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Immigration Law Associates, PC

Frequently Asked Questions About Immigration

Below is a list of questions that Beach-Oswald Immigration Law Associates frequently receives regarding immigration. We hope that they help in answering your questions.

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How can a person enter the United States for a short term basis?

An individual can come to the United States temporarily using a visa for a number of reasons, such as a tourist or visitor, student, business person, or short-term employee. Such temporary visas are called nonimmigrant visas and are issued at U.S. embassies and consulates abroad. Many of the employment visas require the prospective employer to first obtain an approved petition from the U.S. Citizenship and Immigration Services before an individual can apply for a visa at a consulate. Likewise, persons wishing to study in the U.S. must be accepted at a qualifying school prior to obtaining a visa. In order to obtain a visa, the visa officer at the issuing consulate or embassy must believe that the visa applicant will abide by the terms of the stay. For many nonimmigrant visa categories, the visa officer must be convinced that the applicant will leave the U.S. upon the expiration of their visa. The burden is on the visa applicant to demonstrate that he/she intends to depart the U.S. within the prescribed timeframe. The length of time for which a visa is issued depends upon the particular type of visa and other fact-specific factors. Once an individual obtains a visa, there is no automatic guarantee that they will be allowed to enter the U.S. The immigration officer at the U.S. port of entry makes that final determination.

When can a person become a permanent resident through relatives?

There are five categories under which a person can obtain permanent residency through relatives. They include:

i. Immediate Relatives, which includes spouses, parents, and children (under 21) of U.S. citizens (no quota or limit)

ii. First Preference, which includesunmarried sons and daughters (21 years and older) of U.S. citizens (subject to annual quotas)

iii. Second Preference, which covers (a) spouses and unmarried children (younger than 21) of U.S. permanent residents, and (2) unmarried sons and daughters (21 years and older) of U.S. permanent residents (both subject to annual quotas).

iv. Third Preference, covering married sons and daughters of U.S. citizens (subject to annual quotas).

v. Fourth Preference, covering brothers and sisters of U.S. citizens (subject to annual quotas).

Since the family-based immigration categories ii-v are subject to annual quotas, one may not immigrate to the United States based upon a family petition unless a visa number is available. Thus, most family-based immigration cases, other than immediate relative cases, have a variety of waiting times.

Can a person obtain a visa to enter the U.S. to marry a U.S. citizen?

A K-1 fiancé visa allows a person to enter into the U.S. to marry a U.S. citizen. The U.S. citizen fiancé must file a Form I-129F, Petition for Alien Fiancé, with the United States Citizenship and Immigration Services (USCIS) Service Center with jurisdiction over their residence. Once the petition is approved, the USCIS will forward the approved petition, through the National Visa Center, to a U.S. embassy or consulate in the person’s home country, which will schedule an interview for a fiancé visa. A person in K-1 status does not automatically change to a legal permanent resident after marrying their U.S. citizen fiancé. Rather, such persons on a K-1 must file for Adjustment of Status to become a legal permanent resident after marrying their U.S. citizen fiancé. A person may stay in the U.S. while awaiting their Green Card after marrying your U.S. citizen or permanent resident spouse only if they have a nonimmigrant visa that is valid throughout the waiting period.

Can a person obtain permanent residence through marriage to a U.S. citizen?

In cases where the U.S. citizen and foreign-born spouse live in the United States, they must file a Form I-130, alien relative petition and Form I-485, green card application, with the appropriate USCIS service center. Such applications must include supporting documentation establishing joint assets and liabilities indicative of a shared life, such as wedding photographs, evidence of joint bank accounts, joint lease agreements or deeds, jointly-filed tax returns, insurance documents, and personal affidavits from family and friends that attest to the legitimacy of the couple’s marriage. An affidavit of support from the petitioning spouse is also necessary. The papers filed can include applications for employment authorization and a travel permit known as advance parole. The USCIS issues the employment authorization document (EAD) and advance parole (AP) early in the process. The couple will be scheduled for an interview, which may take place about a year after filing the application, depending upon the USCIS office having jurisdiction over their place of residence. The USCIS will examine the identification documents, and supporting documentary evidence, and interview the couple to establish the legitimacy of the marriage. The couple must establish that the marriage was not entered into for purposes of obtaining an immigration benefit.

If the foreign national spouse resides abroad, the U.S. citizen spouse would generally file the Form I-130 with the USCIS office having jurisdiction over their residence. Once approved, the case will move to the National Visa Center (NVC) and, then, to the U.S. Consulate where the foreign national spouse resides. The consulate will require proof of the genuine nature of the marriage, an affidavit of support and background documentation on the applicant / spouse.

If the U.S. citizen resides abroad,the documentation is generally processed at the appropriate U.S. consulate. It is necessary to first submit a Form I-130 to the USCIS. After the I-130 is approved by USCIS, the remaining processing and interview takes place at the U.S. consulate abroad. The procedure is similar but the waiting time may be shorter than if the U.S. citizen was living within the U.S.. The major issue that arises in such situations is that the U.S. citizen spouse must establish that s/he will move to the U.S. along with the sponsored spouse, and will be able to meet the income requirements.

If the marriage is less than two years in duration when permanent residency is granted, the foreign national spouse will be given a conditional green card for two years. After two years, the couple must submit a joint petition to remove the two-year condition within the 90-day period immediately preceding the green card expiration. If the marriage has been terminated due to death or divorce, or if the immigrant spouse is a victim of spousal abuse, the immigrant spouse may apply to the USCIS for a waiver of the joint petition requirement. The purpose of this procedure is to establish that the couple’s marriage was bona fide when they got married.

What are the different categories for temporary work visas?

Specialty Occupations (H1B)

In order to be eligible for an H1B, a foreign national must have a job offer from a U.S. employer, which requires a bachelor’s degree or equivalent in a field of specialized knowledge. The foreign national/prospective employee must possess the minimum of a bachelor’s degree or its equivalent. The employer must pay a salary commensurate with the prevailing wage rate for persons in that occupation and geographic location. A limited number of H1Bs are issued each year. H1Bs are typically valid for three-years, with a standard maximum duration of six years. Examples of positions considered specialty occupations in this category include: accountants, computer programmers, graphic designers, industrial designers, teachers, journalists, researchers, physicians, and scientists.

Temporary / Seasonal Workers (H2B)

The H2B category is designed for strictly temporary employment, which must be classified as one-time, seasonal, peak-load, or intermittent. The employer’s need must be for no more than ten months in any year. H2B visas typically are used in industries such as forestry, seafood processing, resorts, and landscaping. There is an annual limit on the number of H2Bs that can be issued, however some persons who have previously held H2B visas are cap exempt. In order to qualify for an H2B, the employer must obtain a temporary labor certification from the Department of Labor (DOL), which requires that the employer pursue recruitment efforts in order to attempt to locate qualified U.S. workers. It is advised that an employer attempt to obtain approvals for multiple beneficiaries on one labor certification and one H2B petition.

Exchange Visitors (J-1)

Many organizations and educational institutions may qualify to sponsor persons as exchange visitors on J-1 visas. There are various types of J-1 programs. These include: students, professors and research scholars, physicians, teachers, trainees, au pairs, and summer student workers. Persons with skills listed on the Exchange Visitors’ Skills list, and those participating in government-funded programs or graduate medical training must comply with a two-year, home-residency requirement before they are eligible to change status in the U.S. or obtain an H1B, L-1, or Permanent Resident status. However, waivers of the two-year, home residency requirement are available in some circumstances.

Treaty Traders (E-1) and Treaty Investors (E-2)

Current law provides nonimmigrant visa status for a national of a country with which the U.S. maintains a treaty of commerce and navigation, who is coming to the U.S. to carry on substantial trade, including trade in services or technology, or to develop and direct the operations of an enterprise in which the national has invested, or is in the process of investing a substantial amount of capital. E-1/E-2 visa holders are generally admitted for a period of 2 years. Journalists and Other Media (I VISAS) Journalists and media workers can qualify for the I-visa if they are being assigned to reside in the U.S. as representatives of a foreign press, radio, film, or other information medium that has a home office in a foreign country and the applicant’s government allows for reciprocal visas to U.S. media. The list of treaty countries is subject to change as new treaties are signed and ratified. However, the most recent list can be found on the U.S. Department of State website.

Intra-Company Transferees (L-1)

The L-1 visa allows persons to come to the U.S. to work temporarily if they are being transferred by their company to the U.S. and will continue to work for the same company. In order to qualify for a L visa, persons must have worked abroad for the company for at least 1 of the 3 preceding years, and must have worked as an executive or manager for the company or have specialized knowledge. To get a L visa, persons need a specific job offer from a qualified employer in the U.S. With L status, visa holders are allowed to remain in the U.S. for a maximum of seven years.

Trade NAFTA (TN, Canada and Mexico)

The TN category is a potential option for citizens of Canada and Mexico. There is no numerical limit or cap on the number of TNs that may be issued. The category is for professionals, engaged in a specified list of occupations, many of which relate to professionals in the science industry. The applicants must possess specified degrees, credentials and licenses, appropriate to the particular profession. All TNs must have job offers from U.S. employers, with the exception of management consultants. TN visas are generally valid for one-year, but may be extended without any maximum limit. Unlike most other visas, there is no initial filing with the USCIS. The applications are made either at the port of entry for Canadians or at the consulate for Mexicans.

Other Temporary Employment-based Visas

Other temporary, employment-based visas are also available for persons of extraordinary ability in the arts, sciences, education, business, or athletics (O-1/O-2); athletes and entertainers (P); religious workers (R-1); and family members of the aforementioned categories.

What are the qualifications for employment-based priority workers for green cards?

The First Preference Category (EB1) or priority workers includes:

  • Persons of Extraordinary Ability in the sciences, arts, education, business, or athletics, who have resulted in sustained national or International acclaim that should be demonstrated through extensive documentation. Such persons should continue to work in the same field and evidence must be provided that their admission as permanent residents would substantially benefit the U.S.
  • Outstanding Professors and Researchers must be internationally recognized in a particular academic area and possess at least three years of academic research or teaching experience. They must have tenured or tenure-track positions at universities or institutes of higher education, or in comparably distinguished research positions. Such institutions must also demonstrate documented accomplishments in the field.
  • Multinational Executives or Managers require individuals to be employed abroad in the same capacity during at least one of the three years preceding their applications for admission to the U.S. as priority workers. Such individuals must enter the U.S. to be employed as executives or managers for the same firm, corporation, or legal entity, or for a subsidiary or affiliate of the entity that employed them abroad.

What is a National Interest Waiver (NIW)?

The Employment-Based Second Preference Category involves members of the professions who hold advanced degrees and individuals of exceptional ability in the arts, sciences, or business. Although this category generally requires an employer and labor certification, the Attorney General may waive this requirement if the work by the foreign national is in the national interest.

The “national interest waiver” (NIW) is an achievement-based opportunity for a green card. This waiver is available to persons who are doing work that is in the national interest and if they have a past record of achievement in their field. The NIW category is typically used by postdocs and Ph.D. students, but can also be used by other researchers, artists, business people, and others.

The threshold requirement for a national interest waiver is a master’s degree or “exceptional ability” in one’s field. In order to qualify for a national interest waiver, a person’s work must be of “substantial intrinsic merit,” the benefits of their work must be “national in scope” (as opposed to being purely “local”); and they must establish that their past record of achievement demonstrates that they will benefit the national interest to a “substantially greater degree than would an available U.S. worker having the same minimum qualifications.”

The national interest waiver has many advantages over the traditional labor certification route to a green card. It does not require a labor certification or a permanent job offer in the United States. Further, where an individual meets the eligibility requirements, a national interest waiver is faster than the labor certification process. In addition, national interest waivers allow individuals to self-petition. That is, the petition does not require the signature of anyone at the university or company where they work.

How can a person become a U.S. citizen?

There are four ways to become a U.S. citizen.

1. By birth in the U.S. Under the 14th Amendment of the U.S. Constitution all persons born … in the United States … are citizens regardless of the status of their parents, who may be citizens, green card holders, nonimmigrants present in a temporary status, or undocumented foreign nationals.

2. By acquisition at birth A child born outside the U.S. where one or both parents are U.S. citizens may acquire U.S. citizenship at birth. The requirements for this depend upon when the child was born, the marital status of the parents, and whether one (or both) of the parents is a U.S. citizen.

3. By derivation through naturalization of parents A child born outside the U.S. may become a citizen by virtue of the parents’ naturalization. Children under 18 years residing in the U.S. as permanent residents become U.S. citizens upon the naturalization of their parent/s with whom they reside.

4. By filing a naturalization application Individuals who satisfy the following criteria:

  • Must obtain permanent residence before applying for naturalization unless the person served in the U.S. armed forces during a period of hostilities.
  • Must be 18 years or older.
  • Must be a permanent resident for five years. However, if a person is married to an U.S. citizen, the individual may be eligible for naturalization in three years if (a) the couple has been married for three years, (b) if the spouse was a citizen during that entire period, and (c) if the couple is living in marital union.
  • Must have resided for three months in the state where the petition was filed.
  • Must be physically present in the U.S. for at least one half of the five years (or one half of three if spouse is a citizen). This is measured by counting the number of days in the United States.
  • Must have resided continuously within the U.S. from the date the application was filed to the time of admission to citizenship. Departures of six months or more, but less than one year, will be presumed to have broken the continuing of residence. This presumption can be rebutted
  • Must not have been absent from the U.S. for a continuous period of more than one year during the periods for which continuous is required. Exceptions are: military service abroad and employees posted abroad who have approval to preserve residency.
  • Must be a person of good moral character for the five- (or three-) year period. (i.e. no convictions reflecting on moral character, compliance with tax laws and support of spouse / children etc.)
  • Loyalty to the U.S. as opposed to home country.
  • English – An elementary level of understanding, reading, writing. Exceptions are persons over fifty, residing in the U.S. for 20 years as permanent residents; persons over 55, living in the U.S. for 15 years as permanent residents. Certain disability exemptions may apply in appropriate cases.
  • A knowledge of the fundamentals of U.S. government and history. Again, disability exemptions may be available in certain cases.