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Aleksandra Michailov, Esq.

/Aleksandra Michailov, Esq.
Aleksandra Michailov, Esq.

About Aleksandra Michailov, Esq.

Aleksandra has more than decade of experience in US immigration including employment-based immigration benefits, corporate compliance and family based immigration. She represents corporate and individual clients in a wide range of cross-border immigration matters including mobility of key foreign executives and managers, specialized knowledge workers, and foreign nationals with extraordinary ability.

Immigrants in Trump’s America – Should I Carry My Immigration Papers With Me?

By Aleksandra Michailov, Esq.|March 1st, 2017|

In the era of increased immigration enforcement under President Trump, our foreign national clients and readers are increasingly asking about the requirements on carrying specific immigration documents with them while they are in the U.S. – whether around town or for domestic U.S. travel. We find that this topic is not very well covered and many foreign nationals are not aware of the applicable requirements to carry specific immigration-related documents with them at all times inside the United States. This article seeks to explain the law and provide answers to this and related questions. (more…)

Making Sense Out of the Current Congressional Immigration Proposals

By Aleksandra Michailov, Esq.|February 28th, 2017|

Both Congress and President Donald Trump’s team have been extremely active in considering ways to revamp the current immigration framework concerning both the undocumented population and skilled immigration. In this first article from our series, we will provide a summary of the current congressional immigration proposals concerning green cards and temporary work visas for highly-skilled professionals. Our next article, will concentrate on the immigration proposals coming directly from the White House in the form of Executive Actions. (more…)

USCIS Revises Form I-9 – Effective January 22, 2017

By Aleksandra Michailov, Esq.|November 14th, 2016|

On November 14, 2016, U.S. Citizenship and Immigration Services (USCIS) published a revised version of Form I-9, Employment Eligibility Verification which is available to use starting immediately. Starting Jan. 22, 2017, employers must use only the new version, dated 11/14/2016 N. Until then, they can continue to use the version dated 03/08/2013 N or the new version.

Among the changes in the new version, Section 1 asks for “other last names used” rather than “other names used,” and streamlines certification for certain foreign nationals.

Other changes include:

  • The addition of prompts to ensure information is entered correctly.
  • The ability to enter multiple preparers and translators.
  • A dedicated area for including additional information rather than having to add it in the margins.
  • A supplemental page for the preparer/translator.

The instructions have been separated from the form, in line with other USCIS forms, and include specific instructions for completing each field.

The revised Form I-9 is also easier to complete on a computer. Enhancements include drop-down lists and calendars for filling in dates, on-screen instructions for each field, easy access to the full instructions, and an option to clear the form and start over. When the employer prints the completed form, a quick response (QR) code is automatically generated, which can be read by most QR readers.

Form I-9 requirements were established in November 1986 when Congress passed the Immigration Reform and Control Act (IRCA). IRCA prohibits employers from hiring people, including U.S. citizens, for employment in the United States without verifying their identity and employment authorization on Form I-9.

How Can We Help

The Capitol Immigration Law Group can provide various levels of internal I-9 compliance audits and on-site employee training as well as training materials and guidance for performing regular audits and training. We can provide immigration compliance training and auditing to meet an employer’s specific needs. We encourage all employers to be mindful of their compliance requirements and to proactively and regularly audit their compliance before a government agency does. We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics. We also invite you to contact us if our office can be of any assistance or you have any questions or comments.

Never Give it Up? Relinquishment of U.S. Citizenship

By Aleksandra Michailov, Esq.|October 17th, 2016|

In recent years, the U.S. government has been more efficient in reaching its citizens living abroad in order to collect U.S. taxes. Those efforts seem to have spurred a growing trend of U.S. citizens choosing to relinquish their U.S. citizenship. Burdened with ever-increasing tax compliance regulations, onerous reporting obligations and mounting professional fees to accountants and advisors, ordinary Americans residing aboard are taking steps to simplify their lives by giving up U.S. citizenship.

Voluntary Renouncement

The so-called “Voluntary Renouncement” is the most common process used to relinquish U.S. citizenship. Typically, the applicant has two interviews with an officer at a U.S. consulate or embassy. The first interview is an information meeting designed to confirm the person’s U.S. citizenship, as well as discuss the consequences of renunciation. After the initial interview, any individual who decides to proceed will be required to undergo a waiting period to make sure that he or she has enough time to adequately ponder the irreversible decision.  After a period of time, a second interview is scheduled to complete the process.

During the second meeting, the individual will be interviewed to assess whether he or she is acting intentionally and voluntarily. Consular officers follow guidelines to assure that the intent is truly voluntary. If so, the consular officer administers an oath of renunciation, and the soon-to-be former U.S. citizen signs an oath or affirmation of renunciation of nationality and a statement of understanding of the consequences and ramifications of relinquishment or renunciation of U.S. nationality. After the oath, the officer prepares a Certificate of the Loss of Nationality that is filed with the Department of State for final approval. Once approved, the Certificate is mailed to the U.S. Citizenship and Immigration Services, as well as the now officially former U.S. citizen.

Parents Can Not Relinquish on Behalf of Children

Relinquishment of U.S. citizenship has profound and irreversible consequences. Therefore, it is required that the candidate has a voluntary intent to undergo the process and such intent cannot be expressed by another party. A minor child requesting relinquishment would likely be doing so due to parental influence and it is impossible to ascertain whether the child’s intent is completely voluntary.

In fact, consular officers are instructed in the Foreign Affairs Manual that “Children under 16 are presumed not to have the requisite maturity and knowing intent.” It is important to note that parents cannot renounce citizenship on behalf of a child once the child has US citizenship.  The regulations generally require that a child wait until age 18 to renounce his or her own citizenship if this is the path the child chooses to take

Immigration Consequences

After relinquishing U.S. citizenship, the former citizen immediately begins to be treated as any other foreign national. For example, in order to enter the U.S. to travel or visit family and friends, the person would need to apply for a visa or a visa waiver. Similarly, in order to work in the U.S., the individual would need to apply for work-authorized status such as H-1B or L-1, or receive an Employment Authorization Document (“EAD”), if eligible. It is important to note that former citizens do not received preferential treatment when applying for admission to the U.S.

For those with minor children, a U.S. passport or green card may open up opportunities for the child in the future.  It is important to note that if a U.S. citizen renounces citizenship he or she no longer has the legal right to transmit citizenship to minor children.

Moreover, relinquishment of U.S. citizenship is irreversible. Once citizenship is relinquished, any individual wishing to become a U.S. citizen again will need to follow standard immigration procedures: become a legal permanent resident first and apply for naturalization at a later time.

Non-Immigration Consequences

Relinquishment of citizenship may also have unintended consequences affecting taxes, for example an exit tax levied on the person’s global assets. Therefore, it is crucial that anyone contemplating citizenship renunciation should also seek advice from an experienced tax professional.

How Can We Help

Capitol Immigration Law Group PLLC offers a wide range of immigration law services. Please do not hesitate to contact us if our office can be of any assistance or you have any questions or comments. We stand ready to help analyze any time-sensitive cases. We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.

Immigration Options for Foreign Entrepreneurs

By Aleksandra Michailov, Esq.|June 8th, 2016|

In line with our long-standing commitment to entrepreneurs, attorneys from Capitol Immigration Law Group presented on Immigration Options for Foreign Entrepreneurs at the ZGC Innovation Center in Santa Clara, CA.

L-1A Visa – Recognizing The Global Role Of Managers

By Aleksandra Michailov, Esq.|May 19th, 2016|

The Administrative Appeals Office (“AAO”) recently issued a decision in a case focusing on the correct interpretation of the L-1A visa requirements for functional managers. In Matter of Z-A-, Inc., the AAO clarified that when determining whether the foreign national will primarily manage an essential function, USCIS must consider all relevant factors, including the foreign national’s role within the wider qualifying international organization. Importantly, USCIS designated this AAO opinion an Adopted Decision, making it a policy guidance binding all USCIS employees.

The L-1A classification allows a foreign business to transfer its executives or managers to the related U.S. office. According to the U.S. immigration law, there are two types of managers: a personnel manager who oversees other professionals and a functional manager who oversees an essential function of the business. Functional manager cases have been difficult to prove, especially for smaller business entities. With small staff in the U.S., it can be a challenge to show that the foreign national would primarily manage an essential function rather than perform it.

In Matter of Z-A- Inc., the foreign parent company had over $900 million in annual sales, while the U.S. office employed only three individuals. The L-1A petition sought to classify the foreign national beneficiary as a functional manager due to his market development duties. USCIS denied the petition based on the small number of employees in the U.S., arguing that the foreign national beneficiary must necessarily be engaged in day-to-day sales and other non-managerial duties. The AAO reversed the initial decision and approved the L-1A petition.

The AAO criticized USCIS for focusing on the number of individuals employed in the U.S. office. The opinion stated that to determine whether the beneficiary’s job duties are primarily managerial in nature, USCIS must consider the totality of the record and weigh all relevant factors, including the petitioner’s organizational structure and the beneficiary’s position within the petitioner’s organization. The decision clarifies that staffing levels alone are not dispositive on whether the beneficiary is a functional manager. USCIS cannot focus on the size of the U.S. business, but rather must analyze the overall needs of the corporate family.

How Can We Help

This new guidance allows us to bolster functional manager cases with binding precedent. It also serves as a reminder to our clients that sound evidence on overall corporate structure is essential for a successful L-1A petition.

Capitol Immigration Law Group PLLC offers a wide range of immigration law services. Please do not hesitate to contact us if our office can be of any assistance or you have any questions or comments. We stand ready to help analyze any time-sensitive cases. We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.

Marriage Based Green Card Removal of Conditions – Waiver of the Joint Filing Requirement

By Aleksandra Michailov, Esq.|May 10th, 2016|

When permanent residence status is based on marriage to a U.S. citizen, some foreign nationals receive a conditional permanent resident status valid for only two years. The permanent residence status is conditional if it is based on a marriage that was less than 2 years old on the day permanent residence was granted.

To receive a permanent green card, USCIS requires later proof that that the marriage was entered in good faith and not to evade the immigration laws. Form I-751 “Petition to Remove Conditions on Residence” must be filed by both spouses. In most cases, the joint filing requirement is not a problem. However, even bona fide marriages may experience relationship challenges, divorce, separation, or spousal abuse within the first 2 years of marriage. Consequently, the U.S. citizen spouse may be unwilling or unable to jointly file I-751 to remove conditions and receive a permanent green card. In those cases, USCIS allows the beneficiary spouse to apply for a waiver of the joint filing requirement.

Waiver Requirements – Bona Fide Marriage

USCIS allows the beneficiary spouse to request the Waiver in one of the following cases:

  • Beneficiary spouse entered into the marriage in good faith, and not to evade immigration laws, but the marriage ended by annulment or divorce, and the beneficiary spouse was not at fault in failing to file a timely petition
  • Beneficiary spouse entered into the marriage in good faith, and not to evade immigration laws, but during the marriage the beneficiary spouse or his or her child were battered by, or subjected to extreme cruelty committed by the U.S. citizen or permanent resident spouse, and the Beneficiary spouse was not at fault in failing to file a joint petition
  • Deportation or removal would result in extreme hardship

The key requirement is that the marriage was entered in good faith, not to obtain an immigration benefit. While divorce and separation are red flags, the government understands that some marriages fail even with the best intentions for a lifelong commitment at the time of inception.

Difficulties Proving a Bona Fide Marriage

Many I-751 cases are not problematic. If the beneficiary spouse can demonstrate the couple’s history of shared life, the case usually goes smoothly. Such proof can include, but is not limited to, joint residence, merged finances, and extended family ties. However, cases involving short-lived relationship and lacking proof of unified lives can be quite challenging. Assistance of an experienced attorney is essential to demonstrate proof of cultural and family dynamics that may account for the lack of standard evidence.

  • Couples Not Residing Together

USCIS expects proof of shared residence because most married couples live together. However, in rare cases, USCIS will approve the I-751 waiver, even if the couple has never actually lived together. Those cases usually involve spouses who keep separate residences due to employment and higher education commitments. Because the expectation of shared residence is so strong, it is crucial to demonstrate that the couple always planned to cohabitate as soon as circumstances allowed. It is extremely hard to prove that a bona fide marriage existed without cohabitation. However, we work with our clients to present USCIS with specific reasons that may make it possible to overcome the lack of common residence weakness.

  • Diverse Cultural Norms

Some foreign spouses come from cultures where arranged marriages are prevalent. Many arranged-marriage couples ultimately find love and satisfaction in their relationship. Unfortunately, some arranged marriages do not work out, even with the best intentions for a life-long bond. In those instances, it is crucial to show that the marriage was entered in good faith according to the couple’s customs and cultural norms, not to obtain immigration benefits.

Conclusion

The government will look whether a marriage was entered into sincerely. If the relationship fails the test of time and standard evidence of a bona fide relationship is lacking, the application has to prove that the marriage was entered for reasons other than to gain immigration benefits.

 

 

Do’s and Don’ts for Successful EB-1A Petitions

By Aleksandra Michailov, Esq.|March 18th, 2016|

Employment-based first preference EB-1A visa category is available to those beneficiaries who can demonstrate extraordinary ability in the sciences, arts, education, business, or athletics through sustained national or international acclaim. The beneficiary’s extraordinary ability may not be readily apparent to an USCIS officer unfamiliar with the field.  Therefore, it is crucial for an EB-1A petition to include strong supporting evidence allowing for objective assessment of the achievements.

While extensive documentation is certainly helpful, beneficiaries should avoid flooding USCIS with undigested publications and research. Rather, a well-crafted petition will include an explanation of the beneficiary’s field of work and an analysis of his or her contributions to that field.

Our office has grown as a leading practice in EB-1 petitions and we offer FREE credentials evaluations. Please complete our online EB-1 intake questionnaire and our attorneys will get back to you within 24 hours with our assessment of your EB-1 eligibility.

Here are some additional Dos and Don’ts that will enhance the EB-1A petition.

  • Do submit well-written and personalized letters of recommendation

Reference letters should go beyond what would ordinarily be submitted to support a job application. While the author may think it’s important to describe the EB-1A beneficiary as a capable and congenial member of the team, it will not be enough to show extraordinary ability. Instead, the author should focus on describing the beneficiary as someone in the top of the field, world renowned, internationally recognized, or a leading expert. In fact, an ideal letter reference letter will mention information supporting each of the EB-1A criteria claimed by the beneficiary.

Be sure to include letters from peers who have not collaborated directly with the beneficiary. However, it undermines the claim to an international reputation when the peer reference did not previously know the beneficiary, but is writing the letter simply after reviewing his or her resume and publications. Therefore, a combination of letters from collaborators and mentors who describe the beneficiary’s reputation in the field, along with a few other letters from independent references who know the beneficiary’s work via their conference presentations or publications, is the best recipe for success.  A total of five to seven letters seems reasonable given the amount of time the adjudicator has to review each petition.

  • Do include third party information about awards

While the Nobel Peace Prize is probably the most recognized award in the world, most other accolades are not as well known. However, it does not mean that they would not qualify as a major award in the given field. Therefore, it is important to provide evidence demonstrating that the award is prestigious. It can be helpful to provide: the history of the award and the organization behind it; information about the number of recipients; selection criteria and description of prestigious judges.

Below is a short list of awards that have little or no weight in the EB-1 petition because they did not establish international recognition:

  • Student prizes, including graduate fellowships;
  • Beneficiary having made the Dean’s List or received merit awards: “Student awards for which only students compete are not major prizes or awards such that they are indicative of international recognition”;
  • Awards granted by the petitioner, including internal research funding awards and bonuses;
  • Travel awards;
  • Teaching assistant awards;
  • Elected student officer positions;
  • Receipt of a high score on an admissions examination;
  • Acceptance for publication;
  • Research fellowships, unless granted on the basis of prior significant achievement; and
  • Grants for new work (grants typically do not fall within the awards category but can make strong evidence combined with other criteria).
  • Do elaborate on your role within the organization.

USCIS must be able to assess the beneficiary’s leading or critical role based on the submitted evidence. A blanket statement that the beneficiary has a leading or critical role will not be enough, even if accompanied by an impressive title. Instead, the beneficiary should describe his title and position as it relates to the organization’s structure. The beneficiary can benefit greatly by having his or her recommenders emphasize the loss the organization would suffer if the beneficiary were to leave. Providing expert advice and raising funds are additional examples of responsibilities evidencing the beneficiary’s critical role that may not be readily apparent when looking only at the job title.

  • Don’t submit research and publications without an additional analysis

While it may be tempting to include the entire body of the beneficiary’s research, the mere volume will not be enough to convince USCIS that the contributions are original and significant. Instead, the evidence should explain in detail how the contributions are significant. Citing widespread commentary on the beneficiary’s contributions is one way to satisfy the requirement. However, evidence showing that the beneficiary’s work is being implemented by others could be sufficient. The beneficiary may submit contracts and licensing agreements to prove that his contributions are valued in the field.

  • Don’t fail to provide proof that an organization has distinguished reputation

Extraordinary ability must be objectively apparent. Do not assume that USCIS will be aware of the distinguished status of any organization. Always provide information showing that the organization is well-regarded. This can include description from the organization’s website describing its mission and goals. Include information about the number of employees or members, as well as their past achievements. For lesser-known institutions, provide third party material describing the organization’s work

  •  Don’t forget to provide information about scientific and trade journals

The journal’s mere existence is not enough to prove its prestige. Beneficiaries sometimes assume that USCIS can assess the impact of any given journal by a simple online search. However, it is the beneficiary’s task to provide that information as part of the application. Therefore, it is important to include the journal’s history and publication goals, frequency and volume of publications, as well as description of the publication process and the editorial board. Such information will aid in establishing that the journal is influential “major media” and thus increase the status of the petitioner in his or her field.

  • Don’t submit unconvincing materials

Do not assume “it can’t hurt to include it” because it can. Including unpersuasive evidence only gives fodder to the adjudicator on which to base a denial. If the evidence does not rise to the level of fulfilling certain criterion, then leave it out altogether.

 How can we help?

We are hopeful that this article would help some individuals evaluate and improve their chances of filing a successful EB-1 petition.  Our office has grown as a leading practice in EB-1 petitions and we offer FREE credentials evaluations. Please complete our online EB-1 intake questionnaire and our attorneys will get back to you within 24 hours with our assessment of your EB-1 eligibility.

U.S. Implements Changes to the Visa Waiver Program

By Aleksandra Michailov, Esq.|January 28th, 2016|

As of January 21st, 2016, the U.S. began implementing changes under the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015 (the Act). Under the Act, travelers in the following categories are no longer eligible to travel or be admitted to the United States under the Visa Waiver Program (VWP):

  •     Nationals of VWP countries who have traveled to or been present in Iran, Iraq, Sudan, or Syria on or after March 1, 2011 (with limited exceptions for travel for diplomatic or military purposes in the service of a VWP country).
  •     Nationals of VWP countries who are also nationals of Iran, Iraq, Sudan, or Syria.

Travelers in the above categories will be able to apply for a visa using the regular immigration process. People who need a visa for urgent travel, may be able to have their application processed on an expedited basis.

In addition, also as of January 21, 2016, travelers who currently have valid Electronic System for Travel Authorizations (ESTAs) and have previously indicated holding dual nationality with Iran, Iraq, Sudan, or Syria on their ESTA applications will have their current ESTAs revoked.

The above restrictions may be waived by the Secretary of Homeland Security on case-by-case basis. A waiver may be granted if it in the law enforcement or national security interests of the U.S. For example., a waiver may be granted to:

  • Individuals who traveled to Iran, Iraq, Sudan or Syria on behalf of international organizations, regional organizations, and sub-national governments on official duty;
  • Individuals who traveled to Iran, Iraq, Sudan or Syria on behalf of a humanitarian NGO on official duty;
  • Individuals who traveled to Iran, Iraq, Sudan or Syria as a journalist for reporting purposes;
  • Individuals who traveled to Iran for legitimate business-related purposes following the conclusion of the Joint Comprehensive Plan of Action (July 14, 2015); and
  • Individuals who have traveled to Iraq for legitimate business-related purposes.

How Can We Help

The new Act does not ban travel to the United States, but rather brings restricts the Visa Waiver Program eligibility for some travelers. If you are a national of Iran, Iraq, Sudan, or Syria, or have visited those countries since March 2011, you may need to apply for a nonimmigrant visa before traveling to the United States. Please do not hesitate to contact us if our office can be of any assistance or you have any questions or comments. We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.

 

Visa Interview Waiver Program at U.S. Consulates in India

By Aleksandra Michailov, Esq.|December 11th, 2015|

With the end of the year quickly approaching, many of our clients will travel abroad during the Holiday season to visit their homelands and will need to renew their current U.S. visas. We would like to remind our Indian clients and friends about the Interview Waiver Program (IWP) which allows some qualified individuals to apply for some classes of visas without being interviewed in person by a U.S. consular officer.

Under the IWP, Indian visa applicants who are renewing visas that are still valid or expired within the past 48 months may submit their applications for consideration for streamlined processing, including waiver of a personal interview, within the following visa categories:

  • Temporary workers on H1-B visas (same classification with the same petitioner, and visa is still valid or expired within the last 12 months);
    • We note that while the U.S. Visa Information Service for India (the official online portal facilitating visa processing for Indian nationals) website does not inquire whether the petitioner is the same or different, the U.S. consulates may require an interview if the petitioner is different because the Embassy visa waiver instructions are as follows:
      • “Temporary workers on H1-B visas returning to work for the same petitioner where the visa is still valid or has expired within the last 12 months” (U.S. Consulate, Mumbai).
        “If you hold an H1-B or Individual L1-A or L1-B visa that is still valid or expired within the last 12 months, you may qualify for the Interview Waiver Program. To qualify, the petitioner must be the same as on your initial visa, however, the end client need not be the same.” (U.S. Consulate, Hyderabad).
        “Temporary workers on H1-B visas (same classification with the same petitioner, and visa is still valid or expired within the last 12 months)” (U.S. Consulate, Delhi)
  • Temporary workers on Individual L1-A or Individual L1-B visas (same classification with the same petitioner, and visa is still valid or expired within the last 12 months);
  • Business/Tourism (B1 and/or B2);
  • Dependent (J2, H4, L2);
  • Transit (C) and/or Crew Member (D) – including C1/D;
  • Applicants applying on or after their 80th birthday traveling on any visa class;
  • Children applying before their 14th birthday traveling on any visa class;
  • Students returning to attend the same school and same program.

To qualify for IWP, the renewal application must be within the same classification as the previous visa. If the previous visa is annotated with the words “clearance received,” that applicant is not eligible for a waiver of a personal interview. However, not all applications will be accepted for streamlined processing. As always, consular officers have the right to interview any visa applicant in any category. In addition, applicants who are renewing their visas may still need to make an appointment for biometrics (fingerprint and photograph) collection, and all applicants must submit all required fees and the DS-160 application form.

How Can We Help

Capitol Immigration Law Group PLLC offers a wide range of immigration law services. We recommend that our clients consider their immigration status before any trip abroad in order to avoid any complications during their travels. Please do not hesitate to contact us if our office can be of any assistance or you have any questions or comments. We stand ready to help analyze any time-sensitive cases. We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.