Immigration
Frequently
Asked Questions
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Q. Who is
an Alien?
A. An Alien is any person not a citizen or national of the United
States, including “Immigrants” and “Nonimmigrants.”
Q. Who is an Immigrant?
A. Subject to certain statutory exceptions, every Alien is presumptively
classified as an Immigrant under the Immigration and Nationality Act
(the “Act”),
until he establishes entitlement to a Nonimmigrant status. Classification
as an Immigrant generally presumes an intent on the part of the Alien
to permanently
reside in the U.S.
Q. Who is a Nonimmigrant?
A. A Nonimmigrant is an Alien who can establish that she has a residence
abroad that she has no intention of abandoning, who is coming to the U.S. for
a temporary period, and who fits within one of the specifically defined nonimmigrant
categories under the Act. Typically, this person will obtain a Visa at her
foreign consulate prior to entering the U.S. which will reflect this temporary
intent.
Q. Who is a Lawful Permanent Resident?
A. A Lawful Permanent Resident (LPR) is a person who has been granted
the right to stay and work in the U.S., and return to the U.S. after
foreign travel.
An LPR’s permanent residence card is commonly referred to as a “Green
Card,” and LPRs are commonly referred to as “Green Card Holders.”
Q. Who is a Conditional (Permanent) Resident?
A. A Conditional Resident (CR) is a person who has been granted permanent
residence on a conditional basis, subject to further petition, proof
and documentation at a later date. The most common CR is a spouse awarded
CR status on the basis
of a marriage less than 2 years old. That person must subsequently petition
to remove the conditions on his CR status prior to its stated date of
expiration. This petition will require additional proof and documentation
of the bona fides
of the CR’s marriage. Failure to timely petition for a removal of conditions
will result in a termination of CR status.
Q. I want to enter the United States legally – is there
a way?
A. There are many ways to obtain a visa to enter the United States. With
the exception of visitors, the most common methods involve one of two broad
based types of visa categories: family-based and employment-based visas.
A family-based visa is available if you have a relative who is a United States
Citizen or a Legal Permanent Resident and she is willing to sponsor you.
There are different preferences based on how closely you are related to the
United States Citizen or Legal Permanent Resident. Employment-based visas
are generally used when an employer wishes to sponsor a foreign national
employee. However, there are also temporary employment-based visas that can
be obtained by the foreign national independently.
In addition to these two broad visa types, there are also student visas,
visas for religious workers, investor visas, visitor visas, and a variety
of more obscure visas. An immigration lawyer can help determine which visa
will be best suited to your situation and intention.
Q. How does Employment-based immigration work?
A. The immigration laws provide for several employment-based Immigrant
visa classifications, most of which have built-in protections for the
U.S. labor
market. The protections are afforded by a test of the U.S. labor market
via the “Labor Certification” process (discussed below). Employment-based
immigration generally requires either (i) a strong showing that the foreign
worker is one of the best in her field (and therefore exempt from Labor
Certification), or (ii) proof that there are no U.S. workers who are
able, willing, available,
and qualified to fill the position (Labor Certification).
Q. What is Labor Certification?
A. Labor Certification is often required as a condition to eligibility
for many employment-based immigrant visas, and a similar or derivative
certification
is sometimes required as a condition to eligibility for certain employment-based
nonimmigrant visas. Labor Certification is a certification by the U.S.
Department of Labor (DOL) that there exists an insufficient number of
U.S. workers who
are able, willing, qualified, and available at the place of the proposed
employment, and that employment of the Alien for whom certification is
sought will not adversely affect the wages and working conditions of
U.S. workers
similarly employed (proven by offering the job at the government approved “prevailing
wage” in that particular market).
Q. I am in the United States right now, but I am out of
status or “illegal.” Should
I leave the United States?
A. If you have been out of status and living here for more than 6 months,
you should not leave the United States. Leaving the U.S., whether you depart
voluntarily or involuntarily, may result in a bar against your return to
the U.S. for a period of either 3 years or 10 years. Depending on your specific
situation, options for avoiding or curing this bar may be available. You
should consult your immigration attorney for legal advice immediately.
Q. I have resided in the United States since before 1972,
but I am out of status or “illegal.” What are my options? (Registry)
A. You may apply for permanent residence if you have continuously resided
in the U.S. since before January 1, 1972. This is known as “Registry.”
Q. I entered the United States “without inspection” and
I am now married to a United States Citizen. I would like to become a
permanent resident based on this relationship. Is this possible?
A. If you entered the United States without inspection, you are inadmissible
to the United States even though you are married to a United States Citizen.
However, a “waiver of inadmissibility” may be available to
you depending on your specific situation. Please contact your immigration
attorney
regarding your options.
Q. I am a foreign national married to a United States Citizen. I entered
the United States on a non-immigrant visa which has now expired. Can I become
a legal permanent resident based on my marriage without leaving the United
States?
A. If you entered with inspection, your visa has expired and you are
married to a United States Citizen, it is possible to “adjust status” to
legal permanent residency without leaving the U.S. However, every situation
is different, and other factors may prevent you from adjusting status
and require that you process a visa at a consulate in your home country.
Please
contact your immigration attorney regarding your options.
Q. I am a student in the United States on a student visa. What are my options
for working after I graduate?
A. One of the benefits of your student visa is that you can work for
12 months in the United States after completing your degree. This work
period is called “optional
practical training.” For Canadian and Mexican professionals, temporary
TN visas may be available, depending on your specific profession. H-1B visas
are available for specialty workers who have a bachelor’s degree
or equivalent, but there is a cap on how many of these visas are available
each
year. Because of the cap, H-1B visas are in high demand, short supply,
and therefore difficult to obtain. Some professionals are exempt from
this cap.
Please consult your immigration attorney regarding which option will
be best for you.
Q. I am an employer. What can I do to make sure that I am in compliance with
the requirements for hiring foreign nationals?
A. All employers should have a written policy in place for completing I-9
employment documents and reviewing and verifying employee identification
and work authorization documents. The law requires that certain original
identification documents be presented when employees are hired. You should
contact your immigration attorney to review your employee handbook and internal
hiring procedures for proper I-9 compliance.
Q. I have met my future spouse and I wish to marry him or her in the United
States. Will he or she be able to get a visa to come to the United States
permanently?
A. Fiancé’s of United States Citizens can enter the United States
on a K-1 visa. Those who enter on K-1 visas must marry their spouse within
90 days of entry. Once the couple is married, the foreign national spouse
is permitted to adjust status to legal permanent residency based on the marriage.
It is a requirement, barring extreme hardship, that the fiancés
meet each other before they file for a K-1 visa.
Q. I am a legal permanent resident of the United States. I want to become
a United States Citizen. How long do I have to wait, and what are the requirements?
A. LPRs may apply for naturalization after 5 years of permanent residence.
If you are married to a United States Citizen, you may apply after 3 years,
if you are still married to that person. Naturalization requires a U.S. civics
exam, proof of good moral character, and proof that you have not abandoned
your legal permanent resident status (abandonment may occur if you lived
outside the United States for more than 6 months at a time, without advance
approval). Naturalization applicants must also be proficient in the English
language.
Q. I see a lot of letters and numbers in the designations for various visas.
Can you tell me what they mean?
A. A summary of the most commonly used visas is as follows:
- H-1B and TN Visas: These visas are for Business
Professionals (those with a minimum of a Bachelor’s degree or equivalent).
- Fiancée
Visas (K-1) and other Family Visas: These visas are used to gain
immigration benefits based on family relationship.
- J-1 Visas: These visas are for
Exchange Visitors. You may be eligible for a J-1 Visa if you are applying
to gain work experience in the U.S. through
a specific exchange program.
- F-1 Visas: These visas are for Students. You may be eligible for an F-1
Visa if you plan to study temporarily in the United States.
- R & P Visas: These visas are for Religious
Workers and other Specialty Groups. You may be eligible for an
R Visa if you plan on doing religious
work for a bona fide religious organization. If you are a professional
athlete or musician, you may be eligible for a P visa.
- L-1 Visas: These visas are for Intracompany Transferees.
You need an L-1 Visa if your company would like to transfer a
foreign national to work
in
the company’s domestic operations in the United States.
- H-2B Visas: These visas are for nonagricultural short-term or seasonal
workers (temporary agricultural workers need H-2A Visas). You need an H-2B
Visa if
your company needs to hire a foreign national to work for a short
period of time (less than a year) in a position for which qualified U.S. Citizens
are unavailable, as certified by the DOL.
- EB-5 Visas: These visas are for Investors. An EB-5 Visa may be available
for an Investor who invests at least $1 million ($500,000 in certain
geographic locations) in a business that creates at least 10 new jobs.
- B-1 Visas: These visas are for Business Visitors. You
may be eligible for a B-1 Visa if you are coming to the United States to
engage in business
transactions for a short period of time, not involving gainful employment
of the Visa
holder.
- B-2 Visas: These visas are for Non-Business Visitors. They are the
most commonly-issued visas. Most people desiring to visit the United
States for
pleasure require
a B-2 visa.
- Visa Waiver Program: Visa Waivers are available for nationals of
certain designated countries for temporary visits of up to 90 days
as visitors
for business or pleasure, without first obtaining a visa
from a U.S. embassy or consulate.
It’s a small world with big immigration regulations.
We can help. For more information on the immigration services offered by
Siebers Mohney
please contact Ryan E. Lamb from our Immigration practice group. |
