Thursday, March 10, 2011

What is the process for setting up a company and obtaining an L-1 visa?

The process for setting up a corporation or LLC depends on which state it is formed. You can visit the Corporate Division website of the state you are considering for details on procedure. For example, to form a corporation in Massachusetts, you should consult the Secretary of Commonwealth at Although your busines may not involve online journalism, here is a website that provides an excellent summary of the process of setting up a corporation in Massachusetts:

The process and requirements for the employee and company in getting an L-1 visa are explained on USCIS's website here:

You must apply for the visa on Form I-129 in the U.S., also found on USCIS's website:

It will take USCIS several months to process the application. But you have an option of expedite processing for an additional fee of $1225 filed on Form I-907.

Once you receive an approval from USCIS, your employee must go to the consulate in his home country to apply for a visa in his passport. The U.S. Department of State provides a general summary of the process for applying for a visa:

Each consulate differs in requirements so it is best to check with the website of the consulate of the relevant country.

Wednesday, February 23, 2011

DOMA declared unconstitutional: Can binational gay partners benefit from this?

If you are a U.S. citizen, should you go and file a green card application for your foreign same-sex spouse, whom you married in Massachusetts, or in any other state or country allowing same-sex marriages? Although Obama’s announcement is a step forward for gay rights, getting full immigration benefits for you and your spouse will still require much legal fighting.

If, today, you submit a green card application for your foreign-born same-sex spouse, USCIS will deny the application. Your only recourse is to appeal the decision, most likely all the way to the Supreme Court. Interestingly, keeping immigration issues out of a DOMA challenge is a deliberate strategy of LGBT rights organizations. The thinking there is that, because the federal government has complete authority over immigration matters, it is almost impossible for courts to find a law unconstitutional when it involves immigration. This strategy, therefore, tries to increase the likelihood that a judge will decide that DOMA is unconstitutional.

For the moment, the USCIS will unquestionably deny your same-sex partner's application, until Congress repeals the law or the Supreme Court concludes that it is unconstitutional. While bringing your spouse to the U.S. is not yet possible, the Obama Administration’s decision to pull back its defense of DOMA is a sign of hope and a move in the right direction.

Monday, February 21, 2011

How to work in the U.S.

People often ask how they can get a temporary work permit in order to work legally in the U.S. They wonder whether there is a simple “work permit” application that they can complete, send to immigration and get permission to work for anyone, doing anything. Unfortunately, there is no such easy system of obtaining permission to work legally in the U.S.
The laws regarding foreigners working in the U.S. are complex and confusing. Generally, if you are not married or engaged to a citizen of the U.S., you must have a sponsor or an employer, who is required to ask permission from the USCIS for you to work or train with them. USCIS will not give authorization to you to do just any job or training with your sponsor or employer. The job or training your sponsor offers to you must be the type of job or training that matches a visa category. You must also prove that you have the necessarily education or experience to do the job or training offered to you. Take a look at the list below to see a sample of these types of visas, and the kind of work you can do with the visa.

Sample Visa Types

E-1 - Treaty Trader visa

You must perform managerial, supervisory or highly skilled work for a foreign company having significant trade with the U.S.

E-2 - Treaty Investor visa

You must be an investor coming to the U.S. to direct and develop the investment business. You can also be an employee of the investment company coming to the U.S. to manage, supervise or perform highly skilled work.

E-3 - Professional worker visa for Australians

You must be from Australia and have a bachelor’s degree or its equivalent, and she must be doing a job that requires a bachelor’s degree.

F-1 - Student visa

Generally, you may only work in a job directly related to your studies. If you are studying English, you may not work.

H-1B - Professional worker visa

The person must have a bachelor’s degree or its equivalent and she must be doing a job that requires a bachelor’s degree.

H-1B1 - Professional worker visa for Singaporeans and Chileans

The person must be from Singapore or Chile and have a bachelor’s degree or its equivalent, and she must be doing a job that requires a bachelor’s degree.

H-2A - Temporary agricultural workers

The worker must perform agricultural labor or services during a limited and temporary period.

H-2B - Other temporary workers

The worker may only work in a job that has been proven as temporary.

H-3 - Trainees

You must be coming to the U.S. to receive training that is not available in your home country and that you will apply in your home country.

J-1 - Exchange visitors

You can work or train as a professor, scholar, teacher, doctor, au pair, intern, trainee, camp counselor, or student in work/travel program.

L - Intra-company transferees

You must be an employee of a foreign company that has an office in the U.S. You may only perform managerial, executive or work requiring specialized knowledge.

M-1 - Vocational or nonacademic students

You may not work but you may receive practical training directly related to the vocation you studied.

O-1 - Extraordinary ability visa

You may work in the fields of science, arts, business, athletics, or education, but you must prove that you are known nationally or internationally for that kind of work.

P-1 - Athletes and group entertainers

You may work as an athlete or as a member of an entertainment group, but you must prove that you or your group’s work is internationally known.

P-3 - Performers of unique cultural programs

You may perform, teach or coach a culturally unique program.

Q - International cultural exchange visitors

You may train or perform work that shares the culture, custom and traditions of the country you are from.

R – Religious Workers

You may perform work in a religious occupation or vocation.

TN – Canadian and Mexican NAFTA Professional Workers

As a Canadian or Mexican, you may work as:

Accountant, architect, computer systems analyst, disaster relief insurance claims instructor, economist, engineer, forester, graphic designer, hotel manager, industrial designer, interior designer, land surveyor, landscape architect, lawyer, librarian, management consultant, mathematician/statistician, range manager/conservationist, research assistant, scientific technician/technologist, social worker, sylviculturalist, technical publications writer, urban planner/geographer, vocational counselor.

Dentist, dietician, medical laboratory technologist, nutritionist, occupational therapist, pharmacist, teaching/research physician, physical therapist, psychologist, recreational therapist, veterinarian,

Agriculturalist, animal breeder, animal scientist, apiculturalist, astronomer, biochemist, biologist, chemist, dairy scientist, entomologist, epidemiologist, geneticist, geologist, geochemist, geophysicist, horticulturalist, meteorologist, pharmacologist, physicist, poultry scientist, soil scientist, zoologist.

College teacher, seminary teacher, university teacher.

Tuesday, January 25, 2011

1. Who can be a joint sponsor for an affidavit of support?

Last night, at QARI’s monthly legal clinic, an elderly Chinese couple asked me who can be a joint sponsor for their daughter’s I-864 affidavit of support. An affidavit of support is a form that must be submitted with many family-sponsored green card applications. The purpose of the form is to show that the person applying for the green card will have enough financial support to live in the U.S. without becoming dependent on the government’s welfare. The person who signs the affidavit of support is promising the U.S. government that he will be financially responsible for the person applying for the green card.

The petitioner, who is the family member sponsoring the green card applicant, is required to complete and sign an affidavit of support. If the petitioner does not have enough income to support the applicant, he may ask someone, who does have sufficient income, to help him jointly sponsor the green card applicant.

Not everyone can be a joint sponsor. To qualify as a joint sponsor, the person must be at least 18 years old; he must be a permanent resident or citizen of the U.S., and he must be domiciled in the U.S. Domicile is a legal word, and it generally means that the person lives in the U.S. or its territories. If the person lives outside the U.S., he can still prove that he is domiciled in the U.S. if he has evidence that he is living outside of the U.S. for a temporary reason and that he has maintained strong connections with the U.S. and intends to return to live there.

The types of people who can serve as joint sponsors are relatives, friends, neighbors, and co-workers. It is usually a good idea to ask someone you personally know to be a joint sponsor. Certain high fraud consular posts, such as Guangzhou, China, have, in the past, suspected fraud when people have paid others to act as a joint sponsor.

Many people are shy about asking for help. Sometimes, all you have to do is ask. Even if the person you want to ask has already sponsored someone else, that person can still be your relative’s joint sponsor, as long as he makes enough income to support himself and his dependents.

If you have other questions about the affidavit of support or the green card process, please call or email me.