What is a Visa?

A visa is a stamp placed in your passport by a U.S. consulate or embassy outside of the U.S. All visas serve as U.S. entry documents. They can be designated as either nonimmigrant or immigrant. Nonimmigrant visas are for people with permanent residence outside the U.S., but who wish to be in the U.S. on a temporary basis.  Immigrant visas are for those who intend to live permanently in the U.S.

Except for a few types of visa renewals, visas cannot be issued inside American borders.

Thus, you must be outside the U.S. to obtain a visa.

What is the Difference between a Visa and Status?

Status is the name for the privileges given when you receive immigration benefits, either as a nonimmigrant or permanent resident (i.e., a “green card” holder). Visas and green cards are things you can see and touch. A status is not.

While you must be given a status with each visa, the reverse is not true. If you want nonimmigrant privileges, you can get a nonimmigrant status by applying in the U.S. and keep that status for as long as you remain on U.S. soil.  You will not, however, get a visa at the same time because visas can be issued only outside the U.S.  This is important for nonimmigrants, because they can travel in and out of the U.S. on visas, but not with a status. If you have nonimmigrant status, but not a corresponding visa, you will lose it as soon as you leave the U.S. You can regain your privileges only by getting a proper nonimmigrant visa from a U.S. consulate or embassy before returning.

What is an I-94 Card ?

An I-94 card is a small green or white card given to all nonimmigrants entering the U.S.

It serves as evidence that you have entered the country legally. On this card, an immigration inspector stamps either a specific date or "D/S" (duration of status).  This card, rather than the visa in your passport, governs the authorized period of stay in the U.S. for any given visit.

If you are admitted to the U.S. until a specific date, and overstay the I-94 card end date without filing a timely application for extension of stay or change of status, you will automatically void or cancel all the visas you may have in your passport.  In addition, you may be required to obtain future U.S. visas only in your home country.

What is the Visa Waiver Program ?

Nationals from certain countries may enter the U.S. without a visa as tourists for 90 days or less.  This is permitted under what is known as the Visa Waiver Program (VWP). As of October 26, 2005, all participating countries are required by U.S. law to ensure that their passports are machine readable with biometric information on an electronic chip, and/or digital photos. For countries not able to meet the new passport deadline, people traveling to the U.S. will need to apply for a visa. For more detailed information, click here.

VWP nationals may enter the U.S. under the same rules as the B-1/B-2 classifications, for up to 90 days.  VWP entrants are not eligible for change of status, extension of status, or adjustment of status (unless it is on the basis of an immediate relative petition).  In an emergency, it may be possible for VWP entrants to obtain an additional period of 30 days to depart the U.S., after prior approval from U.S. Citizenship & Immigration Services (USCIS).

What are my rights if I have been stopped by government officials ?

If you have been stopped by the police, the FBI, or any of the Department of Homeland Security Agencies (USCIS, CBP, or ICE) please click here for important information from the ACLU. Citizens and non-citizens alike will find answers to the questions: "What Constitutional Rights Do I Have?" "What If the Police or FBI Contact Me?" "What If I Am Not a Citizen and USCIS Contacts Me"? and "What Are My Rights At Airports?

Paul Philippe Bertoni – Avocat Bilingue

paul@bertoni-law.com

www.bertoni-law.com

B-1 Business Visitors

B-1 visas permit entry into the U.S. temporarily for business activities, such as:

• consulting or meeting with business associates;

•attending a scientific, educational, religious, or professional conference;

•negotiating contracts;

•attending a meeting of the board of directors of a U.S. corporation, if the visitor is a member of the board;

•engaging in non-productive training that benefits the visitors foreign employer;

•conducting types of missionary work;

•performing services as a domestic servant of certain nonimmigrant workers;

•performing services as a domestic servant of a U.S. citizen who permanently resides abroad or who is temporarily assigned to the U.S.;

•conducting independent research;

•participating in nonsalaried professional athletic events;

•investigating a potential E-2 investment or, for foreign corporate employees, coming to set up a U.S. subsidiary; or

•participating in voluntary religious activities.

A B-1 visitor is not allowed to perform productive work in the U.S.  Receiving pay from U.S. sources is not the determining factor in whether a person's activities constitute work.  Productive activities performed on behalf of a U.S. entity while in the U.S. are likely to be viewed as work even if performed voluntarily or where the pay comes from foreign sources.

To prove eligibility for a B-1 visa, you must demonstrate that you: intend to remain for a specific, limited period; have funds to cover the purpose of the U.S. visit; have family, social, and economic ties abroad; and maintain a residence in a foreign country that will ensure your return abroad at the end of the visit.  The B-1 visitor will generally remain on a foreign employer's payroll and perform all duties for the benefit of the foreign employer, and is not allowed to receive compensation from a U.S. source, other than reimbursement for incidental expenses. Applications for a B-1 visa may be made directly at a U.S. embassy or consulate abroad.

 

B-1 Duration

B-1 visa holders are generally admitted for the period of time necessary to conduct the business. In theory, a B-1 entrant may be admitted up to a maximum of six months. However, in practice, immigration officers typically allow business visitors to remain in the U.S. for no more than 30-90 days. When unexpected events necessitate an extension, individuals may apply to extend the authorized period of stay up to six months. However, prolonged business visits may give rise to a presumption that the visitor is engaged in prohibited productive work.

B-2 Tourist Visitors

 

B-2 visas permit entry into the U.S. temporarily for activities including tourism; social visits to friends or relatives; medical treatment; participating in conventions of social organizations; participating in amateur musical or sports events; accompanying D or B-1 visitors; and accompanying a non-spouse long-time partner (regardless of gender) in E, H, or L status.

A B-2 visitor is not allowed to work in the U.S. To prove eligibility, you must demonstrate that you: intend to remain for a specific, limited period; have funds to cover expenses in the U.S.; have social and economic ties abroad; and maintain a residence outside the U.S. that will ensure your return abroad at the end of the visit.  Applications for a B-2 visa may be made directly at a U.S. embassy or consulate abroad.

Prospective students seeking admission in B-2 status who plan to change to F-1 student status must declare this intent to immigration officials at the port of entry.  The immigration official will note this intention on the person's Form I-94, which is required in order for the student to change to F-1 status while inside the U.S.

 

B-2 Duration

Tourists are usually given stays of up to six months.

E-1 Treaty Traders

 

E-1 visas permit entry into the U.S. to further substantial trade that is international in scope. The trade must be primarily between the U.S. and the treaty country where the person holds citizenship. For a list of current E-1 treaty countries, click here. 

In order for a business to qualify for E-1 visas, it must demonstrate that the U.S. business has created substantial trade between the U.S. and the treaty country. Trade is not limited to goods and services and must be principally with the treaty country. This means that more than 50% of the total volume of international trade done by the U.S. business must be between the U.S. and the treaty country. If the U.S. entity is a branch office, then the foreign business must have more than 50% of its trade with the U.S.

At least 50% of the U.S. entity must be owned by non-U.S. resident nationals of the treaty country. If the company is publicly traded, the firm's nationality is considered to be that of the country in which the firm's stock is listed and traded.

 

 

E-2 Treaty Investors

 

E-2 visas permit entry into the U.S. to further a substantial investment in a U.S. enterprise made by individuals or businesses that are citizens of a treaty country. For a list of current E-2 treaty countries, click here

For a business to qualify for E-2 visas, it must demonstrate that a substantial investment in the U.S. business has been made by individuals or companies that are citizens of the treaty country. In order to be considered a substantial investment, the funds must be "at risk". Whether the actual amount invested is substantial depends on the type of business and is weighed based upon a variety of factors. In addition, the investment must not be "marginal" (i.e., not made solely for the purpose of earning a living).

Similar to the E-1 visa, at least 50% of the U.S. entity must be owned by nationals of the treaty country to qualify for E-2 visas.

 

 

Applying for an E-1 or E-2

 

Before applying for an E-1 or E-2 visa, the company in the U.S. where the applicant will work must become E-1 or E-2 qualified. An initial request to qualify the U.S. company for E-1 or E-2 status must be filed together with at least one individual's E-1 or E-2 application at the U.S. Embassy or Consulate that has jurisdiction over the treaty country. Once the company is E-1 or E-2 qualified, any national of the treaty country who will work for the qualified U.S. entity may apply for E-1 or E-2 visas at the appropriate U.S. Embassy or Consulate.

Once the company is qualified, a treaty country national can apply for an E-1 or E-2 visa as an executive or supervisor, or an essential employee. The individual does not have to be employed by the company abroad to qualify for E-1 or E-2 status.

E-1 and E-2 visas can be issued for up to five years and are renewable indefinitely as long as the company and the individual continue to qualify for E-1 or E-2 status. Upon each entry to the U.S., E-1 and E-2 visa holders are generally granted two years of E status on Form I-94 as long as the E-1 or E-2 visa is valid at the time of entry.

Dependent visas are available for spouses and unmarried children (under 21) of E-1 or E-2 visa recipients. Furthermore, E spouses are eligible to apply for work authorization after they enter the U.S.

E-1 or E-2 nonimmigrants who do not plan to travel internationally may apply to extend their status for up to two years by filing an application with U.S. Citizenship & Immigration Services (USCIS).

 

E-3 Australian Professionals

On September 6, 2005, the U.S. Department of State published regulations for the newly created E-3 visa category, allowing applications for visas for Australian professionals to proceed. The E-3 visa program mirrors the Singapore and Chile H-1B free trade visas, but benefits from a 10,500 cap separate from the H-1B cap. The regulation establishes the following requirements for an E-3 visa:

• The E-3 applicant must be an Australian national.

• The position offered by the U.S. employer must meet the same "specialty occupation" requirements as established by the H-1B program. Thus, this category will only apply to professional level positions (typically requiring a Bachelor's degree or higher).

• The E-3 applicant must present evidence of academic or other qualifying credentials for the specialty occupation to the consular officer.

• Before filing, the employer will need to secure wage and working condition approval from the Department of Labor using the Labor Condition Application process. The original Labor Condition Application must be submitted to the Consular officer as part of the application package. Certified copies are permitted by discretion.

• The employer must detail in writing the job offer, wage and specialty occupation requirements.

• Spouses and children of E-3 nonimmigrants are eligible for E-3 dependent visas. Dependents can be any nationality (i.e. they do not need to posses Australian citizenship). E-3 spouses are eligible to apply for E spousal work authorization once in the U.S. under the same process established for spouses of E-1/2 employees. The spousal work permit is not limited to a specialty occupation or a specific employer. E-3 visas issued to dependents are not counted towards the annual 10,500 allocation.

• The E-3 category is exempt from the six year H-1B time limit and can be renewed indefinitely. However, E-3 visas require "nonimmigrant intent" meaning that the visa holder must demonstrate an intention to depart from the U.S. upon the termination of the E-3 status. It is therefore possible that E-3 status might be rejected if the applicant has indicated an intention to immigrate to the U.S.

 

H-1B Specialty Occupation Workers

 

H-1B visas apply to job candidates in a "specialty occupation." U.S. Citizenship and Immigration Services (USCIS) considers specialty occupations to be those requiring the theoretical and practical application of a body of highly specialized knowledge. Typically this will entail completion of a specific course of higher education. For certain individuals with specialized skills and considerable work experience, equivalency evaluations can be obtained to meet the educational requirements.

 

Authorization for H-1B employment is specific to the petitioning company. Additionally, the authorization extends only to the specific occupation named in the H-1B petition. The status cannot be transferred between employers without the new company first filing a petition with USCIS.

 

Before filing an H-1B petition, the company must file a Labor Condition Application (LCA) with the U.S. Department of Labor (DOL). The LCA defines the employer's obligations to ensure that the foreign worker does not adversely affect the wages or working conditions of U.S. workers. Employers with a large contingent of H-1B workers may be considered an H-1B dependent company and add additional obligations.

 

Upon approval of the LCA, the H-1B petition is filed with USCIS.  At the time of filing, employers are responsible for paying the substantial filing fees for the H-1B classification, including a one time Fraud Detection and Prevention fee ($500), and two time H-1B

 

Education and Training Fee ($1,500). Certain educational institutions and nonprofit or government research organizations are exempt from the Education and Training Fee, and employers with less than 26 full-time employees pay one-half of the Education and Training Fee ($750).

 

Candidates previously issued an H-1B visa or otherwise provided H-1B status and who have lawfully worked in the U.S., may be eligible to take advantage of a "portability" provision in the law. "Portability" makes it faster to transition between H-1B employers. The portability provision permits some H-1B holders to begin their new employment with the new company upon the filing of the new H-1B petition. Candidates and companies should make sure that portability applies in their situation, and candidates are advised to continue with their present employment until portability attaches. Candidates not already holding lawful H-1B status must generally wait for USCIS approval before beginning work.

 

New H-1B visas are subject to annual limits per fiscal year. Currently the annual limit is 65,000 per year with an additional 20,000 available to H-1B applicants holding U.S. advanced degrees. After the limit is reached, a candidate must wait until at least the start of USCIS' fiscal year (October 1) to obtain H-1B status and begin work.  Due to the cap, employers often need to accelerate their H-1B process, to file as early as allowed (April 1) for the next fiscal year.  Certain educational institutions and nonprofit or government research organizations are exempt from the cap.  Special cap number allocations are also available to H-1B non-immigrants who are nationals of Chile or Singapore pursuant to special Free Trade Agreements; however, the H-1B duration is limited to only one year (renewable).

 

H-1B Duration

H-1B petitions may be approved for up to three years, and can be extended for up to a total of 6 years maximum stay, regardless of the number of employers. Ordinarily, after 6 years of H-1B status, the candidate must usually reside outside of the U.S. for a full year before new eligibility arises. However, in certain limited circumstances, H-1B employees who have started a green-card process may be eligible to extend their status beyond six years, in one-year increments. The employee may be eligible for extension beyond six years if either an application for labor certification or an immigrant visa petition was filed on his or her behalf at least 365 days prior to reaching the 6-year H-1B limit. NOTE: A labor certification is different from a labor condition application ("LCA"); it is often a prerequisite for an I-140 immigrant petition filed in connection with obtaining permanent residence (i.e. a “green card”).

 

H4 Dependents H1B

 

Dependent visas (H-4) are available for spouses and unmarried children (under 21) of H-1B workers. H-4 spouses and children may not work.

H-1B Portability

An H-1B worker who wishes to transfer to a new employer must have the prospective employer file a new H-1B petition.  In some circumstances, an individual who was previously in H-1B status or issued an H-1B visa may be able to begin work upon filing of the H-1B petition under a legal provision known as H-1B portability.  Portability requires that:

• The individual was lawfully admitted to the U.S.;

• The new petition is nonfrivolous;

• The new petition was filed before the date of expiration of the previous period of stay;

• The H-1B beneficiary has not worked without authorization since his or her last entry.

Since the portability provisions contain certain restrictions, it is important for the individual and employer to consult with immigration counsel to ensure that portability attaches, and for the H-1B worker to continue with his or her present employment until the new H-1B petition is filed.  Individuals not already holding H-1B status must wait for USCIS approval before beginning work.

H-2B Temporary Workers

H-2B visas are for individuals coming temporarily to the U.S. to perform services or labor.  The employer must demonstrate that no U.S. workers capable of performing the service or labor are available in the U.S., and that employment of the H-2B worker will not adversely affect wage rates and working conditions of similarly employed U.S. workers.

To determine whether the job is temporary, the employer must demonstrate that the request for labor is a one-time occurrence, a seasonal need, or an intermittent need.  Generally, H-2B petitions are approved for one year or less.

Before filing the H-2B petition with U.S. Citizenship & Immigration Services (USCIS), the employer must obtain a temporary labor certification approval from the U.S. Department of Labor (DOL), which can take several months.  Although the DOL's approval or denial is given great weight, USCIS is not bound by the DOL's decision.  H-2B petitions can be filed with a request for premium processing, which guarantees a response from USCIS within 15 days upon payment of an additional $1000 fee and allows immigration counsel or the petitioner to make direct contact with USCIS concerning the case.   Regular processing usually takes several months, although the time frame depends upon the current processing times for each USCIS Service Center.

An employer that dismisses an H-2B worker before the end of the approved period of must pay the reasonable cost of the worker's transportation to his or her last city of residence.

 

H-3 Temporary Trainees

 

H-3 visas permit an individual to enter the U.S. to receive training that is not available in the individual's home country, and that will aid the individual in pursuing a career outside of the U.S.

 

H-3 trainees must not be placed in positions in which U.S. citizen and resident workers are regularly employed, and can only engage in productive employment if it is incidental and necessary to the training.

 

H-3 training programs must include the following elements:

• the kind of training to be given;

• the proportion of time that will be devoted to productive employment;

• the number of classroom instruction hours;

• the number of hours in on-the-job training, both supervised and unsupervised;

• the position for which the training will prepare the individual;

• the reason why the individual cannot obtain the trainee in his or her country of origin and why the training must be given in the u.s.;

• the reason why the training program is a benefit to the petitioning company; and

• the source of remuneration received by the trainee.

 

An employer that desires to sponsor an H-3 trainee must file a petition with U.S. Citizenship & Immigration Services (USCIS).  H-3 petitions can be filed with a request for premium processing, which guarantees a response from USCIS within 15 days upon payment of an additional $1000 fee and allows immigration counsel or the petitioner to make direct contact with USCIS concerning the case.  Regular processing usually takes several months, although the time frame depends upon the current processing times for each USCIS Service Center.

 

H-3 Duration

H-3 trainees are admitted for the length of the training program, up to two years.  No extension, change of status, or readmission will be granted unless the H-3 trainee has resided out of the U.S. for six months.  This rule does not apply if the training is seasonal, intermittent, or lasts for less than six months.

 

- Get your J1 Visa with the FACCSF

 

L-1 Intracompany Transferees

 

L-1 visas are available to intracompany transferees who, within the three preceding years, have been employed continuously outside of the U.S. for at least one year (or six months for companies with approved Blanket L petitions), and who will be employed by a qualifying U.S. entity in a managerial, executive, or specialized knowledge capacity.  An L-1 candidate cannot count any time spent visiting the U.S. as part of the six month or one year foreign employment requirement.  To qualify, the U.S. entity must be a branch, parent, affiliate, or subsidiary that has at least 50% common ownership with the foreign employer. 

 

The L-1 classification allows dual intent:  L-1 workers are not required to maintain a foreign residence and may seek permanent residence in the U.S.

There are two categories of L-1 status.  L-1A classification applies to candidates who will perform managerial or executive-level work in the U.S.  L-1B classification applies to candidates who will perform work in the U.S. requiring specialized knowledge of the company's processes and procedures. 

 

L-1 sponsors can file individual L-1 petitions with U.S. Citizenship & Immigration Services (USCIS). L-1 petitions can be filed with a request for premium processing, which guarantees a response from USCIS within 15 days upon payment of an additional $1,000 fee and allows immigration counsel or the petitioner to make direct contact with USCIS concerning the case.  Regular processing usually takes several months, although the time frame depends upon the current processing times for each USCIS Service Center.  Multinational companies that have an approved Blanket L petition may sponsor new L-1A candidates, and L-1B candidates who are specialized knowledge professionals, without having to file a petition with USCIS.  Such companies may have L-1 candidates present a visa application under the Blanket L petition directly to a U.S. embassy or consulate abroad.

 

L-1 Duration

L-1 visa status may generally be approved for up to three years, and can be extended for up to a total of seven years for an L-1A (manager or executive) or five years for an L-1B (specialized knowledge).   (L-1 applications for new offices in the U.S. are approved for only one year, initially.)  After the end of the maximum L-1 period of stay, an individual must reside outside of the U.S. for a full year before becoming eligible to reapply for H or L status.

 

 

L-2 Dependents Visa

 

Dependent visas (L-2) are available for spouses and unmarried children (under 21) of L-1 workers. L-2 spouses may apply for work authorization in the U.S.

Blanket L Application

The Blanket L classification affords established multinational employers the greatest flexibility and speed allowed for intracompany transfers. Each qualified employee's L-1 visa petition is processed even faster than the premium processing procedures offered by the U.S. Citizenship and Immigration Services (USCIS). If the company has an approved Blanket L petition, most candidates will qualify to present a visa application under the Blanket L petition directly to a U.S. embassy or consulate abroad, avoiding the L-1 petition stage above.

 

O-1 Persons of Extraordinary Ability/Achievement

 

O-1 visas apply to individuals with extraordinary ability in the sciences, arts, education, business or athletics. To qualify, an applicant must generally have extraordinary ability demonstrated by sustained national or international acclaim. Artists and entertainers in the television and motion picture industries are treated somewhat differently, and must demonstrate a record of extraordinary achievement. Applicants must present extensive documentation that demonstrates that they have received recognition of their extraordinary abilities and/or achievements from qualified, objective sources in their occupational field.

 

O-1 visas are based on a petition filed by a U.S. employer offering a specific job in the U.S. that requires a person of extraordinary ability. Membership in a group or team that has received recognition for extraordinary achievement is not sufficient; the beneficiary must qualify on the basis of individual merit. The petitioning employer must submit evidence that the prospective employee meets the established O-1 criteria, that the position offered requires an individual of extraordinary ability, and that the individual is coming to the U.S. to continue to work in the area of extraordinary ability. O-1 status may be granted for a maximum of three years at a time, and may be renewed indefinitely.

Scientists, Educators, Business Persons, and Athletes

 

Sustained national or international acclaim can be shown by receipt of a major international award such as a Nobel Prize. Eligibility is demonstrated by submitting evidence of accomplishments in three of the following categories:

• Receipt of nationally or internationally recognized prizes/awards for excellence in the field;

• Membership in organizations in the field that require outstanding achievement of their members, as judged by recognized national or international experts;

• Published material in professional or major trade publications or major media about the prospective employee;

• Participation on a panel or as a judge or the work of others in the same or an allied field of specialization;

• Original scientific, scholarly, or business-related contributions of major significance;

• Authorship of scholarly articles in professional journals or other major media;

• Current or previous employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation;

• Past or proffered high salary or other remuneration for services, evidenced by contracts or other reliable evidence.

 

The above categories of evidence may not be appropriate for all individuals; thus, the regulations also state that the employer can submit "comparable evidence" of extraordinary ability, which may take the form of letters of support from distinguished authorities in the individual's field.

 

Extraordinary Ability in the Arts

"Arts" includes any field of creative activity or endeavor such as, but not limited to, fine arts, visual arts, culinary arts, and performing arts. Also included in the categories of essential technical or creative personnel are set designers, choreographers, music coaches, and related professionals.

 

Employers must demonstrate that the O-1 artist is recognized as being prominent in his or her field. For the motion picture or television industries, employers must show that the O-1 artist is recognized as having a demonstrated record of extraordinary achievement in the industry. In either case, this may be done by showing that the artist has been nominated for or has received a significant national or international award or prize, such as an Academy Award, an Emmy, a Grammy, or a Director's Guild Award.

 

Most individuals qualify by submitting evidence in at least three of the following categories:

• Has performed or will perform services as a lead/starring participant in productions or events with distinguished reputations as shown by critical reviews, ads, publicity releases, publications, contracts or endorsements;

• National or international recognition for achievements through critical reviews, other published materials by or about the beneficiary in major papers, trade journals, magazines, etc.

• Has performed in a lead, starring or critical role for organizations and establishments that have a distinguished reputation evidenced by media articles, testimonials, etc.;

• Has a record of major commercial or critically acclaimed success;

• Has achieved significant recognition from organizations, critics, government agencies, and/or recognized experts;

• Has commanded or will command a high salary or other remuneration in relation to others in the field.

Again, if the foregoing categories of evidence do not readily apply to a particular individual, "comparable evidence" of extraordinary ability may be submitted.

 

Consultation Requirement

Consultation with an appropriate peer group, labor and/or management organization regarding the nature of the proposed work and the beneficiary's qualifications is required before an O petition can be approved. "Peer group" means a group or organization comprised of practitioners of the beneficiary's occupation. This requirement may be especially important in the arts, entertainment fields or athletics. Advisory consultations are labor consultations, unless no appropriate union exists. In the latter situation, employers may submit an advisory opinion from an individual expert in the field, a peer group, or management organization that describes the beneficiary's ability and achievements, the nature of the duties to be performed, and whether the services require someone of extraordinary ability.

 

Derivative Family Members Dependent visas (O-3)

 

O3 are available for spouses and unmarried children (under 21) of O-1 workers. The O-3 classification does not allow for U.S. employment.

 

O-2 Accompanying Employees

 

This category is restricted to foreign nationals seeking to accompany O-1 employees in the arts, motion picture and television productions, and athletics. O-2 foreign nationals cannot work separate and apart from the O-1 prospective employee in question and must be named in the O-1 petition.

 

Individuals seeking admission to accompany an O-1 employee must meet the following criteria: (1) they must enter for the purpose of assisting in the O-1's performance; (2) they must be an integral part of the actual performance; (3) they must have critical skills and experience with the O-1 employee which are not of a general nature and which are not possessed by a U.S. worker; and (4) they must have a foreign residence they do not intend to abandon. More specific requirements apply to O-2 foreign nationals involved in motion picture and television productions.

F-1 Students

 

F-1 visas allow an individual to come to the U.S. to attend an academic program as a full time student. F-1 students are issued Form I-20 by their sponsoring school, and apply for their F-1 visas at a U.S. consulate abroad. F-1 students are allowed to remain in the U.S. for the time period required to finish their educational program, as evidenced by Form I-20. Usually, F-1 students will be issued an I-94 card upon entry to the U.S. with the annotation "D/S", meaning duration of status. Dependents (spouses and unmarried children under 21) of F-1 visitors may apply for F-2 status, but are not permitted to work in the U.S.

F-1 Employment

F-1 visa holders may be entitled to work authorization. Enrolled F-1 students, as well as recently graduated foreign students, may be eligible to engage in "practical training" in the field in which they studied.

There are two common types of Practical Training:

• Curricular Practical Training (CPT)

• Optional Practical Training (OPT)

 

Distinction Between OPT and CPT

Curricular Practical Training (CPT) is issued to students currently enrolled on a full-time basis at an approved educational institution to obtain work experience in their field of study. This is defined as an alternative work/study, internship, cooperative education, or any other type of required internship or practicum that is offered by sponsoring employers through cooperative agreements with the school. The student usually receives academic credit for this training. CPT is granted by the university and the student's Form I-20 is endorsed with the dates the student is eligible to work, as well as the number of hours per week. A student with CPT must present an original Form I-20 indicating CPT approval to an intended employer before employment may lawfully commence.

Optional Practical Training (OPT) is granted to students who wish to work in their field of study but are not going to work as part of their academic program. OPT is granted for a maximum of 12 months throughout the student's academic career. Students can work during their vacations or during the school year, or save OPT to be used after graduation. If working during the school year, the student is only permitted to work 20 hours a week. If used after graduation, OPT must be completed within 14 months of graduation. For OPT eligibility, the student must apply with USCIS for an EAD card (Form I-688B - Employment Authorization Document). The F-1 OPT employment cannot begin until actually receiving the EAD card in hand from USCIS.

TN Visas

 

TN classification is available to Canadian and Mexican citizens pursuant to the North American Free Trade Agreement (NAFTA).  Under NAFTA, Canadian and Mexican citizens may temporarily enter the U.S. to engage in business activities at a professional level.   To qualify for TN status, a candidate must intend to enter the U.S. to work in a profession designated on Schedule A of NAFTA.  For a list of qualifying professions, click here.

 

Educational and experience requirements for TN professions vary, but many qualifying TN professions require completion of a Bachelor's or Licenciatura Degree.  Generally, U.S. Citizenship & Immigration Services (USCIS) will expect a TN candidate to possess a degree related to the professional field.  In addition, if a degree is required and the candidate's degree was gained at an educational institution outside of North America, the degree must be evaluated by a credentials evaluation service as the equivalent to a U.S. degree.

 

Unlike H-1B or L-1 classifications, TN workers are required to maintain a foreign residence and may not have the intention of seeking permanent residence in the U.S.  It is therefore very important for TN workers to maintain ties to Canada or Mexico during their employment in the U.S., such as real property, leases, bank accounts, credit cards, etc., and be able to provide documentation of these ties if required.

 

TN classification requires an employer sponsor, and permits employment only with the petitioning company.  It is possible for an individual to hold TN status with more than one employer; but separate approval for each TN employment is needed.

TN application procedures for Canadian and Mexican citizens differ. Canadians may apply for TN-1 status at any Class A port of entry (includes air, sea, and land ports).

 

Typically, Canadian citizens flying to the U.S. from Canada will apply for TN-1 status at a Pre-Flight Inspection Station at a Canadian international airport, before leaving Canada.

Currently, Mexican applicants for TN-2 status must pursue a more standard visa issuance process.  U.S. employers of Mexican citizens must petition USCIS for TN-2 classification approval.  The TN-2 process requires the employer to comply with Labor Condition

 

Application procedures, much like the process for H-1B status.  Also, Mexican applicants must obtain a TN-2 visa from a U.S. embassy or consulate prior to entering the U.S.

Initial TN-2 petitions for Mexican citizens, and TN extension petitions for both Mexicans and Canadians, can be filed with a request for premium processing, which guarantees a response from USCIS within 15 days upon payment of an additional $1000 fee and allows immigration counsel or the petitioner to make direct contact with USCIS concerning the case. Regular processing usually takes several months, although the time frame depends upon the current processing times for each USCIS Service Center.

 

TN Duration

TN status may be approved in one-year increments, but can arguably be renewed indefinitely (also in one-year increments) after initial entry.  One advantage of the TN category is that, unlike the H-1B visa category, the TN has no annual limits per fiscal year.   Furthermore, unlike the H-1B or L-1 nonimmigrant visa categories, there is no set overall limit on the number of years a Canadian or Mexican citizen may remain in the U.S. in TN status.

  

TN Status Dependents

 

Dependents (spouses and unmarried children under 21 years) of TN workers are entitled to TD status. Dependents in TD status are not authorized to work in the U.S.the visas you may have in your passport.  In addition, you may be required to obtain future U.S. visas only in your home country.

- For detail Immigrations, refer to the following sites

http://uscis.gov/graphics/index.htm

http://www.immigration-aux-usa.com

www.bertoni-law.com

http://www.usimmigrationsupport.org/?NS_cid=1

 

- To procure US government guides to help fill out Visa applications, please refer to (further visa information is located on the left hand side);

http://www.usimmigrationsupport.org/visa_e1.html 

 

PERMANENT RESIDENCE

 

Diversity Immigrant Visa Program (Lottery)

The congressionally mandated Diversity Immigrant Visa Program (DV Program) is administered on an annual basis by the Department of State and conducted under the terms of Section 203(c) of the Immigration and Nationality Act (INA). The Act makes available 50,000 permanent resident visas annually to persons from countries with low rates of immigration to the United States.

 

The annual DV program makes permanent residence visas available to persons meeting the simple, but strict, eligibility requirements. Applicants for Diversity Visas are chosen by a computer-generated random lottery drawing. The visas, however, are distributed among six geographic regions with a greater number of visas going to regions with lower rates of immigration, and with no visas going to citizens of countries sending more than 50,000 immigrants to the U.S. in the past five years. Within each region, no one country may receive more than seven percent of the available Diversity Visas in any one year.

For DV-2007, natives of the following countries are not eligible to apply because they sent a total of more than 50,000 immigrants to the U.S. in the previous five years:

 

CANADA, CHINA (mainland-born), COLOMBIA, DOMINICAN REPUBLIC, EL SALVADOR, HAITI, INDIA, JAMAICA, MEXICO, PAKISTAN, PHILIPPINES, POLAND, RUSSIA, SOUTH KOREA, UNITED KINGDOM (except Northern Ireland) and its dependent territories, and VIETNAM.

 

Persons born in Hong Kong SAR, Macau SAR and Taiwan are eligible.

For more detailed information, please click here. For your convenience, instructions are available in Arabic, Bengali, French, Romanian, Russian, and Spanish.

 

 

PERMANENT RESIDENCE THROUGH EMPLOYMENT

 

To apply for US permanent residence (or "green card" status) based upon employment, there are several methods. The most common one is through labor certification. Labor certification is an official government finding that willing and qualified U.S. workers are not available to fill the position in question and that employment of a foreign national will not adversely affect the wages and working conditions of similarly situated U.S. workers. As of March 28, 2005, all labor certification applications must be filed in accordance with the U.S. Department of Labor's (DOL's) newly issued PERM regulation.  

 

PERM Labor Certification

Under PERM, the DOL is responsible for the review and adjudication of labor certification applications; the State Workforce Agencies are no longer involved in the review process. Preparation of the labor certification application package under PERM still remains complex and takes more preparation time than a typical nonimmigrant (H or L) petition. When complete, the labor certification application is submitted electronically to a national DOL processing center. Electronic filing greatly reduces the number of reoccurring backlogs in queue, resulting in significantly shorter processing times. The date of submission of the online form serves as the priority date for the entire permanent residency process (i.e., one's place in the queue).

 

The DOL carefully reviews the labor certification application for completeness and adequacy.  It may perform an audit of the application and request that documentation of the application be submitted. The online system may randomly select cases for audit as well. When review is complete, the DOL either issues its approval or other decision based on the merits of the application. Approved applications are returned to attorneys handling the case, and signatures of the approved application are required by both the employer and the employee before it can be used in the second stage of the process.

 

RIR and Traditional Labor Certification

Labor certification applications filed prior to March 28, 2005, were filed under either the Reduction-in- Recruitment (RIR) or traditional labor certification procedures. Most pending labor certification applications have been transferred to a DOL Backlog Processing Center (BPC), where the application will be adjudicated. RIR applications will either be approved or be slated for supervised recruitment, along with cases that are filed as traditional labor certification applications. Under supervised recruitment, the employer is required to conduct formal recruitment for the position under the supervision of the DOL. As with all labor certification applications, approval of a case under supervised recruitment depends on the employer's ability to demonstrate that during the recruitment period no qualified US worker was available and willing to take the position. The processing times for RIR and traditional cases may take two and a half or more years for adjudication, depending on the state and region in which the case was originally filed. Some pending cases can be re-filed under the PERM procedures, which will take advantage of PERM's faster processing, while retaining the priority date of the pending application.

 

 

I-140 Immigrant Petition

Once the labor certification application is certified, it provides the basis for the company to move to the second stage of the process and file an I-140 immigrant petition with the US Citizenship and Immigration Service (USCIS). USCIS then determines the "immigrant category" of the case and adjudicates the I-140 petition. Processing times may vary depending on the service center jurisdiction.

 

I-485 Application for Adjustment of Status to Permanent Residence

The I-140 petition provides the basis for the employee's I-485 application for adjustment of status (AOS) to permanent residence. The employee, along with his/her dependents, can file his or her I-485 application concurrently with the I-140

or after the I-140 is filed, as long as his or her "priority date" is current. "Priority dates" are the queuing system for cases under an immigrant quota. At present, certain foreign nationals petitioning under employment-based categories are required to wait for their priority dates to become current in order to submit their AOS applications. The US Department of State issues a monthly Visa Bulletin that indicates which countries and categories fall under these limitations, which can be found at http://travel.state.gov/visa/frvi_bulletin.html.

 

A 'C' on the charts in the middle of the bulletin means that the category is "current" and that there is no need for applicants born in that country to wait to file an AOS application. If a date is indicated, a person born in that country (with certain exceptions) must wait to file the AOS application if his or her priority date is not current (i.e. his or her labor certification was filed after that date).

 

Along with the AOS application, requests for travel permission (advance parole) and employment authorization for the employee and dependents may be filed. Once the advance parole application is approved, the employee and dependents will be able to travel outside the U.S. even if they do not have valid nonimmigrant status. Once the employment authorization document (EAD) is approved, the employee's dependents will be authorized to work in the U.S. With an AOS application approval, the employee and dependents become US permanent residents and green cards are issued through the mail.

Alternatives to Labor Certification:

I-140 Immigrant Visa Petitions for:

•          Extraordinary Ability Individuals

•          Outstanding Researchers & Professors

•          Multinational Managers & Executives

•          National Interest Waivers

In applying for employment-based permanent residence ("green card"), certain distinguished individuals may be eligible to bypass filing the labor certification with the Department of Labor, and directly file the I-140 immigrant petition with the Immigration and Naturalization Service ("INS").

 

The four employment-based immigrant visa categories are:

1) Extraordinary Ability Immigrants;

2) Outstanding Researchers and Professors;

3) Multinational Managers and Executives; and

4) National Interest Waivers.

 

Extraordinary Ability

Extraordinary ability immigrants fall under the first preference employment-based immigrant visa category (EB1-1). An individual may qualify for a green card in this category if his/her extraordinary ability in the sciences, arts, education, business, or athletics has been demonstrated by 1) sustained national or international acclaim as evidenced through extensive documentation; 2) the individual seeks to enter the U.S. to continue work in the area of extraordinary ability; and 3) his/her entry will substantially benefit prospectively the U.S.

 

No offer of employment is required; however, the individual must demonstrate that he/she will continue to work in the field of extraordinary ability. An individual may therefore self-petition under this category.

USCIS defines "extraordinary ability" as "a level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the field of endeavor," as proven by "sustained national or international acclaim" and that one's achievements have been recognized in the field of expertise.

 

For this special category, one may qualify by demonstrating a one-time achievement (such as receipt of a major, international recognized award). Examples of this type of one-time achievement include receipt of the Nobel Prize, Pulitzer or Academy Award. Alternatively, and more commonly, one may demonstrate extraordinary ability qualification on the basis of a career of acclaimed work in the field of endeavor. USCIS considers the following types of evidence in evaluating whether an individual qualifies under the extraordinary ability category:

• Documentation of the receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor;

• Documentation of membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;

• Published material in professional or other major trade publications or major media, relating to the one's work in the field;

• Evidence of one's participation, either individually or on a panel, as a judge of the work of others in the same or an allied field;

• Evidence of one's original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field;

• Evidence of one's authorship of scholarly articles in the field, in professional or major trade publications or other major media;

• Evidence of the display of one's work in the field at artistic exhibitions or showcases;

• Evidence that one has performed in a leading or critical role for organizations or es tablishments that have a distinguished reputation;

• Evidence that one has commanded a high salary or other significantly high remuneration for services, in relation to others in the field;

• Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disc, or video sales; or

• Where the above standards do not readily apply to an occupation, immigration regulations permit comparable evidence.

It is not enough to simply meet three of the ten regulatory criteria, if sustained international or national acclaim is not proven. The overall evidence must demonstrate that his/her achievements in his/her field have been recognized as extraordinary, and therefore these petitions are generally submitted with voluminous documentation. This category is an elite one; accordingly, only the very top in their respective field will qualify.

 

Outstanding Researchers & Professors

The outstanding researcher and professor category is a first preference employment-based immigrant visa category (EB1-2).

An outstanding researcher or professor is defined as an individual who is recognized internationally as outstanding in his/her specific academic area of teaching or research. The individual must possess at least 3 years of experience teaching or in research in the academic area. Additionally, the individual must have a job offer for: 1) a tenured or tenure-track position within a university or institution of higher education to teach in the academic area; 2) a comparable position with a university or institution of higher education to conduct research in the area; or 3) a comparable position to conduct research for a private employer. To qualify, the private employer must have achieved documented research accomplishments, and must employ at least three persons in full-time research.

An individual may not self-petition under this category. The immigrant visa petition must be filed by a qualified US employer. In addition, a permanent job offer is required. For purposes of this category, USCIS defines permanent position as a tenured, tenure-track, or for a term of indefinite or unlimited duration where the employee will have a continued expectation of continued employment unless there is good cause for termination.

USCIS considers the following types of evidence in evaluating whether an individual qualifies as an outstanding professor or researcher:

• Documentation of the beneficiary's major prizes or awards for outstanding achievement in the academic field;

• Documentation of the beneficiary's membership in associations in the academic field which require outstanding achievements;

• Published material in professional publications written by others about the beneficiary's work in the academic field;

• Evidence of the beneficiary's participation, either individually or on a panel, as the judge of the work of others in the same or an allied academic field;

• Evidence of the beneficiary's original scientific or scholarly research contributions to the academic field; or

• Evidence of the beneficiary's authorship of scholarly books or articles (in scholarly journals with international circulation) in the academic field.

 

It is not enough to simply meet two of the six regulatory criteria. The overall evidence must prove international recognition as defined by USCIS.

 

Multinational Managers & Executives

Managers or executives of multinational companies are eligible for permanent residence. The E13 Multinational Manager / Executive category applies to intra company transferees who, within the three years preceding initial entry into the United States, were employed outside of the U.S. continuously for at least one year in a managerial or executive capacity, and who will be employed by a branch, parent, affiliate, or subsidiary of that same employer in the U.S. in a managerial or executive capacity. The multinational manager / executive petition require clear documentation of the qualifying relationship of ownership and control between the U.S. and foreign office. Managerial and executive candidates typically enter the U.S. in L-1A or E-2 status, and then apply for their green cards in the E13 Multinational Manager / Executive category.

To prove that an employee has worked or will work in a managerial capacity, an employer must show that the employee:

• Manages the organization, or a department, subdivision, function, or component of the organization;

• Supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function within the organization, or a department or subdivision of the organization;

• If another employee or other employees are directly supervised, has the authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leave authorization) or, if no other employee is directly supervised, functions at a senior level within the organizational hierarchy or with respect to the function managed; and

• Exercises direction over the day-to-day operations of the activity or function for which the employee has authority.

 

To prove executive duties, the employer must prove that the employee has performed or will perform the following duties:

• Directs the management of the organization or a major component or function of the organization;

• Establishes the goals and policies of the organization, component, or function;

• Exercises wide latitude in discretionary decision making; and

• Receives only general supervision or direction from higher level executives, the board of directors, or stockholders of the organization.

During the period that the employee worked for the company abroad, the foreign employer and the petitioning U.S. entity must have maintained a qualifying corporate relationship such that the transfer of the employee to the United States may be considered a transfer within a single company. The entities among which the employee transfers must have common ownership and control to qualify for use of the multinational manager or executive immigrant visa category. To prove this, the petitioning U.S. employer must show that it is the same company as the overseas employer or that it is the parent, subsidiary, or affiliate of the overseas employer.

Upon receipt of an approved I-140 immigrant petition, an individual may obtain permanent residence status either by filing a Form I-485 application for adjustment of status from within the United States, or through consular processing at a U.S. consulate outside the United States.

 

National Interest Waivers

A person whose immigration is in the national interest of the U.S. may avoid the labor certification process and obtain their permanent residency.

National interest waiver petitions fall under the second preference employment-based immigrant visa category, which is available to individuals with advanced degrees or to individuals who possess exceptional ability in the sciences, arts or business. Exceptional ability is defined as a degree of expertise significantly above that ordinarily encountered. It may be demonstrated by meeting at least three of six requirements set forth by USCIS and must be demonstrated apart from the national interest prong. No job offer is required for the national interest waiver category.

USCIS has indicated a number of areas it believes to be in the U.S. national interest. These include:

• Improving the U.S. economy;

• Improving wages and working conditions in the U.S. economy;

• Improving education for U.S. children and under qualified workers;

• Improving health care;

• Providing more affordable housing;

• Improving the environment; or

• When an interested government agency supports the request.

This is not an all-inclusive list. It is possible to establish one's admission in the national interest in other ways, including in the development of critical technologies.

USCIS recently issued a decision that defines this category more clearly. To immigrate under this category, one must prove his or her work: a) is in an area of substantial intrinsic merit; b) provides a benefit that is national in scope; and c) serves the national interest to a substantially greater degree than an available U.S. worker having the same minimum qualifications.

Critical elements in establishing national interest may also be met by demonstrating one's outstanding contributions through supporting testimonial letters from experts in the field.

 

Conclusion

Preparation of the I-140 petition package for extraordinary ability, outstanding professors and researchers, and national interest waiver cases is a methodical process that takes more time than preparation of a typical nonimmigrant application. Once completed, the petition is filed with the appropriate USCIS Service Center. Upon receipt, USCIS assigns a date to the petition, which serves as the "priority date" for the entire case.

The approved I-140 petition provides the basis for the beneficiary/(employee's) I-485 application for adjustment of status to permanent residence (AOS). When the employee's "priority date" is current, the employee, along with his/her dependants, can file the I-485 application with USCIS. "Priority dates" are the queuing system for cases under quota. At this time, only persons born in the Peoples Republic of China ("PRC") are required to wait for their priority dates to become current in order to submit their first preference work-based AOS applications, because of per country limitations and backlogs. Currently, persons born in the PRC and India are also required to wait for their priority dates to become current in order to submit their second preference work-based AOS applications.

Along with the AOS application, requests for travel permission (advance parole) and employment authorization documents (EAD) for the employee and dependants may be filed. Once the advance parole application is approved, the employee and dependants will be able to travel outside the U.S. again. Once the EAD is approved, the employee's dependants will be authorized to work in the U.S. With the approval of the AOS application, the employee and dependents become U.S. permanent residents and a green card is issued to them through the mail.

 

PERMANENT RESIDENCE THROUGH FAMILY

 

There are several categories of family-based immigration, including immediate relatives of U.S. citizens (spouse, minor and unmarried children, and parents) and preference relatives (unmarried sons and daughters of U.S. citizens, spouses and unmarried sons and daughters of lawful permanent residents, married sons and daughters of U.S. citizens, and brothers and sisters of U.S. citizens). These categories are discussed below.

 

Immediate Relatives of U.S. Citizens

The advantage of qualifying as an immediate relative for family-based immigration is that there is no annual numerical limitation or wait time for sponsorship. Immediate relatives of U.S. citizens include the spouse, minor and unmarried children less than 21 years of age, and parents. For parents of a U.S. citizen to qualify as immediate relatives, the petitioning son or daughter must be at least 21 years of age.

The definition of immediate relative includes widows of U.S. citizens, provided that the foreign spouse was married to the U.S. citizen for at least two years prior to the U.S. citizen's death and was not legally separated from the citizen at the time of his or her death. A petition for permanent residence by a widow must be filed within two years after the U.S. citizen's death and before the foreign spouse remarries.

 

Preference Relatives

Unlike the immediate relative category, the preference family-based immigration categories generally have annual numerical limitations.  Whenever there are more qualified applicants for a category than there are available numbers, the category will be considered oversubscribed, and immigrant visas will be issued in the chronological order in which the petitions were filed until the numerical limit for the category is reached. The filing date of a petition becomes the applicant's priority date. The applicant cannot apply for permanent residence until his or her priority date is reached, which may take several years for certain heavily oversubscribed categories.

The family-based preference categories are as follows:

Family First Preference: Unmarried sons and daughters (21 or older) of U.S. citizens;

Family Second Preference: Spouses, unmarried minor children, and unmarried sons and daughters (21 or older) of lawful permanent residents;

Family Third Preference: Married sons and daughters of U.S. citizens;

Family Fourth Preference: Brothers and sisters ofU.S. citizens, provided the U.S. citizens are 21 or older.

The Visa Bulletin, which is released each month by the U.S. State Department, provides the cut-off dates in each of the preference categories outlined above.

 

Application Procedures for Immediate Relatives

. Adjustment of Status

For permanent residence applications based on marriage to a U.S. citizen, where both individuals are in the United States, it may be possible for the foreign spouse to apply for permanent residence within the United States through a process called adjustment of status. To begin this process, the U.S. citizen submits an immigrant visa petition on Form I-130 to the local U.S. Citizenship & Immigration Services (USCIS) office having jurisdiction over the foreign spouse's place of residence. At the same time, the foreign spouse submits an application for adjustment of status on Form I-485, photographs, a medical examination, and numerous other USCIS forms. The foreign spouse may apply for an Employment Authorization Card (EAD) and Advance Parole to allow him or her to work and travel while the application is pending. The burden is on the parties to establish the bona fides of the marriage, and the couple must prove that that the marriage was not entered into for the sole purpose of obtaining a green card.

USCIS schedules an in-person interview for the couple, generally within 6 to 12 months, depending on the location. The couple may have attorney representation at the interview.

 

.Consular Processing

Where the couple has married abroad, the foreign spouse usually must remain abroad until obtaining approval of an immigrant visa by a U.S. embassy or consulate outside of the United States. (If the parties are not yet married, it may be possible for the foreign fiancé/fiancée to enter the United States on a K-1 visa. Please also see the K-1 visa which may allow the foreign spouse to come to the United States more quickly, but does not result in permanent residence.  An individual who enters the United States on a K-3 visa must apply for Adjustment of Status after arriving to obtain permanent residence.)

To initiate the immigrant visa application, the U.S. citizen spouse must submit an I-130 visa petition to either the appropriate USCIS office in the United States (if the U.S. citizen spouse resides in the United States) or directly to the U.S. embassy or consulate in the country where the foreign citizen spouse lives (if the U.S. citizen spouse also resides there). Depending on the filing method for the visa petition, it could take several months to obtain the approval.

Once the visa petition has been approved, the foreign spouse will receive several mailings from the U.S. State Department's National Visa Center (NVC) and the U.S. embassy or consulate abroad. These mailings will inform the spouse of the items required at the immigrant visa interview abroad and will include various application forms. The foreign spouse will need to submit a number of documents, including photographs, police certificates, and a medical examination. It usually takes five to six months for the immigrant visa interview to be scheduled after approval of the I-130.

 

Application Procedures for Preference Relatives

. Adjustment of Status

For permanent residence applications based on marriage to a lawful permanent resident or the other family relationships included in the four preference categories, where the foreign relative is in the United States, it may be possible for the foreign relative to apply for permanent residence within the United States through a process called Adjustment of Status. To begin this process, the U.S. citizen or Lawful Permanent Resident sponsor submits an immigrant visa petition on Form I-130 to the local U.S. Citizenship & Immigration Services (USCIS) office having jurisdiction over the foreign relative’s place of residence. As described above, the filing date of a petition becomes the applicant’s priority date. The applicant cannot apply for permanent residence until his or her priority date is reached, which may take several years for certain heavily oversubscribed categories. (Where the Form I-130 was filed before December 21, 2000, a foreign spouse or unmarried minor children of a lawful permanent resident may be eligible for a V visa to await the availability of permanent residence.)

 

Once the I-130 is approved, and after the foreign relative's priority date is current based on the U.S. State Department's Visa Bulletin, the foreign relative submits an application for adjustment of status on Form I-485, photographs, a medical examination, and numerous other USCIS forms. The foreign relative may apply for an Employment Authorization Card (EAD) and Advance Parole to allow him or her to work and travel while the application is pending. The burden is on the parties to establish the validity of the relationship.

 

 

USCIS schedules an in-person interview for the foreign relative and the U.S. citizen or Lawful Permanent Resident sponsor, generally within 6 to 12 months, depending on the location.  The foreign relative may have attorney representation at the interview.

 

. Consular Processing

Where the foreign relative resides abroad, he or she usually must remain abroad until obtaining approval of an immigrant visa by a U.S. embassy or consulate outside of the United States.

To initiate the immigrant visa application, the U.S. citizen or Lawful Permanent Resident relative must submit an I-130 visa petition to the appropriate USCIS office in the United States. 

Once the I-130 is approved, and after the foreign relatives priority date is current based on the U.S. State Department's Visa Bulletin, the foreign relative will receive several mailings from the U.S. State Department's National Visa Center (NVC) and the U.S. embassy or consulate abroad. These mailings will inform the relative of the items required at the immigrant visa interview abroad and will include various application forms. The foreign relative will need to submit a number of documents, including photographs, police certificates, and a medical examination. It usually takes five to six months for the immigrant visa interview to be scheduled.

 

 

 

Conditional Residence

If a family-based permanent residence application is based on a marriage and the marriage is less than two years old when the foreign spouse becomes a permanent resident, the permanent residence will be conditional and the green card will expire after two years. Both spouses must submit a joint petition on Form I-751 to remove the condition within the 90-day period immediately preceding the expiration of the conditional residence. If the marriage has terminated by reason of divorce, death of the U.S. citizen spouse, or spousal abuse, the foreign spouse may apply for a waiver of the joint petition requirement.

 

NATURALIZATION

 

Naturalization is the process by which U.S. citizenship is conferred upon a foreign citizen or national after he or she fulfills the requirements established by Congress in the Immigration and Nationality Act (INA).

 

To apply, an applicant must be:

• A lawful permanent resident (i.e., green card holder) (exception if served in war for the U.S.),

• 18 years of age or older,

• Residing continuously for 5 years subsequent to permanent resident status. If married to U.S. citizen, the residency requirement is only 3 years..

• Good moral character

• Residing in the state where the petition is filed for at least 3 months.

• Physically present in the U.S. for at least half of the 5 years (or half of the 3 years, if married to a U.S. Citizen).

 

• Not absent from the U.S. for a continuous period of more than 1 year during the period for which continuous residence is required. Absence of more than 6 months but less than 1 year establishes a rebuttable presumption of not satisfying the continuity requirement. If continuity of residence is broken, one may reapply 4 years and 1 day following the date of return to the U.S. A spouse of a U.S. Citizen needs 2 years and 1 day.

• Knowledge of English and ability to answer basic questions on U.S. history and government.

There are separate provisions for members of the U.S. Armed Forces.

 

Dual Nationality

The concept of dual nationality means that a person is a citizen of two countries at the same time. Each country has its own citizenship laws based on its own policy. Persons may have dual nationality by automatic operation of different laws rather than by choice. For example, a child born in a foreign country to U.S. citizen parents may be both a U.S. citizen and a citizen of the country of birth.

A U.S. citizen may acquire foreign citizenship by marriage, or a person naturalized as a U.S. citizen may not lose the citizenship of the country of birth. U.S. law does not mention dual nationality or require a person to choose one citizenship or another. Also, a person who is automatically granted another citizenship does not risk losing U.S. citizenship. However, a person who acquires a foreign citizenship by applying for it may lose U.S. citizenship. In order to lose U.S. citizenship, the law requires that the person must apply for the foreign citizenship voluntarily, by free choice, and with the intention to give up U.S. citizenship.

Intent can be shown by the person's statements or conduct. The U.S. Government recognizes that dual nationality exists but does not encourage it as a matter of policy because of the problems it may cause. Claims of other countries on dual national U.S. citizens may conflict with U.S. law, and dual nationality may limit U.S. Government efforts to assist citizens abroad. The country where a dual national is located generally has a stronger claim to that person's allegiance.

 

However, dual nationals owe allegiance to both the United States and the foreign country. They are required to obey the laws of both countries. Either country has the right to enforce its laws, particularly if the person later travels there. Most U.S. citizens, including dual nationals, must use a U.S. passport to enter and leave the United States. Dual nationals may also be required by the foreign country to use its passport to enter and leave that country. Use of the foreign passport does not endanger U.S. citizenship. Most countries permit a person to renounce or otherwise lose citizenship.

Information on losing foreign citizenship can be obtained from the foreign country's embassy and consulates in the United States. Americans can renounce U.S. citizenship in the proper form at U.S. embassies and consulates abroad.

For more detailed information on the possible loss of U.S. citizenship and dual nationality, click here.