Hudson River with Statue of Liberty

Immigration Services:

The Law Offices of Lynne R. Newkofsky provides immigration services to a broad spectrum of clients, from multinational corporations to small businesses and individuals. In our practice, we mostly help our clients with obtaining temporary (nonimmigrant) visas and permanent residency in the U.S. ("Green Card"), as well as provide other services as described below.

Temporary (Nonimmigrant) Visas:

Generally, nonimmigrant visas contemplate a finite duration of stay in the U.S. and a specific purpose, such as to visit the U.S. for business or pleasure, to work for a specific U.S. company, to invest in a particular enterprise, to study or to train, etc. The U.S. immigration laws offer a large variety of nonimmigrant visas for different purposes. The types of nonimmigrant visas that we utilize most frequently in our practice are as follows:

Permanent Residency ("Green Card"):

Clients that intend to reside in the U.S. permanently may seek lawful permanent resident status, commonly known as the "green card." Below we discuss different ways to obtain a "green card" based on working, making an investment or having a close relative in the U.S. Other categories of potentially eligible aliens include winners of the diversity visa lottery, political asylum seekers and refugees, among others.

Other Services:

In addition to the services listed above, we provide representation in many other types of immigration matters, including but not limited to applications for waivers of inadmissibility, political asylum applications and immigration court proceedings.


Temporary (Nonimmigrant) Visas

Specialty Occupation (H-1B): One of the most commonly used and also most heavily regulated visas for foreign professionals. The concept of a "specialty occupation" encompasses traditional professional occupations which require at least a bachelor's degree for entry-level positions (e.g. architects, engineers, etc.), as well as certain unusually complex positions within other occupations. The H-1B regulatory framework includes annual quotas ("H-1B cap"), wage and labor conditions requirements, record-keeping obligations, post-approval H-1B site inspections, etc. Our H-1B services include not only necessary filings but also guidance on compliance issues for the duration of the H-1B employment.

NAFTA Professionals (TN): This visa is available to nationals of Canada or Mexico who are members of the professions listed in Appendix 1603.D to NAFTA.

Specialty Occupation for Australian Nationals (E-3): The requirements for the E-3 visa are similar to those for the H-1B, but the E-3 has a number of advantages, e.g., a separate annual quota, a simplified application process, unlimited extensions and work authorization for a spouse.

Temporary Non-Agricultural Worker (H-2B): This visa is for lower-skilled employees and is only available if the employer's need for services is temporary, i.e., that it is a one-time occurrence, a seasonal need, a peak-load need or an intermittent need. This classification is subject to an annual quota. Please click here for the list of countries participating in the H-2B program. Citizens of other countries may be issued an H-2B visa only if it is considered in the interests of the U.S.

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Intracompany Transferees (L-1A/L-1B): These visas enable multinational business organizations to transfer employees from their foreign subdivisions to the U.S. The potential employer in the U.S. and the foreign entity where the employee is currently stationed must be related in one of the following ways: (1) branches of the same organization; (2) parent/subsidiary; or (3) affiliates.

Categories of employees eligible for "intracompany transferee" status include:

  • -   Executives or Managers (L-1A visa): Executives generally enjoy a wide latitude of discretionary decision-making without much oversight. Managers usually supervise and control the work of others and manage the organization or its department, subdivision, or component. They may also manage an essential function of the organization.
  • -   "Specialized knowledge" employees (L-1B visa) - individuals that have special or advanced knowledge of the organization's product, equipment, techniques, processes and procedures, etc.

To be eligible, the employee must have been working for the foreign entity for at least one year within the three years preceding the application. Both the qualifying employment abroad and the proposed employment in the U.S. must be in either an executive, managerial, or a "specialized knowledge" capacity.

Blanket L Petition:  A simplified procedure is available for multinational organizations that transfer a large number of employees to the U.S.

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Treaty Trader (E-1) and Treaty Investor (E-2):  These visas are available to nationals of countries that have a commercial treaty with the U.S. A treaty trader could be an individual or a business entity which is involved in substantial international trade between the U.S. and the treaty country. A treaty investor is an individual or a business entity that has invested, or is in the process of investing, in a bona fide commercial enterprise in the U.S. The nationality of a business is determined by the nationality of the individual owners of that business.

In some circumstances, relatively small businesses may qualify for E-1 or E-2 status. However, both visas are regulated by complex sets of requirements as to what constitutes trade or investment. Our firm has a long history of successfully helping foreign businesses and individual entrepreneurs in obtaining this coveted status, which is particularly attractive because it can be extended indefinitely as long as the enterprise continues to satisfy all statutory requirements.

Corporate treaty traders/investors may apply for E-1 or E-2 visas for their employees, provided that: (1) the employee and the corporation are nationals of the same treaty country; and (2) the employee will serve in a managerial or supervisory capacity, or that his services will be "essential" to the efficient operation of the U.S. enterprise.

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Nonimmigrant Visas for Aliens of Extraordinary Ability (O-1A/O-1B): This nonimmigrant category encompasses three distinct groups:

  • -   Aliens of Extraordinary Ability in the Arts (O-1A);
  • -   Aliens of Extraordinary Ability in the Sciences, Business, Education or Athletics (O-1A); and
  • -   Aliens who have a demonstrated record of extraordinary achievement in the motion picture or television industry (O-1B).

For each of the above three groups, there is a different standard used to determine what is considered "extraordinary." The lowest standard - "distinction" - applies to artists, except for artists in the motion picture and television industries who have to show "a demonstrated record of extraordinary achievement." Finally, to establish extraordinary ability in a field other than the arts, a person must demonstrate that he/she is "one of the small percentage who have risen to the very top of their field of endeavor." To prove eligibility, an applicant must either have received a major award in his/her field of endeavor, or satisfy at least three of the alternative evidentiary criteria listed in the regulations, which are different for each of the above three groups.

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Other Nonimmigrant Visas for Artists, Athletes and Entertainers (P and Q Visas): The P-1 visa is reserved for individual athletes, teams or entertainment groups coming to perform in the U.S. It requires "international recognition." Other visas in P and Q categories may be available for participants of certain exchange or culturally unique programs.

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Trainees (H-3): With this visa, an alien may participate in a training program offered by a U.S. company or organization, provided that such training is not available in the alien's home country and that it would benefit his/her career outside the U.S.

Exchange Visitors (J-1): J visas include a variety of international exchange programs. In our practice, we often assist clients with obtaining J visas as Interns (training programs for students and recent graduates) or Trainees (training programs for foreign professionals who have either a degree plus one year of experience, or at least five years of experience in the field).

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Permanent Residency ("Green Card") based on Employment in the U.S.

For the purposes of obtaining permanent residency, all jobs are divided into large groups, or "preferences," which are in turn subdivided into more narrow categories. Selecting the right category is crucial - while some are relatively fast paths to a green card, others entail years of waiting because of annual quotas. We carefully analyze each potential immigrant's qualifications and requirements for a proposed position in order to choose the most appropriate category.

Sponsoring foreign workers for most professional and non-professional positions requires filing of a labor certification with the Department of Labor as a first step in the immigration process. This requirement applies to most jobs within the second employment-based preference (EB-2) and the third employment-based preference (EB-3). Immigrants in the first employment-based preference (EB-1), as well as certain EB-2 workers, are exempt from the labor certification requirement.

Permanent Residency for Aliens of Extraordinary Ability (EB-1): This category is unique in that it does not require an offer of employment in the U.S., i.e., the person of extraordinary ability can file an immigrant petition on his or her own behalf. Evidentiary criteria are similar to the O-1A visa, but the scrutiny is generally higher. Also, there are no separate lower standards for artists – all applicants have to establish that they have sustained national or international acclaim.

Other permanent residency options for individuals with outstanding qualifications: Outstanding Professors or Researchers (EB-1); "National Interest Waiver" (EB-2); and "Exceptional Ability in the Sciences, Arts or Business" (EB-2). These options require an offer of employment from a U.S. company.

Permanent Residency for Multinational Executives and Managers (EB-1): The eligibility requirements are similar to those for an L-1A visa except that there is no "new office" provision. The U.S. company has to be in existence for at least one year before it can sponsor its managers or executives for permanent residency in this category.

Labor Certification (PERM): Specific categories that require obtaining a labor certification (a.k.a. PERM) from the Department of Labor prior to filing an immigrant petition include:

  • -   Professionals with advanced degrees, i.e., the job requires a master's degree or a bachelor's degree plus at least five years of progressive postgraduate experience (EB-2);
  • -   Professionals, i.e., the job requires at least a bachelor's degree (EB-3);
  • -   Skilled workers, i.e., the job requires at least two years of training or experience (EB-3); and
  • -   "Other workers," i.e., the job requires less than two years of training or experience (EB-3 "Other Workers").

The labor certification process involves mandatory pre-filing recruitment designed to ensure that there are no U.S. workers willing, able and available to perform the proposed job. Each step of the recruitment process is controlled by an exceedingly complex regulatory scheme. Our firm's experience is essential in avoiding potential pitfalls and making the process less stressful for our clients.

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Permanent Residency ("Green Card") Based on Investment (EB-5)

Foreign citizens making substantial investments in the U.S. which create jobs may be eligible to apply for permanent residence in a category known as "employment creation," "immigrant investor" or EB-5. The required amount of invested capital is generally $1,000,000. An investment of $500K may be sufficient for business enterprises in (1) rural areas; and (2) areas with high unemployment rates. The majority of EB-5 investments are made through Regional Centers designated by USCIS to promote economic growth. Generally, the investment must create at least 10 full-time jobs for U.S. workers within two years. For enterprises affiliated with a Regional Center, "indirect" jobs created collaterally or as a result of the invested capital may be considered. Successful applicants are initially granted conditional residency in the U.S. for two years. When applying for removal of conditions, the applicant has to prove that the enterprise has been created, the investment requirement has been substantially met, and that 10 jobs have been created or are expected to be created within a reasonable time.

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Family-Based Permanent Residency ("Green Card")

Our family-based immigration services include: immigrant petitions (Form I-130); adjustment of status ("green card") applications; affidavits of support; consular processing for relatives currently living outside the United States; fiancée petitions; "removal of conditions" petitions for spouses of U.S. citizens who were granted conditional residence (Form I-751); attendance of adjustment of status interviews at local USCIS offices, etc.

Familial relationships that may create eligibility for permanent residence in the United States are limited to the following:

Immediate relatives of U.S. citizens (not subject to annual quotas):

  • -   Spouses;
  • -   Children (unmarried, under 21 years old, may include stepchildren and adopted children under certain conditions);
  • -   Parents (the U.S. citizen must be at least 21 years old to file a petition on behalf of his/her parent).

Family-Based Preferences (subject to annual quotas; all family-based preferences are currently backlogged):

  • -   FB-1: Unmarried sons and daughters of U.S. citizens (offspring over 21 years old);
  • -   FB-2A: Spouses and children (unmarried, under 21 years old) of Lawful Permanent Residents;
  • -   FB-2B: Unmarried sons and daughters of Lawful Permanent Residents (over 21 years old; note that there is no preference for married children of Lawful Permanent Residents);
  • -   FB-3: Married sons and daughters of U.S. citizens;
  • -   FB-4: Brothers and sisters of U.S. citizens (the U.S. citizen must be at least 21 years old to file a petition on behalf of his/her sibling).

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Citizenship

We provide advice and guidance to our clients regarding their eligibility for citizenship, including monitoring relevant timelines. We are available to prepare and file citizenship applications, accompany you to the naturalization interview, and assist in dealing with complex eligibility issues including lengthy absences from the U.S., criminal issues, etc.

Immigration Compliance Consultancy

Our firm provides consultancy services in connection to I-9 and other immigration-related compliance issues.

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