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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.
Change From One Nonimmigrant Visa Classification To Another:
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.
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.
Non-Immigrant Visa Categories
B-1, Visitor for Business:
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.
B-2, Visitor for Pleasure:
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.
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.
On Professionals
Non-Immigrant Visa Categories
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.
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.
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.
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 recommended for those who qualify.
On Students
Non-Immigrant Visa Categories
F-1, Foreign Student:
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 (Source: US State Department)
American Citizen-Foreign National Marriages:
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.
Marriage In the United States: Fiancee Visa:
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.
Marriage Abroad: Alien-Spouse Visa:
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
Non-Immigrant Visa Categories
O-1, Aliens of Extraordinary Ability:
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"
Immigrant Visa Categories
There are a number of immigrant visa categories that may be considered in attempting to process a foreign artist for permanent residence status
Person of Exceptional Ability or holding an Advanced Degree:
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.
Persons of Extraordinary Ability:
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.
On Investors
Non-Immigrant Visa Categories
E-1, Treaty Trader:
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.
E-2, Treaty Investor:
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
Immigrant Investor:
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.
Send comments and questions to:
mark@kalishlaw.com
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