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Mark Ivan Davies

Mark Davies’s Answers

103 total

  • Applying GC under EB3 category for L1A visa

    Hi There, I am on L1A visa and this is valid till next year. I am applying for Employer sponsors GC, however as per company policy, they are filing under EB3 Category. However, I am insisting to file under EB1-C category. Please advice what ar...

    Mark’s Answer

    I agree with the other lawyers.

    There could be a number of reasons why your employer is resistant to processing an EB1(C) application. These reasons might include the fact that your employer simply feels that you do not qualify for EB1(C) status.

    I am afraid it is not possible to assess your case on the basis of the information presented, I suggest you provide your full facts and circumstances to an experienced business immigration lawyer so that he r she can assist you.

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  • Visa stamp after status change from B1 to L1

    I am visiting US on B1 visa and I am applying for L1 visa here through change of status. Can I get actual visa stamp from any country or do I have to visit my own country for that?

    Mark’s Answer

    This depends on the consulate and the circumstances of your case.

    For example, in the past the US consulate in Rome has commonly processesed visa applications for Italian nationals who are residents/dual nationals of Brazil and other countries, who sometimes are on their first trip to Italy and who are temporarily visiting Rome. The position in other consulates is different.

    Your exact circumstances need to be reviewed in order to fully answer this question.

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  • L1-B for an employee from India

    We are a company based out of CA. We have a senior product guy with us, who basically created the entire software. We have a team of programmers in the US and this bloke headed that team and is the single most important individual to our business....

    Mark’s Answer

    The law does require that your employee has been “employed” by you outside the United States for more than one year in the last three (“One Year Test”).

    However, there are circumstances where an independent contractor or even an employee of another non-US entity may be deemed to be YOUR employee for the purposes of meeting the One Year Test. See 8 CFR §274a.1(j); 9 FAM 41.54 N9, N9.1 and Matter of Smith, 12 I&N Dec. 772 (1968).

    One key factor looked at in determining whether or not your employee can be deemed to have been your employee for L1 immigration purposes is whether or not your firm exercised control over his work such that his consulting entity (assuming he has one) can be seen as merely providing payroll and other administrative support.

    Our firm has handled a number of these cases and has successfully argued that in independent contractor cases that the US “parent” actually “controls” the non-US entity that the independent contractor is employed by. To date, and without any inference as to future success intended, an L1 visa has been granted in every one of these cases.

    That said, these arguments are highly complex and fact specific. It is IMPOSSIBLE to determine whether or not your employee would potentially qualify for an L1 visa without detailed additional information BUT on the circumstances presented it would appear that there is a decent chance!

    Please also remember that depending on the precise circumstances there may be other visas in addition to the L-1 visa that may available to you in these circumstances. Again, it is I'm

    I agree with the other lawyers that you need to consult an experienced business visa lawyer.

    Please note that while the requirements are the same regardless of the country of original our team file multiple L1 cases every month of the year. We actually have lawyers based in India together with several full-time US-based lawyer who focus on India and I can assure you that cases from certain countries appear to receive a higher level of scrutiny than others. The cases we have had from Europe and Australasia appear to have received a lower level of scrutiny though, ultimately, all have been approved.

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  • Extension of L Visa Status

    If you timely file an L1-A extension before the expiration of your current L status but the extension application is subsequently denied what is your status in the US AFTER the expiration of your initial L visa status: (1) after the expir...

    Mark’s Answer

    I agree with Mr. Segal.

    There is, in fact, a memo from what is effectively the law dept. at USCIS on this topic. If your EOS (extension of status) is TIMELY filed (i.e. before the expiration of your original L1-A status) then you are "out of status" from the expiration of your original L1 term.

    "Unlawful presence" is a different issue and there seem to be differing opinions inferred here in these answers. This is an important concept because it is unlawful status that would trigger an automatic bar on your re-entry to the US within a defined period of time. "Unlawful status" and being "out of status" are different things. The applicable period of "unlawful status" is outlined in the memo from USCIS and in the regulations. I suggest you go over this and the applicable dates very carefully with your lawyer, you may well find that your "unlawful presence" may not have begun on the same date as your going "out of status" and may only have begun on the denial of you L1 EOS application. It would really be horrible to find that you had inadvertently accrued 6 months of "unlawful presence"!

    My advice is to hire a lawyer!

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  • Immigration- L1 A visa petition approved in USA, any chances of denial of Visa by Consulate in India?

    I have been working in the USA in a reputed Big 4 (multi national company) from Oct 2013 in managerial capacity. Earlier to that I was in managerial role in the Indian subsidiary of the same company. I came to US on L1 B Visa which expired in Nov ...

    Mark’s Answer

    As an idea of the altitude of my answer, our firm files an L visa petition (or group of related petitions) for an Indian client roughly every week and has US immigration lawyers in Mumbai and Delhi who work directly with our clients there. In our experience we have only one issue in your circumstances when the consulate said that a client's Indian passport was in such poor condition that they refused to stamp a visa in it and made him get a new one first! Since then we have always asked to see the physical condition of Indian clients' passports!!

    That said, as the other lawyers have pointed-out there is ALWAYS a chance of a consular denial or administrative processing.

    I agree that you shod discuss the with your employer's lawyers who know your case.

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  • About banking for foreigners !

    Hello, I'm Here in the united state for a visit with b2 visa , i went to banks to open a bank account but I've been surprised that they're not able to open bank account for foreigners :) Anyhow, can i ask any of my American citizens whom i...

    Mark’s Answer

    You will find that different banks have different policies on this.

    We have clients who frequently open bank accounts while visiting the US on a B2 visa. One client currently in Atlanta had multiple banks offer him an account while here on his B visa. That said, we have had a couple of clients have difficulties, we have referred those clients to our bank (a major international bank with thousands of US branches) our bank has decided to open an account for those clients.

    Understand that no law firm can get a bank to open an account for you but can refer you to a bank who will follow that bank's own proceedures.

    On a separate note, the experience with opening an account form outside the United States is interesting. While many clients have told us that other lawyers have told them you cannot open an account from out side this US this is completely false. We frequently process L1, E2 and EB5 visas involving setting-up new businesses in the US. Every week of the year our bank opens bank accounts for our corporate and individual clients where the principals are out side the US. Another falsehood is that you cannot have signatory power over an account opened in this way, the bank we work with sends the "signature cards" electronically to the clients who sign them and fax them back. Again, we have no influence over our bank's decision to open or not to open an account, we merely refer our clients to them.

    You will find that some financial institutions will not do this for you. Others will.

    In summary is it completely unnecessary to open an account through a friend.

    I hope this helps.

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  • Is it allowed to foreign Eb5 investor to have an equity in real estate construction project ( ending with specific ownership ?

    for example , if a construction company is raising a fund for a mixed use real estate project , would it be allowed as per by EB Laws and regulations for the EB5 investor to own a specific plot or plots in the project after completion, like owni...

    Mark’s Answer

    Thank you of your question.

    This is a question with a seemingly simple answer that is potentially wrought with difficulties.

    Our experience is that where a deal such a transaction as you describe is in-artfully set-up without the aid of an attorney experienced in structuring EB5 transactions of this nature there are often difficulties. Amongst myriad other issues this this can include claims by the government that there is a guarantee or right of redemption in place that disqualifies the investment from the EB5 program.

    Another issue with every EB5 is making sure that you are properly covered in terms of job creation. With a "Direct" project involving construction this is potentially be a little more involved.

    Also be aware the overwhelming majority of EB5 deals are through the Regional Center program. It sounds as though you may be contemplating a "Direct" EB5 investment, that is one not involving a Regional Center. While many lawyers will tell you they have EB5 experience the reality is that few lawyers file more than a few "Direct" EB5 cases each year. I strongly suggest that you find a lawyer who does file these cases very frequently.

    We would be happy to assist you further if you like but we would need much more substantive information on exactly what you are contemplating to give you any meaningful advice.

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  • Can E2 IT consulting company owner provide his consulting services related through his company.

    Can E2 IT consulting company owner provide his consulting services related through his company.

    Mark’s Answer

    I agree with attorney Marty that this should not be an issue so long if you are truly running the business.

    Note that there are regulations that refer to "substantive change" in the business such as the "sale of a division" where "E2 employees" are involved. More than one E-2 business has had an issue with the application of these regulations that exist at 8CFR 214.2(e)(8). We have clients that face this issue as they restructure their US businesses. In those circumstances the employee may require evidence of their continued ability to work in a new capacity and depending on the circumstances might “not [be] authorized to begin the new employment until the application is approved.” 8 CFR 214.2(e)(8)(vi).

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  • Adjusting from E-2 Visa to Green Card

    I am in E-2 status and have been for a one year. We are represented by a very large law firm. We do not like the firm and are looking to new counsel. The partner there is telling me is it NEVER possible UNDER ANY CIRCUMSTANCES to adjust to a G...

    Mark’s Answer

    I agree with the other comments here.

    I have also heard a number of lawyers state that it is not possible to adjust to green card status from an E-2 visa, I always think I must be missing something when I hear that statement as there are several ways to accomplish this. While we have not had an E-2 client move to "green card" status in this way several have gotten married to United States Citizens or built their businesses to the point where they can obtain an EB5 visa.

    I do agree with the other lawyers that this is a complex decision with lots of considerations. There are some lesser known regulations that may directly impact you circumstances so I do suggest you hire a lawyer with both: (1) extensive E-2; and (b) adjustment on the basis of being an International Manager experience.

    As stated, we have never assisted an E-2 visa client adjust through the International Manager route but we have assisted many E-2 clients and L-1 clients adjust through the International Manager route. I will be in Singapore with a couple of our Indian EB5 clients who have holdings there in early April.

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  • My L1A Blanket was rejected few days back. What visa categories are my best options going forward?

    With L1A blanket rejected, what visa category are my best bets going forward. Should I go for L1B or H1B instead of L1A individual? How can I justify change is visa category from L1A to L1B (or H1B) ? How soon can I apply in each category?

    Mark’s Answer

    I agree with the other lawyer.

    Our firm handles a large number of L1 visas and I'm afraid it's impossible to advise you without more details of your case.

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