OVERVIEW

"The U.S. immigration law is a federal law enacted by Congress and regulated by the INS.  The INS decisions are reviewed on appeal by the Board of Immigration Appeals that issues appellate administrative decisions that are binding on the INS nationwide."   Aparna Davé

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A GLIMPSE AT THE UNITED STATES IMMIGRATION LAW

The U.S. immigration law divides the people present in the U.S. into two categories: U.S. citizens and aliens. The term alien includes permanent residents (Green Card holders), asylees, refugees, non-immigrants, parolees and undocumented immigrants.

The Law Office of Aparna Davé files for citizenship, Green Cards (through employment, family or conversion from G-1/G-4) and the following non-immigrant U.S. visas:

* The Law Office of Aparna Davé assists clients obtain B-1 and B-2 visas at the U.S. consulates and files extensions of B-1 and B-2 visas of visitors in the U.S.  

The fees of the Law Office of Aparna Davé and U.S. government are available here. 

AN OVERVIEW OF THE U.S. NONIMMIGRANT WORK VISAS

The duration of stay under this category is temporary in nature and the foreign national should depart at the expiration of his/her stay.

H-1B Professional Workers: A U.S. based company or organization may use this visa to bring a worker to the U.S. temporarily to work in "specialty occupation." A specialty occupation requires a minimum of an U.S. bachelors degree (or equivalent foreign degree). The positions include and are not limited to computer specialists, scientists, professors, accountants, etc. H-1B visa is initially granted for a period of three years and may be extended to an additional three years. 

H-2A Temporary Agricultural Worker: To obtain this visa, the employer must get a certification from the U.S. Department of Labor that no qualified U.S. workers are available and the employee must be paid the prevailing wages. 

H-2B Other Temporary Workers: This status allows a person to work for an employer on a temporary basis. Short term and start up projects often have positions that are considered temporary. H-2B status requires the proof of the unavailability of lawful U.S. workers. H-2B visa is granted for one year at a time with a three-year time limit. Obtaining H-2B is often very difficult and it is even more difficult to extend the stay beyond the one-year period. 

H-3 Trainee: H-3 status is available to work in a training program that is not available in one's home country. H-3 status has a two-year limit. To obtain an H-3 visa, a person does not need a college degree. The employer may pay a salary that can be less than the prevailing wage. Detailed information about the training program is required and the employer must prove that no U.S. worker shall be displaced. The employer must also prove that any work performed by a person under this status will be secondary to the training received. 

L-1 Intra Company Transferee Visa: L-1 visa is issued to executives, managers, and employees with specialized knowledge who are transferred from a foreign company, outside of the United States. In order to qualify for the L-1 visa, the employee being transferred must have worked for the foreign company for at least one year during the three-year period immediately preceding the transfer. If the employee is coming to the U.S. to start a new work-site in the U.S., L-1 visa is issued for a period of one year. L-1 visa can be extended to a period of seven years. An executive or a manager under an L-1 visa can be sponsored as a legal permanent resident under the "priority worker" category. 

E Treaty Visa: Nationals of countries that have a treaty with the U.S. are eligible for a treaty visa. Treaty visa is divided into two categories: E-1 Treaty Trader and E-2 Treaty Investor. To qualify for either type of visa the following elements must be satisfied: (1) having a treaty of commerce and navigation or a bilateral investment treaty in effect between the U.S. and the country of the E-visa applicants nationality; (2) the U.S. company seeking to conduct business in the U.S. must be controlled or majority owned by the nationals of the country having such treaty; (3) each E-visa applicant working in the U.S. must be a national of the country under which the company is seeking the E visa status.

Extraordinary Ability Alien: Foreign nationals who demonstrate extraordinary ability in the area of science, arts, education, business, or athletics, or extraordinary achievements in the field of television or film, will be eligible for this work visa.

P Entertainment Visa: These visas are issued to entertainers and athletes with international recognition coming temporarily to the U.S. to perform either individually or as part of the team. Popular with entertainment groups such as music, dance, and drama, being sponsored for tours in the U.S. by organizations based in the U.S. Admission to P status can be for an initial period of five years with an extension for up to five years.

R Religious Visa: These visas are issued to priests, ministers, and other religious workers who come to the U.S. to temporarily perform religious services for nonprofit religious organizations in the U.S.

TN NAFTA Professionals: The TN visa is available to Canadian and Mexican nationals coming to the U.S. to do professional work. 

AN OVERVIEW OF THE U.S. IMMIGRANT VISAS

Under Immigration and Nationality Act of 1990, there are five major categories of employment-related immigration visas. They are as follows:

(1) Employment-based preference (about 40,000 annual visas) for "Priority Workers"  

The three types of priority workers include:

1. Aliens of "Extraordinary Ability" in the sciences, arts, education, business or athletics (no labor certification required) (no offer of employment required);

2. Outstanding Researchers and Professors (no labor certification required); and

3. Multinational Executives and Managers (L-1 visa holders) (no labor certification required).

(2) Employment-based preference (about 40,000 annual visas plus visas not used in the first preference) 

1. Aliens of "exceptional ability" in the sciences, arts or business;

2. Advanced Degree Professionals.

Foreign professionals who have at least a Masters degree or can prove exceptional ability in certain fields will qualify under this category. A person can qualify for a National Interest Waiver from Labor Certification if he/she can submit evidence of prospective contribution to improve U.S. economy, healthcare, environment, education, housing and culture. A person can obtain a permanent residency fairly quickly under this status, however the supporting documents have to be very well prepared.

(3) Employment-based preference (about 40,000 annual visas plus visas not used in the first and the second preference)

1. Professionals having a bachelor's degree not qualifying in the second preference;

2. Skilled workers who have at least two years of training and experience.

To qualify under this category, the person requires to get a Labor Certification from the U.S. Department of Labor certifying that the employer was unsuccessful in recruiting qualified U.S. workers, and that the foreign workers skills are pertinent to the U.S. employer.

(4) Religious workers: Priests, religious professionals and workers can qualify for a permanent status if they meet certain requirements.

(5) Investors: Persons who can invest one million dollars or $500,000 in certain high unemployment areas in a business venture in the U.S., and create ten new jobs for U.S. workers could qualify for a legal permanent status.

GREEN CARD LOTTERY

Each year, the U.S. government gives 55,000 visas to applicants who are natives of low-admission countries. These are countries from which less than 50,000 people have immigrated during the preceding five years.

No matter where a person currently resides, if a person is a native of the qualifying country, as the law defines native under the lottery rules, a person may win the lottery. To get more information on the lottery, please contact my office.

FAMILY BASED IMMIGRATION

The U.S. immigration law speaks about family unification. The law is designed to help families stay together. A permanent resident of the U.S. or an U.S. citizen can apply for certain relatives come to the U.S. with green cards. This is called Family Sponsorship.

A person may qualify for a Family Based green card if he/she is the Immediate Relative of an U.S. citizen. Under this category there is no limit to the number of immigrant visas issued each year. A person may also qualify in a Family Based Preference group for which there is a limit, or quota, of 226,000 per year divided among the four preferences.

The immediate relatives of U.S. citizen category include the following:

• Spouses of a U.S. Citizen;

• Unmarried child (under 21) of a U.S. citizen;

• Parent of a U.S. citizen where the citizen is 21 years or older;

• Spouse of a deceased U.S. citizen, where at the time of the citizen's death, the spouses have been married at least two years and were not legally, separated.

The Family Based Preferences are:

• First Family Based Preference: Adult unmarried sons and daughters (age 21 or older) of U.S. citizens

• Second Family Based Preference A: Spouse and unmarried sons and daughters under age 21 of permanent residents;

• Second Family Based Preference B: Unmarried children of any age of permanent residents;

• Third Family Based Preference: Married children of U.S. citizens;

• Fourth Relative Preference: Brothers and sisters of U.S. citizens where the U.S. citizen is 21 years of age or older.

ASYLEES AND REFUGEES

Asylees and refugees are people who have a well founded fear that they will be persecuted in their home country because of their race, religion, nationality, political opinion or membership in a particular social group.

Refugees apply for refugee status at an INS office outside of the United States. If they are successful, the INS gives them travel documents that they use to enter the U.S. Asylees are people who are already in the U.S. or at an U.S. port of entry when they apply to live in the U.S.

Beginning April 1, 1997, a person must file for asylum within one year after arrival in the U.S. The only exception is if a person can prove that changed circumstances in the home country or extraordinary circumstances prevented the person from filing within the one-year limit.

NATURALIZATION

A legal permanent resident (LPR) can become an U.S. citizen through a process called naturalization. To be naturalized, most applicants must meet the following requirements:

1. A person has resided as a LPR continuously for five years. A person married to a U.S. citizen can qualify for a U.S. citizenship within three year;

2. The LPR has been present in the United States for half of the five or three year period;

3. The LPR is of good moral character;

4. The LPR has the basic knowledge of U.S. Government and History;

5. The LPR is able to read, write and speak simple English with exceptions for some older, long time permanent residents;

6. The LPR is at least 18 years of age and legally competent to take an oath of allegiance to the U.S.; and

7. The LPR expresses allegiance to the U.S. Government.

The law does provide certain exceptions from these requirements. To get more information in the area of Naturalization, please contact my office.

For further information, send your query to Aparna Davé.