1. What is the difference
between a nonimmigrant visa and an immigrant visa?
2.
What is an H-1B visa?
3.
What is a PERM/Labor Certification?
4.
How can one obtain a green card without the Labor Certification
process
5.
What is a
National Interest Waiver ( NIW )?
6.
How can an individual obtain permanent residence through marriage to
a US citizen?
7.
How can an individual become a permanent resident through relatives?
8.
How
can an individual become a citizen of the US?
9.
What is Political Asylum?
10.
What is the
Diversity Visa Lottery (DV)?
11.
What is INA section
245(i)?
12.
What if I stay in
the US illegally?
13. Green Card FAQ's
1. What is the
difference between a nonimmigrant visa and an immigrant visa?
A. Nonimmigrant visas: Foreign
nationals can enter the US temporarily as tourists (B-2), business
visitors (B-1), students (F-1, M-1), workers (H-1B, L-1, etc.) or
for a variety of other reasons. These temporary visas are known as
nonimmigrant visas and are issued at US embassies and consulates
abroad. Officers at the US embassy or consulate abroad must be
convinced that the visa applicant will not remain in the US after
expiration of the authorized stay. The visa applicant must
demonstrate that he/she intends to depart the US within the
prescribed period of time. While some nonimmigrant visa categories
are subject to annual quotas (i.e. H-1B), most are unrestricted in
number. Nonimmigrant visas can usually be obtained rather quickly.
Visas may be valid for one or more entries into the US. However, a
visa does not guarantee entry into the US. The immigration officer
at the US port of entry makes the final determination.
B. Immigrant visas (aka "Green cards")
grant the holder the right to reside and work in the US permanently.
Holders of these visas are referred to as lawful permanent
residents. They are obtained either in the US or abroad at a US
Embassy or Consulate. Green cards are available mostly to those
individuals who have immediate family members in the US or job
skills needed by a US employer. Additionally, a number of green
cards each year are granted to investors, refugees, highly educated
individuals and DV Lottery winners. The number of green cards issued
each year is subject to an annual quota on each category. The speed
with which one obtains a green card depends upon the category in
which one qualifies.
2.
What is an H-1B visa?
H-1B visas are the most common route to
work in the United States for professional foreign workers.
Currently, 85,000 H1Bs are issued every year (with 20,000 of those
reserved for graduates of US Graduate Schools), usually in three
year increments, with a maximum duration of six years (which can be
extended one year at a time past the 6 year limit if one has a labor
certification or I-140 petition pending for 1 year or more-see
below).
A new six year period commences if the
person departs the US for one year.
The basic requirements needed to obtain
an H-1B visa are a job offer from a US employer, where the position
itself requires a minimum of a specific 4 year Baccalaureate degree
and the applicant has the relevant education and/or work experience
to fulfill these requirements. Additionally, the employer must pay
the prevailing wage in that specific area for that specific position
(and file a Labor Condition Application with the US Department of
Labor). H-1B visas usually take between 2 weeks (through premium
processing-for an additional $1000 filing fee) and 12 weeks to
process and receive, depending upon the jurisdiction of the work
site. Among the many positions considered specialty occupations in
this category are:
information technology professionals
such as programmers, analysts and network engineers, Physicians (who
graduated from US Medical schools and passed parts 1 and 2 of the
USMLE), Physicians (who graduated Foreign medical schools and passed
all 3 parts of the USMLE) some senior/managerial registered nurses,
journalists, accountants, teachers, researchers and scientists.
Immediate family members of H-1B visa holders are entitled to
H-4 visas, which are not work
authorized.
H-1B FAQ's:
2a. What is H-1B Portability? i.e When
can I switch H-1B employers? When an individual already holds H-1B
status/visa, they may change employers by having the new employer
file a petition on behalf of a new employee. The individual may
begin employment with the new employer upon filing (and receipt of
the I-797 receipt notice) the new petition. The individual does not
need to wait for approval of the new petition to begin working for
the new employer.
2b. What if I have a gap in H-1B
employment? Often, when applying for a "change of employer" H-1B,
CIS will request copies of the individuals most recent pay
statements with the previous employer to show that the individual
maintained his/her status. Officially, workers are out of status
immediately upon termination or resignation. While no official grace
period exists, H-1B change of employer petitions are commonly
approved when filed within a reasonable period time (2-4 weeks) from
the last date of employment. ILG strongly recommends filing before
leaving the previous position, if possible. The oft-quoted "10 day
rule" only applies to H-1B visa holders who fulfilled their entire
period of sponsorship, and are given 10 days to leave the United
States upon the expiration of their visas.
2c. What is the H-1B cap? The H-1B cap
is currently set at the very low number of 65,000 per year, and
20,000 were recently added as cap-exempt for graduates of U.S.
master's degree programs or higher. The visas are released each year
on October 1, however, one can apply for the October 1 released
visas on April 1, 6 months in advance. ILG strongly recommends
filing as early as possible, as all of the FY 2005 H-1B visas were
taken on the first day of the year, October 1. Certain employers and
employees are exempt from the annual H-1B cap. (see below)
2d. Who is exempt from the H-1B Cap?
H-1B visa holders who seek to change
employers H-1B workers filing to work concurrently in a second H-1B
position H-1B workers filing to change the terms of their employment
H-1B workers who will be employed at an institution of higher
education or a related or affiliated nonprofit entity, or at a
nonprofit research organization or a governmental research
organization.
Conrad 30 J Waiver
Recipients-Physicians working in medically underserved areas (MUA)
USCIS will also continue to process H-1B petitions for workers from
Singapore and Chile consistent with Public Laws 108-77 and 108-78.
2e. What is Dual Intent? An H-1B alien
can be the beneficiary of an immigrant visa petition, apply for
adjustment of status, or take other steps toward Lawful Permanent
Resident status without affecting his/her H-1B status. This is known
as "dual intent" and has been recognized in immigration law since
passage of the Immigration Act of 1990. During the time that the
application for LPR status is pending, an alien may travel on his or
her H-1B visa rather than obtaining advance parole or requesting
other advance permission from Immigration to return to the U.S.
2f. How can I get a 7th Year Extension
(and beyond) of my H-1B visa? An H-1B visa holder who is reaching
his/her 6 year limit can extend past the 6th year if they have a
labor certification or I-140 pending for more than 365 days, or if
they are prevented from gaining their US permanent residence status
due to an unavailability of immigrant visas under the per country
quota system (see Visa Bulletin).
2g. Can I get an H-1B if I haven't
graduated from college? Work experience evaluations in lieu of
baccalaureate degree: Shanti, Inc. v. Reno, 36 F.
Supp. 1151, 1161-1166(D.Minn.1999)
reaffirmed the longstanding INS rule allowing for 3 years of
experience to be equivocated as one year of college.
Therefore, H-1B applicants can display
the equivalent of a college degree by proving 12 years of relevant,
progressive work experience. One should get an accredited evaluator
to make such a determination before presenting to CIS.
3. What is a
PERM/Labor Certification?
The first step in obtaining permanent
resident status through employment is to show the U.S. Department of
Labor that there are no qualified American workers available to take
the specific job that has been offered. Applicants apply for green
cards under preference categories and are subject to
country-by-country quotas. The date on which the employer files the
labor certification papers is called the priority date. The priority
date marks the legally recognized moment when the waiting period for
a green card starts to elapse. The following are the preference
categories for employment-based immigration:
First Preference: Priority workers,
require no labor certification.
Second Preference: Members of the
professions holding an advanced degree or exceptional ability; if
their work falls under the "national interest"
requirement, then the labor
certification and job offer requirement can be waived; Third
Preference: Skilled workers, i.e. those capable of performing work
requiring at least two years experience or training for which
qualified workers are not available in the US; Professionals, i.e.
those with baccalaureate degrees, but not advanced degrees; and
Other workers, i.e.
unskilled labor, not of a temporary or
seasonal nature.
Please see our PERM information page
for specific information on PERM/Labor Certification
4. How can one obtain a green card without the Labor Certification
process?
If a person is in the First
Employment-based Preference Category (EB 1), one does not need to go
through the labor certification process. Furthermore, persons of
extraordinary ability do not need a job offer from a US employer.
EB-1 subcategories are:
Persons of Extraordinary Ability: in
the sciences, arts, education, business or athletics, as
demonstrated by national or international acclaim, which should be
recognized through extensive documentation. The individual should
continue the work in the field and the entry should substantially
benefit the US.
To demonstrate "sustained or
international acclaim" and the recognition of the applicant's work,
the applicant must submit evidence of a one-time achievement such as
a major international award (Nobel Prize, Academy Award,
etc.) or three OR MORE of the
following:
receipt of lesser nationally or
internationally recognized prizes or awards.
membership in association in the field
for which classification is sought, which requires outstanding
achievement of their members, as judged by recognized national or
international experts.
published material about the person in
professional or major trade publications or other major media.
participation as a judge of the work of
others.
evidence of original scientific,
scholastic, artistic, athletic or business-related contributions of
major significance.
authorship of scholarly articles in the
field.
artistic exhibitions or showcases
performance in a leading or cultural
role for organizations or that have a distinguished reputation.
high salary or remuneration in relation
to others in the field.
commercial success in the performing
arts.
Outstanding Professors and Researchers:
requires that the individual be internationally recognized in an
academic area and possess at least 3 years of academic research or
teaching experience; have a tenure or tenure track position at a
university or an institute of higher education or a comparable
research position in an institution that employs at least 3 persons
full time in research and which institution has achieved documented
accomplishments in the field. Additionally, researchers may accept a
job conducting research in industry.
Multinational Executives or Managers
requires that the individual be employed abroad in that capacity
during at least one of the three years preceding the application for
admission to the US as priority worker. He/she must enter the US to
be employed as an executive or manager for the same firm,
corporation or legal entity or a subsidiary or affiliate of the
entity that employed him/her abroad. Most L-1A visa holders qualify
for this category.
5. What is a
National Interest Waiver ( NIW )?
The employment based Second Preference
Category (EB-2) includes members of the professions who hold
advanced degrees and individuals of exceptional ability in the arts,
sciences or business. Although this category requires a job offer
and labor certification, USCIS may waive this requirement if the
work of the alien is in the "national interest". Statements by
experts concerning the importance of their work to the overall
well-being of the nation are considered, along with past
accomplishments and the need for their particular type of skill in
the U.S. This standard has not been well defined by USCIS.
Successful cases will prove that the alien's presence will
improve: the US economy; US working
conditions; the educational system of the US; health care; housing;
the environment; or an interested US government agency has requested
the waiver. In August of 1998, the USCIS attempted to further define
this standard through the New York Dept. of Transportation case (NYDOT).
NYDOT states: (1) the applicant must seek to work in an area of
"substantial intrinsic merit"; (2) the applicant must provide a
benefit that is national in scope; and (3) the benefit to the US
must considerably outweigh the inherent national interest in
protecting US workers.
6. How can an individual obtain permanent residence through marriage
to a US citizen?
If the US citizen resides in the US:
An application to the USCIS office
having jurisdiction over the U.S.
citizens (petitioners) residence is the
first step. Usually, this is a one-step filing, meaning that one
applies for petition approval, adjustment of status, and work
authorization all at the same time. The USCIS will issue an
employment authorization document (EAD), usually within 90 days of
applying. The USCIS then arranges marriage interviews for the
couple. This may take from two months to over two years, depending
on the USCIS jurisdiction. The USCIS will examine documents and
question the applicants to determine the bona fides of the marriage.
Documents one should be prepared to produce include: wedding
photographs, tax returns, joint bills, joint leases or deeds, joint
bank accounts, insurance documents naming each spouse as
beneficiaries. If the immigration officer suspects that the marriage
was entered into solely for immigration purposes, USCIS may
investigate at the candidate's home and place of work. If the
marriage is less than 2 years old at the time of interview, then the
green card will be issued as conditional, and it will expire in 2
years. The applicant and spouse must file papers to have the
conditions removed within the 90 day period prior to the expiration
of the green card. They must then return for another interview to
have the conditions removed.
If the US citizen resides abroad, the
paperwork must be submitted and processed at the appropriate US
consulate. The process is nearly the same but the waiting time is
less - from two to six months.
7. How can an individual become a permanent resident through
relatives?
There are five categories under which
an individual can obtain permanent residency through relatives. They
are:
Immediate relatives of US citizens:
There are no quotas and no priority date waiting for immediate
relatives of US citizens. They are defined as: spouses of US
citizens (including widows and widowers who were married to the US
citizen for at least 2 years and are applying within 2 years of the
citizen's death); unmarried people under 21 who have at least one US
citizen parent; parents of US citizens, if the US citizen is over
21.
First Preference-Unmarried sons and
daughters of US citizens (23,400 per year, plus unused visas from
the fourth Preference); Second Preference-(F2A) Spouses and
unmarried children of permanent residents (114,000 per year, plus
excess over 226,000 the floor for family based immigration, plus
unused visas from the first Preference); (F2B) Unmarried sons and
daughters of green card holders who are at least 21.
Third Preference-Married sons and
daughters of US citizens (923,400 per year, plus unused visas from
the first and second Preferences); Fourth Preference- Brothers and
sisters of US citizens (65,000 per year, plus unused visas from the
first second and third Preferences).
The waiting period to obtain an
immigrant visa through relatives will vary depending on one's
preference category and one's country of origin.
Nationals of Mexico, India, People's
Republic of China and the Philippines generally have longer waits in
these categories.
Common family-based immigration FAQ's:
7a. What if my relative/spouse entered
the US illegally? When an alien enters without inspection (EWI), or
with fraudulent documentation, they are ineligible to adjust under
current immigration law, unless the petition was filed prior to
April 30, 2001. In that case, and if certain conditions are met,
they are eligible to adjust under INA section 245(i) (see FAQ: What
is section 245(i) LINK). In certain cases, aliens may be
"grandfathered" in under INA sec. 245(i) if they filed another type
of case prior to April 30,
2001 and other certain conditions are
met. This prohibition even applies to spouses of US citizens. Please
contact ILG for a more case-specific analysis of this regulation.
7b. What if my spouse/relative
overstayed his/her authorized period of stay
I-94 card? For spouses of US citizens
and other immediate relative filings, one may still adjust status in
the US even if you have overstayed your visa.
However, for the other family
preference categories, an alien cannot adjust status if he/she has
overstayed their visa. In fact, if one overstays a visa by 180 days
or more, one is barred from adjusting or reentering for 3 years.
Furthermore, if one overstays for 365
days or more, one is barred from adjusting or reentering for 10
years. (see FAQ: consequences of remaining in the US illegally)
However, if the priority date was established prior to April 30,
2001, then an alien who has overstayed can adjust status under sec.
245(i), if certain conditions are met (see FAQ: What is sec.
245(i)).
7c. Do I make enough money to sponsor
my relative? All sponsors must submit form I-864, Affidavit of
Support, which assures the government that you are financially
capable of bringing an immigrant relative to the United States.
Most sponsors must earn 125% of the
poverty income level-please see form I-864P for the current
guidelines (see the current poverty level guidelines-
).
All sponsors must submit the following
documentation with their I-864.
Proof of current employment or self
employment Your individual Federal income tax returns for the most
recent 3 tax years, or an explanation if fewer than 3 are submitted.
Your W-2s or 1099 forms may also be required, see the I-864
instructions for details. If you are using the income of persons in
your household or dependents to qualify as a sponsor, you must also
submit a separate Form I-864A, Contract Between Sponsor and
Household Member, for each person whose income you will use. If you
are unable to show enough income on your own, one may use a joint
sponsor for the Affidavit of Support.
8. How
can an individual become a citizen of the US?
There are 4 ways to become a US
citizen:
By Naturalization Petition
Must be a lawful permanent resident.
Must be 18 years or older.
Must be a permanent resident for five
years. However, if a person obtained permanent residence through
marriage to a US citizen, they may be eligible for naturalization in
three years if: a) the couple has been married for 3 years, b) if
the spouse was a citizen during that entire period, and c) if the
couple are still living in marital unity.
Must have resided for at least three
months in the state where the petition was filed.
Must be physically present in the US
for at least one half of the five years (or one half of three if
spouse is a citizen), with no absences longer than
1 year. (please note that absences
longer than 6 months, but less than 1 year can also break this rule
if the immigration officer deems that the applicant did not give a
"reasonable explanation" for the absence).
Must have resided continuously within
the US from the date the petition was filed to the time of admission
to citizenship.
Must be a person of good moral
character for the five years An elementary level of understanding,
reading and writing English.
Exceptions to this rule for persons
over fifty, in the US for 20 years or more as a permanent resident;
and persons over 55, in the US for 15 years as a permanent resident.
A basic knowledge of the fundamentals
of US government and history, to be displayed by passing an USCIS
examination. This requirement can be waived for people over 65 and
have been permanent resident for 20 years.
By birth in the US: Under the 14th
Amendment, all persons born ... in the United States ... are
citizens regardless of the status of their parents, who may be
citizens, green card holders, or illegal aliens.
By acquisition at birth: A child born
outside the US where one or both parents are US citizens may acquire
US citizenship at birth.
By derivation through naturalization of
parents: A child born outside the US may become a citizen by virtue
of the parents' naturalization.
9. What is Political Asylum?
USCIS grants aliens political asylum in
the United States based upon a well-founded fear of persecution in
ones home country due to ones race, religion, nationality, political
opinion or membership in a particular social group. The fact that
one is suffering economically is not considered a reason for asylum.
A person must request political asylum within one year of arriving
in the United States, unless exceptional circumstances can be shown.
The asylum officer or Immigration Judge will determine if the
applicant's subjective fear of returning to his or her home country
is supported by objective evidence and whether the applicant is
credible. If political asylum is granted, the applicant is allowed
to remain in the United States and eventually obtain permanent
residence.
10. What is
the Diversity Visa Lottery (DV)?
The Immigration Act of 1990 created a
new green card category to benefit people from countries that have
low immigration to the United States. The goal of the program is to
diversify the pool of immigrants entering the United States. The DV
program grants 55,000 immigrant visas each year by random drawing
(hence the term "lottery). The visas are divided among geographic
regions . A greater number of visas will go to those regions that
have lower immigration rates and no visas may be issued to countries
that have sent more than 50,000 immigrants to the U.S. during the
previous five years. DV applicants must have a high school education
or its equivalent, or within five years have two years of work
experience in an occupation that requires at least two years of
training or experience. The DV registration period is usually
between early October and early November of each year and successful
registrants are usually notified between April and July of each
year. Registrations submitted one year are not held over until the
next, so if you are not chosen one year you must reapply the next
year to be considered.
11. What is INA section
245(i)?
INA§245(i) was first added to
immigration law in 1994 to allow persons who qualify for green
cards, but not for adjustment of status, to be able to adjust their
status in the U.S. upon payment of a fine (currently $1,000).
Congress phased §245(i) out of the law
on January 14, 1998. However, persons who had already qualified
under the law as of that date were "grandfathered"
into the benefits of §245(i) for the
rest of their lives. The problem was that hundreds of thousands of
otherwise qualified persons who missed the January 14, 1998 deadline
could not adjust status in the U.S., and therefore could not return
to their countries of origin to obtain green cards without being
subject to either a three or a ten-year bar from returning to the
U.S.
On December 15, 2000 Congress extended
the grandfathering date of §245(i) to April 30, 2001. Not only does
this extend the benefits of §245(i) to persons who had labor
certifications or visa petitions (I-130, I-140 or I-360) filed on
their behalf between 1998 and 2000, but it gives persons over four
months after the passage of the law (April 30, 2001) to qualify for
the benefits of §245(i).
12. What if I stay
in the US illegally?
Most immigrants don't realize or
understand the very grave consequences of remaining in the United
States illegally. The Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 created substantial penalties for aliens
who overstay their visas or enter the country illegally.
Aliens subject to these penalties are
termed to have been "unlawfully present" in The United States. INS
defines unlawful presence with three
categories: (1) those who entered
without inspection (EWI), or crossed the border illegally; (2) those
who stayed in the country beyond the date on their I-94
arrival/departure card (overstays); and (3) those who are found by
the INS or an immigration judge to have violated the terms of their
stay.
The serious penalties apply when an
alien has been unlawfully present for more than 180 days. If someone
is unlawfully present in the US for between 180 and 365 days, they
are then barred from reentering, changing or adjusting their
immigration status for 3 years. People unlawfully present for more
than one year are barred for 10 years.
Not All Time Illegally in the US Will
Count Toward Unlawful Presence
No period of unauthorized presence
prior to April 1, 1997 will be counted toward the three and ten year
bars. Furthermore, no period of unlawful presence which occurred
before the alien's 18th birthday will be counted toward the three
and ten year bars. Additionally, periods of unauthorized presence
will not be counted in the aggregate for purposes of the three and
ten year bars. This means that the INS will not add up three months
of overstay during one visit with three months of overstay during a
past visit to determine that you were unlawfully present for six
months.
Some nonimmigrant visa holders, such as
students (F,M visas), certain diplomats (A,G visas), information
media representatives (I visas) and exchange visitors (J visas) are
admitted for duration of status (marked "d/s" on their I-94 cards).
These people will begin to accrue unlawful presence only if an
immigration judge or an INS officer determines that a status
violation has occurred, whichever comes first. This means that even
if these people remain in the country after the completion of the
original intent of their stay (i.e., graduates from school, leaves
diplomatic post), if they leave the country without undergoing
immigration court or INS proceedings, they can apply for another
visa abroad without fear of the three and ten year bars. According
to State Department Cable No. 060529 (April 4, 1998), under these
circumstances, consular officers may not refuse a visa based on
their own findings of unlawful presence. Rather, an immigration
judge or INS officer must have made a formal finding that the alien
violated their status.
Additionally, aliens who have bona fide
asylum applications pending, are beneficiaries from of the family
unity program, or are battered women and children are exempt from
the three and ten year bars. Aliens who have pending applications
for extension of stay or change of status are granted 120 days of
tolled, or frozen, lawful presence, providing the application was
timely filed and non frivolous and the alien did not work without
authorization prior to or during the pendency of the application.
Conditional permanent residents who
fail to file a timely form I-751 petition to remove conditional
status are deemed to be unlawfully present from the date of the
missed filing deadline. Additionally, aliens who enter without
inspection are determined to be unlawfully present from the date of
the illegal entry.
The Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 makes remaining in the U.S.
illegally a much more dangerous act than most people realize. As
stated above, unlawful presence can affect one's ability to enter
the United States for years to come. This harsh law has trapped a
class of aliens in a permanent state of illegality. While there are
a number of bills pending before the Congress to soften this severe
law, the current political atmosphere does not make passage likely.
Potential immigrants must be vigilant in maintaining valid
immigration status.
