first), the foreign national gets a call and finds out she had received her “citizenship.” She promptly moves out.
Moving Forward: Dr. House will continue to provide bizarre, unrealistic, yet somehow brilliant medical service to his patients. However, he will do it from a prison cell as he awaits trial for immigration fraud. You see, despite being a U.S. citizen, Dr. House can still be charged (and convicted) of immigration fraud. Such a conviction can result in fine and possible imprisonment.
Has Dr. House committed immigration fraud? Yes – there is no other explanation. He entered into a marriage for the sole purpose of helping the foreign national obtain immigration status in the United States. The foreign national faces an even worse fate. Besides facing imprisonment and a substantial fine, the foreign national faces the possibility (and likelihood) of being deported. Further, it will be virtually impossible for her to gain any type of immigration benefit in the future.
House has been a decent show – but has run its course. It might have been obvious when the writers decided to bring immigration fraud into the storyline. Marriage for immigration is a played out plot – when will writers realize it? An original story line would be a marriage for immigration plot that actually shows the consequences of such fraud.
During every initial consultation with a K-1 fiance visa applicant, the question of money and costs comes up. It is an important topic and many applicants simply do not know all of the costs required for a K-1 Fiancee Visa applicant.
Before starting the fiancee visa process, please review the following cost discussion. To best use this information, please review the K-1 Visa process. The K-1 Visa’s flow chart will provide the best explanation of when the costs are due.
If you have any questions, please do not hesitate to contact this NYC K-1 fiance visa Lawyer.
K-1 Fiance Visa Process Costs
The K-1 visa process is multi-stepped. If you are confused by the steps below, please review the K-1 visa flow chart.
Initial Stage: USCIS K-1 Visa Petition
To initiate the K-1 visa process, a petition must be submitted to the U.S. Citizenship and Immigration Service agency (USCIS). At this initial stage, the costs include:
Government Filing Fees
$340 – K-1 fiance visa filing fee to the USCIS.
Legal Fees
It is important to retain a K-1 visa lawyer at the beginning of the process. A mistake made at the beginning can result in a petition being denied or delayed (a denial or a delay that will not become apparent for many months). Any mistake resulting in a denial will mean that the petition must be started again – and all government and other fees already paid will be lost.
Legal fees vary from lawyer to lawyer, however I believe that most K-1 visa lawyers charge a flat legal fee and that most are relatively standard in terms of cost. However, not all lawyers provide the same level of service and expertise. When choosing a lawyer, make sure you know:
- How quickly the lawyer will handle the application and submit the petition.
- How much assistance the lawyer will provide. Will he or she assist during just the initial petition? During the entire process? How much does the quoted legal fees cover?
- Whether the quoted legal fees exclude any other charges commonly incurred by applicants (such as copying fees or mailing fees)?
- Whether the lawyer will respond to client questions and inquiries during the process (will those responses cost anything), and
- Whether the attorney commonly handles K-1 visa petitions?
Consulate Stage: Interview at U.S. Consulate
After USCIS approval, the K-1 visa petition is sent to the U.S. Consulate where the beneficiary resides. During this stage, the beneficiary must attend a consulate interview to receive the K-1 visa. Costs include:
Medical Examination Fee
A medical examination must be completed on a fiance visa beneficiary by a U.S. Government approved medical physician. No visa will be issued before the examination is completed. The medical examination cost will vary, but it is generally around $200 t0 $300. In many countries there are not many physicians who are certified to complete the required form.
Total Medical Examination Fees: $200-300 (varies)
Department of State K-1 Visa Application Fee
The Department of State charges a K-1 visa application fee of $240. This fee must be paid before the Consulate Interview is held (sometimes even before the interview will be scheduled). The consulate will provide the couple with details about how the fee is paid once it has received the petition from USCIS.
All K-1 fiance visa applicants must pay this fee.
Total: $240
Government’s K-1 Reciprocity Visa Fee
Beneficiaries from certain countries are required to pay a “visa issuance fee” once their K-1 visa petition is approved by the U.S. Consulate. Whether this fee must be paid depends on where the beneficiary is from and whether or not the United States has a reciprocity agreement with that country. To see if a particular country has a reciprocity agreement with the US (or if the beneficiary needs to pay a K-1 visa issuance fee) please visit the DOS Reciprocity webpage.
Most applicants are not required to pay this fee. If it is required, the fee is often a couple hundred dollars (it varies from country to country).
Total: $0 to a Couple Hundred Dollars
Adjustment of Status In United States After Arriving As a K-1 Visa holder
Once a K-1 fiance(e) enters the United States, it is necessary to marry within 90 days. Additionally, the couple must apply for adjustment of status. The adjustment of status will change the K-1 status holder to a Green card holder (permanent resident).
Government Filing Fees
$985 Adjustment of Status Application Fee
$85 Biometrics Interview Fee
$0 Employment Authorization Card Fee
$0 Advance Parole Application Fee
Total: $1070
For more information, please contact this New York City K-1 Fiance Visa Lawyer.
A few months ago I mentioned that Presidential Candidate Mitt Romney had taken a very rigid stance on certain immigration policies. For example, he stated that he would veto any Dream Act legislation that came before him.
Now that Romney has become the all-but-nominated Republican candidate, it is expected that Romney will start trying to be more open to moderation in his immigration stances. Based on recent polls, it appears he needs to – and do so quickly. A recent poll indicates that he trails Obama 69 percent to 22 percent among Latinos. Such a gap will be difficult to overcome – and he will certainly need to appear more open to immigration reform. Personally, I think many individuals will not be able to look past his earlier statements about immigration.
On the flip side, I hope that President Obama – if he wins reelection- will work to actually improve the immigration system. It appeared likely that he would take great strives to improve the immigration system when he took office four years ago. However, he has not done much during the last four years.
Twenty days into the H-1B visa season, over half of the H-1B Masters Cap has been used, while 25,000 of the regular H-1B Visa Cap positions have been used. Although it is likely that these caps will not be met for another couple of months – there should be no waiting on the part of interested applicants. Once the caps are reached, they will not be available again until April 1 of next year.
Please contact a NYC H-1B attorney today to discuss your case.
Many of my Marriage Visa and Fiancee Visa clients are all too excited when their employment authorization cards arrive in the mail. With it they can start working and contributing to their newly formed family’s bottom line. Unfortunately, many companies and human resource departments are not familiar with the employment authorization card, and many individuals run into unnecessary hindrances and delays when seeking a position.
What is the Employment Authorization Card?
The employment authorization card,also known as the I-766, is a government issued identification card that evidences a person’s ability to work within the United States. The card is often provided to individuals who are newly arrived in the United States, or who are in the process of obtaining immigration status in the United States (for example, individuals who are seeking green cards).
What does the Employment Authorization Card look like?
Below is an example of the latest version of what the employment authorization card looks like. However, older versions of the card may appear slightly different.
What else, besides the Employment Authorization Card must be presented when completing the I-9 form?
NO OTHER FORM OF EVIDENCE IS NECESSARY. To many employers and human resource individuals, it is a surprise to learn that no other evidence is needed besides the Employment Authorization Card when completing the I-9 form. The I-766 is a Class A document on the I-9. In fact, to ask for additional evidence may expose an employer to discriminatory suits. In short, it is improper to ask for more evidence besides the I-766. The USCIS manual to Employers says as much.
But the Employment Authorization Card holder does not have a social security number, how does an employer complete E-verify?
Many employers participate in the E-verify program and become confused when they try to enter the card holder’s information into E-verify. This is because often the person does not have a social security number yet. In such cases, an employer is not suppose to enter a person’s information into E-verify until after the person has received his or her social security number. However, the card holder must be allowed to work while waiting for the social security number to be issued. The government’s E-verify guide explains the requirements in more detail.
If you are an employment authorization card holder and are having difficulty demonstrating to employers your eligibility to work, please contact an immigration lawyer. It is almost certainly just a oversight by the employer.
Since 1979 the United States has not had an embassy in Iran. As such, it has always been more difficult for Iranian immigrants to come to the United States because they could not access consular services within their own country.
Although the United States still is not able to maintain an embassy in Iran, it has attempted to do the next best thing to help the Iranian people. The United States has opened a “virtual embassy” on the website: iran.usembassy.gov/about-us.html. The virtual embassy (which I think is the first of its kind) is meant to provide as much information as possible to Iranians seeking to travel to or immigrate to the United States.
Although it has no official recognition from the Iranian government, hopefully it will better serve the United States and the Iranian people.
A common question that potential clients routinely ask me is this: How much does the marriage visa process cost.
It is a good question – and any competent marriage visa lawyer should be able to tell you the costs. However, I find that many potential clients do not realize that the government filing fees are not the only costs in the process. On the other hand, some potential clients over estimate how much they will be required to pay.
Hopefully the following clearly explains the costs – if not, please do not hesitate to contact this NYC marriage visa attorney for further explanation.
For this blog post, I will only discuss the costs if someone is inside the United States. Part II of the Marriage Visa Process Costs Series will discuss the costs outside the United States.
Marriage Visa Costs If Inside the United States
Often, if a couple marries and the foreign national spouse is in the United States, it is possible to “adjust status” to a green card holder without leaving the United States. If eligible, the process costs include:
Government Filing Fees
$420 for the Marriage Visa Petition
$985 for the Adjustment of Status Petition
$85 for the Biometrics Interview
$0 for the Employment Authorization Petition
$0 for the Advance Parole Petition
Total Government Fees: $1490
Unfortunately, this entire amount, must be paid to the Government at the time that the application is submitted.
Medical Examination Fee
Almost all Marriage Visa applicants who are seeking to adjust status must obtain a medical physical from a USCIS approved medical physician. Although the cost charged by the physicians vary, it is generally costs around $200 t0 $300 – but check around – there may be better deals out their for immigration required medical examinations.
Total Medical Examination Fees: $200-300 (varies)
Marriage Visa Legal Fees
This fee varies from attorney to attorney and law firm to law firm. I believe that most attorneys offer their marriage visa services on a flat fee basis, and that most attorneys have comparable rates.
Most important when dealing with a marriage visa attorney is to make sure he or she is:
- Able and willing to do the process quickly,
- Competent in spotting issues and handling Marriage Visa petitions, and
- Willing to quickly answer your questions and explain the situation to you.
For more information, please contact this New York City Marriage Visa attorney.
Thirteen days into the H-1B visa season, almost half of the H-1B Masters Cap has been used, while about one third of the regular H-1B Visa Cap numbers have been used. Although it is likely that these caps will not be met for another couple of months – there should be no waiting on the part of interested applicants. Once the caps are reached, they will not be available again until April 1 of next year.
Please contact a NYC H-1B attorney today to discuss your case.
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Immigration Insight is maintained by Immigration Attorney Chris Gafner and is meant to shed light on, and create talking points about, current immigration issues. If you would like a specific topic discussed, please contact the firm.
This blog, like the rest of this website, is not legal advice for any specific reader.
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