Transactional Immigration & U.S. Visa Planning

A nonimmigrant visa authorizes a foreign national to enter the United States temporarily for a specific purpose — such as work, study, or tourism — with the expectation that they will return to their home country when that purpose is fulfilled. An immigrant visa, by contrast, is issued with the intent of conferring lawful permanent residence (a "green card") in the United States. Certain nonimmigrant visa categories permit dual intent — meaning the holder may pursue permanent residence without jeopardizing their nonimmigrant status — while others do not.

It depends significantly on the basis of the petition and the applicant's country of birth. Immediate relatives of U.S. citizens (spouses, unmarried children under 21, and parents) are not subject to annual numerical limits and generally have shorter processing times. Employment-based and other family-preference categories are subject to annual visa limits, and applicants born in high-demand countries — particularly India and China in the employment-based context — may face priority date backlogs measured in years or, in some cases, decades. Strategic planning around category selection and priority date movement can make a material difference in overall timeline.

The EB-5 program allows foreign nationals to obtain permanent residence by making a qualifying capital investment in a new commercial enterprise that creates or preserves at least 10 full-time jobs for U.S. workers. Investment minimums currently stand at $1,050,000, reduced to $800,000 in targeted employment areas. Investments may be made directly into a new enterprise or through a USCIS-designated regional center. The EB-5 pathway is particularly valuable for applicants from countries with significant backlogs in employment-based categories, and it requires careful coordination between immigration counsel and tax advisors given its investment and income implications.

U.S. tax residency generally begins either when a green card is issued or when an individual meets the "substantial presence test" — spending sufficient days in the United States over a rolling three-year period. From that point, the individual is subject to U.S. income tax on worldwide income and must comply with a range of foreign asset and account reporting obligations, including FBAR (FinCEN 114) and FATCA (Form 8938). Pre-immigration planning — restructuring assets, distributing trust income, or electing into favorable tax positions before U.S. residency begins — can significantly reduce the ongoing tax burden. We strongly advise clients to engage our tax practice before, not after, the immigration process is underway.

The United States does not formally recognize or prohibit dual citizenship — U.S. law does not require a naturalizing citizen to renounce foreign citizenship, though the naturalization oath does contain language referring to renunciation of prior allegiances. Whether a person may hold both U.S. citizenship and the citizenship of another country depends on the laws of the other country, which vary widely. Some countries permit dual citizenship without restriction; others do not. We advise clients to carefully assess the citizenship laws of their home country — and the estate, tax, and travel implications of naturalization — before proceeding.

Accruing unlawful presence in the United States can carry serious consequences, including the three-year and ten-year bars to re-entry that are triggered upon departure after accruing 180 or 365 days of unlawful presence, respectively. Options for those out of status may include adjustment of status (if an immigrant visa is immediately available), voluntary departure, or — in some circumstances — reinstatement of a prior nonimmigrant status. The available remedies depend heavily on the specific facts of the situation. If you are concerned about your current status, we encourage you to seek legal counsel promptly rather than allowing the situation to worsen.