Returning to the US with a loved one?

Attorney Hankins specializes in bringing family together, no matter where in the world they might be. Barred in the United States and based in Seoul, South Korea, she handles cases from all over the world. For questions about how to bring your loved one to the United States e-mail her at Daphne@HankinsImmigration.com or call her at +82 010 3184 6858.  

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South Korea is the home of over 150,000 US citizens and many of them will find themselves contemplating marriage with a Korean citizen. But, as someone living in Korea, there are a number of things you’ll have to consider.

Should I get engaged or get married?

The Fiance Visa

Many US citizens believe it’s best to wait to get married and instead petition for their Korean or foreign born spouse on a K1 (fiancé visa). There are certainly some positives:

With a K1 visa, you have a shorter wait time to get your foreign born spouse into the United States. Usually, it takes 6 – 9 months for the U.S. Citizenship and Immigration Services (USCIS) to process the application, and 4 – 6 weeks for the agency to send an interview request to your fiancé’s nearest U.S. embassy or consulate.

If you’re in the US, it also means your spouse will be able to join you faster.

The form is also shorter and easier to fill out.

But the long-term disadvantages may, in certain cases, outweigh the short-term advantages.

Petitioning for your spouse and applying for a green card

A K1 visa costs more than your petition for your foreign spouse (I-130) and their adjustment of status / green card (I-485). A K1’s total costs are $2,025 versus an I-130 and I-485’s combined cost of $1,760.

Beyond costs, some people opt to get married in Korea or abroad and then apply for an I-130 because they intend to stay abroad for a year or more. If you’re on a year or two-year long contract, now is a fantastic time to submit your I-130.

After your I-130 is approved, if you intend to stay abroad for a little longer, you have the choice of opting for consular processing, an alternative to an I-485. It’s less expensive than an I-130 and I-485, with total costs amounting to around $1,200.

An I-130 can take 5 – 12 months to process and the I-485 8 – 14 months to process. Alternatively, consular processing takes only 4 – 6 months. This is the ideal option for those who are living abroad with their spouse but want to be able to take them to the United States sometime down the road.

Petitioning for your spouse abroad also has hurdles, including providing evidence that you intend to return to the US and that you have a job waiting for you once you arrive. For these reasons, it’s a good idea to have an attorney by your side to navigate the unique legal hurdles.

For help with your K1 visa or spousal petition, contact Daphne@HankinsImmigration.com or call at +82 10 3184 6858.

The Naturalization Test is Getting Harder

Becoming a citizen of the United States has gotten harder and the trend promises to continue with U.S. Citizenship and Immigration Services (USCIS) unveiling of a new test for naturalized citizenship.

Passing the naturalization test is the final requirement for permanent residents (also known as green card holders) to become US citizens. The test is taken orally during the naturalization interview as one of the final stages of the citizenship process.

This new test is drawn from 128 American history and government questions. Previously, there was a pool of 100 questions to draw from. Certain questions have been reworded and other questions will require more explanation.

For example, a question that had previously asked, “There were 13 original states, name three,” is now, “There were 13 original states. Name five.”

Another question, “What are two rights of everyone living in the United States?” is now, “What are three rights of everyone living in the United States?”

Additionally, applicants must answer 12 out of 20 questions correctly to pass. Previously, applicants needed to answer six out of 10 correctly. Despite the increase of questions, the pass percentage remains the same at 60%.

This is the first time the test has been updated in over a decade. Anyone who applies for naturalization after December 1st, 2020 must take the new version.

These modifications have come under criticism from certain immigration advocates, who state that the questions have been made more difficult without evidence of need for it. Aaron Reichlin-Melnick, policy counsel at the American Immigration Council, has stated that the questions now have a, “subtle political stance”.

“One question in particular raises concerns of politicization. On the old test, applicants could be asked ‘Who does a U.S. senator represent?’ The suggested answer was ‘all people of the state.’ On the new test, the suggested answer is ‘citizens of their state,’” Reichlin-Melnick stated, adding, “This is not correct. Members of Congress represent everyone who lives within their district, regardless of citizenship status. It’s been that way since the nation was founded.”

The Woodrow Wilson National Fellowship Foundation compiled a national survey that found that just 1 in 3 Americans would pass the citizenship test. For this reasons, it’s important to have an attorney who can guide you through the process and ensure that you get the results you’re looking for the first time.

So far, it is unknown whether or not President-elect Joe Biden will make any revisions to this test once he takes office.

Starting Your Business in China: The Essentials

Starting a business in China can be a difficult task, filled with nuance and knots, which can be a culture shock for US citizens who might be used to the more straightforward process of business formation. For that reason, it’s always best to go in prepared for the opportunities and obstacles, preferably with an agent who knows the legal and cultural hurdles that are unique to China.

Beyond that, a bare bone checklist for someone starting a business in China should be: industry, city, renting an office, business entity, your five-year plan, documents for registration, registering your intellectual property, getting a bank, and finally hiring staff in China.

Industry

Right off the bat, you should be aware that China is one of the more restrictive countries to do business in. Certain industries, like forestry and financial services, are more protected than others, as was discussed in this article.

For that reason, you have a better opportunity to best position your business for success by checking out the Chinese government’s Five-Year Plan to see what sort of industries the Chinese government is seeking to promote. The Chinese government is also seeking to open the market and certain industries to more foreign investors under its Third Plenum Decision, which will hopefully have gone into full effect by 2020.

The vast majority of industries still remain open to foreign investors and business owners.

City

One of the most important (and necessary) considerations for your business is where it will be.

Additionally, geological positioning is of utmost importance. China has three major political and industrial centers: Shanghai, Beijing, and Guangzhou. Depending on your industry, some of these cities are better than others. Shanghai is well known for its manufacturing of communication equipment, automobiles, electronics, steel products, petrochemicals, and biomedicine. Beijing is well known for its pharmaceuticals and electronic industries, and is one of the leaders in bio-engineering and information technology. Guangzhou, which has been ranked as the best city to begin a business in mainland China, manufactures all sorts of items, from car parts to toys.

Renting an office

Once you’ve establish the type of business you’ll be setting up, and the city, you will need to rent an office. An office address is essential element when registering your business. But be cautious and ensure that the space your renting in is zoned for the type of business you are planning.

Business entity

Next, before beginning the registration process, you will need to consider what sort of business entity to register under. Similar to business incorporation in the United States, China has certain categories businesses may fall under. In China, the entity types a foreign business owner may register under are: joint ventures, representative offices, and wholly foreign owned enterprises.

The differences between these entity types, with their pros and cons, could easily occupy their own article. For this reason, only a short comparison will be provided.

A joint venture is typically regarded as the best business entity to register under, and the one most likely to be approved. However, it requires a partnership between your foreign business and a Chinese citizen. However, many business owners fail to carefully vet their Chinese business partners, to ensure similar values and long term plans, which can lead to significant hardship down the road. And because the Chinese business owner is on his “home turf”, so to speak, it’s more likely that if a case between the two should ever be litigated the Chinese business arises the Chinese partner will win.

Representative offices are a low-cost, generally entity but come with the handicap of significantly limiting what sort of industries you can be in and what sort of business actions you can take. A representative office exists essentially to do as its name suggests – to represent your foreign business in China. Thus, you can’t provide services or products, or generate revenue.

The wholly foreign owned enterprise (WFOE) comprises the majority of foreign businesses in China and makes up 75% of American investment in China. However, though it may be commonplace, WFOE are very complicated to set up, more likely to be closely scrutinized by the Chinese government, and requires a minimal capital investment that must be put into a Chinese bank. This amount will vary depending on the industry your business is in and the city where it will be located.

What’s your five-year plan?

Once you’ve determined what sort of entity you’ll attempt to register your business under, you will need a five-year plan. It’s essential that you approach this plan carefully because once it’s approved you are only allowed to work within the guidelines of that plan. If you deviate from it, for example by trying to offer a service or product that’s not within the plan, you can be shut down. For this reason, broad strokes may be better, but the safest road is to get receive professional consultation as the government still expects a level of specificity. A professional can help ensure that you’re hitting the spot just right.

Documents for registration

Next, you’ll need to get the necessary documents in place. The documents you’ll need will vary depending on what sort of entity you’re registering as, and where you’ll be registering. However, be prepared to be flexible. There are countless stories of foreign business owners who brought in the proper documents but are then asked to produce other information, ranging from how businesses might work in the United States or to provide proof that you really have the knowledge to produce a good or provide a service. It is always better to just do as the government official asks. There is little to be gained in trying to tell them it is not necessary.

Intellectual Property

Now that you’ve registered your business, one of your next biggest concerns should be your intellectual property. Intellectual property law is still a sector of law that is in a state of great flux in China but there have been many cases within recent years which have showcased how difficult it can be for even the largest foreign businesses to protect their well-known intellectual property.

Your bank

You will also need a bank now that you have a business registered in China. There plenty of reputable banks, including Bank of America if you’re looking for a familiar face. As a US business owner, you may find that you it is more beneficial for you to choose a bank that already has established ties with the United States, as it grants easier tracking of your money and overall transparency.

Hiring staff in China

Eventually, you will want to start hiring staff. Chinese labor laws are distinct from US laws and should be considered carefully before rushing into any major decisions when it comes to employees. This ranges from hiring, to employee contracts, to termination. An employee contract and employee mutual are essential for hiring in China.

Applying for a US Tourist Visa as a Filipino citizen comes with its unique challenges

Getting a visa to the United States can be a challenge for citizens of some countries, even if you only want a visa for a short amount of time.

For Filipino citizens, temporary visas are obtained through the U.S. Embassy in Manila. These temporary visas are nonimmigrant, which means that you will not be able to use it to obtain a green card or citizenship in the United States. However, there are many different types of visas which fall into the nonimmigrant category, with different visas requiring different things from their applicant.

There’s a general sense that it is difficult for Filipino citizens to obtain US Tourist visas (B-2), though the processing for applying for a US tourist visa as a Filipino citizen is fairly standard.

Beyond the basics of having a valid passport, you will first want to apply for a B-2 visa, which is for persons who wish to enter the US temporarily for tourism, pleasure, or visiting. With a B-2 visa you’re permitted to visit friends and relatives, participate in social events, sports and contests (so long as you’re not being paid to participate), and even enroll in short term courses for recreational study so long as that study does not give you credit towards a degree. An example of recreational study is taking a weekend long cooking class.

However, there are certain activities which are not permitted by those using a B-2 visa. Broadly, these are study, employment, paid performances, and any effort to stay long term to permanently in the United States.

To begin the application process, you must obtain and complete the DS-160 Form. This form must be submitted online as well as printed and brought to your interview. You will need to upload a picture of you that is formatted to meet the US embassy requirements.

Next, you must schedule an interview at the U.S. Embassy with the exception being if you’re under the age of 13 or over the age of 80.

With a B-2 visa, you will need to pay $160 USD or 7,933 PHP (as of April, 2017). This is a non-refundable, non-transferable visa application fee. You can pay your fee at Bank of the Philippine Islands (BPI) or, if you are an account holder at Bank of the Philippine Islands (BPI) or BancNet, you can pay online. The visa application fee must be paid whether a visa is issued or not.

Once you have paid, you may request multiple entries with a validity period of 120 months for your B-2 visa.

While this speaks to the legal process that an applicant must go through to obtain a B-2 visa, a Filipino applicant may still be denied if he or she does not carefully consider other nuances, which arise primarily in the interview.

At the interview, you should expect to be interrogated by the Consular Officer. There have been many people who have had difficult experiences with Consular Officers. The reason for this is that some Filipino citizens who come to the United States on a tourist visa choose to overstay their visas. It’s a phenomena that is described as tago nagn tago, literally “hiding and hiding”, and the reason for the sometimes gruff to rude behavior of these Consular Officers. For this reason, you may want to compile a file that shows that you have significant ties to the Philippines. Significant ties meaning family, assets, or a business that provides enough motivation to return to the Philippines once your visa has expired.

Failure to do so may lead to the rejection of your visa. If this occurs, you will have no choice but to re-apply, and re-pay your $160 fee. There are no refunds with rejections.

Foreign investors rejoice, Apple wins intellectual property case in Beijing

As of April 2017, the Beijing Intellectual Property Court has dismissed the ban on Apple iPhone 6’s after a Chinese company accused Apple of infringing upon its design. This latest move by Chinese courts speaks to a positive evolution in recognizing international IP law in China after a long history of “copycat” theft by Chinese businesses.

One of the largest deterrences of foreign firms investing in China is the fear that they will not be able to protect their intellectual property. There have been multiple high-profile cases where massive international corporations like Apple and Disney have had to fight tooth and nail to protect their trademarks in China.

For Apple, the issue began in May 2016 after the international tech giant was ordered to stop selling iPhones in China after Shenzhen Baili Marketing Services lodged a complaint, stating that its patent on its mobile phone design was being infringed upon by iPhone sales.

More recently, Disney, the iconic and multinational mass media and entertainment conglomerate best known for its movies and theme parks, has run into issues with its establishment of its Shanghai park. Before it could even open its gates Chinese corporation Dalian Wanda Group opened up a theme park of its own using classic Disney characters such as Snow White and the iconic stormtroopers of the Star Wars franchise to greet its guests.

Copyright infringement exists at all levels and has remained a thorn in the sides of foreign businesses, with many technological firms choosing to keep China at arm’s length for fear that their blueprints may be stolen and copyrighted by Chinese partners.

Unfortunately, even while companies are increasingly pressured by the Chinese government to lower their prices and turn over proprietary technology, the laws involving intellectual property and copyrights still varies from province to province, making this an issue that remains difficult to untangle.

However, there has been change in a positive direction. China has begun making changes to its IP laws and has begun the process of creating a new national court system to handle IP cases, in a step that will help the country transition away from “local provincialism”.

The United States, which has expressed a strong interest in ensuring goods are “protected, respected, and if infringed on or stolen, there are consequences to disincentivize it”, has provided experts on the topic who are currently reviewing the new laws, training Chinese judges, and raising any IP issues they learn of in bilateral discussions with China.

These steps, while still not enough to stymie the theft of intellectual property nor give firms full confidence that they protect their ideas and trademarks, is still a clear indicator China desires to honor international IP protocol, with this win by Apple a sign of progress.

Featured Image Credit: Sean Pavone / Shutterstock.com