Vidal Cordova

Vidal Cordova
Ask the Visa Lawyer

Thursday, July 24, 2014

Business Plans for E-2 Visas vs. Real-World Business Plans

One of the toughest conversations I have with business clients who are exploring employment-based visa options as either investors, entrepreneurs or petitioning companies, is having to explain how the U.S.'s immigration laws are so behind the times regarding real-life market conditions and demands on today's businesses.  Whether it is hiring decisions by HR managers, expansion and investment opportunities for entrepreneurs, to employment termination decisions, I often get a perplexed look from the client when they learn how a certain type of business approach that may be common in day-to-day operations, is met with a resounding "not so fast!" by the immigration laws.  A great example is the preparation of business plans to be submitted with an E-2 treaty investor visa application.   

For the sake of keeping the material manageable (as well as your reading patience), I'll focus this blog post on the E-2 treaty investor visa business plan (there are other visa categories that use the business plan, but they contain nuances that distinguish them from E-2s).  More specifically, I'll highlight a couple points showing how the business plan submitted with an E-2 visa application should be prepared with a different focus and "feel" as the plan normally used by investors and entrepreneurs in "real-world" business.  Although to the business client, a business plan is a business plan is a business plan, the visa-related immigration business plan is a whole other animal.  Let's dive right into a couple points. 

Evolving Business Plans May Hurt the Investor

In "real-world" business, the entrepreneur may revise the business plan throughout the life of the business to reflect the meeting of performance and sales goals, changing priorities and financial benchmarks, or to simply adjust to changes in the marketplace.  A visa-focused business plan, on the other hand, may fare better by sticking to more general terms, without too many changes or specifics. For example, in the E-2 context, the entrepreneur investor will need to seek an extension of his/her status in two years.  If the business plan includes a laundry-list of financial goals, projections and benchmarks during the initial petition phase, and these are not met within the two-year period, the renewal petition may be denied.  

Don't Forget Your Audience

Another reason why the E-2 business plan needs to be drafted differently than a "real-world" business plan is that your audience is entirely different and is looking for different things than an ordinary investor.  Rather than investors scrutinizing lengthy and detailed financial projections and goals, the consular officer at the embassy or the USCIS officer does not have the time to go through a lengthy document.  Instead, the officer will examine the business plan and track the legal and regulatory requirements for the E-2, e.g., nationality of the treaty investor, whether the investment is substantial, the marginality test, and the role of the investor in directing and developing the business entity, etc. to make an approval or denial decision.  Thus, a business plan that highlights and make these points front and center to show that the commercial enterprise is viable will fare much better than a plan that buries the relevant legal criteria under dozens of financial-heavy information.  

The main takeaway I hope you draw from this short expo on E-2 business plans is that it's critical for the aspiring E-2 investor to be aware of how the business plan must be custom-tailored to the E-2 visa process to have better chances of an approval at the consulate or USCIS.  A smart approach is to work together with a team made up of the investor, the immigration lawyer, an accountant or other expert in business plan preparation, and even corporate counsel, to ensure that the entire team understands the focus and purpose of the E-2 business plan before the client travels to the consulate abroad and submits the visa application. 

Vidal L. Cordova, Jr.
Attorney at Law
Admitted in Georgia only, authorized to practice immigration law in all U.S.
Tel: 619-871-8037
E: vidal@cordova-immigration.com
Facebook: Ask the Visa Lawyer





Friday, June 15, 2012

New Hope for DREAM Act Students Today!

Today, Secretary of Homeland Security Janet Napolitano announced that the government will hault deportation proceedings and the removal against certain qualifying high school students or older who have lived in the U.S. as children without status, are currently in high school or have graduated from high school, who do not have disqualifying criminal records, and who are under the age of 30. Recognizing the longstanding struggle of high school students and graduates who have known no other country as their home other than the U.S., and who through no fault of their own had entered the U.S. without legal status, this new policy is an important advancement in the plight of students. Some of these foreign students have lived their entire lives feeling as American as any other U.S. born citizen, and have been raised thriving within and contributing to the country. Today's policy offers much deserved hope for countless of students and their families. A person will be eligible for the exercise of discretion if they meet the following requirements:

  1. Came to the United States under the age of sixteen;
  2. Have continuously resided in the United States for a least five years preceding the date of this memorandum and are present in the United States on the June 15, 2012;
  3. Are currently in school, have graduated from high school, have obtained a general education development certificate, or are honorably discharged veterans of the Coast Guard or Armed Forces of the United States;
  4. Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety; and
  5. Are not above the age of thirty. 
A decision by the immigration service or ICE to exercise discretion will be effective for a two-year period, with the possibility of renewal. The decision on whether to grant prosecutorial discretion will be exercised on an individual basis. Therefore, it is important that an applicant, whether or not in removal proceedings, consult with immigration counsel to ascertain their eligiblity for the relief, and apprise them of the conditions of this exercise. For questions on this new policy, please contact attorney Vidal Cordova at vidal@jsslegal.com or by telephone at 619-230-0012.

Wednesday, May 16, 2012

Appeals Ruling on P-3 Artist Visa Explains the Meaning of "Culturally Unique"

Some interesting case law came out a couple days ago from the Administrative Appeals Office of the U.S. Department of Homeland Security.  The Appeals Office issued a binding ruling finding that "culturally unique" artists and performers seeking entry into the U.S. on a P-3 artist visa may satisfy the statutory criteria if the performance is a hybrid or a mixture of artistic elements hailing from more than one particular culture.  In Matter of Skirball Cultural Center, a U.S. petitioner sought to organize a tour for a musical group from Argentina that blends Jewish music of Eastern Europe with Latin and South American influences. The immigration service denied the P-3 petition, concluding that the group's musical style was too hybrid to be considered culturally unique.  The appellate tribunal reversed the district directors decision, holding that the law provides that the term "culturally unique" may apply to an unspecified group of persons and beneficiaries whose artistic expression crosses regional, ethnic or other boundaries.  Rather than applying a rigid definitional framework, the regulations affords much more flexibility for the emergence of distinct musical and artistic cultures. 

As an immigration attorney, but also as a musician myself, I find this holding to be very significant. The court contemplated the fusion of different musical and artistic elements performed by a group, and it recognized the fluidity of artistic expression and musicality.  As a guitar player, I find myself constantly drawing from different musical genres and applying them to my playing--from fusing contemporary Cuban music with blues or funk, to adding hip hop influences to traditional AfroCaribbean music.  Likewise in this case, the appellate tribunal hit the mark by, rather than limiting the artistic identity of the group by labeling them within a one-dimensional musical category, the court recognized its musical diversity, and the richness that results from performances that tap into other subgenres of music to create novel and unique compositions and performances.

The case citation is: Matter of Skirball Cultural Center, 25 I & N Dec. 799 (AOO 2012).

For questions regarding artist visas and other immigration law matters, contact Vidal at vidal@jsslegal.com or at (619) 230-0012.

Monday, March 28, 2011

I Married my U.S. Citizen Sweetheart, So Where's My Greencard?? Pt. 3

Last week we picked up on our marriage-based greencard blog with a discussion about what the immigrant petition means in a greencard application based on a marriage to a U.S. citizen.  This week we pick up where we left off, and we’ll explore some of the legal requirements that a foreign spouse must meet to be eligible for a greencard. Because the possible scenarios of inadmissibility are almost infinite, we’ll highlight just a few potential pitfalls to give you brief examples of how complex the greencard process can easily get if the client is not well-advised.  

Let’s get to it. The foreign spouse must be admissible to the U.S. The Immigration and Nationality Act lists a number of grounds of inadmissibility that disqualify a person from becoming a permanent resident, even if they are married to a U.S. citizen, and even if they have an approved immigrant petition.  We discussed one of the grounds of inadmissibility in our previous blog, the unlawful entry of the foreign national into the U.S.  Other grounds include a conviction for certain crimes, whether committed in the United States, or abroad. The range of crimes can be pretty vast, and may include drug offenses, violent crimes, fraud crimes, and certain felonies, to name a few.  A person may also be inadmissible for being involved in prostitution, and even for being a member of the communist party.

Another ground of inadmissibility includes if the foreign national becomes a public charge while in the U.S.; that is, if he or she is unable to support themselves financially (we’ll address this in more detail in a later post). And, even contracting certain communicable diseases of public health significance, not having required vaccines, suffering from certain mental disorders, or being a drug abuser, can make the foreign spouse ineligible to adjust her status to permanent residence. 

These two paragraphs are just the tip of the iceberg in the vast world of inadmissibility under the immigration laws.  Hopefully what these examples have shown us is that the process of applying for a marriage-based greencard is so much more than filling out forms and submitting them to USCIS.  Married couples should always consult with an experienced attorney who is able to review their entire marital, travel, criminal and even health history, before submitting an application with USCIS.  The better informed, the better the chances of approval are rather than a denial, and even worse, being placed in removal proceedings. 


Next blog we'll look at the ever-so obtuse affidavit of support, what it is, what it means, and why it's important. Subscribe to our blog below and stay tuned for our next post!  As always, if you have a specific immigration law question, feel free to email us at vidal@askthevisalawyer.com, and visit our website at askthevisalawyer.com.


Vidal L. Cordova, Esq.









www.askthevisalawyer.com 
Follow my Blog at Ask the Visa Lawyer 

Tel: (619) 871-8037
Fax: (619) 923-2385
Email: vidal@cordova-immigration.com


Follow me on Twitter
Surferlawyer 

Follow us on Facebook
Askthevisalawyer 

Admitted in Georgia only
http://www.linkedin.com/in/cordovaimmigration
Warning: Unless you have a signed engagement agreement with our firm, you should not consider the  information contained in this blog, our website or any social media as legal advice. The information in this blog is not intended to create an attorney/client relationship.You should consult with your own attorney before relying on this post because we cannot provide reliable legal advice without conducting a thorough legal consultation.

Friday, March 18, 2011

I Married my U.S. Citizen Sweetheart, So Where's My Greencard?? Pt. 2

Earlier this week we began this series on the marriage-based U.S. greencard process.  If you missed Part 1 of this series, it's in our archives, published on March 15th.  In Part 1, we discussed the admission requirements for a foreign national spouse to be eligible for adjustment of status, i.e., having entered with a valid visa, maintaining valid status, etc. 
In Part 2 of this series, we will discuss some general pointers on the marriage-based petition, what it does, and what it does not do for the foreign national spouse. There are misconceptions about what the immigrant petition does for the foreign spouse, and hopefully this brief post will provide a general overview of the immigrant petition's function in the greencard process.  


The first filing step in the greencard process is the filing of the immigrant petition.  But just what is this marriage-based petition?  The U.S. citizen spouse is the "petitioner" in the greencard process, while the foreign spouse is the "applicant" for adjustment of status.  The U.S. citizen must file the immigrant petition, commonly known by the name of its form, "I-130," receive an approval, and there must be a visa available for the foreign spouse before the spouse can apply for the actual greencard.  So if it's called an immigrant petition, it gives me the visa I need to get my greencard, right?  WRONG.  The I-130, even when approved, grants NO visa, NO immigration status, NO permission to remain in the U.S., NO employment authorization, and NO extension of status to the foreign spouse.  


What the I-130 does is confirm with USCIS that the qualifying family relationship exists between the foreign national and the U.S. citizen petitioner.  There are limited categories of family relationships that allow for one family member to petition for another.  For example, an U.S. citizen uncle cannot petition for a nephew, a brother-in-law cannot petition for a sister-in-law.  A U.S. citizen husband, however, can file a petition on behalf of his wife.  The U.S. citizen husband who files the I-130 must submit evidence with the petition demonstrating that a valid marriage exists, and satisfy the immigration service that the couple in fact lives together as husband and wife.  If the I-130 is approvable, a visa is available, and the couple can prove the existence of a bona fide marriage relationship (as opposed to a fraudulent one entered into solely to obtain the greencard), then the foreign spouse may submit her application to adjust her status to lawful permanent residence.  


It is only until the greencard application (separate and different from the I-130) is filed that the foreign spouse may be able to remain in the U.S. to await approval, even if they are no longer maintaining valid immigration status.  And of course, it is only until the immigration service approved the greencard application and issues a greencard (not really green) to the foreign spouse, that she is deemed a lawful permanent resident. 
Next blog we'll look at the ability to file the greencard application, what is required legally to qualify, and what are some of the common pitfalls that disqualify an applicant for permanent residence.  Subscribe to our blog below and stay tuned for our next post!  As always, if you have a specific immigration law question, feel free to email us at vidal@askthevisalawyer.com, and visit our archives of posts on our Facebook page at facebook.com/askthevisalawyer.


Vidal Cordova









www.askthevisalawyer.com 
Follow my Blog at Ask the Visa Lawyer 

Tel: (619) 871-8037
Fax: (619) 923-2385
Email: vidal@cordova-immigration.com


Follow me on Twitter
Surferlawyer 

Follow us on Facebook
Askthevisalawyer 


Admitted in Georgia only
http://www.linkedin.com/in/cordovaimmigration
Warning: Unless you have a signed engagement agreement with our firm, you should not consider the  information contained in this blog, our website or any social media as legal advice. The information in this blog is not intended to create an attorney/client relationship.You should consult with your own attorney before relying on this post because we cannot provide reliable legal advice without conducting a thorough legal consultation.

Wednesday, March 16, 2011

I Married my U.S. Citizen Sweetheart, So Where's My Greencard??

Not so fast Buster, might want to read this before filing that greencard application. Every week I get calls from persons who have recently married their U.S. citizen sweetheart. As soon as they tell me this, I know what their next question is going to be: can I get a greencard now? And every time, my answer is: it depends. Whether my answer is Yes or No, hinges on a several critical factors that a couple should keep in mind before starting the marriage-based greencard process.  I'll start by dispelling one of the most common misconceptions out there: marrying a U.S. citizen doesn't automatically make you eligible for a greencard.  I've seen many a case where a couple gets married, files a marriage-based petition packet, skips happily over to the USCIS office for their joint interview, and only the U.S. citizen spouse walks out in tears, while the foreign national is being held detained inside by ICE officers because she or he wasn't eligible for the greencard in the first place.  Ok, I'll admit, this example is one of the more severe scenarios out there, but it does happen more often than people know.  


This week's blog begins a month-long discussion on the marriage-based greencard process. Throughout the series, we'll cover basic eligibility requirements, family relationship categories, grounds of inadmissibility that may derail an application, continuing legal requirements after the greencard is approved, and special exceptions to the general immigration rules on adjustment of status.  


Right off the bat, in most cases, the foreign spouse must have entered the United States through a lawful admission.  This happens by seeking admission into the U.S. with a valid visa, and the foreign spouse must have been inspected and admitted by an immigration officer at a port of entry (airport, land border entry).  For example, a foreign spouse may be present in the U.S. after being admitted as a visitor, or with a non-immigrant work visa.  Once this lawful admission is established, the foreign spouse has met one of the threshold requirements to apply for the marriage-based greencard.  She may be eligible to go forward even if she later overstays her  period of admission.  


There are some limited exceptions to the general rule that a person must maintain valid immigration status to seek permanent residence.  One of these exceptions applies to a narrow category of family relationships, namely, immediate relatives of U.S. citizens.  Immediate relatives include spouses, minor children, and parents of U.S. citizens.  An immediate relative who has overstayed their status may still be eligible to adjust their status, if they meet all other legal adjustment requirements.  Still, if you have overstayed or otherwise not maintained valid immigration status, you should consult with experienced immigration counsel to determine whether you may proceed with the marriage-based greencard process.


Next blog we'll look at Step 1 of the marriage-based greencard process--the immigrant petition, and we'll go over what it means and does for a foreign national, as well as what it does NOT do.  Subscribe to our blog and stay tuned for our next post!  As always, if you have a specific immigration law question, feel free to email us at vidal@askthevisalawyer.com, and visit our archives of posts on our Facebook page at facebook.com/askthevisalawyer.


Vidal Cordova










www.askthevisalawyer.com 
Follow my Blog at Ask the Visa Lawyer 


Tel: (619) 871-8037
Fax: (619) 923-2385
Email: vidal@cordova-immigration.com



Follow me on Twitter
Surferlawyer 

Follow us on Facebook
Askthevisalawyer 


Admitted in Georgia only
http://www.linkedin.com/in/cordovaimmigration
Warning: Unless you have a signed engagement agreement with our firm, you should not consider the  information contained in this blog, our website or any social media as legal advice. The information in this blog is not intended to create an attorney/client relationship.You should consult with your own attorney before relying on this post because we cannot provide reliable legal advice without conducting a thorough legal consultation.

Wednesday, March 9, 2011

Special Employment Rules for Trading of O and P Visa Athletes

Recently the American Immigration Lawyer's Association posted a practice pointer for member lawyers on filing procedures for O & P visa athletes who are traded from one organization to another. This posting highlights an important factor that agents, sports leagues, sponsors and petitioning employers should keep in mind when hiring a foreign athlete who is already sponsored by another petitioner.  Let's face it, the nature of today's professional sports world, whether it be actions sports or baseball, involves extremely fast-paced trading of elite athletes from one team to another, oftentimes overnight. Athletes and their agents need practical ways to carry on their professional sports activities without interruption, and waiting a couple months or even a couple weeks is simply not an acceptable position for elite athletes.

In come the O and P visa immigration regulations. The O and P visa regs anticipated the real-life dynamics of athlete trading within the industry, and they have carved out a special rule that seeks to meet the demanding fast-twitch changes in employment for an athlete who needs to be ready to compete the next day after trading leagues, changing employers, or after signing with a brand new sponsor.

So here's the gist of it: a professional P-1 athlete who is traded from one organization to another will continue to have employment authorization for up to 30 days after switching over to the new employer. The new league or organization is required to file a new P-1 I-129 non-immigrant petition within these 30 days. If the new organization, agent or employer doesn't get their petition in on time, the athlete loses employment authorization, and must cease all employment activities.  

If the new organization files the I-129 within 30 days, the professional athlete will stay in valid O or P-1 status, and may continue to work until the new petition is approved. This is a pretty nice benefit for O-1 and P-1 athletes, since other non-immigrant visa categories don't offer the ability for continued employment without either a filed or an approved petition in place before the employment transfer.  An important note: the ability to transfer before filing a new petition only applies to P-1 and O-1 athletes who are already hold these non-immigrant statuses.  In other words, an athlete who is applying for new employment under these categories must have an approved I-129 in place before taking on competition, endorsement or tournament circuit work duties in the U.S. 

If you have questions on this or any other immigration law question, feel free to contact attorney Vidal Cordova by phone or email at (619) 871-8037, vidal@askthevisalawyer.com.

Vidal Cordova









www.askthevisalawyer.com 
Follow my Blog at Ask the Visa Lawyer 


Tel: (619) 871-8037
Fax: (619) 923-2385
Email: vidal@cordova-immigration.com



Follow me on Twitter
Surferlawyer 

Follow us on Facebook
Askthevisalawyer 


Admitted in Georgia only
http://www.linkedin.com/in/cordovaimmigration
Warning: Unless you have a signed engagement agreement with our firm, you should not consider the  information contained in this blog, our website or any social media as legal advice. The information in this blog is not intended to create an attorney/client relationship.You should consult with your own attorney before relying on this post because we cannot provide reliable legal advice without conducting a thorough legal consultation.