Morales PLLC

A nonimmigrant alien who has previously presented a visa for admission to the United States may sometimes be readmitted (a) in the same nonimmigrant classification as shown on an expired visa or (b) in a different nonimmigrant classification than shown on an expired or valid visa if a change of status occurred while the individual was in the United States. The nonimmigrant alien’s absence from the United States must be limited to 30 days or less, and the individual’s travel must be limited to certain geographic locations.  Admission under this procedure is called “automatic visa revalidation.” Automatic visa revalidation is applied differently depending on the individual’s nonimmigrant visa classification.

Most nonimmigrants may rely on automatic visa revalidation to apply for readmission after travel to a “contiguous territory” (Canada or Mexico). Nonimmigrants in the F or J classification may rely on automatic visa revalidation to apply for readmission after travel to a “contiguous territory” or “adjacent islands other than Cuba.” At a minimum, in order to be eligible for this benefit, the nonimmigrant alien must present a valid passport, a valid Form I-94 (Departure Record or Arrival-Departure Record), and either (a) an expired nonimmigrant visa in any classification or (b) a current, valid nonimmigrant visa in any classification.

Documentary and Other Requirements

To rely on automatic visa revalidation, a nonimmigrant alien must meet the following conditions when applying for readmission to the United States:

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Citizens of Canada have the unique ability to apply for some U.S. immigration statuses directly at the port of entry or pre-flight inspection. The L-1A Intra-company Transferee status for executives and high-level managers is one of those statuses that can be applied for at the port of entry. Given the recent heightened level of scrutiny being applied to L-1 applications, however, the relative ease in submitting the application should not be equated with meeting the required legal standards.

Generally, an applicant for L-1A Intra-company Transferee status must demonstrate that they have worked in an executive or high-level managerial position with the company abroad for at least one year out of the past six years (six months if there is an approved Blanket L petition). In addition, the applicant must demonstrate that they will be coming to the U.S. to work in an executive or high-level managerial position with a company that is related to the company abroad. Most of the heightened scrutiny surrounds the question of whether the position abroad and the intended position in the U.S. are in fact executive or high-level manager in nature.

L-1A applicants at the port of entry should focus not only on the nature of the job description, but also include descriptions of how that role fits and functions within the company. For example, does the applicant supervise other professional employees? This is normally demonstrated by showing the job descriptions and minimum requirements (such as a bachelor’s degree) for each of the employees supervised. Another question to ask is whether the executive or high-level manager will be engaged in non-qualifying activities, such as making photocopies, scheduling business travel, etc. Thus, it may be advisable to show that the applicant also supervises administrative personnel who handle these activities on his or her behalf.

More recently, applicants have been asked to demonstrate the size and value of the business division or project that they will be overseeing in the U.S. For example, perhaps they are coming to the U.S. to oversee the company’s entire North American operations. Or, they may be coming to the U.S. to oversee a project valued at $2.1 billion. The assumption is that very few international companies would send a low-level employee to oversee such an important and expensive part of their business. In such a case, it would be advisable to carry copies of any contracts for the project or news articles describing the project.

When making an L-1A application at the port of entry, preparation well in advance is required. An applicant is expected to go beyond the job description to demonstrate eligibility. For assistance with your L-1A port of entry or pre-flight inspection applications, please contact us at info@mmorales.com.

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Normally, an applicant for Lawful Permanent Residence must apply for and receive an advance parole document in order to return to the United States following international travel. The consequence of not doing so could mean that the application for permanent residence is deemed abandoned. Those holding an H-1B, however, have the option to return in H-1B status without being deemed to have abandoned their status for not having an advance parole document. If the traveler has both an H-1B and an advance parole, they must indicate to the CBP officer which document under which they are seeking entry. This normally works quite well, but there is a risk that should be disclosed when there are family members who are seeking permanent residence as the dependents of the H-1B visa holder. In the case where the residence applications are separated and the primary applicant is approved first, the family must be aware that their dependent H-4 visas are no longer valid for reentry. This is because their dependent visas are tied to the primary H-1B and that person is no longer in H-1B status, but is now a lawful permanent resident. As such, the H-4 visas are no longer attached to a valid H-1B. So, in order to reentry the U.S. from international travel, the dependents will now require an advance parole document. A true problem can arise if the primary H-1B holder’s status is changed to lawful permanent resident while the H-4 dependent is traveling outside of the U.S., because they could be deemed to have abandoned their residence application and not have a valid document to enter the U.S. So, as a best practice, always apply for advance parole as a back-up. If you have any questions about this suggested best practice, please feel free to contact us at info@moralespllc.com.

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Most applicants under the Outstanding Researcher category have no problem satisfying the first half of the test that the USCIS applies, but sometimes there is uncertainty about the second half of the test.  That is, there are usually questions about how to prove that their work is internationally recognized as outstanding.  Don’t worry, you do not have to prove that you have celebrity status, but that your work has exposure to the field on an international basis and that your work is considered more than an original contribution.  Although this will not be a comprehensive discussion of how to prove the second prong, I’ll give you some basic starting points.  Start with looking at resources such as Google Scholar to see who is citing your work and where are they located in the world.  If they are not your daily colleagues, contact them and ask them to write a letter about why they cited your work and what role it has played in their research.  Ask them to comment on your reputation in the field and what they find to be unique about your work.  Another approach is to look at the ranking and circulation of the Journals in which your papers appear.  A Journal with an international circulation is a positive.  But, you need to take it a step further to show that your work is considered outstanding by your international audience.  Look to see if the Journal ranks the articles by “most downloaded” or “most cited” and get evidence of this from the Journal.  For example, the fact that the Journal has an international circulation and that your work is being downloaded more than most articles, you have a strong argument that your work is internationally recognized as outstanding.

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Today is October 1st, so many people will now be in H-1B status for the new Federal Fiscal Year.  But, how do you know if you automatically assume this status or if more needs to be done.  Those who automatically fall into H-1B status should have an I-94 attached to the bottom of their I-797 approval notice.  That I-94 is proof of your lawful status in the United States.  Your visa stamp in your passport may be expired and you will probably need to apply for a new visa stamp on your next international trip.  But, if you do not have this I-94 on your approval notice, you may need to leave as soon as possible to apply for a visa stamp at a U.S. Consulate abroad and then reenter to be in valid H-1B status.  If you have questions about your H-1B status, feel free to contact us at info@moralespllc.com.  We would be happy to review your situation.

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Last year I was invited by the American Immigration Lawyer’s Association (AILA) to help draft the Comments to the Department of Labor’s (DOL) proposed H-2B rules.  A number of the employers that I worked with were looking forward to the ability to obtain an approval that would be valid for three years, but then a United States District Court blocked the implementation of the rules.  Recently, however, the Court ruled in favor of the Department of Labor and allowed it to move forward with its changes to the program.  The electronic system is now available at www.icert.com.  Please do not hesitate to contact us at info@moralespllc.com if you have questions about using the new electronic system or how the new rules will change the H-2B filing process.

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Persons entering the United States under the K-1 fiance classification have 90 days to marry and thereafter change their status to that of a Lawful Permanent Resident (LPR).  The K-1 classification is unique in that you can adjust your status only through the person that you marry.  In our case, the couple married within 90 days, but thereafter did not apply to change the spouse’s status to a LPR.  Years passed and the couple divorced and went their separate ways.  The foreign spouse spent almost 30 years thinking that it was impossible to gain LPR despite now being married to another U.S. citizen and having U.S. citizen children and being a successful entrepreneur.

In this case, the foreign spouse was partially correct in that he could only become an LPR through the sponsor of the K-1.  What was not realized was that even after 30 years of being divorced and having no communication, that the foreign spouse could still adjust through the former spouse.  It was a long and hard-fought case where we drafted a well thought-out and argued legal memorandum and had to educate government adjudicators who were not familiar with this area of U.S. immigration law.  The end result of our efforts was that our client gained a status that he thought was impossible for 30 years.  It was a life changing moment for the entire family and they finally had the peace of mind that comes with knowing that he is legal.

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Welcome to the Morales PLLC blog.  Each week we will be providing you with the latest on workforce mobility solutions for companies that are transferring employees or are recruiting employees from abroad.  Today, the ability to attract and retain the best human capital is the most competitive and complex aspect of a company’s plan for growth and innovation.  This blog will help to guide your company through that complexity and give your company a competitive advantage.

We will initially focus on issues of U.S. immigration and provide you with answers to commonly asked questions and unique solutions derived from our more than ten years of experience with working with companies like yours.  Eventually, we will begin to move into global mobility and add discussions about immigration law in countries such as Brazil, Canada, China, Nigeria, and the United Kingdom.  If you have any special requests for a discussion about a certain topic or country’s immigration requirements, please email us at info@moralespllc.com.

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