Business Immigration Decoded Part 1: Frequently Asked Questions Answered
September 13, 2023
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By: Davy S. Day
Immigration can be a complex and confusing topic. That’s why our team of professionals often receives questions from clients that may have been sparked by conversations with their colleagues and friends outside of work.
In this two-part blog series, some of the most frequently asked questions related to immigration processes are consolidated and answered. The first installment covers questions from employees on the EB-1 category for priority workers and questions relating to international travel, especially for F-1 students who will change status to H-1B during this year’s cap season.
The goal of sharing these responses is to allow you to stay informed, particularly regarding popular misconceptions that may affect your understanding of these processes. Fragomen professionals can collaborate with you to help map out your immigration journey and comply with immigration rules with confidence.
Q: I am on an L-1A visa working as a manager. Therefore, I must qualify for the “fast track” EB-1C Multinational Manager petition for a green card, right?
A: Not necessarily. Although the requirements for the L-1A and EB-1C are similar, a key distinction is that the EB-1C requires the beneficiary’s qualifying employment abroad to be in a managerial or executive capacity per 8 C.F.R. §204.5(j)(3)(i). Unlike the EB-1C, the L-1A visa can be granted to a beneficiary who has been employed by the multinational company in a specialized knowledge capacity abroad to fill a U.S. managerial position. Legal analysis would be needed to determine if the specialized knowledge position abroad could also qualify for work done as a functional manager for EB-1C purposes.
Q: I joined a multinational company in the U.S. a few years ago and have been working as a manager who oversees a large business unit with direct report responsibilities. I have never worked for any of the company’s foreign entities in the past, though. Would I qualify for the EB-1C?
A: Unfortunately, no. The EB-1C does require the beneficiary to have worked for their employer’s entity abroad for at least one year in a managerial or executive capacity prior to their initial transfer to the U.S.
Q: I am on an O-1 visa. Am I automatically eligible to apply for the EB-1A Person of Extraordinary Ability or EB-1B Outstanding Researcher petition for a green card?
A: Although applying for the EB-1A or EB-1B is a common pathway to a green card for O-1 holders, the eligibility is not automatic and a separate assessment for the EB-1A/B is highly recommended. Despite the similar eligibility criteria for the O-1 and EB-1A/B, the U.S. Citizenship and Immigration Services (USCIS) treats petitions filed under these visa categories as separate and independent, and accordingly adjudicates an EB-1A/B petition on its own merits. The EB-1A also includes a final merits determination – meaning further to satisfying that the beneficiary meets at least three of the 10 criteria for extraordinary ability, USCIS may evaluate all the evidence together when considering the petition in its entirety and in the context of the high level of expertise required for this immigrant visa category. In effect, USCIS may review EB-1A petitions with a higher level of scrutiny compared to the O-1 petition adjudication.
Q: I would like to travel internationally sometime this year. What do I need to know and what do I need to plan to ensure a smooth return to the U.S.?
A: Please visit Fragomen’s guidance here. Especially for F-1 students on OPT/STEM OPT or those who are planning a change of status to H-1B during this cap season, see important guidance here. Do plan ahead and touch base with your immigration counsel before departing the U.S.
Q: I have an I-797 approval notice issued by USCIS for my work visa status. Am I correct to assume that the I-797 notice alone will allow me to travel in and out of the U.S.?
A: No! Generally speaking, you also need a valid visa stamp in your passport to return to the U.S. If you do not already have a valid visa stamp that covers the entire duration of your trip outside the U.S., please make sure to apply for one with the U.S. Embassy/Consulate while you travel abroad.
As an exception, the visa revalidation rule (see here and here) allows you to re-enter the U.S. on a previously issued, but expired visa stamp if you are making a short trip of 30 days or less to Canada or Mexico. Please consult with Fragomen to better understand how the visa revalidation rule may apply to your circumstance.
Canadian citizens are generally exempt from having a valid visa stamp to enter the U.S., unless they are E-1/E-2 holders.
Need to Know More?
For further information or if you have additional questions regarding the responses provided, please reach out to Senior Associate Davy Day at [email protected]. Stay tuned for the second installment in the blog series coming next week.
The information presented in this blog post should not be considered legal advice and should not be relied upon as such. The blog post is intended for informational purposes only. Each case is unique and requires consulting with a competent immigration attorney.
This blog was published on September 13, 2023, and due to the circumstances, there are frequent changes. To keep up to date with all the latest updates on global immigration, please subscribe to our alerts and follow us on LinkedIn, X, Facebook and Instagram.
