Aliens of Extraordinary Ability – The O Visa

Posted November 29, 2011

The O visa category is reserved for aliens of extraordinary ability in the sciences, arts, education, business, or athletics (O-1), the artist or athlete’s support staff (O-2), and the spouse and/or children (O-3) of the principal O-1 visa holder.

To qualify, the alien must be coming to the U.S. to work in his or her area of extraordinary ability or achievement. The category does not include extraordinary ability in the arts, motion pictures or television.  There is currently no annual cap on O visas.

Evidentiary Requirements:

The U.S. employer should file the petition (Form I-129) with:

  • A written advisory opinion from a peer group (labor organizations included) or a person designated by the group with expertise in the alien’s area of ability;
  • A copy of any written contract between the employer and the O-1 visa beneficiary, or a concise summary of the terms of the agreement under which the O-1 (and O-2, if any) visa beneficiaries will be employed, including location(s) and duration of employment;
  • Evidence that the O-1 visa beneficiary has received a major, internationally-recognized award, or evidence of at least three of the following:

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In Reply to Mitt Romney and David Frum

Posted November 28, 2011

David Frum is a former special assistant to George W. Bush and a frequent political commentator who maintains a popular online community, FrumForum.  In a recent CNN column, he weighs in on the heated immigration debate, siding with Mitt Romney in opposing Newt Gingrich’s recent assertion that some form of a legalization program must be coupled with continuing enforcement.  The following is my reply.

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I believe Gingrich is more right and Romney (and Frum) are more wrong here. There will have to be compromise in this legislation. There are very few absolutes in U.S. immigration.

Gingrich doesn’t deny that enforcement is a two-pronged approach, part securing the border, part employer sanctions.

The guest worker issue likewise requires a duality of approach that doesn’t cater to absolutist socioeconomic principles. We must address low-skilled workers, the poor tired huddled masses (as it were – now more like the guys hanging around Home Depot) as well as the engineers and scientists so valued by the business community and research institutions.

Current low-skilled guest worker visa programs that are tied to seasonal or agricultural employment are not the problem. Existing J and H categories (exclusive of H-1B) will have to become part of the solution, tweaked, bifurcated and expanded somehow to provide a semi-orderly transition from the past to the future for working illegals who would otherwise have no basis to qualify for a legalization program. Frum and Romney apparently dismiss this technocratic approach entirely, until the border is secure, and they’re wrong. First build the roads, then build the towns. Colonials had the luxury of vice versa; we no longer do.

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E-1 Treaty Trader Visa Requirements

Posted November 25, 2011

The Immigration and Nationality Act (INA) provides non-immigrant visa status for a national of a country with which the United States maintains a treaty of commerce and navigation, and who is coming to the U.S. to carry on substantial trade, including trade in services or technology, principally between the U.S. and the treaty country.  8 U.S.C. § 1101(a)(15)(E)

The principle legal requirements are:

  • The trading firm for which the applicant is coming to the U. S. must have the nationality of the treaty country;
  • The international trade must be substantial in the sense that there is a sizable and continuing volume of trade;
  • The trade must be principally between the U.S. and the treaty country, which is defined to mean that more than 50 percent of the international trade involved must be between the U.S. and the country of the applicant’s nationality;
  • Trade means the international exchange of goods, services, and technology;
  • Title of the trade items must pass from one party to the other outside of the U.S.; and
  • The applicant must be employed in a supervisory or executive capacity, or possess highly specialized skills essential to the efficient operation of the firm.  Ordinary skilled or unskilled workers do not qualify.

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Late to Extend or Change Non-Immigrant Status?

Posted November 16, 2011

Suppose, through inadvertence or otherwise, you have missed the deadline to apply for an extension or change of your non-immigrant status while physically present in the United States.  Must you leave the country?  Are there any circumstances under which the failure to timely apply for an extension or change of non-immigrant status may be excused?

Yes, but under very limited circumstances.  According to the law, the failure to timely file applications for an extension of non-immigrant status or a change of non-immigrant status in the U.S. may be excused by a USCIS  District Director if circumstances warrant.  8 C.F.R. §248.1(b) and §214.(1)(c)(4).  Here is the regulation:

8 CFR §248.1(b)

b)  Timely filing and maintenance of status.  A change of status may not be approved for an alien who failed to maintain the previously accorded status or whose status expired before the application or petition was filed, except that failure to file before the period of previously authorized status expired may be excused in the discretion of the Service, and without separate application, where it is demonstrated at the time of filing that:

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