Answers To Frequently Asked Questions
On The Visa Process
On The Visa Process |
More than 20 different classes of nonimmigrant visas are issued
by the Foreign Service Offices of the U.S. Department of State at
U.S. Embassies and Consulates abroad. Visas are stamped into a
valid travel document, usually a passport. The visa bears the
date of its issuance as well as the date of its expiration. It
also designates the number of applications for admission at the
U.S. border for which it is valid. At the border, a different
agency of government, the U.S. Immigration and Naturalization
Service ("INS"), has jurisdiction to admit the alien in the
status for which the visa has been granted, and does so by
endorsing the admission slip (Form I-94) which is attached to the
alien's passport, recording the date of entry, the status in
which the alien is admitted, and the duration of his authorized
stay. Future extensions of stay, likewise within the jurisdiction
of the INS, and employment, where authorized, are likewise
endorsed on the admission document. A special Form (I-20ID) is
also issued to students.
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CHANGE FROM ONE NONIMMIGRANT VISA CLASSIFICATION TO ANOTHER
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An alien who enters in one nonimmigrant classification may, with
limited exceptions, apply to change to another nonimmigrant
status while in the United States. The application must be made
while the alien is in lawful status, that is, during the
authorized period of a stay prior to any violation of status,
such as unauthorized employment. |
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CHANGE TO IMMIGRANT CLASSIFICATION |
An alien who enters in a nonimmigrant classification may apply to
change his status to that of an immigrant or lawful permanent
resident (evidenced by a "greencard") under certain conditions,
and usually after the filing and approval of a petition to
classify him in a preference category. With limited exceptions,
however, this procedure is reserved for aliens who have not
engaged in unauthorized employment or otherwise violated status
in the United States. In cases where the alien otherwise
qualifies for immigrant status, but has engaged in unauthorized
employment while here temporarily, immigrant status may
nevertheless be obtained through the issuance of an immigrant
visa at an American Consular Post abroad. |
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NON-IMMIGRANT VISA CATEGORIES
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| B-1, Visitor for Business
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A visitor for business is an alien who wishes to conduct business
in the U.S. for the benefit of a foreign employer. While in the
U.S., the alien may not be engaged in local employment and may
not receive any remuneration for services from a United States
source. The B-1 visitor may request admission initially for a
maximum period of one year. The actual duration of stay, however,
will be determined by the INS at the port of entry and the INS
has discretion to limit the B-1 visitor's stay based on its own
determination of the visitor's business plans. Nevertheless, once
in the U.S., the visitor may apply for extensions of stay to
complete his business. In addition, a visitor in status may apply
to change status to a worker visa category.
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| B-2, Visitor for Pleasure
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A visitor for pleasure is an alien admitted to visit friends or
relatives, travel, or tour the United States. The initial period
of admission is usually three to six months and extensions of
stay or change of status are permitted under some circumstances.
Persons coming primarily for the purpose of performing skilled or
unskilled labor, university study or representing media are not
classified as B-2 visitors. Visitors may not engage in employment
in the U.S. Although an individual may enter the U.S. as an
visitor, in some instances he or she may change status to a
worker visa category (such as H-1B) without having to depart the
U.S. |
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On Employment Based Immigrant Visas
An Overview |
A U.S. employer may sponsor a foreign worker for a permanent
position available within the company. The sponsorship
process(aka:greencard process)typically requires three steps. The
first step is the filing of an Application for Alien Labor
Certification by the employer at the Department of Labor in the
location where the permanent position is being offered. The Labor
Certification Application consists of two parts, namely the Offer
of Employment and the Statement of the Alien’s Qualifications.
The Employer’s section will require the employer to provide
information such as the job title & salary of the position
offered, job duties and job requirements. The salary offered must
meet prevailing wage. The employer will be required to post a
notice of the job opportunity on its premises in two conspicuous
places. The employer must also prepare a recruitment report that
describes its efforts in recruiting for the position offered and
states whether any qualified U.S workers applied for the position
and if so, whether any such workers were hired. The foreign
worker will be required to complete and execute his portion of
the application.
To begin the process, the employer must conduct recruitment for
the position offered. This typically takes a minimum of 60 days
to complete. In addition, the employer must obtain the prevailing
wage for the position from the U.S. Department of Labor. Once
recruitment is completed, and provided that no U.S. workers are
available for the position or layoffs,then the employer may file the Labor
Certification Application electronically with the U.S. Department
of Labor(AKA:”PERM”).
The U.S Department of Labor will then review the application and
either approve the application (certify), request an audit or
deny the application. If certified, the employer may proceed with
the next step.
The second step consists of the filing of an Immigrant Visa
Petition with the United States Citizenship & Immigration
Services(“USCIS”).The petition is executed by the employer. The
employer must submit evidence of its ability to pay the foreign
worker the wage offered. Such evidence must consist of either an
audited financial statement or the company’s corporate tax
return. The alien must document that he/she possesses the
education and experience required by the employer for the
position. Consequently, the foreign worker will need to submit
copies of the appropriate education documents, training, and/or
experience letters.
Once the Immigrant Visa Petition is approved, the case may
proceed to Step Three(provided that there are visa numbers
available under the Immigrant Visa Bulletin).
The final step provides the foreign worker in legal status with
two options. A foreign worker who is in legal status throughout
his stay in the U.S may apply for Adjustment of Status with the
USCIS or in the alternative, may apply for Consular Processing at
the American Consulate in his/her country of residence. Under
either option, the foreign worker will need to be in possession
of personal documentation such as original birth
certificate,marriage certificate,divorce decrees,U.S tax returns
and W-2 forms, any prior U.S immigration documents. Each process
has additional requirements such as completing a medical
examination and providing photographs. Dependents of the foreign
worker(spouse & minor children)will also need to produce all of
the documentation mentioned above. In addition, the employer will
be required to provide a job letter to confirm its original offer
of employment.
(Note: steps 2 & 3 may be filed together provided there are visa
numbers immediately available for the category that the case
falls under.ie EB-2 vs EB-3).
This only meant to provide an overview of the
process. Additional requirements and documentation may be
required on a case-by-case basis.
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On Professionals
| Non-Immigrant Visa Categories |
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H-1-B, Specialty Occupation Workers |
An alien coming to the U.S. temporarily to perform services in a
"specialty occupation" may qualify for an H-1B visa. "Speciality
occupations" include all professional occupations whereby
theoretical and practical application of knowledge is necessary
to perform the job duties. The alien must be coming to the United
States on a temporary basis to perform services. However, the
position itself may be permanent. H-1B aliens are admitted
pursuant to the conditions of the employer's petition which may
initially reflect a period of employment up to three years.
Thereafter, extensions are permitted and the alien may hold H-1B
status for a total of six consecutive years. The processing times
to secure an H1-B visa status will depend on several factors such
as the location of the job offer and the backlog of the
respective government agencies. By example, an H-1B visa petition
filed for an employer in the Eastern part of the U.S. will
typically take 4-8 weeks to adjudicate. The same application
filed by an employer in the West may take 90-120 days to process.
The H-1B visa category does have a limit of 65,000 new visa
numbers each fiscal year. The new fiscal year begins on October
1st of that particular year. It is important to note that the H-1B quota
only applies to "new" H-1B workers. It does not apply to a worker who
is already working in the U.S. in H-1B status and wishes to
change employers or to extend his/her H-1B status with an
existing employer.employer.
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Immigrant Visa Categories |
There are a number of immigrant visa categories that may be
considered in attempting to process a foreign professional for
permanent residence status. |
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Professional or Skilled Worker Category |
This category will require the worker to be offered a skilled or
professional position that is permanent in nature. A skilled
position must require at least two years of experience to perform
the job duties, as determined by the U.S. Department of Labor. A
professional position must require at least a minimum of a
Bachelor's degree in a related field. This category requires the
employer to file an Application for alien Labor Certification
with the Department of Labor. the "Labor Certification" procedure
will require the employer to advertise the position on an effort
to demonstrate to the Labor Department that there are no
qualified U.S. workers available to fill the position. If the
employer can demonstrate the unavailability of U.S. workers, the
application will be certified and the case may proceed on for
further processing with the USCIS.
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Executives or Managers of Multinational Organizations |
A person who is or has been employed in an Executive or
Managerial position by a multinational organization in one out of
the past 3 years, may qualify for this category. The individual
must be offered a Managerial or Executive position in the U.S.
entity which must be a parent, branch subsiduary or affiliate of
the foreign company.
This category does not require a Labor Certification and is
highly recommende for those who qualify.
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On Students
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Non-Immigrant
Visa Categories
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F-1, Foreign Student
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In general, students may not engage in employment in the U.S.
However, in some instances employment is permissible or can be
authorized. Students may engage in periods of pre-graduation
practical training or post -graduate practical training, as long
as the trainig is in their field of study. Practical training
authorization is limited to one year and cannot be extended.
However, a foreign student with practical training authorization
may apply for a change of status to a nonimmigrant worker
classification, such as H-1B, prior to the expiration of
practical training authorization. |
On Marriage
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State Department) |
American Citizen-Foreign National Marriages |
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The Immigration and Nationality Act, as amended, provides U.S.
citizens with two options for facilitating the immigration of
future spouses to the United States: the K-1 fiancee visa and
the alien-spouse immigrant visa. In many cases, the processing
time for a fiancee visa is shorter than that for an alien
spouse. Fiancee visa processing can take several months from the
filing of the petition to the final adjudication of the visa.
Total processing time for the alien-spouse visa can take 6-12
months depending on individual circumstances.
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| Marriage
In the United States: Fiancee Visa |
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U.S. citizens may file an I-129F petition with INS for the
issuance of a K-1 fiancee visa to an alien fiancee. A citizen
exercising this option must remain unmarried until the arrival
of the fiancee in the U.S., and the wedding must take place
within three months of the fiancee's arrival if he/she is to
remain in status. Also, the alien and U.S. citizen must have
met personally at least once in the two years before the
petition was filed. Please note that legal permanent residents
may not file petitions for fiancee visas. They must marry
abroad and then file an I-130 petition for the immigration of a
new spouse.
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| Marriage
Abroad: Alien-Spouse Visa |
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If a U.S. citizen marries an alien abroad, an I-130 petition
must be filed after the marriage to begin the immigration
process for the alien spouse. This can be filed either with the
USCIS in the United
States, or, under certain circumstances, at U.S. Embassies or
Consulates abroad. U.S. Embassies and Consulates have differing
policies on approving I-130s and should be individually
contacted about the availability of this service. Prior to
departure from this country, the U.S. citizen should contact
the INS or appropriate foreign service post to ascertain
exactly what documents will be necessary to file the immigrant
petition for a new spouse. |
On Artists
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Non-Immigrant
Visa Categories
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O-1,
Aliens of Extraordinary Ability
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Aliens who can demonstrate "extraordinary ability" in the
sciences, arts, education, business and athletics through
"sustained national or international acclaim", and whose entry
the Attorney General determines will "substantially benefit
prospectively the U.S, may qualify for O-1 status. The employer
is also required to consult with unions, management groups and
other outside sources to show such person is "extraordinary". |
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Immigrant
Visa Categories
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There are a number of immigrant visa categories that may be
considered in attempting to process a foreign artist for
permanent residence status. |
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Person
of Exceptional Ability or holding an Advanced Degree
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A foreign worker may qualify for this category by holding an
Advanced Degree (Master's or higher) or by demonstrating he/she
is a person of exeptional ability in the sciences, arts or
business.
The Labor Certification requirement applies to this category. job
offers from U.S. employers are usually required, but a job offer
may be waived. If the job offer is in the "national interest",
the alien is not subject to the labor certification requirement
normally applicable to persons in this category. This will
dramatically expedite the processing of the case.
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| Persons
of Extraordinary Ability |
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An alien of extraordinary ability in the sciences, arts,
education, business or athletics may qualify for an immigrant
visa. Extraordinary ability means 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.
The applicant must demonstrate sustained national or
international acclaim and that his/her achievements have been
recognized in the field of expertise. A labor certification is
not required for this category.
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On Investors
| Non-Immigrant
Visa Categories |
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| E-1,
Treaty Trader |
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A Treaty Trader is an alien who enters the United States in
pursuance of the provisions of a Treaty of Commerce and
Navigation between the United States and the foreign country of
which he is a national. The individual must be coming to the
United States to conduct trade between the United States and
the individual's country of nationality. The initial period of
admission is one year, and extensions of stay are possible upon
filing an annual report with respect to the trade. While there
is no requirement of an overseas domicile, the alien must
intend to return to his home abraod once the purpuse of his
admission has been accomplished. |
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E-2, Treaty Investor
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An alien who enters pursuant to the provisions of a Treaty of
Commerce and Navigation between the United States and the
foreign country of which he is a national coming solely to
develop and direct the operations of an enterprise in which he
has invested, or in which he is activley in the process of
investing, a substantial amount of capital. The initial period
of admission is one year with extensions available. High
officials of firms which have made a substantial investment may
also qualify. |
| Immigrant Visa
Categories |
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| Immigrant Investor
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A person who invests a minimum of $ 1 million in a new or
wxisting business, may qualify for this category. In some
instances, a $ 500,000 investment may qualify.
The investment must also create jobs for 10 U.S. workers. The
visa is issued for two years on a conditional basis. A subsequent
petition must be filed after two years to demonstrate that the
investment is ongoing. Both the investor and his immediate family
members will receive the immigrant visa.
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