Spouses of U.S. citizens and lawful permanent U.S. residents are generally able to obtain lawful permanent residency in the United States based on their marriage using one of these three procedures:
For all three of these options, in our view, the key to success is demonstrating from the very start and at every step that the U.S. citizen (or permanent U.S. resident) and the foreign national spouse (or fiancé(e)) are in a genuine relationship and that they live in (or intend live in) a true marital union. As such, it is important that the initial paperwork that the government receives contains a comprehensive and well-balanced assortment of evidence to this effect. Our goal is to make it abundantly clear from the start that you are a genuine couple who just want to be together. In our experience, this strategy offers the best chance for a smooth and successful immigration process.
We work closely with our clients to identify the best documentation for their case so we can put together the strongest presentation of your relationship for your petition package based on your unique circumstances. This often includes preparing sworn affidavits from you and those who know you, describing your relationship and other innovative supporting materials. The details in these materials ensure that the government quickly understands who the two of you are, so there’s no doubt that you and your loved one are in a genuine, bona fide relationship.
At Merrick Immigration Law, we diligently work with you hand in hand to complete all of the steps outlined below as an integral part of our client service. Contact Merrick Immigration Law to speak with an experienced immigration professional and learn more about these marriage-based immigration options.
Of the three methods, adjustment of status oftentimes can be the most straight-forward and smooth procedure. The process is available to most foreign national spouses who have entered the United States lawfully. This generally means that he or she entered the U.S. with a visa or under the Visa Waiver Program (or “ESTA”), although others may qualify exist in certain circumstances. The process currently takes eight to ten months.
Adjustment of status actually involves two steps that take place simultaneously. One step involves the U.S. citizen (or permanent resident) filing a petition with USCIS seeking recognition that you are in a genuine marital union. The other step involves the foreign national spouse filing an application to “adjust status” from whatever status he or she is presently in to that of lawful permanent resident. The application to “adjust status” cannot be approved unless the petition is also approved.
The advantage of this process is that the couple can remain living together in the U.S. throughout. Also, the foreign national spouse is eligible for a work permit during this process, although USCIS routinely takes about three months to approve and issue such permits.
One additional advantage for spouses of U.S. citizens is that, if the spouse’s lawful status in the U.S. has expired, he or she remains eligible to adjust status under this procedure. (Spouses of permanent residents must be in lawful status in order to adjust their status.)
An important point to remember is that the foreign-national spouse cannot travel outside the U.S. while the application is pending, without first obtaining permission. Doing so results in abandonment of the application, loss of the filing fees and in some cases, the inability to re-enter the U.S. without first obtaining an immigrant visa – oftentimes a year-long process.
Spouses of U.S. citizens or lawful permanent residents may also become a U.S. permanent resident by obtaining an Immigrant Visa from a U.S. Consulate in their country of residence. An Immigrant Visa a one-time-use visa that the spouse uses to enter the United States as an immigrant. The advantage of this process is that, immediately upon entering the U.S., the spouse becomes a permanent resident, and he or she is authorized to work immediately. There is no 90-day wait-period, as with adjustment of status and the fiancé(e) visa. (However, to work, you frequently do have to wait for the actual “green card” to arrive in the mail, which can take a month or more.)
The procedure for obtaining an immigrant visa for a spouse involves three steps. First, the U.S. citizen (or lawful permanent resident) files a petition with USCIS seeking recognition that you and your foreign-national spouse are in a genuine marital union. This process usually takes about five months, but the wait time can be longer (or shorter).
Second, after the petition is approved, USCIS sends the case file to the Department of State’s National Visa Center (“NVC”). The NVC ensures that Immigrant Visa case files are fully prepared before they are sent to the respective U.S. Consulate for processing. Before the case file is sent, the applicant must complete a detailed online form, pay the visa fees and gather a number of documents to send to NVC, such the marriage certificate, police background report(s), an affidavit of financial support, etc.
Third, after the file at NVC is complete, it is sent to the U.S. Consulate, and an interview is scheduled. Your spouse must undergo a medical examination by a local physician designated by the Consulate. After the interview, and the visa is issued, the spouse must then pay a USCIS immigrant fee (currently $220) before coming to the U.S.
A fiancé(e) visa is available to U.S. citizens who have met in-person with their fiancé(e) within two years of starting the process.
This process also involves three steps. First, the U.S. citizen files a petition with USCIS seeking recognition that you and your fiancé(e) are in a genuine relationship and intend to enter into a marital union within 90 days of your fiancé(e) entering the U.S. Because engaged couples often have not been to together long, we work closely with these clients to help them identify as much evidence as possible before filing the initial petition, including preparing sworn affidavits from those who know you as a couple. The fiancé(e)-visa petition typically takes two to five months for a decision.
Next, USCIS sends the case file to the U.S. Consulate where the fiancé(e) lives, and he or she applies for the K-1 visa. This stage is called “Consular Processing,” and involves numerous tasks, such a medical exam, completing a detailed online form, obtaining police background report(s), paying the visa fee payment, preparing an affidavit of financial support, etc.
Third, after the fiancé(e) receives the K-1 visa and enters the U.S. and the two of you marry, the foreign national must apply to adjust status from K-1 fiancé(e) to lawful permanent resident. Numerous forms must be prepared and submitted to ensure that your foreign national spouse receives permission to work and travel as quickly as possible (usually three months after filing) while the residency application remains pending. This final process can take six to eight months, or more.
Please note that this section addresses only with situations in which the spouse of a U.S. citizen (or lawful permanent resident) seeks U.S. residency based solely on the marriage alone. Foreign national spouses can also obtain lawful permanent U.S. residency based on marriage as “dependent” of another foreign national who is eligible for permanent residency through employment, an investment, the diversity visa lottery or even a family-based petition by a parent or sibling.
There are several ways that foreign nationals can start a business in the United States. Three of the most commonly used methods are:
1) E-2 Treaty Investment Visa
2) L-1 Intercompany Transferee Visa
3) EB-5 Investor Visa for Employment Creation
The E-2 treaty investor visa allows foreign nationals from 80 countries to apply for a visa to enter the United States and invest in and manage a business enterprise. Specifically, with E-2 status, the foreign national may enter the U.S. to develop and direct the operations of a business enterprise in which he or she has invested a substantial amount of capital. The underlying purpose of the visas are to enhance or facilitate economic and commercial interaction between the two countries, to the key in applying for an E-2 visa is to demonstrate effectively the applicant either has invested in an established, operating business, or that he or she has genuine plans to start operation the business upon issuance of the E-2 visa.
A principal element of the E-2 visa is that the visa applicant be a citizen of one of the 80 countries with which the U.S. has a Treaty Investor treaty. Also, the business entity in which the applicant is investing must be at least fifty-percent owned by citizens of the same nationality visa applicant.
The applicant must also be able to show that he or she has invested or is actively “in the process of investing” in a business located in the United States. A E-2 treaty investor visa may be obtained before actually commencing business activities in certain circumstances. At Merrick Immigration Law, we help our clients develop unique strategies which can show the required investment commitment, while still retaining an option to pursue other alternatives if things don’t work out.
The E-2 investor must also show that the investment is “substantial.” While there is no bright-line rule as to what is a “substantial” investment is, we can advise and assist clients in evaluating their proposed investment, in conjunction with the business plan, is likely to qualify has “substantial.” Generally, investments above in the range of $100,000 or $150,000 can be shown to constitute “substantial” investments for purposes of an E-2 visa, if the business plan can genuinely show that this amount is sufficient to launch and sustain the enterprise.
A related requirement is that the E-2 business has the capacity to be more than just marginal enterprise that able to generate only enough income for the treaty investor and his or her family to earn a minimal.
Other requirements for E-2 visas include that the business be more than just a marginal one one solely for the applicant to earn a living and that the applicant be in a position to "develop and direct" the company. Finally, an E-2 visa applicant must intend to depart the United States when the E-2 status terminates. For the most part, E-2 visas can be renewed perpetually as long as the business remains an active, viable business enterprise and continues to meet all of the other E-2 Treaty Investor requirements. So, while an E-2 is not the equivalent of permanent residency, many of those in E-2 visa status remain in the United States for many years.
Another business-investment visa option that’s related to the E-2 investor visa is the E-1 Treaty Trader Visa. This visa is available to foreign national investors who intend to engage in international trade of goods and services between the United States and the foreign national’s home country.
While E-1 visas hold some attraction because generally, the investment level required is somewhat lower than for an E-2 visa, and there is no requirement that business be more than just a marginal one, the E-1 is limited to the business of trade between the United States and the home country. The investor cannot change his or her business model without also applying for a change of status to either E-2 or another status. Nonetheless, it does offer a small investor to get a foothold in the United States market and then later change status as the business grows.
Another option for investing in a business is to open a branch office of an existing entity in the United States. This is an alternative to foreign nationals who are not citizens of one of the E-2 Treaty Investor countries. Some notable countries that are not E-2 treaty countries include Brazil, India, China and Russia.
In order to open a U.S. branch or subsidiary office that is eligible for the foreign national to obtain an L-1 visa for the purpose of working in that facility, there must have been a related entity at which the foreign national worked for at least 12 months during the last three years.
A third option for working in the United States as an investor is to participate in the United States EB-5 Investor visa program. Under this program, foreign nationals may apply for lawful permanent residency in the United States for them and their families if they make an investment of at least $500,000 in an enterprise that demonstrates the creation of at least 10 full-time employment positions over a two-year period.
The jobs may either be “direct” employment position within the job-creating business enterprise, or, under certain circumstances, they can be indirect positions. Indirect jobs are those that are generated as a result of the foreign national’s investment and only through EB-5 investment through entities known as “Regional Centers,” certified as such by the U.S. Citizenship and Immigration Service.
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