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Invest in America

E2 Visa

Want to invest?   You came to the right place.  The United States welcomes investors from Treaty countries through our E2 treaty investor visa program.  The program is designed for nationals of treaty countries to make substantial investments in companies here in the U.S.

E2 Investor

In order to qualify as a E2 investor, there are a few things you’ll need to show.

  • As an investor, you need to be able to show citizenship of the treaty country.  
  • A majority of the business must be owned by a person/people who are nationals of the treaty country.  
  • You must prove that the investment/business is real.  It cannot simply exist on paper or be speculative or idle.  
  • You must show that the investment is “substantial” and that the investment you made/will make is “committed and irrevocable.”  You will not be able to show an investment with uncommitted funds.
  • The investment you make must be enough to support a successful business of the type in which you are investing.  
  • As an E2 investor, you must show control of the money, and you must show financial/commercial risk. You may not secure your investment with the assets from the business.
  • Your trip to the U.S. must be for the purpose of guiding and developing the business.  
  • This investment/business must have a “significant economic impact in the U.S.” or you can show that it will generate “significantly more income than just to provide a living to you and family.”  

Many investors are concerned about the meaning of a “substantial” investment.  Unfortunately, there is no magic number.  However, there are a few guidelines that officials look to when determining if you have made a substantial enough investment to warrant this visa.  They may look to determine whether the investment is enough to keep a business going and growing successfully.  In addition, they may review the total cost of the business then look at your investment to see if you’ve invested a substantial portion of the cost. (Keep in mind that the lower the cost of the business, the less they will take this factor into account.)

E2 visas are good for three months to five years (depending on the country of origin) and can be extended for additional two-year periods of time.   There is no limit to the number of times someone may extend their stay in the U.S., but the visa holder has to always prove intent to leave the U.S. upon expiration of the visa.   The visa holder will have permission to only work “in the activity for which he or she was approved at the time the classification was granted.”

Good news for your spouse!  If you get an E2 visa and your spouse get a E2 derivative visa, he or she may apply for a work permit. Once that work permit is granted, your spouse is not limited in terms of where he/she works.

If you’re interested in starting a business or purchasing an existing business in the United States, the following will give you a little information about the best way to go about that process.  These are some of the most frequently asked questions when it comes to entrepreneurs in the US.

What are the Requirements for an E2 Investor Visa?

There are several requirements in order to apply for an E2 Investor Visa

You must be a national of a visa country. If you aren’t a national of one of these countries, you may try a different path to entrepreneurship in the US.

You must invest in a new or existing business in the US with the goal of making a profit.

Your investment in the new or existing business must be “substantial.” A “substantial” investment is not defined as a number, but is judged under totality of the circumstances.  The location of the business and the type of business will be considered.  That said, you should be sure that you can invest at least $30,000 in order to show substantiality.

Your investment should be in a “bona fide enterprise” and cannot be “marginal.” According to United States Citizen and Immigration Services (hereinafter USCIS), “bona fide enterprise” is one that can be defined as a “real, active commercial or entrepreneurial undertaking which produces services or goods for profit.” In other words, the business must be active on a day-to-day basis.  You must show more than just an investment waiting to mature.  For example, a simple real estate investment or a stock investment will likely not pass muster.

Additionally, the business must not be “marginal.”  The government is looking for a business that has “present or future capacity to generate more than enough income to provide a minimal living for the treaty investor and his or her family.” This is not a hobby business or a part-time business.  You should be actively working on the business and intending the business to be a full-time venture that will financially support you and your family.

You must have the funds to be spent, and the funds must be “irrevocably committed.” This means that you must be in possession of the money.  In addition, you must show that the funds have been spent or will be spent on the business.  (A purchase agreement may be a way to show that the funds will be spent, and receipts are a way to show the money has already been spent.)

You must be able to trace the money. In other words, you must be able to show that the money is yours – not investors’ or third parties. It goes without saying that you must also show that the money was not received as a result of criminal activities.

Your goal in coming to the US is to “direct and develop” this business. In other words, you need to show that you have the ability and capacity to “direct and develop” the business. This is typically demonstrated by showing that you have at least 51% ownership in the business.

QUESTIONS AND ANSWERS FOR E2 VISA

Can I work in other jobs while I am working in my E2 business?

You were granted permission to live and work in the US based only upon the business for which you applied. Therefore, you can work only on that business.  In fact, you should spend all of your working time investing in the business, since you are expected to provide for your family with the business and you must show that the business is not “marginal.”  If your business isn’t working when it’s time to renew the visa, you may have a problem.  The short answer – no.  You should focus your working efforts on the business.

Can my spouse work in the United States if he/she is here based on my E2 investor visa status?

Yes! Your spouse may apply for permission to work and will be allowed to work anywhere.

I’m planning on starting a non-profit in the US in order to help children. Can I apply for an E2 visa?

Although this is a wonderful undertaking, you will not be able to get an E2 Visa.  One of the main requirements for this visa is that the business is a “commercial enterprise” and must be for profit.  Non-profit organizations are therefore not eligible.

Can my children join me on an E2 Visa?
Yes! Your children under the age of 21 can come to the US with you.  However, once your children turn 21 or get married, they will need to change status or return to the country of origin.  A common change of status is to an F-1 visa (student visa).  After school is over, the child will need to change status again or return to the country of origin.  If you plan on bringing your children, please consider working out an immigration plan for them.  Because of the rules surrounding E2 visas, there are heart-breaking stories of kids who moved to the US at 6 months old and now at 24 need to return to the country of origin.  Do not let this happen to your child.  Speak to an immigration attorney about how to plan for your children’s future.

Should I apply for an E2 visa in the United States, or in my country of origin?

There are a lot of variables here, but generally, we recommend that folks leave the country and interview for the E2 visa at a US Consulate in the home country.  If you apply for the E2 visa through USCIS (here in the United States), you will have to apply again once you leave the country for any reason.  And, once you apply with the US Consulate, the decision is not based upon the USCIS approval.

This can be a bit confusing, so I’ll break it down a bit.  If you get an E2 visa in the United States, you will go through USCIS in order to get the E2.  USCIS is a division of the Department of Homeland Security.  USCIS determines whether you qualify for an E2; and if you qualify, your immigration status will change to E2 from whatever your status was.  The downside is that if you leave the country for any reason, you will need to re-apply for an E2 with the US Department of State.  This will happen at the US Consulate in a foreign country.  (In most cases, you would apply at the Consulate in your country of origin, but that is not a requirement.) The Department of State will make its own determination about whether you meet the requirements for an E2 visa.  Their determination has nothing to do with the prior USCIS determination.  So, if you get an E2 visa through USCIS and need to leave the US for an emergency, you won’t be able to return to the US and run your business until you are approved through the Department of State.  This could take weeks or months, depending on the facts of the case and the country in which you interview.  Or, in the worst case, your E2 may be denied.

What if I want to start an E2 business with another person?

There are a few requirements for business partners when filing for an E2 visa.  You must be able to show control and a substantial investment for both partners.  In addition, the partners must be from the same E2 treaty country.

I’m a dual national.  How do I “pick” a nationality for purposes of the E2?

This can be a sticky situation.  Generally speaking, the consulate, when reviewing your packet, will look to the country most closely associated to your dealings with the E2 process.  This is definitely something to discuss with an attorney.

I’m interested in buying an existing business in the US.  Can I still qualify for an E2 Visa?

Yes! You can get an E2 visa for starting a new business or buying an existing business. Although new and existing businesses are both acceptable, how you show that you meet the E2 visa requirements is a bit different.   For example, you may need a business valuation expert letter when showing that you have “substantially invested” in a new business, since there is no way to prove how much it costs to run the new business. In an existing business, you won’t need that.  You should have documents from the previous owners showing the expenses and profits of the business.

Are there minimum employee requirements for an E2?

Yes and no.  There are no specific requirements, but there are expectations. In order to get an E2 visa, you need to show that this business is not marginal. One way you show that is by proving that you will make more than enough money for you and your family to make a living.  The idea here is that you will create jobs and wealth for the United States.   Statutorily, there is no set number of employees you must have.  However, if the adjudicators don’t believe that you will ever be able to employ others; or if you are applying for an E2 renewal and you haven’t employed others and aren’t going to employ others, you may not get the E2 visa.

I’m a free-lancer and I’d like to work from the US.  However, all I really need is a computer and reliable internet. Can I get an E2 visa?

Probably not. In order to qualify for an E2 Visa, you need to show a substantial investment. Even though you can spend $3,000 and get everything you need to run the business, this is not the type of thing the adjudicators are looking for in an E2 applicant.  They want to see that you will be growing the business and that the business is not marginal.  In addition, they want to see that you have commercial space to run the business.  In many cases, they will be looking for a lease agreement for commercial space.

I’m interested in US real estate.  Can I buy a property and get an E2 visa?

Maybe. It really depends on your intentions.  Are you planning on buying a single house or condo?  This will likely not pass muster. Are you guying two houses or condos? Again, this may not be enough to pass the “marginality” requirement and you may not be able to show an active, operating commercial enterprise.  But, are you interested in buying an apartment building with many units? You may have a shot at an E2 visa. As with all types of businesses, you’re going to need to show that this business is not marginal, that it is a real and operating enterprise and that you can make more than just enough for you and your family.

How long will the E2 via process take?

It depends.  When you decide to move forward with an E2, we will send you a checklist. This list will have all of the documents you’ll need to provide in order to move forward.  Sometimes people get the information to us in a couple of weeks.  Sometimes it takes a couple of months.  Once we have the information and submit the information to the Consulate, the timeline depends upon that office. Some offices can review applications and set interviews within a couple of weeks.  Sometimes it takes a few months. Once you have the interview and are approved, you will have your visa in your passport typically within 5 business days.

I am in the US on an E2 visa.  How do I apply for a green card?

The E2 visa will never “turn into” a green card, and the E2 visa doesn’t help you get a green card.  That said, you may always change your status while legally in the US. Some things to consider: do you have any US citizen or US green card holder relatives? Is your spouse eligible for a green card? Are your children eligible for green cards? If the answer to any of these questions is “yes,” you may have a chance to get a green card. One word of warning — the E2 doesn’t allow the intent of staying in the US.  You must intend on returning to your country of origin.  So, if you are considering trying for a green card, you should speak with a lawyer first.

PROVING THE ELEMENTS OF AN E2 VISA

Am I a national of an E2 “treaty country”? And if so, how do I prove it?

This seems like an obvious question; and in many cases, the answer is obvious.  You can simply check the Department of State website to see if your country is on the list.  Your nationality is the country for which you have citizenship and a passport.  You prove this nationality by showing a passport or a naturalization certificate or similar document. Easy, right?

What about if you have dual nationality? As you may have heard, the US doesn’t really like “dual nationality.”  In fact, the United States doesn’t recognize it for its citizens.  But, the US can’t do much about the policies of other countries.  So, if you are a citizen of two or more countries, how do you show citizenship?  The answer may vary depending on the different countries. Typically, the government will look to the nationality used or connected with the E2 process. Let’s look at a couple of examples.

Example 1: Bobby from Brazil/Canada

Bobby the baker was born in Brazil.  He lived there until he was five, when his father got a job in Canada.  The family moved to Canada and Bobby became a Canadian citizen when he was 17, but retained his Brazilian citizenship. He now has passports from both countries.  At age 30, Bobby decides he wants to move to South Dakota to open up a bakery.  He comes to the United States on a B1/B2 visa in his Canadian passport to look for available space and get a few vendor contracts in line.

In this case, Bobby should be OK! Although Brazil isn’t on the “treaty country” list, Canada is.  Bobby used his Canadian passport to come to South Dakota.  He held himself out as a Canadian citizen.  Looks good.

But, what if Bobby did things a little differently?  What if Bobby came to the US using his Brazilian passport?  He took the same trip — he got space for the bakery, he got vendors lined up and returned to Canada. Yikes.  Now we have a problem.  According to Matter of Ogibene, “…nationality claimed or established by (the foreign national) at the time of his entry into the United States must be regarded, for purposes of section 214 of the Immigration and Nationality Act, 8 U.S.C. 1184, as his sole or operative nationality for the duration of his temporary stay in the United States.”  Bobby entered the US with a Brazilian passport.  Brazil is not a treaty country for purposes of E2 visas.  Even if Bobby leaves and returns to Canada before applying for the E2, Bobby needs to speak with an immigration lawyer.

What is an “investment” for E-2 purposes?

As discussed, in order to qualify for the E2 Visa, you must have invested or be in the process of investing in a business.  In order to show this investment, you must show the following.

You’re investing your money, and you have control of the money. 

Money earned or received legally will likely be included.  This means that you could’ve inherited the money, that you could have earned the money in another business or as an employee or that you could’ve won the lottery.  As long as the money is in your possession legally, you should be able to prove that it’s yours and that you have control over the funds.

In a simple example using “Bobby” the baker:

Bobby’s father, a baker himself, recently died and Bobby inherited $150,000.  This money is in Bobby’s savings account and he is using this money to invest in a bakery in South Dakota.  This works!

But what if Bobby’s inheritance isn’t so squeaky clean?

Bobby’s father made a living as an international jewel thief.  Unfortunately, during a shootout in a particularly intense heist, Bobby’s father died.   Bobby inherited $150,000.  It’s not clear that Bobby will be able to use this money.  It will be need to be traced to legal activities.

Your money or assets are at risk when invested.  The government wants to see that the money is spent and, if the business fails, the money is gone.  Essentially, they want you to have some “skin in the game.”

The simplest example of this is cash:

Bobby inherited $150,000 in cash from his father and invests all of it in a bakery in South Dakota.  This works!

However, there are more complex cases that can show risk as well.  If you take out a mortgage or secure a loan, you may be able to show risk.  It’s important that the debt is collateralized by your personal assets.  You cannot use money procured from loans collateralized by the business.  This isn’t risk as required by the E2.  You must show that your personal money or assets are on the line if the business goes south.

A couple of examples:

Bobby takes a second mortgage out on his home for $100,000 and uses those funds to invest in a bakery in South Dakota.  This works!

Bobby gets a loan secured by the projected future earnings of his new bakery in South Dakota.   This will not work.

Your money or assets are “irrevocably committed.” Essentially, you need to be in the process of investing.  “Mere intent to invest” isn’t enough here.  Money must have been spent.  The government wants to see that you are “all in.”  They don’t want contracts signed but no money spent.

In a simple case, showing irrevocable commitment will be easy:

Bobby has copies of cashed checks he wrote to purchase ovens, a commercial kitchen lease and a delivery van.  This works!

There are some instances where money hasn’t been spent, but still qualifies as “irrevocably committed:”

Bobby intends to buy an existing bakery in South Dakota.  Although he hasn’t actually released the money, the money is in an escrow account and will be released upon the condition of the E-2 Visa being issued.  This works!

What can and cannot be used to show an investment?

Leases and rental payments for location or equipment.  It’s possible to use leases and rental payments as investments in certain circumstances.  You can use all current and prior lease payments, whether for the location or for equipment.  However, you cannot use future lease payments or the value of the rented equipment to show investment.

Example:

Bobby rents a commercial kitchen in Yankton, South Dakota for $1,200 per month.  He has paid rent for January, February and March.  The lease is for two years.  He can include the January, February and March payments as investments, but he cannot include the next year and nine months of his lease payments as an investment.  BUT, if Bobby paid his lease up front, he can use that lease payment as an investment.

Here is another example of what can and can’t be used to show investment:

Bobby rents two commercial grade ovens for his Yankton, South Dakota bakery.  Each month, he pays $475 to use the equipment.  The ovens retail for $20,000 each.  Bobby may use all of the payments he’s made for the ovens, but he cannot use the retail value of the ovens to show investment.

Goods and/or equipment used for business purposes.  If you can show that you purchased something for the business, you can use the amount of money spent for those goods and/or equipment for investment purposes.  Obviously, the types of equipment and goods that may be used varies widely based on the business you plan to open.

So in a common example:

Bobby bought two commercial ovens for $40,000 and a delivery van for $25,000 for his new bakery in South Dakota.  He can show investment of $65,000.

But, what if Bobby bought the two ovens and a truck (instead of a delivery van)?  He can still show the $40,000 for the ovens, but the government may need a little more info on the truck.  Is he using the truck for the business?  Or is it for personal use?  This is where a lawyer comes in handy.  You will need to show that the truck is used for the business, not for personal use, in order to include it in the investment amount.

Types of intangible property.  In some instances, the value of intangible property, like copyright and trademarks or domains may be used as investment.  These types of properties are notoriously difficult to value, so this may be a challenge.  But, there are a variety of companies that value intellectual property and other intangible property; and you may be able to show value based on the value of contracts generated by this asset.

Bobby owns the domain BobbysBakery.com.  He bought this domain for $1,000 in 2001.  Last month, he went to a domain valuation expert and received a printed valuation at $2,500.  He built a website on this domain to market his new bakery in South Dakota.  He can likely use this $2,500 (in addition to the cost of the website) to show an investment.

I can prove an investment, but is it substantial enough?

When it comes to E-2 Visas, the “substantiality” requirement is always a concern.  There is no “hard line” number.  You can’t look anywhere and find that $50,000 is enough or that $100,000 is enough.  Showing this requirement is one of the reasons to hire a lawyer in this process.  It’s an art.  There are a few general guidelines, as we will discuss; but overall, the government will look at the facts of your particular case in order to determine if the substantiality requirement is met.

As I always say when speaking with new clients, put yourself in the reviewer’s shoes.  This is a person (not a lawyer or judge) who doesn’t know you or your business at all.  This person knows the requirements of E2, and he or she will be reviewing the documents simply to see if these requirements are met.  This person will be using their best judgment to determine if you are substantially investing in a bona fide business that is not marginal.  This person wants to see that this business has a chance to succeed, to be profitable and to sustain your life and your family member’s lives.  Perhaps most importantly, the reviewer needs to be convinced that you and this business will be contributing to the United States economy.  With this in mind, you can start to see what “substantial” investment may mean.

Luckily for investors, the government does share some information about what they may use to determine what is substantial.

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EB5 Visa

Many people have heard of “investing in a green card.”  Most likely, people who say this are talking about the EB-5 program.  This program, which was created in 1990, is a program for investors/entrepreneurs who want to invest in the U.S.  Like the other EB Visas, this story ends with a green card.  It can be a great way to live and work in the U.S. permanently, while also starting or purchasing a successful business.

If you are interested in entrepreneurship in America, you may want to petition for EB-5. In order to be eligible, you must invest capital into a new commercial enterprise that will create jobs.  

Capital Investment

The minimum capital investment that can be made in order to be eligible for EB-5 is $500,000 USD.  This minimum amount is based upon starting or purchasing a business in a rural or a high-unemployment location.  For all other areas, the minimum investment is $1,000,000 USD.  You, the investor, must show that you own the capital and that it was earned/acquired lawfully.

New Commercial Enterprise

The business in which you invest must be a “new commercial enterprise.”  The USCIS defines this as

  1. A business created after 11/29/1990; OR
  2. A business created before 11/29/1990 and is purchased and reorganized and restructured so much that the business can be considered a “new commercial enterprise”; OR the business is expanded due to the capital investment so the net worth and/or the number of employees increases by at least 40 percent.

The businesses can be independent, part of a “regional center,” or a “troubled business.”  A regional center is a business that runs as a result of multiple investments from multiple people/groups. Regional centers are enterprises that the USCIS has designated.  These enterprises have indicated to the USCIS that they are promoting economic growth.  A troubled business is one that can show a net loss of at least 20 percent during the 12- or 24-month timeframe before the priority date on your Form I-526. The type of enterprise will determine the job creation requirements.  

Job Creation

The new commercial enterprise (not part of a region center) must create at least 10 new jobs in order for EB-5 eligibility.  For regional center enterprises, the 10 jobs can be either direct (employed by the enterprise) or indirect (created as a result of the enterprise). For troubled businesses, you ​must show for at least two years that you’ll continue to employ the same number of employees as the business had before your investment.​ 

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HIRE INTERNATIONALLY

H Visas

As an employer who is interested in hiring (or has hired) international employees, you have likely heard of the H-1B Visa. This is by far the most common type of work visa, and it can be a nice solution to your hiring issue. However, did you know there are several types of H Visas?

H1B Visas

The most common “temporary” employee visa is the H-1B Visa. This visa is best for a potential employee who engages in a “specialty occupation.” (There is also a sub-category within the H-1Bs for fashion models.) In other words, the potential employee needs to have a Bachelor’s degree or the equivalent; and almost always, the hiring party needs to require a Bachelor’s degree or the equivalent to do the job.

The H-1B visa is good for three years and can be extended.

Unfortunately for many employers and employees, there is a strict limit to the number of H-1Bs that are available each year (65,000 for H-1Bs and 20,000 for some exempted employees that have Master’s Degrees). To that end, there is a random “lottery” for all the submitted petitions. It is entirely possible that your/your potential employee’s petition will not be chosen in the lottery. If this happens, you must try again next year in April. This can be problematic for some employers. If you are flexible about when the employee is approved for work at your company, you may want to try another path to legal work in the United States.

H2A Visas

This is a temporary work visa for an agricultural position in your company that is classified as “temporary or seasonal.” The duration of these visas are shorter than the H-1Bs: they are valid for up to one year, and they may be renewed until the employee has worked a maximum of three years before the employee must depart and stay out of the United States for at least three months. In order to apply for this type of visa, you, the employer, must show that there aren’t enough American workers who are willing and able to do the job and that hiring a foreign employee will not be detrimental to the wages and/or working conditions for American workers in similar jobs. Also note that there is a list of eligible countries from which these employees can come. The list is updated periodically.

H2B Visas

This type of visa is for temporary, non-agricultural work. There are some very specific needs regarding what type of position is eligible for the H-2B visa. One of the things you as the employer must show is that your need for this worker is temporary. You can show that in a variety of ways including that this employment is a one-time situation, a season-specific need, a peak season need or an intermittent need. Be aware that there is a cap of 66,000 of H-2B visas each year. Of these, no more than 33,000 H-2B employees can start in the first half of the fiscal year, which begins October 1. The rest will start work in the last one-half of the fiscal year, which begins April 1.

Like the H-2A, these temporary visas are issued for the length of employment up to one year, and they can be renewed for one-year increments. Once an employee has worked for three consecutive years, he or she must leave the United States for three consecutive months.

If an H-2B employee does not show for the job or leaves early (either voluntarily or as a result of termination), you must notify USCIS either by email or regular mail.

H3 Visas

Filing for this trainee visa is narrow and specific. The intention of this visa is to allow a foreign person to experience specific on-the-job training for a career that will ultimately take place in another country. Any type of training is possible, but the most common types of training programs involve agriculture, government, finance, transportation, communications and/or commerce.

The onus is on you, the employer, to show that 1) the training is beneficial to the trainee, 2) it’s a type of training program unavailable in the trainee’s home country, 3) the trainee won’t be an employee and 4) the trainee won’t be “placed in a position which is in the normal operation of the business.”

In addition, you must include a detailed description of the training program when submitting the petition. This statement must include information about the structure and content of the training program, the amount of time (daily, weekly) spent in training, the supervision supplied during training and proof that you have the expertise and manpower to provide training. Essentially, the information in this statement must be thorough and detailed. This statement is crucial and will be reviewed carefully. Any generalities or vagueness will likely result in a denial.

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O Visas

O Visas are meant for those who have “extraordinary ability” within their chosen field of work. The vocations those with O Visas pursue include those in the sciences, arts, education, business or sports. In addition, people who have “extraordinary achievement” within the TV and/or movie industries are also eligible for O Visas.

As in all cases of work visas, determining who is eligible (in this case, who does USCIS consider “extraordinary”) is the first issue.  Luckily, the guidelines of determining “extraordinary” are fairly clear.  Proving your potential employee’s extraordinariness, however, is another matter.  This term is defined as “a level of expertise indicating that the person is one of the small percentage who has risen to the very top of the field of endeavor.” These individuals should also be worth of the following adjectives: “renowned,” “leading,” “notable,” “outstanding” or “well-known.”

O1A Visas

If you are petitioning for someone within the fields of science, education, business or sports, you will be filing for an O-1A visa.  The petition will include evidentiary criteria and documentary evidence.  Since there are so many people who petition for O-1As, the government is fairly strict about who will receive the visas.  To that end, it’s important to be very clear when highlighting the foreign national’s abilities and notability.  

In order to show “extraordinary” achievement, the foreign national can show that he/she has been the recipient of an international award.  This is great for some who have won Nobel prizes and the like, but probably not something that your potential employee has.  If the beneficiary you’re petitioning for is not a Nobel Prize winner, there is another way to show the requisite achievement.  He or she must simply prove three of the eight criteria determined by USCIS to show extraordinariness in the field for which the O-1A is sought:

  • Publication in professional journals or major media of academic articles written by the beneficiary
  • Has been paid a relatively high salary or other pay as evidenced by contracts or other reliable documents
  • Received nationally and/or internationally awards recognizing excellence
  • Authored/innovated scientific, scholarly, or business-related contributions of key significance
  • Participated on a panel or judged of the work of others
  • Became a member of organizations or groups that require what experts in the field deem extraordinary accomplishments
  • Had a critical employment position within organizations/businesses/groups that have a highly-regarded reputation
  • Published articles regarding the beneficiary and his/her work have appeared in professional/trade publications or major media

Documentary evidence about the person’s ability must also be included in the petition for an O-1A visa.  This evidence will likely include 1) a letter from a union management organization or peer group, 2) a contract between you and the beneficiary, 3) an itinerary detailing the event/activity for which you are applying for the visa, 4) information regarding agents (where applicable).  

O-1A visas are good for up to three years and can be renewed in increments up to one year.

O1B Visas

Beneficiaries of an O-1B visa are those who have “extraordinary ability” within the fields of movies and television.  In other words, most of these visas go to folks we have all heard of or will soon hear of.  Like the O-1A, there is plenty of evidence to be submitted in order to ensure a visa for your beneficiary.  

If you have a beneficiary who’s won an Academy Award, this will be pretty easy.  But, for those who are petitioning someone who hopes to someday be an Academy Award winner, there are some other criteria that can be used to show “extraordinary ability.”  You must show three of the following eight criteria that are deemed by USCIS to prove someone is extraordinary.

  • Received significant recognition from critics, organizations, government agencies or proved/recognized experts
  • Has been paid a relatively high salary or other pay as evidenced by contracts or other reliable documents
  • Received recognition for achievements via published materials by or about the beneficiary in major media
  • Performed and will again perform in a leading or starring role for distinguished organizations and/or establishments
  • Has performed and will perform in a leading or starring role in productions or events with an acclaimed reputation
  • Proved record of work receiving commercial or critically acclaimed success

In addition to the evidentiary criteria, the petitioner must include documentary evidence.  In the case of an O-2, a letter detailing the beneficiary’s skill must be submitted by “an appropriate labor organization and a management organization with expertise in the skill area involved” (emphasis added).

One interesting final note about O visas:  If, for any reason other than voluntary departure solely on the part of the beneficiary, the employment ends you, the employer, must pay for the return flight.  That’s right, if you fire the beneficiary, you will be paying for his/her flight back home.  How’s that for a final kick in the pants?

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P Visas

If your employee is an athlete, part of an internationally-known entertainment group, or someone you may consider “culturally unique,” filing for a P Visa may be the best approach.

P1A Visas

Internationally-known athletes, both individuals and teams, are able to apply for P Visas. Much like O Visas, the petitions for P Visas must include evidence that the person or team is extraordinary and distinguished within the sport for which the P Visas is being petitioned.  The petition for a P-1A must include

  • A consultation on behalf of the labor union/organization;
  • A copy of the contract (if a contract is typical in the sport);
  • A thorough description of the event/activity and the schedule of the event/activity; and  
  • Two of the following:
    • Proof of international recognition in the form of a written statement from an official either of the sport or of the governing body of the sport
    • Proof of international recognition in the form of a written statement from a member of the sports media or a well-known, sport-specific expert
    • Proof of significant, previous participation in U.S. intercollegiate competition
    • Proof of significant, previous participation in a major U.S. league
    • Proof of significant, previous participation in international competition with a national team
    • Proof that you or your team is internationally ranked
    • Proof of a significant honor or award in the sport

Looking to pick up a free agent?  Not a problem.  Just keep in mind that you will new to file a I-129 for the new foreign national player.  And, unfortunately, the new player will not be able to play until that I-129 has been approved by USCIS.  So, it’s important to have your attorney file immediately.  

P1B Visas

If you’re looking to be the next manager of an international boy band, filing a P-1B for the guys (including the “cute one,”) will be essential.  Keep in mind that P-1B is for an internationally-recognized entertainment group only – not individual entertainers.  To that end, when judging the recognition and extraordinary ability of the group, focus will be on the success of the group – not the achievements of the individual members or of the international renown of the production/event.  (Circus performers and personnel are exempt from this requirement.) This visa is good for the time needed to complete the event/program, but for no longer than one year.

The documentation needed for the P-1B petition includes the following:

  • A copy of the contract between the petitioner and the beneficiary
  • Proof that the group has been established and performing regularly for at least one year
  • Petitioner’s statement itemizing each member of the group and including the dates of membership in the group
  • Written consultation from a labor union/organization
  • Schedules of dates and locations of the events/performances
  • Receipt of international awards or prizes for outstanding achievement, or proof of at least three of the following:
    • Proof of major commercial or critically acclaimed successes, including, but not limited to ratings, box office receipts, downloads, sales, etc.
    • Critical acclaim from well-known experts in the field
    • Proof of past and future performances for organizations and establishments with distinguished reputations
    • Proof of past and future performances in productions and events with distinguished reputations
    • Publications regarding the group’s talents in major media
    • A relatively high salary or remuneration for services
P2 Visas

This type of P Visa is best for an individual or group that will come to the U.S. as part of an arts/entertainment exchange program. In order to be eligible, beneficiaries of this visa must be a part of a government-recognized exchange program; and they must have the skills equivalent to the U.S. artists/entertainments involved in the exchange.

A petition for a P visa must be filed by either an employer or a sponsoring labor union.  Included in that petition must be the following:

  • Copy of the contract between the sponsoring U.S. organization(s) and the foreign organization(s) involved in the exchange program
  • A schedule itemizing the dates and locations of the events/performances
  • Statement from the sponsor describing the exchange of American entertainers/artists as it relates to the specific petition
  • Written consultation by a labor union/organization
  • Proof that an appropriate U.S. labor union/organization helped to negotiate, or has concurred with, the exchange.
  • Proof that the proposed exchanged foreign national artist/entertainer and the American artist/entertainer have comparable skills and that the conditions/terms of employment are roughly the same
P3 Visas

Is your foreign national employee “culturally unique”?  Although we may all claim to have wonderful senses of humor and to be unique, the USCIS doesn’t necessarily see it that way.  The P-3 Visa is only available for those who are, in the eyes of the U.S. government, culturally unique entertainers.  Your employee may get a P-3 Visa if he/she is coming to the U.S. to coach/teach or perform (either individually or as a group) a “traditional, ethnic, folk, cultural, musical, theatrical, or artistic performance or presentation.” (USCIS.gov).  The event(s)/performance(s) must serve to help develop and further the appreciation for the art form.

Of course, like all other categories of P Visas, some documentation is mandatory when submitting the petition.  The following information must be included with the I-129:

  • Written consultation from an appropriate labor organization
  • A copy of the contract between the petitioner and the beneficiary
  • An explanation of the program(s)/event(s) and the schedule
  • Statements from well-documented experts in the field confirming the performing, presenting, coaching/teaching skills of the unique and traditional art forms; OR published proof that the event/performance is culturally unique
  • Proof that the event(s)/performance(s) will be culturally unique events

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Other Work Visas

There are a variety of other non-immigrant work visas available. In this time of uncertainty surrounding employment immigration, it’s important to know the different options you as an employer have. Like in all areas of immigration, the type of visa that is available for your potential employee depends, in large part, on the type of job you are offering and the skills of the employee.

For more information on the different types of visas available, please see the USCIS website.

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Work-Related Green Cards

In certain circumstances you may be able to petition to get your potential employee a green card to come work permanently in the United States.  This process, also known as the PERM process, includes five “preference” levels.  Which preference your potential employee will get depends upon the beneficiary’s skill level and the type of job you are offering.

EB1, Preference level 1

If you are a person who has an “extraordinary ability” within the fields of art, education, science, business, or sports, you can actually petition yourself.  That’s right – you do not need an employer to file for you, nor do you need to show you have a job offer waiting for you.  Through your attorney, you can apply for a green card without any third party offers.  This is incredible!  Of course, because this is such a rare gift, it is difficult to sufficiently show that you have “extraordinary ability” in order to get a green card.  

Much like some of the temporary visas that require “extraordinary ability,” you can show this through an international award or achievement (Academy Award, Olympic medal, Nobel Prize, etc.) or you can show three of the following criteria:

  • Published material about you in major media
  • A comparatively high salary or remuneration for your work or performance
  • Proof that you’ve been requested to judge the work of others
  • Significant contribution to the field via your work
  • Receipt of other well-recognized prizes or awards
  • Membership in groups or organizations within the area of expertise for which the petition is submitted that require extraordinary achievement
  • Proof that your art has been displayed at showcases or exhibitions
  • Proof of playing a critical role in well-respected groups or organizations
  • Well-documented commercial successes within the field of the performing arts
  • Authorship of academic articles in well-respected trade publications or major media

Colleges and universities also use the EB-1 to bring in exceptional teachers and researchers from around the world.  In order to successfully petition someone, you will need to show that the potential employee has at least three years of teaching/research within the field, and that he/she is coming to the U.S. to “pursue tenure or tenure track teaching or comparable research position at a university or other institution of higher education.”  Finally, you must prove that the teacher or researcher has achieved outstanding achievement in the specific academic field.  

In order to prove outstanding success in the field, you may provide documentation proving two of the following:

  • Original scientific or academic research contributions
  • Receipt of significant awards/prizes/honors for outstanding achievement
  • Membership in groups or organizations within the academic area for which the petition is submitted that require extraordinary achievement
  • Proof that the beneficiary has been requested to judge the work of others within the academic field or similar fields
  • Authorship of academic articles in international academic journals or books
  • Mention of the beneficiary’s work, written by others, in professional publications

If you are hiring a high-level executive who will work on an international level within the company, you may also petition for EB-1.  Both you, the employer, and the employee will need to prove certain criteria in order to be successful with this petition.

Employer:  You will need to show that you are a U.S. employer.  In addition, you must have been doing business for at least one year prior to the petition, as an affiliate, a subsidiary, or as the same corporation or other legal entity that employed the beneficiary.

Employee:  Your employee must show that he/she was employed outside the U.S. for a minimum of one year of the preceding three years (from the date of the petition) by a “firm or corporation.”  In addition, the beneficiary must be entering the U.S. to continue working for that “firm or corporation.”  The employment in a foreign country must have been “managerial or executive,” and he/she must have been serving in that capacity with your company (or a subsidiary or affiliate of your company).  

EB2, Second preference

If your potential employee falls into a few specific categories, he or she may be able to apply for EB-2 visa.  If successful, your employee will get a green card, and he or she may enjoy all the benefits of living in the U.S. as a legal permanent resident.

Advanced degree

If the position at your company requires an advanced degree, and the proposed employee has an advanced degree or a bachelor’s degree and five years of “progressive” work experience within the specialty area, EB-2 Visa is an option.  

Exceptional ability

Only slightly less than the “extraordinary ability” standard, which is required for EB-1 visa, “exceptional ability” still requires an impressive body of work.  If your employee has exceptional ability, you must prove three of the following criteria:

  • A certification or license to practice your profession
  • Membership in a professional association, organization or group
  • A salary or other remuneration that commensurate with an exceptional ability
  • Degree or similar honor relating to the area of exceptional ability from an institution of learning
  • Written documentation detailing at least 10 years of full-time work experience relating to the area of exception ability
  • Recognition by professional/business associations, peers, and the like for achievements and significant contributions to the industry or field of exceptional ability
  • Other equivalent documentation or evidence of eligibility
National Interest Waiver

If you can show that it is in the United States’ best interest to allow you to work permanently in country, you may be able to petition yourself and waive the Labor Certification requirement of EB-2. This is one other time when you can petition for yourself without an employer. Eligibility for the National Interest Waiver includes proving three of the criteria needed to prove “exceptional ability,” listed above; and proving that it is in the nation’s interest that you work in the U.S.  

EB3, 3rd Preference Permanent Workers

Those who may not qualify for temporary visas may, in fact, be able eligible for a green card. The third preference category, EB-3, has a lower threshold as far as experience and education.  However, in most cases, there must be proof that no qualified employees live in the U.S. That can be tough to show, and there are a variety of very specific, arcane and sometimes technologically obsolete rules regarding how to prove this.  

Skilled workers

Simply put, a potential employee seeking an EB-3 visa needs 1) a permanent full-time job offer 2) at least two years of experience or training related to the skilled position for which he/she is being hired.  As an employer, you must show that there are no qualified American workers to do the job.  You will prove this through a variety of postings for the job.  Speak to an attorney about the specifics.  An invalid or incomplete showing for the “no qualified American workers” criterion can be devastating.

Professionals

If you are submitting a petition for a professional employee, you must show that he/she has a bachelor’s degree or the foreign equivalent and that this degree is required for the position.  You, the employer, need to offer the beneficiary a permanent, full-time position; and you must show that there are no available qualified U.S.-based workers to do the job.  

Unskilled workers

If your company has a permanent, full-time opening for an unskilled labor worker, an EB-3 may be the best option.  The potential employee must prove that he/she has the ability and capacity to do the job.  You, the employer, must show that there are no qualified U.S.-based workers to do the job and ensure that this job is not temporary or seasonal.

Although the eligibility requirements for EB-3 are less strict, they also have longer wait times associated with them.  Many countries have 18 month or longer wait times.  Therefore, this category is best for employers and employees who can wait at least a year or longer for approval.

EB4, 4th Preference

Feeling “special”?  This work-based visa, EB-4, is set aside for “special immigrants.”  In order to be eligible for EB-4, the beneficiary must fall into the following categories of employees:

  • Broadcasters
  • G-4 International Organization or NATO-6 Employees and Their Family Members
  • International Employees of the U.S. Government Abroad
  • Armed Forces Members
  • Panama Canal Zone Employees
  • Certain Physicians
  • Afghan and Iraqi Translators
  • Afghan and Iraqi Nationals Who Have Provided Faith Service in Support of U.S. Operations

Typically, the employer must file a form I-360.  However, there are certain circumstances that the beneficiary may petition on their own behalf.  There are very few situations in which this is possible, but if you are in the following categories and can prove the following, you can petition yourself without an employer.

Armed Forces
  • You honorably served after October 15, 1978;
  • Your enlistment outside of the U.S. was lawful under a treaty or agreement in effect on October 1, 1991, for a total of:
    • Twelve years, and you were separated from service only under honorable conditions; or
    • Six years, and you are currently active and have reenlisted in order to acquire a total at least 12 years of active service;
  • You are a national of an independent state that maintains an agreement allowing lawful enlistment in the U.S. Armed Forces; and
  • “The executive department under which you have served or are serving has recommended you for this special immigrant status.”
Afghan and Iraqi Translators
  • You are an Afghanistan or Iraq national;
  • You were cleared by a background check and screening per the Chief of Mission or a general or flag officer in the chain of command of the U.S. Armed Forces unit for which you translated; and
  • You worked as a translator for at least 12 months with the U.S. Armed Forces or the Chief of Mission; and
  • You have a written recommendation from a general or flag officer in the chain of command of the U.S. Armed Forces unit for which you translated.
Iraqi Nationals Who Have Provided Faith Service in Support of U.S. Operations
  • You are an Iraq national;
  • It has been established by the Chief of Mission, Embassy Baghdad, or the designee of the Chief of Mission, that you were employed by or on behalf of the U.S. in Iraq between March 20, 2003 and September 30, 2013 for at least one year;
  • It has been established by the Chief of Mission or his/her designee that you provided faithful and valuable service to the U.S. Your senior supervisor, the person who is currently occupying that position or a person in a more senior position must submit a recommendation;
  • It has been established by the Chief of Mission or his/her designee that you have experienced an ongoing threat as a consequence of being employed by or on behalf of the U.S.;
  • You have undergone and cleared a background check and any appropriate screenings per the Secretary of Homeland Security; and
  • You are admissible to the U.S. (excluding the grounds of inadmissibility specified in section 212(a)(4) of the INA) and eligible to receive an immigrant visa.
Afghan Nationals Who Have Provided Faith Service in Support of U.S. Operations
  • You are an Afghanistan national;
  • It has been established by the Chief of Mission or his/her designee, Embassy Kabul, that you were employed by or on behalf of the U.S. or ISAF in Afghanistan between October 7, 2001 and September 30, 2015 for at least one year;
  • It has been established by the Chief of Mission or his/her designee that you provided faithful and valuable service to the U.S. Your senior supervisor, the person who is currently occupying that position or a person in a more senior position must submit a recommendation;
  • You have experienced an ongoing serious threat as a consequence of being employed by or on behalf of the U.S. Government or ISAF;
  • You have undergone and cleared a background check and any appropriate screenings per the Secretary of Homeland Security; and
  • You are admissible to the U.S. (excluding the grounds of inadmissibility specified in section 212(a)(4) of the INA) and eligible to receive an immigrant visa.

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Help Family Immigrate

Spouse

Congratulations!  If you’re reading about marriage, chances are that you want to get married or recently got married.  This is an exciting time in your life – not only because you are in love, but because you, the U.S. Citizen or Green Card holder, will be able to bring your fiancé/spouse to the United States to live.  You are likely both looking forward to the day that you can live together and stop worrying about immigration issues.  Depending on your wedding date, the immigration process for you and your significant other will vary a bit. 

Fiance Visa

If you and your soon-to-be spouse have still not tied the knot, you will likely be filing a Fiancé Visa, or K Visa, soon.  This visa allows your fiancé to come to the United States before you get married with the caveat that you marry within 90 days of his/her arrival.  The K Visa is nice because it allows for loved ones to be together sooner than some other options.  

In order to apply for a K-1 Visa, you will need to file an I-129 form.  In addition, you will need to supply documentary evidence that tells the story of your relationship.  The documentary evidence you provide should include documents outlining the most recent time you spent together.  Note – in order to get an approval, you must prove that the two of you have seen each other in person within the last two years.  You may also want to include pictures of you with family and friends, plane tickets, etc.

Once your I-129 has been approved, your fiancé will have an interview in his/her home country.  At that time, the K-1 Visa will be approved or denied.  If approved, your fiancé will get approval to come to the United States. Once he or she arrives, the two of you will have 90 days to get married.  

Sometimes couples get caught up in the spectacle of it all, but a word to the wise: get married right away.  Just go to the courthouse and get the legal document.  At that point, you can begin the Green Card process for your spouse.  You can also take your time and plan the wedding of your dreams.  It will still be special, we promise.  You will be able to enjoy yourselves more knowing that you have abided by all of the immigration laws and that your spouse’s status is moving through the system already.  

If your fiancé has unmarried children under the age of 21, they can come over with your fiancé with K-2 Visas.  You will need to include these children during the Visa process.

Marriage in a Foreign Country

If you recently got married in a foreign country, you will be applying for a K-3 Visa for your new spouse.  In order to do this, you will need to file an I-130 and an I-129.  Your spouse’s unmarried children under the age of 21 may immigrate to the U.S. with a K-4 Visa. Please note, however, that children must have been under the age of 18 when you and your spouse (the children’s parent) got married.

Once the Visas have been approved, your spouse and any step-children will be able to come to the United States.  Since you are already married, you will not need to take any additional steps in order to begin the Green Card process once your spouse lands in the U.S.

Marriage in the United States

Once you get married in the United States, you will be able to start the “Adjustment of Status” process for your spouse.  In order to be as efficient as possible, you will also file for a travel permit and for a work permit at the same time.  As long as your spouse is lawfully in the U.S. or was admitted or paroled into the U.S., this process should be fairly straightforward.  Of course, there are always complications when it comes to immigration law.  One tiny mistake could cost thousands of extra dollars or months of extra time.  If your spouse was not admitted or paroled into the U.S., the process will be a bit more difficult.  You will need to file a waiver in order for your spouse to be able to successfully complete this “status of adjustment” process.  The waiver, known as an “unlawful presence” waiver, is crucial to an immigrant without admission or parole.  Without this approved waiver, the immigrant will likely never be able to adjust and/or may be barred from the United States for up to 10 years.

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Children and Parents

Your immediate family is incredibly important – not only to you, but to the United States, as well.  If you are a U.S. citizen, the government makes family unity a priority.  To that end, helping your children and parents get green cards is relatively quick.  In fact, these immediate family members do not have to wait in a “preference category.”  Visa numbers are available right away.

If your unmarried children under 21 or your parents are in the United States, you will be able to petition them by filing an I-130 and I-485 concurrently.  If your children or parents live outside of the U.S., you will petition them in a two-step process and they will have their interview outside of the country.

When considering petitioning your children, keep in mind the following

  1. If you are a U.S. citizen your children may also be citizens.  Please check with an attorney to determine if your children are citizens.  
  2. When your child a) turns 21 or b) gets married, they are no longer eligible for an immediate visa number.  They move to different “preferences” for visas.  This means that they may have to wait a very long time in order to start the green card.  The wait times vary among countries and change every month, but you will likely have to wait at least a couple of years and maybe up to 20 years or more.  
  3. Child status protection act.  The CSPA is available in some circumstances for children of U.S. citizens. Although the CSPA can be incredibly complicated, it generally means that a child’s age will “freeze” at the age when an I-130 is filed.  Because of the complexity of CSPA, please contact an attorney immediately if you feel this may apply in your situation.  CSPA is incredibly time sensitive, so don’t wait.

Opt-Out

If you are an unmarried child of a U.S. citizen who was a green card holder when he/she filed the I-130 for you and subsequently naturalized, you may be able to “opt out” of going to the F1 preference.  This can be beneficial if the wait time of F2 is shorter than F1. Speak to an attorney if this applies to you.

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Other Family Members

As a citizen, you are able to petition for other family members and bring them to the United States. These family members include adult siblings (over 21), unmarried adult children (over 21) and married children of any age. This is amazing news for your family, but there is, in most cases, an extensive waiting period before that relative will be able to come to the United States.

Each month, USCIS issues a new “Visa Bulletin.” This document will show the dates that are currently processed for different categories of relatives. In other words, this document can give you an idea of how long you will wait after you file an I-130 for a relative until that relative will receive a visa number. The dates move each month, but in many cases, you will likely be waiting at least 10 years from the date you file the I-130 until a visa number becomes available for your relative and he/she can come into the country.

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Become a Citizen

Spouse

If you’re married to a U.S. citizen, you have a benefit when applying for citizenship – you only have to be a green card holder (legal permanent resident) for three years.  (Others seeking to naturalize need to be legal permanent residents for five years.)


Military

The United States government has a long tradition of honoring our brave men and women who serve in the military.  Your service and sacrifices have not been forgotten, and the government wants to ensure that you, your spouse and your children are eligible for citizenship and the associated rights and privileges.

Generally, qualifying military service includes honorable service in (and honorable separation from) the Army, Navy, Marines, Air Force, Coast Guard, or some types of service in the National Guard, Ready Reserve and Selected Service.  

Service during War/Hostile Engagement

If you have qualifying service for at least one day during an official period of war or hostility, as designated by the government, you may qualify for citizenship.  The dates during which you must have served honorably in the military include the following:

  • April 6, 1917 to November 11, 1918
  • September 1, 1939 to December 31, 1946
  • June 25, 1950 to July 1, 1955
  • February 28, 1961 to October 15, 1978
  • August 2, 1990 to April 11, 1991
  • September 11, 2001 until the present (this term will end when the President terminates this period by Executive Order)

In addition to qualifying, honorable service during this time, you must show that you were lawfully admitted as a Green Card holder after enlisting or induction.  If you cannot show that, you must show you were physically present in the U.S. when you enlisted or at your induction.  In this case, you do not have to show you were admitted as a Green Card holder.  

Lastly, you must show what all citizenship applicants must show, which includes the following:

  • Good moral character, as defined by law;
  • Basic English literacy, both verbal and written;   
  • Basic knowledge of U.S. government and history;  
  • A loyalty to the principles of the U.S. Constitution;
  • A disposition to “the good order and happiness of the U.S. during all relevant periods under the law.”
Service during Peacetime

Military personnel who apply for citizenship during Peacetime must show at least one year of honorable service; must be at least 18 years old; must be a Green Card holder by the time of the citizenship exam; must have resided in the U.S. for a period of at least five consecutive years; and must have been physically present in the U.S. for a minimum of 30 months in the five years immediately before the application filing date.  (There is an exception for physical presence if you are still serving or honorably separated from service within the previous six months.)

Finally, like all applicants for citizenship, you must be able to show the following:

  • Good moral character, as defined by law;
  • Basic English literacy, both verbal and written;   
  • Basic knowledge of U.S. government and history;  
  • A loyalty to the principles of the U.S. Constitution;
  • A disposition to “the good order and happiness of the U.S. during all relevant periods under the law.”
Citizenship for Spouses and Children of Military Personnel

If you are married to a service member, or if you are a child of a service member, you may also be eligible for citizenship.  This may be true even if you are located overseas.  And, spouses may be eligible for expedited naturalization if your military spouse is or will be deployed.  Speak to a lawyer for more information.

Death During Service

If your loved one died as a result of disease or injury acquired during his/her honorable, active-duty military service, you may apply for posthumous citizenship.  If awarded, your loved one will get a naturalization certificate showing that he/she died as a United States citizen.  If your loved one was a spouse or parent, this could ultimately help you in your quest for citizenship, as well.

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Parents

Anyone born in the U.S. is a U.S. citizen.  End of story.  Even if you weren’t born in the United States, you may be a citizen.  Depending on the marital status of your parents, your parents’ citizenship status and the date you were born, your citizenship could be simply a matter of getting a Certificate of Citizenship (N-600).  Unfortunately, the dates and fact patterns in this area vary widely, and it’s best to speak with an attorney to ensure you understand your specific situation.

Automatic Citizenship at Birth

If your parents were married at the time of your birth, and both of your parents were U.S citizens when you were born and at least one of your parents lived in the U.S. at some point, you have been a citizen since the day you were born!

If your parents were married at the time of your birth, and one of your parents was a U.S. citizen at the time of your birth, and you were born on or after November 14, 1986, and your U.S. citizen parent lived at least 5 years in the U.S. before your birth (at least 2 years of which were after your U.S. citizen parent turned 14), you have been a citizen since the day you were born!

If your parents were not married when you were born, and your gestational, legal mother was a U.S. citizen when you were born, and you were born after December 23, 1952, and before your birth your mother lived in the U.S. for at least one continuous year, you have been a citizen since the day you were born!

If your parents were not married when you were born, and your genetic father was a U.S. citizen and a U.S. national when you were born, and you were born on or after November 14, 1986, and before you turn 18 you can prove you and your father are related as child and parent, and your father agrees in writing to financially support you until your 18th birthday, and your U.S. citizen father lived at least 5 years in the U.S. before your birth (at least 2 years of which were after he turned 14), you have been a citizen since the day you were born!

Automatic Citizenship Before 18

If you were under 18 (or not born) before Feb. 27, 2001, and at least one of your parents is a U.S. citizen, and you are currently under 18, and you lawfully live with your U.S. citizen parent “pursuant to lawful admission for permanent residence,” you are a U.S. citizen!

If you were under 18 from December 24, 1952 to February 26, 2001, and you were living as a green card holder in the U.S., and both of your parents naturalized before your 18th birthday, you are a U.S. citizen!

If you were under 18 from December 24, 1952 to February 26, 2001, and you were living as a green card holder in the U.S., and one of your parents died and the surviving parent naturalized before your 18th birthday, you are a U.S. citizen!

If you were adopted by a U.S. citizen parent, and you legally reside in the U.S., and you legally live with your U.S. citizen parent, and you were adopted before your 16th birthday (or sometimes your 18th birthday), and you lived with your adopted parent for two years before your 18th birthday, you are a U.S. citizen!

If you were adopted by a U.S. citizen parent, and you legally reside in the U.S., and you legally live with your U.S. citizen parent, and between Feb. 27, 2001 and your 18th birthday you were admitted to the U.S. as an orphan (IR-3) or Convention adoptee (IH-3) whose adoption by his or her U.S. citizen parent(s) was fully completed abroad, you are a U.S. citizen!

If you were adopted by a U.S. citizen parent, and you legally reside in the U.S., and you legally live with your U.S. citizen parent, and you were admitted to the U.S. as an orphan (IR-4) or Convention adoptee (IH-4) who was coming to the U.S. to be adopted and your adoptive parent(s) completed the adoption before your 18th birthday.

U.S. Citizen Grandparents

If you have a U.S. citizen parent who may not be able to pass on citizenship to you, there still may be an option for you.  In some instances, if your grandparent is a citizen and lives in the U.S., you can be naturalized. Note – in this process, the citizenship is not automatic, and if these requirements aren’t met, you cannot naturalize.

If you are under 18, and you have at least one U.S. citizen parent, and you live outside of the U.S. in the legal and physical custody of the U.S. citizen parent, and your parent doesn’t meet the physical presence time limit, but your U.S. citizen grandparent was present in the U.S. for a total of at least five years, two of which happened after your grandparent’s 14th birthday, you may apply to naturalize.

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About Us

Angie Rupert concentrates her practice on employment-based immigration for both immigrant and nonimmigrant visa matters, investment immigration as well as family-based immigration. Her corporate immigration work focuses on visas for entertainment figures and athletes; and start-up, corporate, and non-profit employment immigration. She helps investors with E2 and EB-5. In the realm of family-based immigration, Ms. Rupert helps families with green card issues and citizenship.  

After graduating from Loyola Law School, Ms. Rupert worked in the legal department at one of the country’s largest insurance companies.  She also handled several securities fraud class action cases and successfully represented more than 3,000 plaintiffs who were injured by a drug manufactured by one of the world’s largest pharmaceutical companies.   

In addition to her legal experience, Ms. Rupert is a highly-skilled marketing executive within the legal industry.  She ran marketing for nearly seven (7) years for one of the first and largest online lead generation directories in a significant legal practice area with more than 130 partnering law firms. Separately, Ms. Rupert built a full-service marketing firm offering comprehensive traditional and digital marketing strategies to a variety of industries including legal, health care, education and finance.  Ms. Rupert’s marketing expertise benefited businesses ranging from start-ups to $100 million revenue companies.

Angie Rupert, immigration lawyer
Education

Loyola Law School, Juris Doctorate

Kansas State University, B.A.

Boards & Commissions

Former Member, Board of Governors, Loyola Law School

Community Service

Tutor, Adult Literacy Program, Los Angeles Public Libraries

Volunteer Attorney, Los Angeles County Bar Association Immigration Project

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