The prospective client is Mr. Doe, an adult USC living in California, whose nonresident, non–U.S. citizen spouse, Mrs. Doe, has returned to Poland after the expiration of her H-1B nonimmigrant visa. The conversation between counsel is followed by notes for best practices for a crossover trusts and estates and immigration matter, with similar facts and circumstances as this case.
Phone Call from Trust and Estates Attorney to Immigration Attorney
T&E Attorney:
Hello, [Immigration Counsel]. I have been engaged by a new client by the name of Mr. Doe. I understand that you have been working with Mr. Doe and his wife, Mrs. Doe, to assist them with her immigration status and prospective green card application, but the matters are delayed. Mr. Doe has recently fallen terminally ill and has expressed an urgent desire to bring his wife to the United States as quickly as possible to help care for him in his illness and to make arrangements for the management and transfer of assets to her upon his death. To best achieve his goals, I need to understand the citizenship status and country of residence for all parties to Mr. Doe’s estate plan, including Mr. Doe as the grantor, Mrs. Doe as the beneficiary, and any current or successor trustee, so I can help Mr. Doe plan for any eventuality. I am hoping you can help me better understand whether Mrs. Doe might be present in-country anytime soon and, if so, whether she is likely to be in-country on a short-term visa or if she is likely to be in-country under lawful permanent resident (LPR) or U.S. citizen (USC) status. For reference, Mr. Doe has been given a one-year prognosis.
In addition to helping me understand the status of all parties, what is your advice for the quickest way to allow Mrs. Doe to arrive in the United States to be with her husband, and what is the timeline for her then to receive LPR status or USC status?
Immigration Attorney:
Hi, [T&E Counsel]. Thank you very much for reaching out. Mr. Doe let me know that you would be contacting me, and he gave me permission to discuss his immigration matter with you.
Mr. Doe (USC) has been married to Mrs. Doe for two years. Six months ago, Mr. Doe applied to bring Mrs. Doe to the United States by filing a Form I-130, Petition for Alien Relative, with U.S. Customs and Immigration Services (USCIS). If that petition is approved, Mrs. Doe will be eligible to complete an immigrant visa application, attend an interview, and potentially immigrate to the United States and (eventually) become a USC. Under certain conditions, the availability of a visa for Mrs. Doe under this category can even survive the death of Mr. Doe (we all hope, obviously, that this will not become relevant for Mr. and Mrs. Doe).
However, while she was abroad, Mrs. Doe found a new U.S. employer that was willing to sponsor her for an H-1B nonimmigrant visa.
T&E Attorney:
You just mentioned an H-1B nonimmigrant visa for Mrs. Doe. What is the status and timeline of that visa process? Is there any way for Mrs. Doe to become an LPR or USC through her H-1B?
Immigration Attorney:
Adjudication of Mrs. Doe’s H-1B visa application has been delayed for more than a year.
As to your second question, the H-1B visa is a nonimmigrant visa for foreign nationals who perform services for U.S. employers on a temporary basis. She could not gain LPR status or U.S. citizenship directly through her H-1B visa alone.
T&E Attorney:
Do you know what the reason is for the delay of the H-1B visa?
Immigration Attorney:
We have an idea, but the Department of State does not usually identify the reason for a delay in visa adjudication due to administrative processing. If there is information missing from a visa application or the application is flagged as needing additional security clearance processing, the consular officer who interviewed the applicant will issue a 221(g) refusal.
T&E Attorney:
What are Mrs. Doe’s options, then, if she is stuck in administrative processing limbo regarding her H-1B visa? How do we get Mrs. Doe here quickly so that she can take care of her husband during his illness?
Immigration Attorney:
After many months of delay, Mr. and Mrs. Doe decided to file a petition for writ of mandamus and complaint for declaratory and injunctive relief under the Mandamus Act and Administrative Procedure Act, respectively, earlier this year with regard to the H-1B nonimmigrant visa application. This route may be lengthy and costly, and, of course, the outcome of litigation cannot be guaranteed. I would recommend that Mrs. Doe request expedited processing of her visa application in light of Mr. Doe’s prognosis.
T&E Attorney:
How can a noncitizen expedite entry into the U.S. for urgent humanitarian reasons?
USCIS, U.S. Customs and Border Patrol (CBP), and U.S. Immigration and Customs Enforcement (ICE) have the discretion to grant a noncitizen who may otherwise be inadmissible permission to enter the United States on parole for a temporary period due to urgent humanitarian reasons or for a significant public benefit, according to the conditions of the parole. Typically, a noncitizen will need to complete a Form I-131, Application for Travel Document, along with a filing fee to request parole. This process requires a detailed explanation of the reason for requesting an urgent humanitarian parole and evidence of financial support for the duration of the parole.
Additionally, sometimes, the National Visa Center may expedite an immigrant visa interview if a life-or-death emergency is involved with the petitioner or beneficiary. Because Mrs. Doe is abroad, she could contact the National Visa Center to request an expedited interview for her visa applications. Because she already attended an interview for her H-1B application and there is no official way to expedite an application that is pending administrative processing, a mandamus lawsuit might be in order.
T&E Attorney:
What is the timeline for getting her here using this humanitarian parole process?
Immigration Attorney:
Mrs. Doe may include a request for expedited processing, but even then, it may take at least a couple of weeks.
T&E Attorney:
Can Mrs. Doe become an LPR or USC through urgent humanitarian parole by itself?
Immigration Attorney:
No on both accounts.
T&E Attorney:
If we are successful in getting Mrs. Doe to the United States, whether under the H-1B nonimmigrant visa, the I-130 petition for an immigrant visa, or, if all else fails, some form of urgent humanitarian parole, then approximately how long will it take for her to become an LPR?
Immigration Attorney:
If the consular officer approves her immigrant visa application, Mrs. Doe will be an LPR upon entry into the United States. If she is only granted parole and her immigrant visa application remains refused, then she will have to continue waiting for the consular officer’s approval in order to become an LPR in the United States. Parole does not grant LPR status. Although the H-1B nonimmigrant visa provides lawful status in the United States, it alone does not grant LPR status.
T&E Attorney (closing):
Thank you so much for bringing me up to speed. It sounds as if Mr. Doe’s best course is to make that urgent humanitarian request to get Mrs. Doe here as quickly as possible to support him in his illness, and then to continue with an I-130 petition for permanent residence status for Mrs. Doe.
As a T&E attorney, my best course is to design a plan with Mr. Doe that will appoint Mrs. Doe as his personal and health care agent because it is likely that she will be present in the United States during his illness, but I will plan for her status to be as a nonresident noncitizen for the foreseeable future.
Immigration Best Practices for Urgent Humanitarian Parole and Administrative Processing Delays of Visa Applications
Parole
Parole does not, by itself, grant permanent resident status in the United States. Additionally, an individual already within the United States may request “advance parole” prior to traveling outside the U.S. in order to obtain permission to re-enter the United States after international travel. Parole is a discretionary and temporary form of relief and does not provide a direct pathway to U.S. citizenship. Thus, best practice is to view parole as only a temporary form of relief when evaluating other pathways to permanent resident status or U.S. citizenship.
H-1B Nonimmigrant Visa
Notably, H-1B visas are exempt from the nonimmigrant intent requirement. This means individuals may pursue other immigrant visa avenues, such as through a family-based visa application. It is best practice to discuss the limitations of a visa category with your client to confirm compliance with immigration laws.
Administrative Processing
The circuit courts are divided on whether the receipt of a 221(g) notice means the consular officer has made a final adjudication of a visa or whether it is non-final in light of the ongoing administrative processing of the visa application. The burden of indefinite delays in visa administrative processing can be significant, and some noncitizens look to the courts for relief (see Iqbal v. Blinken, No. 2:23-cv-01299-KJM-CSK, 2024 U.S. Dist. LEXIS 151121, at *35 (E.D. Cal. Aug. 21, 2024) (“The court is concerned the ‘administrative processing’ designation is a convenient bureaucratic label allowing defendants to place visa applicants like [the plaintiff] in limbo, where their visas are neither refused nor granted, but without any clear explanation as to when the administrative processing or additional security screening will be completed. Based on this record, the court cannot find the delay in this case is not unreasonable as a matter of law”)). Consulting with an attorney experienced in mandamus litigation is best practice as this is a rapidly evolving area of law and differs from much of the transactional nature of business immigration practice and adjustment of status.
Trust and Estate Best Practices for Planning with Noncitizen Parties
When preparing an estate plan where at least one party is a noncitizen, it is critical for T&E counsel to understand the citizenship or immigration status of all noncitizens, as well as the current country of residence for all parties to an estate plan, including (1) the grantor (the person or people creating the estate plan); (2) the trustee (the person or people in charge of managing and distributing the assets of the plan); and (3) the beneficiary (the person or people inheriting any assets under the plan).
Status of the Grantor
Estate Tax Exclusions
Knowing the citizenship or status of the grantor is critical because the estate tax calculation is different for USCs and LPRs than it is for nonresident noncitizens. Estate tax is a federal tax levied on the assets transferred from a person’s estate at death. Under the Internal Revenue Code (IRC), beginning at Title 26, U.S. Code, if the grantor is a USC or LPR when they die, they are entitled to pass up to $13,610,000 (as of 2024) worth of assets in their lifetimes, and including at their death, without incurring estate taxes on the remaining balance of transferred assets (I.R.C. Section 2001, et seq.); for a nonresident noncitizen grantor, that same exclusion, as of 2024, is only $60,000 for that grantor’s gifts of U.S.-sourced assets only, whether during life or at death (I.R.C. Section 2101, et seq.). A gift of any non-U.S.-sourced assets by a nonresident noncitizen grantor (for example, gift of foreign assets) does not count against that nonresident noncitizen grantor’s exclusion.
Potential Double Taxation for Lawful Permanent Residents
It is important to note that while LPRs are entitled to the entire estate tax exclusion (currently $13,610,000), the estate tax applies to their worldwide assets. An issue that may arise for these LPR grantors is that they could potentially be taxed twice on certain assets, as an LPR’s continued citizenship status in their home country may require that the LPR also pay estate taxes to their home country on some or all of the same worldwide assets.
There are several factors that determine whether domestic and/or foreign estate tax laws will apply to any particular transfer of property after a grantor’s death. These factors include nationality of the grantor, source and location of the assets, whether there is a tax treaty between the United States and the grantor’s country of citizenship, and whether tax credits are available to the grantor, among others. Successfully navigating domestic and foreign tax laws requires a working knowledge of those tax laws. Consulting a skilled international tax or estate planning attorney is best practice for any practitioner not otherwise experienced in this area.
Residential Jurisdiction (Regardless of Status) of the Trustee
It is critical to know the residential jurisdiction of the trustee, regardless of their citizenship or status, because if and when a U.S. trust is administered by a trustee living outside of U.S. jurisdiction, then the trust may be deemed a foreign trust by the Internal Revenue Service (I.R.C. Section 679), giving rise to potential adverse tax consequences, including, without limitation, the recognition of gains tax on appreciated assets, even without a sale event of those assets (I.R.C. Section 684). Best practice is for counsel to advise a grantor to locate or determine a trustee that has and will have a physical presence within the United States during any period of administration and may suggest adding a clause to the trust to trigger a change of trustee to a trustee located within U.S. jurisdiction should any then-current trustee move outside of the United States.
Status of the Beneficiary
Understanding the status of a beneficiary is important to help the grantor understand how the transfer of assets might be performed and to understand how the receipt of such assets might impact the recipient beneficiary. For example, trusts are required to withhold 30 percent tax (in 2024) on certain distributions made to foreign beneficiaries (I.R.C. Section 1441), which could result in a beneficiary receiving a significantly smaller gift than the grantor had intended. This may impact how a grantor makes gifts to a particular beneficiary in their plan.
Additionally, focused attention should be placed on a joint estate plan design where one spouse is a USC and the other a noncitizen because the applicability of the unlimited marital deduction between them would only be allowable in circumstances of death where the USC spouse survives the noncitizen spouse. Specifically, the unlimited marital deduction allows for the unlimited transfer of assets between married couples without the payment of estate taxes by the surviving spouse (I.R.C. Section 2056(a)). The unlimited marital deduction is only available for spouses where the recipient spouse is a USC (I.R.C. Section 2056(d)), with limited exception where the surviving spouse soon becomes a USC. Consequent to this rule, without proper planning, a noncitizen surviving spouse may incur adverse tax consequences at the death of their spouse and potentially have to pay estate taxes out of the gift received from their spouse. However, the use of a qualified domestic trust (QDOT) would allow for the postponement of these estate taxes until after the death of the surviving noncitizen spouse in most cases (I.R.C. Section 2056(A)). For the QDOT to be effective for its purpose, requirements of its implementation and administration must be strictly adhered to, including the maintenance of at least one trustee that is a USC or domestic corporation and providing this trustee the right to withhold relevant estate taxes otherwise postponed by the QDOT from certain distributions.
