Are Immigrants Eligible for the CARES Act?

It has been a month since President Trump declared a public health emergency for COVID-19, and its impact on the American economy has been daunting. Soon after, at least 46 states and Washington, D.C., have enacted policies to close nonessential businesses in an effort to slow the spread of novel coronavirus in the United States. With some variations on the implementations per state, recreational spaces like museums, movie theaters, gyms, daycares, music venues and malls, including personal care retailers and service providers like spas, nail and hair salons, most likely fall under nonessential businesses category. Although these measures have been undoubtedly necessary to prevent the rapid spread of the virus, tens of thousands of American workers lost their jobs as a result.

Lawmakers worked hard in coming up with legislation that would provide emergency financial assistance for individuals, families, and businesses in the United States. The bill aptly called CARES or  Coronavirus Aid, Relief and Economic Security Act has been signed into law by the President. The historic $2 trillion stimulus package stands as the largest emergency aid package in US history that aims to boost the struggling economy with provisions to help American workers, small businesses and industries grappling with the economic disruption.

This post aims to uncover financial relief for individuals and families, as well as which individuals are qualified to receive financial assistance.

How will individuals and their families benefit from the CARES Act?

A centerpiece of the stimulus package is that it will provide direct financial assistance to American in the form of checks with the amount received based on income as explained below:

  • Individuals who earn $75,000 in adjusted gross income or less would get direct payments of $1,200 each
  • Married couples earning up to $150,000 will receive $2,400.
  • Families will also receive $500 per child.
  • Individuals and families making more than these amounts can still receive payments, but at reduced amounts until they reach certain thresholds.
  • Individuals making more than $99,000 and married couples making more than $198,000 will not receive any of these cash payments.

Who are eligible to receive assistance?

The CARES Act specifically excludes “any nonresident alien” from the definition of “eligible individual.” Notably, “nonresident alien” is defined by the Internal Revenue Service (IRS) rather than by the immigration statute. The IRS states that a non-U.S. citizen is considered a nonresident alien unless he or she meets one of two tests: the green card test or the substantial presence test.

  • The Green Card test: This is applicable to you if you have a U.S. permanent or conditional residence or a green card. This is directed to a person who is a citizen of another country, who is authorized to live and work in the U.S. on a permanent basis (or, in the case of a conditional resident, for two years that may then be continued into a permanent stay). Lawful permanent residents, or “green card” holders, are considered resident aliens unless they voluntarily renounce and abandon their status in writing to USCIS, or their immigrant (permanent residence) status is administratively terminated by USCIS or judicially terminated by a U.S. federal court.
  • The Substantial Presence Test: Even without having a green card, a person who spends 31 days in the United States during the current year and 183 days during a three-year period that includes the current year and the two years immediately before that, is considered a resident alien. This affects many people who are in the U.S. on temporary, otherwise known as nonimmigrant visas. There are various exemptions, such as for time people spent in transit (less than 24 hours in the U.S.), time during which the person couldn’t leave because he or she required medical treatment, as well as for teachers and students (on an F, J, M, or Q visa) who haven’t stayed in the U.S. beyond a certain period of time.

It goes without saying that if you are not able to meet (or are exempt from) either the green card or the substantial presence tests, then you are most likely a non-resident alien. Take note that students and teachers are often classified as non-resident aliens in the early years of their U.S. stay. Non-resident aliens are not eligible for the tax credit.

If you are a resident alien, have a social security number, and earn less than $75,000 as a single individual, or less than $150,000 married filing jointly, you can expect to receive the tax credit.

If I receive a rebate, will I be considered a Public Charge?

Since the rebate is classified as a tax credit and not a public benefit under the public charge rule, you will not be considered a public charge. This will have no effect on your future immigration filings.

Can I avail of unemployment benefits?

The law granted so form of flexibility for the eligibility requirements of individuals, including those who are furloughed or out of work as a direct result of COVID-19, self-employed or gig workers, and those who have exhausted existing state and federal unemployment benefit provisions.

The only individuals expressly excluded from coverage are those who have the ability to telework with pay and those who are receiving paid sick leave or other paid benefits (even if they otherwise satisfy the criteria for unemployment under the new law)

Under the CARES Act, workers will be paid an additional $600 per week on top of what they would normally receive from the state (50% of earnings plus $600) for up to four months until July 31st.

In order to be eligible for unemployment benefits, you must establish that you were in satisfactory immigration status and authorized to work in the United States when earning the wages you used to establish your claim. It is best to get in touch with the state’s unemployment agency to find out if you are eligible based on your immigration status.

Does the CARES have anything to say about student loans?

The CARES Act further provides temporary student loan relief. All federally held federal student loans are temporarily suspended and interest will not accrue through Sept. 30. The suspension is retroactive to March 13. To get the automatic relief, your loan needs to be both federal and federally held — meaning your lender is the federal government, and not a bank or other commercial lender.

Are you still wondering how immigrants can get relief in this current state of emergency the U.S. is under? Call us our immigration lawyers in Virginia.

Our immigration attorneys at Van Doren Law will be available to address any questions about the current immigration landscape. We understand how these can be trying times. As such, we offer free initial consultation. So pick up that phone or chat with us online and let our experienced immigration lawyers help you.

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Visa Options for Artists and Entertainers

Whether you are a singer, actor, dancer, graphic designer, musician, or even chef (culinary artist), you might be considering a move to the United States to further your career. In general, everyone seeking to live and work in the United States will require some sort of employment visa or permanent residence in order to do that. In this article, we will examine the most common types of visas that will help you achieve your American dream.

O-1B Extraordinary Ability Visa

The O-1B nonimmigrant visa is the most common type of visas for artists and entertainers seeking to live and work in the United States. It typically is for the individual who possesses extraordinary ability in the arts, or who has a demonstrated record of extraordinary achievement in the motion picture or television industry and has been recognized nationally or internationally for those achievements. The visa may be valid for a maximum of 3 years, and may be extended indefinitely in 3 year increments. One of the great things about this visa is that you will be able to freelance and work with different employers. Visas for the Extraordinary

In order to qualify for an O-1 visa, you must demonstrate extraordinary ability by sustained national or international acclaim and must be coming temporarily to the United States to continue work in the area of extraordinary ability. Extraordinary ability in the field of arts means distinction.  Distinction means a high level of achievement in the field of the arts evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that a person described as prominent is renowned, leading, or well-known in the field of arts.

To qualify for an O-1 visa in the motion picture or television industry, the beneficiary must demonstrate extraordinary achievement evidenced by a degree of skill and recognition significantly above that ordinarily encountered to the extent the person is recognized as outstanding, notable or leading in the motion picture and/or television field.

One of the most important things you should know about this visa is that you cannot actually apply for it yourself. You will need a US citizen or US company that is based in your field to apply for you. This person is known as your “Petitioner”.

Another requirement of applying for this visa is the “consultation letter”. USCIS requires 1 letter from a labor union or peer group in your field if you are in the arts, or 2 letters (labor union and management organization) if you are in the field of motion picture and television. Basically the way this works, is before you submit the application to immigration, you will need to submit a copy to the labor union, or peer group, pay their application fee, and wait for them to send you a copy of the letter. After you receive a copy of the letter, you will need to send it to immigration along with your application. If you are about to apply for a consultation letter, check out 5 Things You Need To Know About Consultation Letters.

Contracts / Itinerary

Next, in order to get the maximum three years allowable for the visa, you will need to show that you will be working in the field. The way you show this is through an itinerary and corresponding contracts. And itinerary is like a calendar of events that details what exactly you will be doing for the next three years. Everything that is in the itinerary must be supported by a relevant contract.

Evidentiary Criteria for O-1B

Now that you have your petitioner, consultation, contracts, and itinerary,  you will need to prove that you are extraordinary. One of the ways you can do that that is providing evidence that you have received, or been nominated for, significant national or international awards or prizes in the particular field, such as an Academy Award, Emmy, Grammy or Director’s Guild Award. Alternatively, you can provide evidence of at least (3) three of the following:

  • Performed and will perform services as a lead or starring participant in productions or events which have a distinguished reputation as evidenced by critical reviews, advertisements, publicity releases, publications, contracts or endorsements
  • Achieved national or international recognition for achievements, as shown by critical reviews or other published materials by or about the beneficiary in major newspapers, trade journals, magazines, or other publications
  • Performed and will perform in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation as evidenced by articles in newspapers, trade journals, publications, or testimonials.
  • A record of major commercial or critically acclaimed successes, as shown by such indicators as title, rating or standing in the field, box office receipts, motion picture or television ratings and other occupational achievements reported in trade journals, major newspapers or other publications
  • Received significant recognition for achievements from organizations, critics, government agencies or other recognized experts in the field in which the beneficiary is engaged, with the testimonials clearly indicating the author’s authority, expertise and knowledge of the beneficiary’s achievements
  • A high salary or other substantial remuneration for services in relation to others in the field, as shown by contracts or other reliable evidence

The requirements of the O1 / Artist visa can be difficult to meet if you do not have an established track record or have not been working as an artist for a long period of time. As you can see the requirements are complex and its advisable to work with an experienced O1 visa lawyer. However, if you are an artist that is coming to the United States to work within established group the P-1B visa may be more suitable for you.

P-1B Member of an Internationally Recognized Entertainment Group Visa

The P-1B classification applies to you if you are coming to the United States temporarily to perform as a member of an entertainment group that has been recognized internationally as outstanding in the discipline for a sustained and substantial period of time. You will need to prove that at least 75 percent of the members of your group must have had a substantial and sustained relationship with the group for at least one year, and your entertainment group must be internationally recognized, having a high level of achievement in a field evidenced by a degree of skill and recognition substantially above that ordinarily encountered.

Similar to the O1 / artist visa, you will also need a Petitioner, and a Consultation letter from a relevant labor union or peer group. You will also need to prove that that your group is internationally recognized as outstanding in the discipline for a sustained and substantial period of time as demonstrated by evidence of your group’s receipt of, or nomination for, significant international awards or prizes for outstanding achievement in the field, or evidence of at least three of the following:

  • Your group has performed and will perform as a starring or leading entertainment group in production or events which have a distinguished reputation as evidenced by critical reviews, advertisements, publicity releases, publications, contracts, or endorsements
  • Your group has achieved international recognition and acclaim for outstanding achievement in its field as evidenced by reviews in major newspapers, trade journals, magazines or other published material
  • Your group has performed and will perform services as a leading or starring group for organizations and establishments that have a distinguished reputation as evidenced by articles in newspapers, trade journals, publications, or testimonials
  • Your group has a record of major commercial or critically acclaimed successes, as evidenced by indicators such as ratings, box office receipts, record, cassette or video sales, and other achievements as reported in trade journals, major newspapers or other publications
  • Your group has received significant recognition for achievements from critics, organizations, government agencies or other recognized experts in the field
  • Your group has commanded and will command a high salary or other substantial remuneration for services comparable to others similarly situated in the field, as evidenced by contracts or other reliable evidence

As you can see, the reputation of the group, not the individual achievements of its members or the acclaim of a particular production, is essential, which may make this visa more suitable for an artist that is not quite established, but will be coming to work for an established group.

Alternatively, if your work is more culturally specific, such as Traditional Chinese dancer, Indian Classical musician, Japanese Taiko Drummer, you might be eligible for the P-3 visa.

P-3 Artist or Entertainer Coming to Be Part of a Culturally Unique Program

The P-3 visa may work for you if you are coming temporarily to perform, teach or coach as artists or entertainers, individually or as part of a group, under a program that is culturally unique. In order to apply for a P-3 visa, you must be coming to the United States either individually or as a group for the purpose of developing, interpreting, representing, coaching, or teaching a unique or traditional ethnic, folk, cultural, musical, theatrical, or artistic performance or presentation. In addition, you must be coming to the United States to participate in a cultural event or events which will further the understanding or development of your art form. The program may be of a commercial or noncommercial nature.

In order to get this visa, you will need your U.S. employer or sponsoring organization to submit Form I-129, Petition for a Non-Immigrant Worker.  You will also need to provide a written consultation from an appropriate labor organization, a copy of the contract between the petitioner and the beneficiary or the summary of the terms of an oral agreement between the petitioner and the beneficiary, and an itinerary. You will also need to provide affidavits, testimonials or letters from recognized experts attesting to the authenticity of your or your group’s skills in performing, presenting, coaching or teaching the unique and traditional art forms and giving the credentials of the expert including the basis of his or her knowledge of your or your group’s skills; OR documentation that your or your group’s performance is culturally unique as evidenced by reviews in newspapers, journals or other published materials.

A less widely utilized visa type for artists is the H-1B Specialty Occupation Visa. The reason why this visa type tends to be less utilized is because you must prove that the job position normally requires a bachelors degree or higher. When it comes to job positions in the arts, a degree is often not a requirement, which makes it difficult to apply for this visa. However, where an artist has a Masters degree, and is seeking to teach at a college, they may apply for this visa because universities typically require at least a Masters degree in order to teach.

H-1B Specialty Occupation Visa

In order to apply for this visa, a prospective employer must file an approved Form ETA-9035, Labor Condition Application (LCA), with the Form I-129, Petition for a Nonimmigrant Worker. See the links to the Department of Labor’s (DOL) Office of Foreign Labor Certification and USCIS forms to the right.

The job must meet one of the following criteria to qualify as a specialty occupation:

  • Bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the position
  • The degree requirement for the job is common to the industry or the job is so complex or unique that it can be performed only by an individual with a degree
  • The employer normally requires a degree or its equivalent for the position
  • The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.

In addition, in order for you to qualify to accept a job offer in a specialty occupation you must meet one of the following criteria:

  • Have completed a U.S. bachelor’s or higher degree required by the specific specialty occupation from an accredited college or university
  • Hold a foreign degree that is the equivalent to a U.S. bachelor’s or higher degree in the specialty occupation
  • Hold an unrestricted state license, registration, or certification which authorizes you to fully practice the specialty occupation and be engaged in that specialty in the state of intended employment
  • Have education, training, or progressively responsible experience in the specialty that is equivalent to the completion of such a degree, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty

Marcus Yi, Esq. provides personalized immigration law representation for both employment and family based immigration matters. He has represented corporations, non-profit organizations and individuals in the process of obtaining temporary visas for work, study and training, lawful permanent residence (a “green card”)and U.S. citizenship. He advises employers and individuals on all phases of immigration applications, from screening prospective hires to identifying visa strategies for new jobs and career transitions, through employment-based paths to permanent residence and naturalization. As an artist himself, Mr. Yi understands the unique nature of the arts industry, and is fully qualified to provide the best service for artists seeking to work in the United States.

Mr. Yi graduated from St John’s University School of Law, where he earned a Juris Doctorate degree in 2011. He is a member of the New York State Bar and is licensed to practice in State and Federal court. He is also a member of the American Immigration Lawyers Association.

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