USA Immigration

U.S. Stateside Renewal Pilot To Kick Off in Jan 2024 

The much-anticipated stateside renewal pilot program is set to run from January 29 to April 1, 2024.  Under the pilot, certain H-1B visa holders will be able to renew their visas within the United States, without having to leave the country for visa stamping.   

The program is limited to a total of 20,000 visa applications.  4,000 application slots will be opened up by the State Department every week, from January 29 through Feb 26.  

While the pilot is currently applicable to H-1B employees only, there is a possibility of it being expanded in the near future to other non-immigrant visa categories like the L-1. 

To qualify under the pilot for domestic visa renewal, the H-1B worker, who has an approved and unexpired H-1B petition and is seeking to renew their visa stamp must: 

  • Have been issued the visa by Mission Canada with an issuance date from January 1, 2020, through April 1, 2023; or by Mission India with an issuance date of February 1, 2021, through September 30, 2021; 
  • Not be subject to a nonimmigrant visa issuance fee (“reciprocity fee”);  
  • Be eligible for an in-person interview waiver;  
  • Have been fingerprinted in the past in connection with a prior visa; 
  • Not have a prior visa that includes a “clearance received” annotation;  
  • Not have a visa ineligibility that would require a waiver prior to visa issuance;  
  • Be currently maintaining H-1B status in the United States;  
  • Have a period of authorized admission in H-1B status that has not expired; and 
  • Intend to re-enter the US in H-1B status after a temporary period abroad. 

 Eligible applicants will be able to apply for renewal through the State Department’s dedicated domestic visa renewal website by submitting the DS-160 and paying the requisite fee, after which applications will then be sorted to determine whether they fall within the scope of the pilot. 

Source: 2023-28160.pdf (federalregister.gov)

D&A will closely follow this development and provide updates as and when they become available. 


This article has been written by Zeenat Phophalia, Esq. Of Counsel, Davies & Associates, India Office.

Zeenat Phophalia is qualified to practice law in New York, United Kingdom and India. She practices in the area of U.S. immigration law with a focus on business immigration, and has represented corporate clients including large and medium sized companies and startups across sectors such as IT, consulting, consumer goods, manufacturing and telecommunications.

Looking for an US immigration lawyer? Request free consultation at Davies & Associates or find our closest location around the world.


EB5 Visa for Vietnamese Investor: Direct versus Regional Center - what is the better option

Visa EB5 cho Nhà đầu tư Việt Nam 2023 – 2024: Trực tiếp so với Trung tâm vùng – lựa chọn nào tốt hơn?

Ngày 2/12/2023, một sự kiện toàn cầu về di cư và đầu tư được tổ chức tại Thành phố Hồ Chí Minh bởi John Hu Migration Consulting, với chủ đề nổi bật là cung cấp cập nhật về chương trình visa EB-5, thu hút doanh nghiệp và nhà đầu tư Việt Nam đang tìm kiếm cơ hội tại Hoa Kỳ.

Tại sự kiện, ông Mark Davies, nhà sáng lập của hãng luật chuyên về di trú và định cư Davies & Cộng sự, và ông Simon Thien Nguyen, Chuyên viên Đầu tư giàu kinh nghiệm của hãng, chia sẻ những hiểu biết quý báu về các tùy chọn khác nhau trong chương trình thị thực visa EB-5 dành cho nhà đầu tư Việt Nam. Các thông tin được luật sư chia sẻ nhằm giúp nhà đầu tư Việt Nam hiểu rõ hơn về các lựa chọn visa khác nhau để bắt đầu kinh doanh tại Hoa Kỳ.

Điểm chính về triển vọng Visa EB-5 cho nhà đầu tư Việt Nam trong giai đoạn 2023 – 2024:

Luật sư Davies đảm nhiệm phần thảo luận, tóm tắt về chương trình EB-5 và giải thích về các lựa chọn cho nhà đầu tư Việt Nam. Diễn giả đi sâu vào chi tiết về chương trình EB-5, mang đến cho mọi người cái nhìn rõ ràng về các con đường visa mà doanh nghiệp và nhà đầu tư có thể tham khảo.

Visa EB5 hình thức đầu tư trực tiếp (direct) so với Trung tâm Vùng (regional center): Lựa chọn nào cho nhà đầu tư Việt trong 2023 – 2024?

Luật sư Mark Davies nói về một vấn đề phổ biến mà nhà đầu tư Việt Nam thường gặp: lựa chọn giữa các chương trình visa EB-5 Trực tiếp và EB-5 Trung tâm Vùng.

Luật sư nhấn mạnh tầm quan trọng của việc giảm thiểu rủi ro khi đầu tư visa EB5, đặc biệt là khi xem xét tùy chọn Trung tâm Vùng. Luật sư nhấn mạnh ưu điểm của việc giảm rủi ro khi chọn đầu tư Visa EB5 dạng Trung Tâm Vùng, khi khách hàng nhận được sự cố vấn và hỗ trợ của nhiều bên: đại diện trung tâm vùng, chủ đầu tư, luật sư cố vấn và công ty tư vấn đầu cư định cư. Việc này sẽ giúp khách hàng tránh được rủi ro nhiều hơn hình thức EB5 trực tiếp, giảm trách nhiệm quản lý một doanh nghiệp EB-5 độc lập, nơi yêu cầu tạo ra và duy trì 10 việc làm.

Trả lời câu hỏi của người tham dự sự kiện về EB5:

Visa EB5 cho nhà đầu tư Việt Nam 2023 trực tiếp và trung tâm vùng

Tại sự kiện cũng diễn ra một phiên hỏi và đáp cùng các nhà đầu tư về việc sử dụng tài khoản escrow. Những câu trả lời của ông nhấn mạnh về tầm quan trọng của việc có một công ty luật đáng tin cậy giám sát quy trình, đảm bảo rằng quỹ của nhà đầu tư được xử lý một cách an toàn theo quy định của EB-5.

Tổng kết, Davies & Associates LLC, đại diện bởi ông Mark Davies và ông Simon Thien Nguyen, đóng vai trò quan trọng trong việc giúp mọi người hiểu rõ hơn về chương trình visa EB-5. 

Sự kiện không chỉ giới thiệu về chuyên môn của công ty trong lĩnh vực pháp lý nhập cư mà còn đối mặt với những lo ngại quan trọng của nhà đầu tư, như việc sử dụng tài khoản Escrow. Bằng cách làm rõ những khía cạnh này, Davies & Associates LLC mong muốn tiếp tục hỗ trợ doanh nghiệp và nhà đầu tư điều hướng thành công trong thế giới phức tạp của chương trình EB-5.


Looking for an US immigration lawyer? Request free consultation at Davies & Associates or find our closest location around the world.


EB5 Visa for Vietnamese Investor: Direct versus Regional Center - what is the better option

EB5 Visa for Vietnamese Investor 2023 – 2024: Direct versus Regional Center – what’s the better option?

On 12/2/2023, a special global migration and investing event was organized in Ho Chi Minh City by John Hu Migration Consulting, with one of the notable topics being to explain the ins and outs of the EB-5 visa program, attracting Vietnamese businesses and investors looking for opportunities in the United States.

During the event, Mr. Mark Davies, who is the Managing Partner at Davies & Associates LLC, and Mr. Simon Thien Nguyen, an experienced Investment Consultant, shared valuable insights about the various options within the EB-5 visa program for Vietnamese Investors. They aimed to help Vietnamese investors understand the different visa choices available for starting a business in the U.S.

Key Points about EB-5 Visa outlooks for Vietnamese in 2023 – 2024:

Mr. Davies led the discussion, providing a summary of the EB-5 program and explaining the choices for Vietnamese investors. The speaker went into the details of the EB-5 program, giving everyone a clear idea about the visa paths that businesses and investors can explore.

EB5 Direct vs. Regional Center:

A key point discussed at the event was Mr. Mark Davies talking about a common problem that investors often face: deciding between the EB-5 Direct and EB-5 Regional Center programs.

He stressed how important it is to reduce risks, especially when considering the Regional Center option. Mr. Davies pointed out the benefit of involving different parties within the Regional Center structure, offering clients more support and lessening the responsibility of managing an EB-5 business on their own. Additionally, he highlighted the significance of job creation in the Direct EB5 model, where creating and maintaining 10 jobs is a requirement.

Interactive EB5 Q&A Session:

EB5 Visa for Vietnamese Investor: Direct versus Regional Center - what is the better option

We also had an interactive session where Mr. Davies answered questions from the audience, including concerns about using Escrow accounts. His responses emphasized the importance of having a reliable law firm oversee the process, ensuring that investors’ funds are handled securely according to EB-5 regulations.

In conclusion, Davies & Associates LLC, represented by Mr. Mark Davies and Mr. Simon Thien Nguyen, really seeks to help everyone understand the EB-5 visa program through reality – proven case studies.

The event also showcased the firm’s expertise in immigration law and addressed important concerns for investors, such as the use of Escrow accounts. By providing clarity on these aspects, Davies & Associates LLC hope to continue supporting businesses and investors navigating the complex world of the EB-5 program successfully.


Looking for an US immigration lawyer? Request free consultation at Davies & Associates or find our closest location around the world.


US Immigration

US Visa Options for Entrepreneurs

Whether you are desiring to start a business in the United States or have established one already, you may be eligible for a non-immigrant or immigrant visa.  Fortunately, US immigration law provides multiple options in this regard. 

This article briefly touches on the popular routes available to foreign entrepreneurs seeking to live and run their business in the US. 

E-2 Treaty Investor Visa 

The E-2 visa is a great and often times, quick option for entrepreneurs seeking to establish a business in the United States or invest in an existing one.  The E-2 non-immigrant visa is available to nationals of specified countries that have a certain treaty with the US.  One must demonstrate a substantial investment in the US entity; there’s no prescribed minimum, and substantiality is generally assessed based on the proportion between the invested funds and value of the business.  Investments can be by way of cash, inventory, or intellectual property. The capital must be sufficient enough for the business’ operational success.  For example, while an investment of USD 60,000 may be substantial for a juicery, it would not work for a inventory-heavy or manufacturing business.  

An E2 visa can be renewed indefinitely as long as the business continues to operate and the investor – entrepreneur remains actively engaged in the business.  To qualify, the investor does not need to own or run a business in their country or if they do have one, the nature of the US E-2 business need not be the same as their foreign business.   

L-1 Intracompany Transferee Visa

The L-1A, a dual-intent nonimmigrant visa, is used for the transfer of qualified managerial and executive personnel from an overseas company to a related company in the United States. The key criteria are: (1) existence of a qualifying relationship between the foreign and US entity (the US entity should be a parent, subsidiary, affiliate or a branch of the foreign company); (2) the applicant should have worked in a managerial or executive capacity for the foreign employer abroad for at least a year (3) should be assuming a managerial or executive role in the US as well. 

An eligible foreign business owner desirous of expanding their business operations into the US or venturing into a new business line can apply for the L-1 visa for themselves.  The business need not be operational, an L-1 can be applied for “new office” purposes too, where the US business is a startup and has not been engaged in activities for more than a year.  Here as well, there is no prescribed minimum investment amount.  A founder and CEO of an established logistics and warehousing company in Vietnam for example, who is keen on starting and running a similar or different business or businesses in the US may be eligible for the L-1A visa option.  

EB-1C – Multinational Managers and Executives 

The EB-1C visa is a green card/immigrant visa category, available to certain multinational executives and managers who have been employed abroad for at least a year and whose employer is related to a U.S. company (by way of being a parent, subsidiary, affiliate or branch). The US EB-1C sponsor must be engaged in business for at least a year and must offer to employ the foreign applicant in a managerial or executive capacity in the United States.   

The US business does not need to be large; there’s no minimum revenue, earnings, investment or staff prescribed, even small businesses may qualify as long as the EB-1C requirements are met and the company can show the financial ability to pay for the proffered position. 

The EB-1C visa grants permanent resident status.  This category does not require the lengthy labor certification process and the wait time for obtaining a green card is significantly shorter compared to those of the other employment categories.  

EB-1C is a common route adopted by L-1A executives or managers employed in the US to transition to permanent residency.  EB-1C, however, is not limited to L-1 employees; it can be used to sponsor the green card for a multinational manager or executive who has not worked in L-1 status in the US as long as the visa requirements are met. 

EB-5 Investment (Direct) 

The EB-5 immigrant visa is reserved for foreign investors/entrepreneurs who are willing to invest capital in a new or existing business in the US, that will result in jobs for US workers.  Unlike the EB-5 regional center route, under direct EB-5, the investor invests his money directly into their own or a family member’s business which can be a new or an existing one.  The minimum amount is $800,000 in a commercial enterprise in a Targeted Employment Area (TEA) or $1,050,000 in a non-TEA.  Business options under the EB-5 direct route can include retail, services industry, franchise model, restaurants, gas stations, manufacturing and so on. 

Upon approval of the I-526 which is the first stage, the investor will receive a two conditional green card, which later leads to permanent resident status upon fulfilment of certain criteria. 

O-1 Extraordinary Ability

The O-1 visa is reserved for individuals having extraordinary ability in business, education, sciences or athletics.  It’s a good option for accomplished entrepreneurs desirous of starting a new business in the US.  One has to demonstrate extraordinary ability by a documented record showing that they have sustained national or international acclaim, are recipients of awards, have testimonials form leading experts in their industry, among other things.  Evidence is usually in the form of media coverage, publications, press coverage, testaments from experts, etc. 

Similar to the L-1 or E-2, the investor’s own start-up company can sponsor them for the O-1 visa.  Unlike the EB-5, there is no minimum investment in the company.  The O-1 visa initially granted grants the entrepreneur 3 years with available extensions. 

EB-2 (National Interest Waiver) 

Certain entrepreneurs can also avail the Employment-Based (EB-2National Interest Waiver visa, which is an immigrant visa, leading to a green card.  There’s no US job offer or sponsor needed, the entrepreneur can self-petition.  The entrepreneur needs to demonstrate exceptional ability or that they have an advanced US degree along with demonstrating that their work has “substantial merit and national importance;” they are in a good position to achieve what’s stated in their business proposal, and that their endeavor on balance, would be beneficial to waive the job offer requirement. 

Entrepreneur applicants must be ready to present multifaceted and specific evidence along with a very well-articulated business plan.  Evidence can include educational credentials and work experience, investments, revenue growth and job creation, awards, grants, media and press coverage, testament from leading experts and industry organizations and so on. 


This article has been written by Zeenat Phophalia, Esq. Of Counsel, Davies & Associates, India Office.

Zeenat Phophalia is qualified to practice law in New York, United Kingdom and India. She practices in the area of U.S. immigration law with a focus on business immigration, and has represented corporate clients including large and medium sized companies and startups across sectors such as IT, consulting, consumer goods, manufacturing and telecommunications.

Looking for an US immigration lawyer? Request free consultation at Davies & Associates or find our closest location around the world.


US Immigration attorney

Ways to get a US Green Card

The much-coveted green card is a license to permanently live and work in the United States.  In other words, this piece of document grants the holder the status of permanent resident in the US and a path to citizenship. 

The two most common ways to obtain a green card are through family and employment. 

In general, green card immigrant visas through family-sponsored preference categories are limited to 226,000 per fiscal year (October 1 to September 30), and employment-based immigrant visas are capped at 140,000 annually.  However, these annual limits can be exceeded if certain immigrant visas from prior fiscal year’s allocation remain unutilized. 

This article provides a brief overview of the various routes through which a green card can be obtained. 

  1. Through Family: 

Immigration through family is arguably the most common path for obtaining a green card and later, citizenship.  The marriage route is the quickset.  The law allows a US citizen or a permanent resident to sponsor a family member for permanent residency (typically done by way of an I-130 filing).   

The family-based route has two immigrant visa categories: 

Immediate Relatives – these are close relatives of US citizens, such as spouses, unmarried children under 21, or parents.  This category is not subject to a fiscal quota and unlimited number of visas are always available; thus visas are processed relatively much faster under this category. 

Family Preference – this category is reserved for other relatives of US citizens and green card holders such as siblings, unmarried children over the age of 21, married children, etc., and a limited number of immigrant visas are available each year.  Processing times in most cases often range from a couple to several years. 

Separately, there’s also a path for fiancés of US citizens – K1 or the fiancé visa – which allows the fiancé to enter the US for the purpose of marriage and later, adjustment to green card status.  

  1. Through Employment:

A green card can be obtained by working with a US employer; there are different categories, and of course, different requirements.  These categories include priority workers such as outstanding professors and researchers, people with extraordinary ability and multinational manager and executives; professionals with advanced degrees; skilled workers and special immigrants.   

The five categories of employment-based immigrant visas: 

  • EB-1: Priority Workers 
  • EB-2: Professionals with Advanced Degrees or Exceptional Ability 
  • EB-3: Skilled Workers, Professionals, and Unskilled Workers 
  • EB-4: Special Immigrants 
  • EB-5: Investors 

Generally, the US employer will sponsor the green card petition.  For example, qualified H-1B employees can obtain green cards if their employer applies for their labor certification and files the I-140 petition to sponsor them, mostly under the EB-2 or EB-3 classification.  However, these particular categories have historically had long wait times.  A quick path to green card is available to certain L-1 employees – a managerial or executive can be sponsored for a green card by their US employer under the EB-1 category; in this case the employer can directly file the I-140, bypassing the labor certification process.  The wait times to obtain a green card under this route have been significantly shorter than those of the EB-2 or EB-3.

The two employment-based immigrant visa classifications which permit self-petitioning by foreign nationals are the EB-2 – National Interest Waiver, and EB-1- Extraordinary Ability.  So, if you are a musician or an athlete who’s attained national or international fame may apply for an EB-1 visa without needing a US job offer.  Similarly, a foreign national who can demonstrate that their work is of substantial intrinsic merit and national importance for the US can apply for an EB-2 visa without a US sponsor. 

  1. Through Investment:

Foreign investors can avail he EB-5 visa – an immigrant visa which allows investors to obtain a green card by investing at least $800,000 in a commercial enterprise in a Targeted Employment Area (TEA) or $1,050,000 in a non-TEA. The investment must employ at least 10 full-time US workers or remain in a pool investment project which will directly result in job creation for US workers. Over the years, the EB-5 program has resulted in the infusion of billions of dollars into the US economy, boosting development projects and employment opportunities. There are 10,000 EB-5 visas available each fiscal year. 

  1. Through Lottery:

Another way to obtain a green card is through the Diversity Visa Program or the Green Card Lottery. Under this program, 55,000 applicants are selected each year, mainly from countries with low immigration rates such as Estonia, Norway, Japan, Ukraine, etc.  The applicant needs to have a high school education, or its equivalent, or two years of qualifying work experience. 

 5.    Through Refugee/Asylee Status:

Applying for a green card by virtue of refugee or asylum status can be complex and time-consuming and requires meeting multiple criteria.  One should have been granted refugee or asylee status in order to apply, meaning that the individual should have demonstrated the fulfilment of certain requirements of a refugee or asylum seeker and have been granted protection under US law.  Refugees are generally people outside of their country who are unable or unwilling to return home because of fear of serious harm.  Asylum status is a form of protection available to people who are refugees and are seeking admission to the US at a port of entry. 

This article is for information purposes only and does not consitute legal advice of any kind.


This article has been written by Zeenat Phophalia, Esq. Of Counsel, Davies & Associates, India Office.

Zeenat Phophalia is qualified to practice law in New York, United Kingdom and India. She practices in the area of U.S. immigration law with a focus on business immigration, and has represented corporate clients including large and medium sized companies and startups across sectors such as IT, consulting, consumer goods, manufacturing and telecommunications.

Looking for an US immigration lawyer? Request free consultation at Davies & Associates or find our closest location around the world.


Investor Visa Application Price Increase

Guide to Taking a Loan for EB5 Visa or E2 Visa

There are two kinds of U.S. investor visa: (1) the non-immigrant E-2 investor visa; and (2) the immigrant EB-5 visa.

An EB5 Visa USA loan refers to a loan that’s taken by the petitioner to fund part or all their EB5 investment. The same principals generally apply for financing an E2 investor visa.

Can I Use a Loan for a U.S. Investor Visa Application?

Yes.

Loans are one of the authorized forms of financing that an investor may use. Investors commonly use loans to fund EB-5 and E-2 qualifying investments.

Loans can be secured or unsecured. Home Equity Lines of Credit (HELOC) can allow homeowners easy access to EB5 financing.

You must file documentation that evidences the bona fides of the loan with USCIS. This includes: (1) the lender’s source of funding*; and (2) the method by which money was transferred from the lender to the EB-5 investor.

* Loans sourced from a bank are exempt from this rule. Investors are not required to show where a bank procured loaned funds.

Why are Loans for EB-5 Popular?

In 2022 the RIA raised the minimum investment amount for EB5 from $500,000 to $800,000. As a result, more people wanted to borrow money to finance their EB5 investor visa application.

I. Finding an E-2 or Eb-5 Visa Lender

There are generally four sources of E2 and Eb5 qualified loans: 1) private loans; 2) institutional loans, including bank loans; 3) loans from EB5 Regional Centers; and 4) seller financing available in both E2 and EB5 Direct cases.

(1) Private Loans

Many Eb5 investors borrow money or take gifts from family. A family member lending or gifting funds for an investor visa application will have to carefully document the lawful source of those funds.

Other private lenders commonly include friends and business associates.

(2) Institutional Loans

Investors can also borrow money from a bank or financial institution by using their home or assets as Collateral. HELOCs are an especially popular source of financing.

Careful attention needs to be paid to the loan documentation. The purpose clause in a loan agreement needs to be carefully reviewed. A purpose clause that does not permit borrowing for EB5 purposes will likely result in a visa denial.

(3) Regional Center EB-5 Loans

More recently a number of Regional Centers have started to finance Eb5 transactions.

Caution needs to be taken when borrowing funds from a Regional Center. While some Regional Center loan programs do qualify for EB-5 purposes the status of some other EB5 loan programs is currently undetermined.

(4) Seller Financing

Direct EB5 investors and E-2 investors can often purchase an existing business using seller financing.

A potential issue with seller financing is whether or not the investor is “at risk”. In assessing whether or not an E-2 investor is at risk the US government applies a proportionality test. Using this proportionality test the US government evaluates the overall cost of the business against the investment made.

Caution needs to be taken to ensure that the seller financing is not secured by the subject business or the assets comprising that business. As stated in the Foreign Affairs Manual:

“Indebtedness such as mortgage debt or commercial loans secured by the assets of the enterprise cannot count toward the investment, as there is no requisite element of risk. For example, if the business in which the applicant is investing is used as collateral, funds from the resulting loan or mortgage are not at risk, even if some personal assets are also used as collateral.”

II. Secured or Unsecured EB5 Loan?

All loans are either secured by Collateral or unsecured. The investor needs to secure a secured loan with their personal property (Collateral). An unsecured loan does not require any Collateral.

Most investor visa lenders require Collateral to secure loans used for EB5 funding, unsecured loans are hard to find. If unsecured loans are available they are likely to have a much higher interest rate or other charges than a secured loan,

What is Collateral for a Loan?

“Collateral” refers to the assets used to secure a secured loan. If the borrower does not repay the loan as agreed, the lender will sell the Collateral to pay the loan.

EB-5 Visa Loan Requirements and E2 Visa Secured Loan Requirements

There are several requirements for a secured loan to be qualified as EB-5 investment funds. These requirements include:

  • The loan must be secured by the investor’s assets or property. The EB5 investor can only use personal property (Collateral) they own to secure an EB5 loan. EB5 qualifying personal property (Collateral) can include: Stocks and other securities, gold and jewelry, real estate and other assets.

  • Source of Funds for Collateral. An EB5 investor must prove how the Collateral securing an EB5 Loan was purchased. The Eb5 investor must also prove how the funds used to purchase the Collateral were lawfully earned.

  • Value of Collateral. The value of the investor’s Collateral must be equal to or more than the loan amount.

  • Perfection of Security Interest and Mortgages. The lender’s security interest in the Collateral must be perfected. In simple language that means that the mortgage or other loan used to secure real estate must be properly registered as required by law.

  • The investor must be the principal borrower of the loan and must be fully responsible for its repayment. The loan must be under the investor’s name and they must be solely liable for its repayment.

  • Investor is “At Risk”. An investor places their personal assets “at risk” as Collateral in a secured EB5 loan or E2 loan. The investor clearly meets the “at risk” requirement.

  • Purposes of Loan. For the EB5 visa program the capital investment funded by the EB5 loan must placed “at risk” and create ten jobs. Investors accomplish this by investing the loan proceeds in an EB-5 project.

Acceptable kinds of collateral for an EB-5 Visa loan

USCIS allows EB-5 investors to use any form of collateral to secure their loan as long as the loan is secured by the investor’s assets. Property holdings, gold, real estate, cash, and equipment are some examples of acceptable kinds of personal assets that investors can use as collaterals.

Eb5 projects require an investment of USD 800,000 or USD 1,050,00 and must generate at least 10 new direct and indirect jobs.

Land-Based Loan Transactions

If you are going to use a bank loan secured by land, you will need to provide copies of all relevant loan documents. This documentation includes the full purchase documentation for the land including an explanation of how funds to purchase the land were earned. Investors should also be willing to explain how payments were made on any mortgage used to acquire the property.

The loan must also comply with the laws of the country where the land is located.

Mortgages and Remortgages

Investors may also remortgage or refinance using a mortgage with a fixed or variable interest rate. A bank can quickly determine if a house or a condominium is qualified for a cash-out refinance. The loan can be quickly arranged with the proceeds reaching the investor’s account within 45 days, subject to the appraisal and the lending review processes.

E2 Visa and EB-5 Visa Unsecured Loan Advantages

An unsecured loan has a few advantages:

  • No Source of Funds. A loan from a recognized financial institution has no source of funds requirement. As an unsecured loan has no Collateral there no requirement to trace the funds used to purchase Collateral. An unsecured loan which is not from a recognized financial institution will require proof of how the lender earned the funds to make the loan.

  • Assets not at Risk. Because the loan is unsecured the investor’s assets are not immediately placed at risk in the event the loan is not re-paid.

  • Investor is “At Risk” for EB5 Purposes. USCIS traditionally took the view that investors using unsecured loans to finance EB5 investments were not “at risk” as required by EB5 law. As a result of a court case decided in October 2020 the position has changed. Unsecured loans can now be used to finance EB5 investments. As the court decision is fairly recent there is little data on how the USCIS is deciding cases where foreign investors are relying on unsecured loans.

III. EB-5 Visa Loan Repayment Terms

Loan Interest Rate

Loan interest is the amount that a lender charges to a borrower for lending the borrower the money. To calculate loan interest, multiply the interest rate by the outstanding loan balance. Market conditions and credit standards determine interest rates for EB5 Visa loans.

A wide variety of loan products on the market that meet EB5 needs. These can include 30 and 15 year fixed repayment terms using various fixed and adjustable interest rates.

At the time of writing, an investor can borrow $800,000 at a 5% interest rate by using a $1 million home as collateral. You can then apply the USD 800,000 loan proceeds towards the required EB-5 investment and the associated fees.

Other Fees

In addition to the interest cost some loans may entail other costs. These costs may include arrangement fees and pre-payment penalties.

Lending Rates from Financial Institutions

There are a lot of factors that can affect lending rates. These factors can include a client’s banking relationship and the liquidity and risk level of the asset among others. The lending rate can depend also on a bank’s own cost of capital or external factors outside its control.

While applicants may want to pay off their loan as quickly as possible to reduce the interest cost caution may be prudent.

The reason for this is USCIS may ask to see proof that the loan is still outstanding at the time the I526 is adjudicated. If the loan has been paid off USCIS may then ask for proof of how the funds used to pay off the loan were earned. This may raise complications concerning the source of funds at the time the case was originally filed.

Credit Cards

Investors from some countries where currency control measure are in place may find the use of credit cards an Eb5 funding option.

Short-Term Loans

USCIS has not stipulated any repayment requirements for short-term loans. It is however advisable to repay loans only following the approval of your I-526 petition.

If you intend to use a loan for your EB5 funding, you will need to produce documents confirming the lawful source of the lender’s funds and the lawful source of the assets used as collateral for the loan.

Long-Term Loans

Just like in short-term loans, the USCIS has not issued requirements for repaying long-term loans. There’s no indication that longer-term loans will cause your investment to lose its status as an “at-risk” investment. The EB-5 investor program requires investors to place their investment “at risk” for a period of two years. law Capital can neither be managed or governed by redemption agreements insuring loss nor by contractual promises to repay funds. For capital to be “at risk”, there must be a chance that it will be lost.

IV. Loan Documentation in Investor Visa Cases

A loan taken to fund an E2 or EB5 investor visa case will have certain documentation. The US Government, USCIS and the US State Department will all want to see:

– The Loan Agreement,

– A Promissory Note (sometimes combined with the Loan Agreement into a single document)

– A Security Agreement which secures the loan with the Collateral (for secured loans only).

An immigration lawyer should carefully review the loan documentation to ensure that all of the terms and conditions are consistent with the EB5 program.

V. How to Negotiate Eb5 Financing: Key Terms to Watch for in an Eb5 Loan

Eb5 investors would be well advised to retain an experienced lending lawyer to review loan documentation. Key issues to look at in the loan documents include but are not limited to:

  • Whether or not there is an early repayment penalty.

  • Purpose clause. Make sure that the loan agreement has a purpose clause that includes EB5 as a permissible use of the funds. A clause that states funds can be used “for any lawful purpose” is proper.

  • The amount and duration of the loan, and the procedure for disbursement.

  • How interest will be paid. Monthly, quarterly, or annual terms of the principal and accrued interest.

  • Full fees and costs, including any origination points or other fees.

  • Check that is it lawful to borrow money secured by local property and remit the proceeds of that loan to the United States for investor visa purposes.

VI. Special Considerations for Bangladeshi and Indian Eb5 Investors

  • Investors resident in India or investors using funds remitted from India will need to comply with the regulations promulgated but the Reserve Bank of Indian (“RBI”). Most investors accomplish this through the Limited Remittance Scheme (“LRS”).

  • It is improper for an investor resident in India to incur debt outside of India or to borrow money in India with the intention of remitting those funds outside of India.

  • Here at Davies & Associates, our pool of expert immigration attorneys can help you ensure that you comply with EB-5 Visa loan requirements and that you have the best chance of being granted an EB-5 Visa.


E2 Visa Study cases

U.S. State Department Issues Near Record Level Non-Immigrant Visas

On November 28, 2023, the U.S. State Department shared a press release highlighting the agency’s operations and the significant numbers of different types of visas issued in the last fiscal year. 

From October 2022 through September 2023, the State Department issued a near record level of non-immigrant visas – more than 10 million globally – 8 million visitor visas for business and tourism and more than 600,000 F-1 student visas (embassy and consulates in India issued an all-time record of more than 140,000 student visas).  590,000 visas were issued to high-skilled workers and executives to work in some critical fields, ranging from emerging technology to healthcare, and nearly 365,000 to airline and shipping crew members.

The State Department attributes these achievements to innovative solutions, such as expanding the interview provision that allows certain visa applicants to renew their visas without the need for an interview appointment at the consulate or embassy.    

The interview waiver flexibility is set to expire on December 31, 2023.   There is no announcement as yet from the administration regarding its continuity. 

Visa Operations Bring Record Achievements Worldwide – United States Department of State 

We at D&A are monitoring the situation and will provide updates as and when available. 


This article has been written by Zeenat Phophalia, Esq. Of Counsel, Davies & Associates, India Office.

Zeenat Phophalia is qualified to practice law in New York, United Kingdom and India. She practices in the area of U.S. immigration law with a focus on business immigration, and has represented corporate clients including large and medium sized companies and startups across sectors such as IT, consulting, consumer goods, manufacturing and telecommunications.

Looking for an US immigration lawyer? Request free consultation at Davies & Associates or find our closest location around the world.


US Visa Application

E2 Visa Dual Intent: Misconception or Truth?

Introduction

The United States has always been known as the land of the free and the land of opportunity. It is considered the frontrunner in the world in terms of economic growth, and that’s why a lot of people are trying to gain permanent residency in the ‘Land of the Free’.

While there are several paths to attain permanent residency, there are challenges and obstacles like long processing times, quota limitations, retrogression, among others. In this regard, it makes sense to consider nonimmigrant visa options that will allow you to enter the U.S. sooner to pursue your business or employment goals and at the same time explore options for permanent residency. The E-2 visa is one of the non-immigrant visa classification that is not subject to quota limitations, retrogression or excessively long processing times. In fact, the E-2 application does not need to be filed and approved by USCIS. The applicant files the application directly with the Embassy or Consulate.

Is E2 Visa Dual Intent: We Will Explain Why It Isn’t

There are non-immigrant visas which allow foreign nationals to be temporarily and lawfully present in the U.S. but still let them retain their right to become a legal permanent resident. However, it is a misconception to categorise an E2 visa as a dual intent visa. Generally, the U.S. Embassy or Consulate will ask treaty investors to simply sign a declaration that they plan to return to their home country once their visa expires.

Moreover, the consular officers are instructed by the Foreign Affairs Manual (FAM) that an applicant must prove that they intend to depart the U.S. once their visa expires and not to stay to adjust status or otherwise remain in the country.

Please take note that consular processing is different from filing a petition with the United States Citizenship and Immigration Services (USCIS). Due process doesn’t exist in consular processing, and petitions may be outright denied for the existence of immigrant intent. If you have an outstanding or previously approved immigrant petition, you should take note that immigrant intent is assessed when you renew or enter the U.S. and these petitions can be used as an indication of immigrant intent.

If you have a pending immigrant visa petition, the consular officer may ask you about it during your E2 interview and would consider this for the approval of your visa. They may still approve your petition, however, if you sufficiently prove that you’re not planning to adjust your status in the U.S.

What is an E-2 Visa?

An E-2 Work Visa is a type of nonimmigrant visa that allows nationals from E-2 treaty countries to make a substantial investment in a U.S. enterprise or business. The validity of the E-2 visa depends on reciprocity schedule. For most countries, the reciprocity schedule is 5 years. When one enters on a valid E-2 visa, he or she will be given a 2-year period of authorized stay. Since it is a nonimmigrant visa, the applicant must overcome the presumption of immigrant intent. He or she must demonstrate ties to the home country.

Proving Non-Immigrant Intent

All applicants for a nonimmigrant visa are presumed to intend to immigrate, which means that they must demonstrate that they do not intend to immigrate to the U.S. to get the visa. Most applicants find it hard to qualify for a non-immigrant status, such as a visitor visa, if there is any indication of intent to seek permanent residence in the U.S. 

Before a visa is issued, foreign nationals must prove to a consular officer that they meet the standards required by the visa they are applying for. The consular officers are allowed to presume that every applicant for admission intends to stay in the U.S. for a permanent time and the goal of the applicant is to overcome that presumption. The burden is on the applicant to convince the consular officer that he or she will depart once the trip has concluded or once your visa has expired. In making the decision, the consular officer will consider family, social and economic ties to the home country. 

Requirements to qualify for E-2 visa

  • You have to be a national of an E-2 treaty country to obtain an E-2 Visa.
  • You have to make an irrevocable investment.
  • Your E-2 company must be currently operational or at least imminently operational.
  • Your investment must be substantial.
  • Your E-2 company must be more than a marginal or one solely for earning a living.
  • You must be able to develop and direct the Company.
  • You must intend to depart the United States when your E-2 status terminates.

Ways to Qualify for E-2 Visa

There are different ways to qualify for E-2 Treaty Investor Visa.

Establish and operate your own start-up company.

If you are establishing your own start up company,  you need to set up the company. You can choose to set up your E-2 business as an LLC or corporation. You must own and control at least 50% of the E-2 company. You will need to take the necessary steps to make the company operational or at least imminently operational. You need to open a bank account for your company and make the necessary business expenditures (rental payments for office space, purchase of equipment, furniture or inventory, marketing fees, etc).  You must spend a significant portion of your funds on the initial business expenses and place the unspent funds in an escrow account for future business expenses of the company. To qualify for E-2 visa, you must put your funds be at risk by irrevocably committing them to the E-2 enterprise.

Buy and continue to operate an existing business.

If you are buying an existing business, you must already have a signed purchase agreement and paid the purchase price. If the seller agrees, you can opt to put the purchase price in an escrow account subject to release to the seller upon approval of your E-2 application.

Buy and operate a franchise.

If you intend to operate a franchise, you must already already signed the franchise agreement and paid the fees. If the franchisor agrees, you can also put the franchise and other related fees in an escrow account subject to release to the seller upon approval of your E-2 application.

Aside from qualifying as an E-2 Treaty Investor, you may also be eligible to be an E-2 Treaty Employee. If you know an individual (or entity) from an E-2 treaty country  and you have the same nationality, you may be classified as an E-2 Treaty Employee if you will occupy an executive, supervisory or specialized employee position.

E-2 Visa Consular Application Process

Before applying for an E-2 Visa, you need to make sure that it’s the best option for your immigration goals. You can always consult with an immigration attorney to determine if an E-2 Visa is perfect for your situation and circumstances.

Every Embassy or Consulate has their own specific guidelines in submitting an E-2 visa application. You have to make sure that you are following the guidelines to avoid potential delays. An E-2 application requires the submission of an online DS-160 application and an E-2 application package with all the supporting documentation. The Embassy or Consulate usually reviews the application before scheduling an interview. The review and processing times at every Embassy or Consulate vary. It could take 2 to 4 weeks or sometimes 2 to 4 months depending on the caseload of the Embassy or Consulate.

E-2 Visa Consular Processing Costs

  • Form DS-160 (Online Nonimmigrant Visa Application) – $315
  • Visa issuance fees or reciprocity fees depending on your home country

Our guide on the cost of E-2 visa gives you more information on the investment you must prepare to avail of an E-2 visa.

Change of Status to E-2 Process

If you are currently in the U.S. on a valid nonimmigrant visa like B-1/B-2, you may be eligible to apply to change status to E-2 by filing a petition with USCIS. You will have to demonstrate that you meet each and every requirement for E-2 classification. If approved, you will get a new I-94 with an extension of additional two years of authorized stay in the U.S. to develop and direct your E-2 company.

E-2 Change of Status Costs

  • Form I-129 (Petition for Nonimmigrant Worker) filing fee – $460
  • Form I-907 (Request for Premium Processing) filing fee – $2,500 (optional)

Is it possible to transition to become a permanent resident from E-2 status?

While the E-2 visa is a nonimmigrant visa, there are still ways to pursue permanent residency. 

  1. You may transition from E-2 to EB-5 classification when you meet the investment and employment creation requirements.
  2. You or your spouse may qualify for other employment-based immigrant petition. 
  3. You may qualify for a family-based petition as an immediate relative of a U.S. citizen.

If I have a pending immigrant petition, do I still qualify for E-2 visa?

A pending immigrant petition does not automatically disqualify you for E-2 nonimmigrant visa. You just need to prove that you have no plans of permanently immigrating at the time of the filing of your application. You have to be ready to prove your ties to your home country.

What is a dual intent doctrine in U.S. immigration law?

U.S. visas are either classified as immigrant and nonimmigrant. In general, to qualify for nonimmigrant visa, one has to prove that he or she has no intention to permanently immigrate to the U.S. However, based on the dual intent doctrine, certain nonimmigrant visa holders are allowed to be present temporarily in the U.S. with the intention of possibly immigrating to the U.S.

Types of Dual Intent Visa

As we have said, a dual intent visa allows foreign nationals to enter the U.S. as a nonimmigrant but retains the option to apply for permanent residence in the future. Some visas inherently obtain the possibility that the individual can become a permanent resident in the U.S.

H-1B Visa

The H-1B Visa is a temporary non-immigrant visa that allows a foreign national to work in a specialty occupation. A specialty occupation can include jobs in the sciences, engineering, technology, math, and medicine. Take note that an employer must go through a labor certification process before hiring a foreigner for a specific job occupation. Due to the huge demand for this visa, U.S. employers must register for a lottery unless they are considered exempt. This visa has an initial 3-year term that can be extended for a maximum of 6 years.

H-1B visa holders are eligible to bring their spouse and children below 21 to the U.S. They are also eligible to adjust status or apply for immigrant visa based on an approved petition for permanent residency for the H-1B visa holder.

L-1 Visa

The L-1 Visa is a non-immigrant visa that allows a manager or executive of a foreign company to be transferred to a parent, subsidiary, affiliate or branch in the U.S. to perform managerial or executive functions.

L-1 visa holders may be accompanied by spouse and children below 21 on L-2 visas. They are also eligible to adjust status or apply for immigrant visa at an Embassy or Consulate based on an approved employment based petition for the L-1 visa holder.

K-1 Visa

A K-1 Visa is also a dual intent visa used by a foreign fiancé who enters the U.S. and marries a U.S. citizen. K-1 Visa applicants enter the country as nonimmigrants but it is clear that they have the intent to marry a U.S. citizen and generally, immigrate to the U.S. The holder of this visa must be married within 90 days from their arrival in the U.S. They are also not allowed to work legally in the U.S., so they need to apply for a work permit or adjustment of status after their marriage to work legally.

K-2 Visa

Dual intent visas like K-2 Visa, on the other hand, allows unmarried children under the age of 21 years of K-1 Visa holders to enter the U.S. It is approved at the same time as that of their parent’s K-1 Visa, and should be submitted not later than a year after their parent’s K-1 Visa was issued.

K-3 Visa

Dual intent visas like K-3 Visa is used by the spouse of a U.S. citizen to enter the country while waiting for their pending Form I-130 (Petition for Alien Relative) filed by their U.S. citizen spouse listing them as a beneficiary. They’re allowed to work in the U.S. without securing an Employment Authorization Document (EAD).

K-4 Visa

Meanwhile, the K-4 visa enables unmarried children under the age of 21 years of a K-3 Visa holder to enter the U.S. K-4 Visa holders are eligible to apply for work in the U.S., and their visa automatically expires as soon as they turn 21 years old.

Green Card Application

Generally, the first stage in applying for permanent residence in the U.S. starts with your sponsor, such as qualifying U.S. lawful permanent residents or organizations, to file an immigrant visa petition on your behalf. If you are currently in the U.S. on a valid nonimmigrant status, you may be able to adjust status to become a permanent resident within the U.S. Otherwise, you will have to go through consular processing to obtain your visa. It should be noted that there are a lot of factors that determine your eligibility to adjust status or apply for an immigrant visa at an Embassy or Consulate. You have to make sure that you speak with a U.S. immigration attorney to be guided on the requirements and the process.


Looking for an US immigration lawyer? Request free consultation at Davies & Associates or find our closest location around the world.


Investor Visa Application Price Increase

US to begin Domestic Visa Renewal for H-1B Workers

In a welcome development, certain H-1B employees will now be able to renew their visa stamp in the United States, without having to apply at a US consulate in their home country or elsewhere.   

The stateside visa renewal pilot program of the US State Department is set to take effect in January, as reported.  This is in a bid to cut down long appointment wait times at US consulates abroad.  Under the pilot program, the grant of H-1B visas will be limited to 20,000 initially.  Details on this are expected to be published in the Federal Register in December that will outline instructions and eligibility criteria, among other things.  

Additionally, the State Department is considering extending “interview waivers” for certain nonimmigrant visa categories.  The Trump administration had authorized consular officers to grant in-person interview waivers for certain visa categories during COVID (such as the L, H-1, O), which authorization was extended several times by the current administration, and is now set to expire in December of this year.   

Reportedly, the Deputy Assistant Secretary for Consular Affairs Julie Stufft, remarked, “The legal authority for renewing the waivers is clear, but it requires concurrence from the Department of Homeland Security. The agencies are having a “robust conversation” on what is and isn’t working at ports of entry…Everyone is very focused on making sure we resolve this issue by the end of the year.” 

A significant number of non immigrant visas including the H-1B and L-1 were issued without an in person interview.  In such cases, candidates submit their applications via the Dropbox process. 

About the H-1B

The H-1B is an employer-sponsored non-immigrant visa classification that allows certain foreign workers to work in the US in a specialty occupation. “Specialty occupation” means a position that requires application of a specialized field of study and one that requires at least a bachelor’s degree as a minimum entry requirement in that specialty.  The H-1B cap or H-1B quota is the numerical limit of H-1B visas allowed in a fiscal year (October 1 to September 30). Currently, the regular cap for H-1B visas (requiring a bachelor’s degree) is set at 65,000.  There is an additional H-1B annual Master’s cap quota set at 20,000 (requiring at least a US master’s or higher degree). 

Source: H-1B Worker Domestic Visa Renewal Pilot to Start in January (1) (bloomberglaw.com)


This article has been written by Zeenat Phophalia, Esq. Of Counsel, Davies & Associates, India Office.

Zeenat Phophalia is qualified to practice law in New York, United Kingdom and India. She practices in the area of U.S. immigration law with a focus on business immigration, and has represented corporate clients including large and medium sized companies and startups across sectors such as IT, consulting, consumer goods, manufacturing and telecommunications.

Looking for an US immigration lawyer? Request free consultation at Davies & Associates or find our closest location around the world.


US Visa Application

Dual Intent Visa Explained: The Bridge to Immigration

What is a Dual Intent Visa: Unlocking the Path to US Immigration

The concept of Dual Intent Visa

In general, one must always demonstrate nonimmigrant intent to qualify for a
nonimmigrant visa. Anyone applying for a nonimmigrant visa is always presumed
to be intending to immigrate. In this regard, you have to show that you have
ties to your home country and that you have no plans of permanently
immigrating to the U.S. when you apply for a nonimmigrant visa.
However, based on the doctrine of “dual intent” in immigration law,
nonimmigrant visa holder may be allowed to obtain or continue in a
particular nonimmigrant status even though steps may have been taken towards
obtaining a green card. A green card is evidence of your U.S. permanent
residence.

Benefits

A dual intent visa comes with advantages for a foreign employee, investor,
fiancé of a U.S. citizen or dependents of specific nonimmigrant visas:

  • If you’re a foreign employee, you don’t have to
    leave the country during the green card application.
  • If you’re a foreign visitor with more ties to the U.S. than your
    home country, you can avoid any questions regarding immigrant intent upon
    your arrival.
  • You can continue the process of your adjustment of status even
    if you temporarily leave the U.S.

A dual intent visa allows you to lawfully stay in the U.S. while
retaining the right to apply for a green card
in the future. Most nonimmigrant visa classifications require that
you prove ties with your home country and that you don’t
have the intent to permanently stay in the U.S. This is
why taking steps towards a permanent residence can jeopardize your stay.
Unless you hold a dual intent visa, you may be subject to a review for
immigrant intent for each visit to the U.S.

Types of Dual Intent Visa

As we have said, a dual intent visa allows foreign nationals to
enter the U.S. as a nonimmigrant, and at the same time gives
the option to apply for permanent residence
in the future. Below are examples of U.S. nonimmigrant visas
that allow dual intent for the visa holder.

H-1B Visa

The H-1B Visa is a temporary non-immigrant visa that allows a foreign
national to work in a speciality occupation. A specialty occupation can
include jobs in the sciences, engineering, technology, math, and
medicine. Take note that an employer must go through a labor certification
process before hiring a foreigner for a specific job occupation. Due
to the huge demand for this visa, U.S. employers must register for a
lottery unless they are considered exempt. This visa has an initial
3-year term that can be extended for a maximum of 6 years.

H-1B visa holders are eligible to bring their spouse and children below
21 to the U.S. They are also eligible to adjust their
status or apply for an immigrant visa based on an approved petition for
permanent residency for the H-1B visa holder.

Cost

The overall costs for the H-1B Visa depend
on the type of H-1B case and the choice of processing
with the USCIS. All cases of H-1B, including extensions
of the visa, require the USD 460 USCIS fee as well
as the OIA fee.

Application

Due to demand, there is a limited number of visas that can be issued each
year. For 2023, the visa cap is 65, 000. If you have a master’s
degree from a U.S. institution, you are eligible for the 20, 000
extra visas available for master’s degree holders or higher.
Meanwhile, the visa cap doesn’t apply to employers who are
institutions of higher education, nonprofit organizations connected to higher
education, or government research organizations.

Processing time

The processing time for an H-1B Visa can be as short as 4 months and as
long as 8 months unless you are not selected for the visa lottery.
For an additional USD 2, 500, your application can be processed within 15
working days by the USCIS through premium processing.

Requirements

The following are the requirements to qualify for an H-1B Visa:

  • You possess an advanced educational degree, such as a bachelor’s degree or
    equivalent, master’s degree, or doctoral degree.
  • You have a degree common to the industry;
  • Your employer generally requires a degree or equivalent
    for the position; and
  • The nature of your specific duties is so specialized and complex
    that the knowledge required to perform these duties is
    associated with the attainment of an advanced educational
    degree.

The requirements are different for a specialty occupation.

L-1 Visa

L1 Visas are non-immigrant visas that allow a manager, executive or a
specialized knowledge employee of a foreign company to be transferred to a
parent, subsidiary, affiliate or branch in the U.S. to perform
managerial, executive or specialized knowledge functions.

L-1 visa holders may be accompanied by their spouse and children below 21
on L-2 visas. They are also eligible to adjust status or apply for an
immigrant visa at an Embassy or Consulate based on an approved
employment-based petition for the L-1 visa holder.

Cost

The L-1 Visa comes with different costs including the USD 460
visa filing fee, the USD 500 fraud prevention and detection fee,
and the USD 205 Form DS-160 filing fee. Additional costs may occur
for dependent visas, extensions, and if you opt for premium processing.

Application

The L1 Visa application starts with the employer filing a Form
I-129 on behalf of the employee with the USCIS. Upon
approval, the visa applicant then has to complete a Form DS-160
application and attend an interview in their home country’s U.S. Embassy
or Consulate.

Processing time

The processing time for an L1 Visa depends on the USCIS service
center where the petition is filed, the U.S. Consulate or
Embassy handling the employee’s application,
and the complexity of the case. However, in general, L1
Visas tend to be processed much faster than other visa
categories. Processing can be expedited by paying an additional fee of
$2,500.

Requirements

If you’re the transferring employee, you and your employer must
prove the following requirements to qualify:

  • The qualifying relationship between the U.S. company
    and the parent company either as a subsidiary, branch, or
    affiliate;
  • The proof that you have worked full-time for the foreign
    company continuously for at least 1 year within the last 3 years
    before filing the petition; and
  • The proof that you have worked as an executive, MANAGER OR
    SPECIALIZED KNOWLEDGE employee for a foreign company and will be
    assuming the same in the U.S.

There are visa categories that are considered nonimmigrant, but inherently
recognize the intention of the visa holder to
permanently immigrate to the U.S.</strong >

K-1 Visa

A K-1 Visa is also a dual intent visa used by a foreign
fiancé to enters the U.S. and marry a U.S.
citizen. K-1 Visa applicants enter the country as nonimmigrants but
it is clear that they have the intent to marry a U.S. citizen
and generally, immigrate to the U.S. The holder of this
visa must be married within 90 days from their arrival
in the U.S. They are also not allowed to work legally
in the U.S., so they need to apply for a work permit or
adjustment of status after their marriage to work legally.

Cost

The costs for a K-1 Visa include USD 535 for Form I-129F, USD 205 for
Form DS-160, biometrics, and the medical examination.
Generally, the medical examination can go up to USD 200 but may vary
depending on the provider.

Application

The application for a K-1 Visa starts with the U.S. citizen
fiancé filing the petition Form I-129F with the USCIS.
Upon approval, the USCIS will then forward this
to the National Visa Center and you will receive a notice
from the U.S. Embassy or Consulate in their country
regarding the required documents you need to submit
and the location of the visa interview.

Processing time

The processing time for a K-1 Visa averages 6 months.
After the petition is approved, it can take 4 to 6 weeks
for the USCIS to forward the case
to the National Visa Center.

Requirements

Meanwhile, the requirements for a K-1 Visa are as follows:

  • Your sponsoring fiancé must be a U.S. citizen and not a lawful permanent
    resident;
  • Both you and your partner must be unmarried and must prove your
    relationship is valid;
  • You must prove you met in person at least once within 2 years
    before the visa application, subject to exceptions;
  • Both of you must each submit a signed document declaring you intend to get
    married within 90 days after you arrive in the U.S; and
  • The U.S. citizen fiancé must meet the income requirements for a
    K-1 Visa.

K-2 Visa

Dual intent visas like K-2 Visa, on the other hand, allow unmarried
children under the age of 21 years of K-1 Visa holders to
enter the U.S. It is approved at the same time as that
of their parent’s K-1 Visa, and should be submitted not later than a year
after their parent’s K-1 Visa was issued.

Cost and Processing Time

The processing time for a K-2 Visa is the same as a K-1 Visa
as they may be filed simultaneously. However, the cost may
differ for the K-2 Visa as some expenses are computed for each K-2
Visa applicant.

Application

The U.S. citizen sponsor will only need to submit one Form I-129F for
both the K-1 and K-2 Visa holders.

Requirements

To qualify for the visa, the child of the K-1
Visa holder must be under the age of 21 and unmarried. Further, both
fiancés must meet the criteria for eligibility for a K-1 Visa.

K-3 Visa

Dual intent visas like K-3 Visas are used by foreign spouses of U.S. citizens
to enter the country while waiting for their pending Form I-130
(Petition for Alien Relative) filed by their U.S. citizen spouse
listing them as a beneficiary. They’re allowed to work
in the U.S. without securing an Employment Authorization Document
(EAD).

Cost

The costs for a K-3 Visa include the Form I-130 filing
fee, the Form DS-160 processing fee, the medical
examination and vaccination fees, and other administrative costs that may
arise during the application.

Application

The U.S. citizen spouse must file a Form I-130 and then Form I-129F
for you with the USCIS. Upon approval, you will then receive a
notice from the U.S. Embassy or Consulate in your home country along
with instructions for the interview and documents needed.

Processing time

The processing time for a K-3 Visa can take up to 19 months on average.
Due to this, there are a lot of people who think that applying
for the visa classification is not worth it.

Requirements

To be eligible for a K-3 Visa, the applicant must
meet the following requirements:

  • You must be legally married to a U.S. citizen spouse;
  • Your U.S. citizen spouse must have filed a Form I-130 for you to
    enter the country; and
  • You are residing outside the U.S.

K-4 Visa

Meanwhile, the K-4 visa enables unmarried children
under the age of 21 years of a K-3 Visa holder to
enter the U.S. K-4 Visa holders are eligible to apply for work
in the U.S., and their visa automatically expires as soon
as they turn 21 years old.

Cost and Processing Time

The processing time for a K-4 visa is the same
as the K-3 Visa as they may be filed simultaneously.
However, the costs for a K-4 Visa may differ as some
of the expenses need to be paid for each K-4 visa applicant.

Application

The U.S. citizen fiancé only needs to submit a Form I-130 and Form I-129F
petition for their spouse and the child.

Requirements

The child of the K-3 Visa holder must be less than 21 years old
and must be unmarried. Moreover, this visa only applies
to the children of the married couple. If you’re yet to be
married, the proper visa is the K-2 Visa.

Davies & Associates can give you advice on which visa category or classification is the best for your specific needs and circumstances. If you’re curious, you can also check all the nonimmigrant visa classifications here.

Dual Intent Visa vs. Single Intent Visa

When you enter the U.S. on a temporary visa or during your visa
interview, you would need to state or prove your nonimmigrant intent. It means
that you must prove that you intend to leave the country once your
visa expires. Dual intent visas allow you to enter the U.S. to stay
or work temporarily while seeking to become lawful permanent residents.

Meanwhile, single intent visa holders are required to show that they have
no intention to abandon their residence abroad, and their intent to
only stay or work in the U.S. for the duration
of their visa. If you’re a single intent visa holder and you have
intentions to apply for a green card during your time
in the U.S., then this can indicate that you misrepresented
your intention.

Green Card Application

If you want to change from a non-immigrant status to that of a permanent
resident, you may able to do so through an “adjustment of status”
application with the United States Citizenship and Immigration
Services (USCIS).

A dual intent visa holder, generally, may file a Form I-485 without worrying
about their intent upon entry to the U.S. However, visitors who
are required to show their nonimmigrant intent upon entry must be careful
of their situation, even if holding a dual intent visa.

If you’re holding a single intent visa, filing a Form I-485 without a dual
intent visa brings into question if you have a preconceived intent
at the time your nonimmigrant visa is granted. You can’t have a
preconceived intent to enter the U.S. for purposes different from
what’s different under your nonimmigrant visa. As long as you
entered the U.S. without a preconceived intent to stay permanently,
it is possible you changed your mind at a later date or during your trip. For
example, a student may fall in love and marry a U.S. citizen
for the duration of their visa.