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Posted
Jun 10, 2000
|updated Oct 18, 2007
The following questions and answers are based on those frequently posed to
the attorneys at the Murthy Law Firm. As a
courtesy to our clients and the immigrant community, we generously share
this useful information.
Question 1. How does an individual obtain a temporary visa to enter the United
States?
TOP
©MurthyDotCom
One can enter the U.S. temporarily for a
variety of reasons, including as a visitor or tourist, business person, student,
or temporary employee. These temporary visas are known as
nonimmigrant
visas and are issued at U.S. embassies and consulates located in most
countries. For many of the employment categories, the employer must obtain
an approved petition from the USCIS prior to the individual's making an
application for a visa at the consulate. Similarly, students must be
accepted at a qualifying school. The visa officer at the issuing embassy or consulate must be
convinced that the visa applicant will comply with the terms of the stay.
For many categories, the visa officer must be convinced that the applicant
will leave the U.S. after the end of the authorized stay. The burden is on the applicant to
demonstrate through strong personal, professional, or other evidence that
his/her intent is to depart the U.S. within the prescribed timeframe. Visas may
be valid for one or more entries into the U.S. and, accordingly, are referred
to as single-entry or multiple-entry. The length of time for which a visa is
issued depends upon the category and other factors.
©MurthyDotCom
A visa, however, does not automatically guarantee entry to the U.S. The
immigration officer at the U.S. port of entry makes that final determination.
©MurthyDotCom
Question 2. What are the different categories for temporary work visas?
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©MurthyDotCom
Specialty Occupations
(H1B)
©MurthyDotCom
A limited number, as determined by Congress, of H1Bs are issued each year. H1Bs are
usually issued in three-year increments, with a standard maximum duration of six
years. There are provisions to allow for extensions beyond the six years
based on one's being the beneficiary of a green card case that meets certain
qualifications. A few examples of positions considered specialty occupations in this
category are: accountants, computer programmers, dietitians, graphic
designers, industrial designers, journalists, researchers, scientists, teachers, and physicians.
©MurthyDotCom
Requirements include a job offer from a U.S. employer that requires a
bachelor's degree or equivalent in a field of specialized knowledge. The prospective
employee must possess the minimum of a bachelor’s degree or its equivalent.
The employer must pay a salary commensurate with the prevailing wage rate for
persons in that occupation and geographic location, or the actual wage paid
by the company for the position, if that is higher than the prevailing wage.
©MurthyDotCom
Exchange Visitors (J-1)
©MurthyDotCom
A wide variety of organizations and educational institutions may qualify to
sponsor persons as exchange visitors on the J-1 visa. There are many
different types of J-1 programs. These include: students, professors and
research scholars, physicians, teachers, trainees, au pairs, and summer
student workers. Persons with skills
listed on the Exchange Visitors' Skills list, and those participating in
government-funded programs or graduate medical training must comply with a
two-year, home-residency requirement before they are eligible to change
status in the U.S. or obtain an
H1B, L-1, or Permanent Resident status. Waivers of the two-year, home
residency requirement are available in certain circumstances.
©MurthyDotCom
Treaty Traders (E-1) and Treaty Investors (E-2)
©MurthyDotCom
Owners and key employees of businesses that conduct a substantial volume of
trade between the U.S. and the home country are treaty traders (E-1); and
where a substantial amount of capital has been invested in the U.S. and jobs
have been created for U.S. workers are referred to as treaty investors (E-
2). To qualify, the home country must have a treaty with the U.S. Some
treaties enable only E-1s, or only E-2s, while others provide for both
categories.
©MurthyDotCom
Countries with Trade Treaties and Those with
Investor Treaties
©MurthyDotCom
The list of treaty countries
is subject to as new treaties are signed and ratified. Find the
most recent list on the
U.S. Department of State WebSite.
©MurthyDotCom
Specialty Occupation Treaty Categories (E-3,
Australia, and H1B1, Chile & Singapore)
©MurthyDotCom
There are two categories that are similar to the H1B, in that they are
limited to specialty occupations. However, these categories are the result
of treaties between the U.S. and Australia and the U.S. and Chile-Singapore.
Both require that there is an employment offer in a specialty occupation. A
specialty occupation is an occupation that requires the theoretical and
practical application of a body of specialized knowledge and the attainment
of a bachelor's or higher degree in the specific specialty. Both categories
require an approved Labor Condition Application (LCA) by the Department of
Labor (DOL) covering the requested timeframe for employment. This requires
that the employer pay the higher of the prevailing or actual wage rate for
the position, as well as making certain attestations regarding employment
practices. Neither category requires a petition approved by the USCIS.
Instead, the visa application can be made directly at the U.S. consulate.
©MurthyDotCom
E-3 Australia : The E-3 is limited to
Australian citizens who will be performing in specialty occupations, as
defined above. There is a limit of 10,500 per year, but, since its inception
in September 2005, this limit has not been reached. Thus, it provides an
attractive alternative to the H1B for Australians.
©MurthyDotCom
There is no limit to the amount of time a person may spend in E-3 status. It
is typically issued in three-year increments.
©MurthyDotCom
H1B1 Chile and Singapore : The H1B1 is
also similar to the H1B, and is limited to citizens of Chile and Singapore
who will be performing specialty occupations. There is an annual limit of
1,400 for Chileans and 5,400 for Singaporean nationals. These are limited to
one year in duration, with extensions available in one-year increments, with
out any maximum limit. This category is strictly temporary, and the consular
officer must determine that the stay will be temporary, and that the
applicant does not intend to immigrate permanently.
©MurthyDotCom
Intra-Company Transferees (L-1)
©MurthyDotCom
The L-1 visa is for an intra-company transferee. That is a person who worked
for a company abroad in an executive, managerial, or "specialized-knowledge,"
capacity (USCIS has specific definitions for each of these terms) for at
least one continuous year within the three years prior to coming to the U.S.
to work for a related (parent, subsidiary, affiliate, or branch) company in
one of those three types of positions. The maximum stay is seven years for
managers and executives and five years for specialized-knowledge employees.
©MurthyDotCom
Trade NAFTA (TN, Canada and Mexico)
©MurthyDotCom
The TN category is a potential option for citizens of Canada and Mexico.
There is no numerical limit or cap on the number of TNs that may be issued.
The category is for professionals, engaged in a specified list of
occupations. Many, but not all, of these are scientific professionals. The
applicants must possess specified degrees and licenses, appropriate to the
particular profession. With the exception of management consultants, all TNs
must have job offers from U.S. employers.
©MurthyDotCom
TNs are granted in one-year increments, without any maximum limit. There is
no initial filing with the USCIS. The applications are made either at the
port of entry for Canadians or at the consulate for Mexicans.
©MurthyDotCom
Temporary / Seasonal Workers (H2B)
©MurthyDotCom
The H2B category is for employment that is purely temporary. The employment
must be one-time, seasonal, peak-load, or intermittent. The employer's need
must be for no more than ten months in any year. These visas typically are
used in industries such as forestry, seafood processing, resorts, and
landscaping. There is an annual limit of 66,000, but some persons who have
previously held H2B status are cap exempt.
©MurthyDotCom
The employer must obtain a temporary labor certification from the Department
of Labor (DOL). This requires recruitment efforts to attempt to locate
qualified U.S. workers. It is possible, and far more efficient, to obtain
approvals for multiple beneficiaries on one labor certification and one H2B
petition.
©MurthyDotCom
Other temporary, employment-based visas are also available for persons of extraordinary
ability in the arts, sciences, education, business, or athletics (O-1/O-2);
athletes and entertainers (P); religious workers (R-1); and family members
of the aforementioned categories.
©MurthyDotCom
Question 3.
Who is eligible for H1B status and for how long?
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©MurthyDotCom
In order to qualify for H1B status, one must have a job offer
from a U.S. employer offering a salary commensurate with the higher of the prevailing
or actual wage rate for persons in
that occupation and geographic location. One must also possess the minimum
of a bachelor's degree (which should
be considered equivalent to a degree from an accredited college or university in the
U.S.), or equivalent in the specialty occupation. The job offered must be a
specialty occupation, requiring a bachelor's degree or equivalent at a
minimum and the theoretical and practical application of a body of
specialized knowledge. The employer must file the necessary petition.
©MurthyDotCom
There is a limited number of H1Bs
that can be issued each fiscal year (Oct 1-Sep 30), usually in three-year
increments, with a maximum duration of six years. This period can be
extended in unlimited one-year extensions if the H-1 beneficiary is also the
beneficiary of a labor certification or I-140 employer petition filed a year
earlier. There are also provisions for additional three-year extensions
based upon the progress of an employment-based green card case filed for the
H-1 worker. A few examples of
positions considered professional in this category are: accountants,
computer programmers, dietitians, graphic designers, journalists,
researchers, and scientists.
©MurthyDotCom
Question 4.
What does the Labor Certification process for green cards entail?
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©MurthyDotCom
This process is for persons immigrating under the
following Employment-Based categories:
©MurthyDotCom
Second Preference Members of the
professions holding advanced degrees who do not meet the national interest
waiver criteria
©MurthyDotCom
Third Preference
Professional workers (those with bechelors' degrees) or skilled workers (those capable of performing
work requiring at least two years experience or training), in positions for which
qualified workers are not available in the U.S.; other workers (unskilled labor), not of a temporary or seasonal
nature, in positions for which qualified workers are not available in the U.S.
©MurthyDotCom
In the employment-based preference categories, the law requires that
employers obtain labor certification from the U.S. Department of Labor. The
job must be offered at or above the prevailing wage. The employer must
obtain the prevailing wage determination from the State Workforce Agency (SWA). To obtain
the labor certification, the employer must attempt to recruit U.S. workers. The
employer must be able to demonstrate that there are no qualified,
available, willing U.S. workers. Such
certification is valid only when, at the time of filing the application, the
employer provides notice of filing to:
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the bargaining representative of the employees in the occupational
classification and area for which the aliens are sought,
OR
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in the absence of such a representative, to those already employed at the
facility through posting in conspicuous locations.
Any person has the right to submit to the Department of Labor documentary
evidence bearing on or challenging the statements made in the application
for labor certification on file with the Department of Labor. This evidence
may take the form of information on available workers, wages and working
conditions, and any information on the employer's failure to meet the terms
and conditions pertaining to the employment of alien workers.
©MurthyDotCom
Since March 28, 2005, all labor certification applications must be filed
using the Permanent Electronic Review Management (PERM) system. Under this
system, employers must obtain a prevailing wage determination from the State
Workforce Agency (SWA) as well as conduct recruitment and provide notice to
employees prior to filing the application. The employer must attest to
recruitment efforts, but does not submit proof with the application. The DOL
may audit the file and ask for proof of recruitment as part of the audit.
©MurthyDotCom
Question 5.
What are the qualifications for employment-based priority workers for green
cards?
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©MurthyDotCom
The First Preference Category (EB1) or priority
workers includes:
©MurthyDotCom
a. Persons of Extraordinary Ability in the sciences, arts, education,
business, or athletics, who have resulted in sustained national or international acclaim
that should be demonstrated through extensive documentation. Such individuals
should continue to work in the same field and admission as permanent residents should
substantially benefit the U.S.
©MurthyDotCom
b. Outstanding Professors and Researchers
must be internationally recognized in particular academic
areas and possess at least 3 years of academic research or teaching
experience. They must have tenured or tenure-track positions at universities or institutes of higher education, or
in comparable research
positions in institutions that employ at least three full-time researchers. Such institutions must also demonstrate documented
accomplishments in the field.
©MurthyDotCom
c. Multinational Executives or Managers require
individuals to be
employed abroad in the same capacity during at least one of the three years
preceding their applications for admission to the U.S. as priority workers.
Such individuals must enter the U.S. to be employed as executives or managers for the
same firm, corporation, or legal entity, or for a subsidiary or affiliate of the
entity that employed them abroad.
[Note : Preferences are numerical limitations or quotas.]
Question 6.
What is a National Interest Waiver (NIW)?
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The Employment-Based Second Preference Category
involves members of the professions who hold advanced degrees and
individuals of exceptional ability in the arts, sciences, or business.
Although this category generally requires an employer and labor
certification, the Attorney General may waive this requirement if the work
by the foreign national is in the national interest.
©MurthyDotCom
In order to obtain a national interest waiver, one's work must benefit
the U.S. in the national interest. Since the term "national
interest" has not been defined in the statute, certain factors are
taken into account in determining national interest. These factors include
improvement of the U.S. economy; wages and working conditions for U.S.
workers; education, health care, the environment, and housing. An interested
government agency request is an added factor, which is given considerable
weight by the USCIS.
©MurthyDotCom
Please note that obtaining approvals in this category became more difficult after August of 1998,
as a result of a case known as New York State
Department of Transportation (NYSDOT). Under NYSDOT, it is
necessary to demonstrate (1) whether the beneficiary will be working
in an area of "substantial intrinsic merit," (2) whether the proposed
benefit is national in scope, and (3) whether the significant benefit
derived from the foreign national's participation in the national interest
field considerably outweighs the national interest in using the labor
certification process. USCIS is scrutinizing these petitions more carefully.
The Murthy Law Firm files applications in these categories on a regular
basis and we have been extremely successful in obtaining approvals. Like most immigrants to the U.S., these
highly-skilled immigrants greatly contribute to the diversity and strength of
the U.S. They not only help themselves by being here; they also help to make
the U.S. a better and stronger country.
Question 7.
Can an individual obtain permanent residence through investment?
TOP
©MurthyDotCom
In order to qualify as an immigrant investor, the
individual must invest at least $1 million in a new commercial enterprise,
which employs at least ten U.S. citizens , lawful permanent residents or
other immigrants authorized to be employed in the United States on a full-time basis (exclusive of
the individual, spouse, and children). If the investment is made either in a
rural area or an area experiencing high unemployment, the minimum investment
may be reduced to $500,000, but the latter option has a restricted quota of
3,000 investor visas for what are termed "targeted investment
areas."
©MurthyDotCom
Due to the limited number of people applying under this category, the USCIS
has issued regulations allowing more subjective and less literal readings of
the law in these cases. However, because of fraud issues, there is a two-year
conditional status accorded to such investors, similar to the conditional
status of spouses of U.S. citizens.
Question 8.
Can an individual obtain permanent residence through marriage to a U.S.
citizen?
TOP
©MurthyDotCom
If the U.S. citizen
& spouse reside in the U.S., a relative petition
and green card application to the USCIS is the first step. The papers filed can include
applications for employment authorization and a travel permit known as
advance parole. The USCIS
issues the employment authorization document (EAD) and advance parole (AP) early in the
process. The couple will be scheduled for an interview, which may take place
about a year after filing the application, depending upon the USCIS office
having jurisdiction over their place of residence.
©MurthyDotCom
The USCIS will examine identification, wedding photographs, and documents (such
as tax returns and insurance documents) and interview the couple to establish
the legitimacy of the marriage. Typical proof is established joint assets
and liabilities, and a shared life. The couple must establish that the
marriage was not entered into for purposes of obtaining an immigration
benefit. If unconvinced, the USCIS may conduct separate
interviews. They can investigate at the couple's places of work and residence,
however, this is not done routinely. An
affidavit of support from the petitioning spouse is also necessary.
©MurthyDotCom
If the foreign national spouse resides
abroad, the U.S. citizen spouse would generally file the relative petition
with the USCIS office having jurisdiction over their residence. Once
approved, the case will move to the National Visa Center (NVC) and, then, to
the U.S. Consulate where the foreign national spouse resides. The consulate
will require proof of the genuine nature of the marriage, the affidavit of
support as well as background information and documentation on the applicant
/ spouse in this situation may also wish to consider the K-3 visa.
©MurthyDotCom
If the U.S. citizen resides abroad, the immigration paperwork is generally processed at the appropriate U.S.
consulate. It is necessary to first
submit a form to the USCIS. After that form is approved, the remaining
processing, including the interview, takes place at the consulate.
The procedure is similar but the waiting time may be less. The
affidavit of support is also needed. There can be issues with this when the
U.S. spouse has been living abroad, as the U.S. citizen (USC)-spouse must
establish that s/he will move to the U.S. along with the sponsored spouse,
as well as meeting the income requirements.
©MurthyDotCom
A conditional green card, with an expiration that
will take effect in two years, is granted if the marriage is less than two years old when permanent residency is
granted. The couple will be
required to submit a joint petition to remove the two-year condition within
the 90-day period immediately preceding the green card expiration. If the
marriage has been terminated due to death or divorce, or if the immigrant
spouse is a victim of spousal abuse, the immigrant spouse may apply to the
USCIS for a waiver of the joint petition requirement. The
purpose of this is to establish that the marriage was bona fide when entered
into.
Question 9.
Can an individual become a permanent
resident through relatives?
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©MurthyDotCom
There are five categories under which an individual can obtain permanent residency through relatives. They are:
©MurthyDotCom
a.
Immediate Relative
spouses, parents, and children (under 21) of U.S. citizens (no quota or
limit)
©MurthyDotCom
b.
First Preference
unmarried sons and daughters (21 years and older) of U.S. citizens (23,400 per year, plus unused
visas from the Fourth Preference)
©MurthyDotCom
c.
Second Preference
(1) spouses and minor, unmarried children of U.S. permanent residents (114,000 per year, plus excess over 226,000 the floor for family-based
immigration, plus unused visas from the First Preference) (2)
unmarried sons and daughters (21 years and older) of U.S. permanent
residents (23% of overall Second Preference limit).
©MurthyDotCom
d.
Third Preference
married sons and daughters of U.S. citizens (23,400 per year, plus unused
visas from the First and Second Preferences)
©MurthyDotCom
e.
Fourth Preference
brothers and sisters of U.S. citizens (65,000 per year, plus unused visas from the First, Second,
and Third Preferences)
©MurthyDotCom
Family-sponsored immigration has an overall quota of 480,000 visas per year, less immediate relatives (parents, spouses, and minor children of U.S. citizens) who are exempt from numerical limitations, plus unused
employment-based preferences. One may not immigrate to the United States
based upon a family petition unless a visa number is available. Thus, most
family cases, other than immediate relative cases, have various waiting
times.
Question 10.
Can an individual become a citizen of the U.S.?
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©MurthyDotCom
There are three ways to become a U.S. citizen.
©MurthyDotCom
a. By
birth in the U.S. Under the 14th Amendment of the U.S. Constitution
all persons born ... in the United States ... are citizens regardless of the
status of their parents, who may be citizens, green card holders,
nonimmigrants present in a temporary status, or undocumented foreign
nationals.
©MurthyDotCom
b. By
acquisition at birth A child born outside the U.S. where one or both
parents are U.S. citizens may acquire U.S. citizenship at birth. The
requirements for this depend upon when the child was born, the mental status
of the parents, and whether one (or both) of the parents is a U.S. citizen.
©MurthyDotCom
c. By
derivation through naturalization of parents A child born outside
the U.S. may become a citizen by virtue of the parents’ naturalization.
Children under 18 years residing in the U.S. as permanent residents become
U.S. citizens upon the naturalization of their parent/s with whom they
reside.
©MurthyDotCom
d. By naturalization
application Individuals who satisfy the following
criteria:
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Must obtain permanent residence before applying for naturalization
unless the person served in the U.S. armed forces during a period of hostilities.
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Must be 18 years or older.
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Must be a permanent resident for five years. However, if a person is
married to an U.S. citizen, the individual may be eligible for naturalization
in three years if (a) the couple has been married for three years, (b) if the
spouse was a citizen during that entire period, and (c) if the couple is
living in marital union.
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Must have resided for three months in the state where the petition was
filed.
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Must be physically present in the U.S. for at least one half of the five
years (or one half of three if spouse is a citizen). This is measured by
counting the number of days in the United States.
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Must have resided continuously within the U.S. from the date the
application was filed to the time of admission to citizenship. Departures of
six months or more, but less than one year, will be presumed to have broken
the continuing of residence. This presumption can be rebutted
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Must not have been absent from the U.S. for a continuous period of more than
one year during the periods for which continuous residence is required.
Exceptions are: military service abroad and employees posted abroad who have
approval to preserve residency.
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Must be a person of good moral character for the five-
(or three-) year period. (i.e. no convictions reflecting on moral character,
compliance with tax laws and support of spouse / children etc.)
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Loyalty to the U.S. as opposed to home country.
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English - An elementary level of understanding, reading, writing.
Exceptions are persons over fifty, residing in the U.S. for 20 years as permanent residents; persons over 55, living in the U.S. for 15 years as
permanent residents. Certain disability exemptions may apply in appropriate
cases.
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A knowledge of the fundamentals of U.S. government and history. Again,
disability exemptions may be available in certain cases.
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