Immigrant Visas

Obtaining a “green card” – indicating lawful permanent residency in the U.S. – is the primary goal of our clients who are planning to enter this country.

Having lawful permanent residency enables you to live and work in the U.S. indefinitely. The permanent resident status will also eventually allow one to obtain the U.S. Citizenship. However, because obtaining permanent residency has become more complicated since 9/11, applicants increasingly need help navigating the process. We can assist you in obtaining permanent residence through the categories listed below within two main types of permanent visas: Employment–based immigrant visas and family–based immigrant visas.

If that is your goal, too, please contact Shrestha Law Firm, PLLC today to arrange a consultation and to learn how we can help you.

Immigrant Visas:

EB Visas

• EB–1
• EB–2
• EB–3
• Labor Certification Process for EB–2 and EB–3
• EB–4
• EB–5 (Investor Visa)

Family Based
Alien Relative
Asylum or Refugee immigration

EB Visas

EB–1

The EB–1 classification is open for 3 types of foreign nationals that:

1. Possess Extraordinary Ability in the Sciences, Arts, Education, Business or Athletics, or
Are Outstanding Professors or Researchers, or
2. Managers and Executives of multinational business entities who are on international transfer to the U.S.

Persons in this category are allowed to file for permanent residency (green cards) and do not need to file labor certification application. Thus, beneficiaries in this group enjoy the highest priority among all employment–based green cards.

Steps

Individuals with extraordinary ability may self–petition. All other EB–1 petitions should be filed by your employer.

Either you or your employer should file–in Form I–140, the Petition for Alien Worker with the USCIS Regional Service Center that has jurisdiction over the location of your employment. This form should contain all necessary documents and evidence. Labor certification is not required for EB–1 petitions.

Documents

Aliens with extraordinary ability are defined by USCIS as individuals with “extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation.” The Nobel Prize or similar awards duly prove this status. However, there are alternative means of proving your extraordinary ability. You may submit at least three of the following types of evidence:

1. Receipt of lesser recognized prizes or awards for excellence.
2. Membership in associations in your area which demand outstanding achievement of their members.
3. Published material about you in major publications.
4. Proof that you have judged others’ works.
5. Proof that you have made original contributions to your field.
6. Proof that you have published articles about your field in major publications.
7. Proof that your work has been displayed in exhibitions or showcases.
8. High status in a distinguished organization.
9. Proof that you receive high payments for your work, in relation to your peers.
10. Proof of commercial success in the performing arts.

As an outstanding professor or researcher, you should be internationally recognized in your field. You should be coming to the U.S. to accept a tenure track position, and you should have had at least three years experience in your academic field.

Evidence of your status should include at least two of the following:

1. Receipt of major prizes or awards for outstanding achievement.
2. Membership in associations in your area which demand outstanding achievement of their members.
3. Published material about you in major publications.
4. Proof that you have judged others’ works.
5. Proof that you have made original contributions to your field.
6. Proof that you have published articles about your field in major publications.

To be eligible for EB–1 classification as a manager or executive transferred to the U.S,, you must have been employed outside the U.S. as a manager or executive for at least one out of the past three years. The company you work for must have been seeking to enter the U.S. to conduct business during that period of time.

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EB–2

The EB–2 classification is open to 3 types of foreign nationals that:

1. Exceptional Ability in the Sciences, Arts or Business, or.
2. With Advanced Degree Professionals, or
3. Qualified Alien Physicians who will practice medicine in an area of the U.S., which is underserved.

Steps

Your employer should file–in Form I–140, the Petition for Alien Worker with the USCIS Regional Service Center that has jurisdiction over the location of your employment. This form should contain all necessary documents and evidence. Labor certification (Form ETA–9089) is also required for most EB–2 petitions.

National Interest Waiver

Individuals with exceptional ability in the sciences, arts or business may apply to waive the labor certification requirement if a waiver would be in the national interest. To apply for this waiver, you should file–in Form ETA–750B.

Documents

A petition for a foreign national holding an advanced degree can be made when a position requiring an advanced degree becomes available in the U.S. Interested candidates must show proof of their education and at least five years work experience.

If you wish to be classified as having exceptional ability in the sciences, arts, or business, you should intend to provide at least three of the following:

1. Proof of academic achievement, including diplomas, degrees or certificates from colleges or universities.
2. Letters that prove you have at least ten years of full–time experience in your field.
3. A license to practice your profession or certification in your specialty.
4. Proof that you have commanded a high salary or remuneration for your services, which demonstrates your exceptional ability. 
5. Membership in professional associations
6. Recognition in your field from peers, government officials or organizations.

If you cannot provide documentation of three of these requirements, other comparable documents may suffice.

The National Interest Waiver (NIW) for Qualified Physicians In Underserved Areas

Under two circumstances, a physician applying for EB–2 visa can be exempted from the labor certification process if:

1. The petitioner (sponsoring employer) request a national interest waiver on behalf of the qualified alien physician, or
2. The alien physician self–petitioning for EB–2 on his own can show his entry into the U.S. is in the national interest.
3. In the alternative, the alien physician can also qualify for NIW by working for a total of five years as a full-time clinical physician either at a facility operated by the Veteran's Administration or in an HHS-designated Medically Underserved Area (MUA)/Health Professional Shortage Area (HPSA). Such alien-physician must have a five-year contract with such agencies.   

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EB–3

The EB–3 classification is open to foreign nationals with at least two years experience as skilled workers, professionals with bachelors’ degrees and the following:

1. Professionals with Bachelor’s degrees who do not qualify for either categories EB–1 and EB–2, or
2. Aliens with at least two years of experience as skilled workers, or professionals with a baccalaureate degree, or
3. Unskilled workers who can contribute abilities unavailable in the U.S.

Steps

Your employer should file–in USCIS Form I–140 Petition for Alien Workers with the USCIS Regional Service Center that has jurisdiction over the location of your employment. EB–3 petitions also require an approved Labor Certification (Form ETA–9089) from the Department of Labor.

Documents

Skilled workers should have at least two years experience, either through hands–on experience or through post–secondary education.

Professionals should have either a U.S. bachelor’s degree or a foreign equivalent degree.

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Permanent Labor Certification Process (aka PERM) for EB–2 and EB–3

Generally, an employer (petitioner) sponsoring an employee (beneficiary) in either EB–2 or EB–3 must complete a labor certification request by filing (Form ETA 9089) for the beneficiary, and file it with the Department of Labor’s Employment and Training Administration. Department of Labor will either approve or deny the certification request. The labor certification typically involves satisfying by the employer that its potential employee is not taking a job from a U.S. worker.

In certain circumstances, the employer and the potential employee may be able to show that the potential employee’s entry to the U.S. for the job in question is in the national interest. Both the job and labor certification process will then be waived on the basis of national interest.

Labor Certification process can be time consuming, as various steps, e.g., prevailing wage, documentations, testing of U.S. job market by advertisements and SWA job orders of the job are needed. Bona–fide job offer and good faith effort to recruit qualified U.S. workers are key elements of the application process. U.S. employers must test the job market and conclude in good faith that no U.S. workers are ready, qualified and available for the job. We can work with employers on this process.

After the permanent application for labor certification is approved or certified, an immigrant visa petition, Form I–140 will then be filed with the USCIS by the employer to bring the applicant into the U.S. However, if the applicant is already in the U.S. and the priority date for immigrant visa for the respective country is current, he or she can apply to adjust his status to that of permanent resident by filing Form I–485 along with the I–140 with the appropriate USCIS regional office.

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EB–4

The EB–4 classification includes variety of foreign nationals:

1. An Amerisian,
2. A Widow or Widower,
3. A Battered or Abused Spouse or Child of a U.S. Citizen or Permanent Resident; or
4. Special Immigrants defined as one of the following:
   1. A Religious Worker;
   2. Panama Canal Company Employee, Canal Zone Government Employee, U.S. government in the Canal Zone Employee;
   3. Physician;
   4. International Organization Employee or Family Member;
   5. Juvenile Court Dependent;
   6. Armed Forces Member; or
   7. Afganisthan or Irag national who supported the U.S. Armed Forces as a translator.
   8. Iraq national who worked for or on behalf of the U.S. Government in Iraq. This category must file Form I–360, Petition for Amerasian, Widow(er), or Special Immigrant, concurrently with a host of other forms depending on their needs with the USCIS serving the area where the immigrant will reside or work.

A self–petitioner (especially 1–3) must establish his/her eligibility for the visa category. Details of events and adequate corroborating documents are the key to the approval of petition.

Steps (Immigrant Religious Worker)

The USCIS’ upcoming Final Rule on Nonimmigrant and Immigrant Religious Worker will have a substantial impact on the practice and procedure of this category of visa petition. Generally, your employer should file–in USCIS Form I–360 with the USCIS Regional Service Center that has jurisdiction over the location of your employment. You should have been working with your religious organization for at least two years. You should be entering the U.S. to work in one of the following capacities:

1. As a minister or priest of your religious denomination
2. In a professional capacity in a religious vocation or occupation for your
3. Religious organization (this requires a bachelor’s degree or its equivalent).
4. In a religious vocation or occupation for your religious organization or its nonprofit affiliate.

Documents (Immigrant Religious Worker)

In general, along with submitting Form I–360, you should provide the following documents.

1. Proof that your religious organization is a non–profit organization. Submit a proof showing that the petitioner is a tax exempted entity.
2. A letter from an official of your religious organization in the U.S. stating that you have been a member of the denomination for at least two years, and that you have at least two years experience in your vocation or occupation. The letter should also state certain details about your particular type of vocation/occupation.
3. This letter should also state how you will be paid for your work, and that you do not intend to supplement your income with a second job, or depend on charity for support.

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EB–5 (Investor Visa)

Under section 203(b)(5) of the Immigration and Nationality Act (INA), 8 U.S.C. Â § 1153(b)(5), 10,000 immigrant visas per year are available to qualified individuals seeking permanent resident status on the basis of their engagement in a new commercial enterprise.

Enactment of “EB-5 Reform and Integrity Act of 2022”

On March 15, 2022, President Biden signed into law H.R. 2471 the 'Consolidated Appropriations Act, 2022' which included the ‘EB-5 Reform and Integrity Act of 2022’ (“RIA”). The RIA makes dramatic and sweeping changes that rewrite many aspects of the prior EB-5 Program rules governing both Direct and Regional Center (RC) investments.

Some major programmatic changes include:

•Reauthorizes and extends the RC Program to September 30, 2027.

•Increases the minimum investment amount for Targeted Employment Areas (TEAs) from $500,000 to $800,000.

•Increases the standard (non-TEA) minimum investment amount from $1 million to $1,050,000.

•High unemployment TEAs are now determined only by USCIS (No more state letters).

•Grandfathering Protections - maintains eligibility of all pre-enactment investors, as of when they filed their I-526, for both I-526 and I-829 processing.

•Authorizes Concurrent I-485 Adjustment of Status filings for pending and approved I-526 Petitions as well providing 245(k) protections.

•Creates new visa set asides for certain types of projects (rural / high unemployment /infrastructure).

•Establishes new reporting and disclosure requirements by RCs to both USCIS and sponsored investors.

•Requires promoters and overseas agents to register with USCIS and report fees collected from RCs and sponsored investors.

•Requires RCs pay an annual “EB-5 Integrity Fund” fee to be used by USCIS to fund investigations and site visits of regional center operators, new commercial enterprises (NCEs) and job creating entities (JCEs).

Some RIA provisions made no or very minor changes to prior EB-5 rules. But in many ways, the RIA introduced entirely new schemes, obligations, and definitions that simply did not exist in prior EB-5 policy. That necessitates significant updates to the regulations and Policy Manual, not to mention the development and deployment of new training and support materials to IPO adjudication teams. To be certain, this absence of guidance will create major short-term eligibility and adjudication uncertainty.

There are three basic programs: the Regional Center Pilot Program, the $1,050,000 investment and the $800,000 investment in a targeted area, which are described below. The key difference between them is that the Regional Center is a totally passive investment where the investor does not hire any employees or run the business, while with the $1,050,000 and the $800,000 targeted investment, the investor must hire 10 employees and actively manage their investment.

Of the 10,000 investor visas (i.e., EB–5 visas) available annually, 5,000 are set aside for those who apply under a pilot program involving an USCIS–designated “Regional Center.”

A Regional Center:

1. Is an entity, organization or agency that has been approved as such by the Service;
2. Focuses on a specific geographic area within the United States; and
3. Seeks to promote economic growth through increased export sales, improved regional productivity, creation of new jobs, and increased domestic capital investment.

“Alien Investors” must:

Demonstrate that a “qualified investment” (see below) is being made in a new commercial enterprise located within an approved Regional Center; and show, using reasonable methodologies, that 10 or more jobs are actually created either directly or indirectly by the new commercial enterprise through revenues generated from increased exports, improved regional productivity, job creation, or increased domestic capital investment resulting from the pilot program.

Eligibility

Permanent resident status based on EB–5 eligibility is available to investors, either alone or coming with their spouse and unmarried children. Eligible aliens are those who have invested − or are actively in the process of investing − the required amount of capital into a new commercial enterprise that they have established. They must further demonstrate that this investment will benefit the United States economy and create the requisite number of full–time jobs for qualified persons within the United States.

In general, “eligible individuals” include those

1. 1. Who establish a new commercial enterprise by:
   • Creating an original business;
   • Purchasing an existing business and simultaneously, or subsequently, restructuring or reorganizing the business such that a new commercial enterprise results; or
   • Expanding an existing business by 140 percent of the pre–investment number of jobs or net worth, or retaining all existing jobs in a troubled business that has lost 20 percent of its net worth over the past 12 to 24 months; and
2. Who have invested – or who are actively in the process of investing — in a new commercial enterprise:
   • At least $1,050,000, or
   • At least $800,000 where the investment is being made in a “targeted employment area,” which is an area that has experienced unemployment of at least 150 percent of the national average rate or a rural area as designated by OMB; and
3. Whose engagement in a new commercial enterprise will benefit the United States economy, and
   • Create full–time employment for not fewer than 10 qualified individuals; or
   • Maintain the number of existing employees at no less than the pre–investment level for a period of at least two years, where the capital investment is being made in a “troubled business,” which is a business that has been in existence for at least two years and that has lost 20 percent of its net worth over the past 12 to 24 months.

How do I seek status as an Immigrant Investor?

In order to seek status as an immigrant investor, you must file USCIS Form I–526, Immigrant Petition by Alien Entrepreneur. The Form I–526 must be filed with supporting documentation which clearly demonstrates that the individual’s investment meets all requirements, such as:

• Establishing a new commercial enterprise,
• Investing the requisite capital amount,
• Proving the investment comes from a lawful source of funds,
• Creating the requisite number of jobs,
• Demonstrating that the investor is actively participating in the business; and, where applicable,
• Creating employment within a targeted employment area.

How do I obtain status as a Conditional Resident?

Once the Form I–526 is approved, immigrant investors may obtain status as a conditional resident by filing Form I–485, Application to Register Permanent Residence or Adjust Status, if residing within the United States. The EB-5 RIA allows the investor/applicant and his qualifying family members to concurrently file I-485, Application to Register Residence or Adjust Status with I-526 Petition if the investor and his qualifying family members are in the US on a valid nonimmigrant status. If the immigrant investors reside overseas, they must go through consular processing and obtain visa at the US Embassy or Consulate Office in their country. 

In order to become a lawful permanent resident, eligible investors must file a Form I–829, Petition by Entrepreneur to Remove Conditions. Form I–829 must be filed within 90 days before the second anniversary of an Alien Investor’s admission to the Untied States as a conditional resident.

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Family–based Visa

Permanent immigration in the U.S. comes with a variety of rights and privileges. One method to obtaining lawful permanent residency is through a relative who is either a citizen of the U.S. or a lawful permanent resident.

Steps

There are two categories for family–based immigration:

1. Immediate Relatives of U.S. Citizens (IR): A spouse, widow or unmarried child under the age or 21 of a U.S. citizen. This category also includes parents of adult U.S. citizens. If the relatives are in the United States, they can concurrently file their I-485 Applications if they are in the US upon inspected and admitted or paroled regardless of the validity of their nonimmigrant visas. 
2. Preference Categories.

There are four preference categories for limited family–based immigration:

1. First Preference: Unmarried children over the age of 21 of U.S. citizens.
2. Second Preference: Spouses of lawful permanent residents, their unmarried children under the age of 21, and unmarried children under the age of 21 of lawful permanent residents.
3. Third Preference: Married children of U.S. citizens.
4. Fourth Preference: Siblings of adult U.S. citizens.

Your relative should first submit an immigrant visa petition, I–130 Petition for Alien Relative. This form should be accompanied by proof of your relationship to your relative.

Upon approval of this petition, the Department of State will determine if an immigrant visa number is available for you. When a number becomes available, you may apply for assignment of that number. If the beneficiaries are in the US on a valid visa and the immigrant visas for them are current and available, they can concurrently file their I-485 applications together with the underlying I-130 Petitions. 

Documents

In order to sponsor a relative for lawful permanent residency, you must prove the following:

1. You are a citizen or a lawful permanent resident of the U.S.
2. You can support your relative at 125% above the mandated poverty line. As the issue of public charge has become crucial to be addressed in any Family Visa-Petitions, a thorough analysis of the Petitioner's financial documents is necessary. 

You must also show proof of your relationship with your relative.

Immigrant Visas through Adoption

International adoption is a big issue to Americans of varying backgrounds. However, the process can be cumbersome, long, tedious and costly. Good and early planning before getting into it is what anyone planning adoption needs to undertake. Better understanding of the cumbersome process, obligation and eligibility is crucial.

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Alien Relative

U.S. Immigration law allows three methods for U.S. citizens to bring future spouses or spouse to the United States: the K–1 Fiance Visa, K–3 Alien–Spouse Nonimmigant Visa and the Alien–Spouse Immigrant Visa. The K–1 Visa. and K–3 generally take less time to process than the Alien–Spouse Visa. The Alien–Spouse Visa, however, is a proven path toward lawful permanent residency for your spouse.

Steps

Unlike K–1, for K–3 and Alien–Spouse Visa, a marriage is prerequisite. For K–3, an I–129F petition must be filed and approved in the United States and later complete the Consular Processing at the Post for the issuance of a K–3 visa. For, an Alien–Spouse Visa, if the marriage takes place abroad, an I–130 petition should be filed after the marriage. This petition should be filed either with USCIS in the United States, or at a U.S. Embassy or Consulate abroad.

Documents

Please contact USCIS or the appropriate foreign service post for details about what specific documents you will need to file an immigrant petition for a new spouse.

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Asylum or Refugee Immigration

The U.S. immigration allows people, who suffered past persecution and have well–founded fear of future persecution if they return to the country of their nationality, to seek asylum or refugee status that will eventually allow them to obtain permanent residency (green card). However, to qualify for asylum or refugee status, the applicant must show that he suffered past persecution and holds a well–founded fear of future persecution in the country of nationality on account of his or her:

1. race,
2. nationality,
3. religion,
4. membership of a particular social group or because he or she is identified with a particular social group,
5. political opinion that will subject him to persecution.

Also, the law requires that an applicant must apply within 1 year of arriving in the U.S. otherwise, applicant must show either extraordinary circumstances or changed circumstances in his or her home country.

Steps

You should apply for lawful permanent residency on Form I–485, application to Register Permanent Residence of Adjust Status. You must have been in the U.S. on an asylee status for at least one year. In order to obtain an asylee status for your spouse or under age children, a Form I–730 must be filed for each family member within two years from the time your asylee status is granted by the USCIS or an Immigration Judge. For professional help, contact the law office.

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