WE OFFER REPRESENTATION WITH RESPECT TO:

• Asylum
• Consular Processing
• Nacara
• TPS
• Work Permits
• Investment Visas
• Student Visas
• Family-Sponsored Immigration
• Fiancée And Marriage-Based Visas
• Labor Certification
• Employment Visas
• Professional Visa
• Citizenship & Naturalization
• Representation In Deportation Proceedings
• Appeals

FREQUENTLY ASKED QUESTIONS

1. HOW DOES AN INDIVIDUAL OBTAIN A TEMPORARY VISA TO ENTER THE UNITED STATES?
2. WHAT ARE THE QUALIFICATIONS FOR EMPLOYMENT-BASED PRIORITY WORKERS FOR GREEN CARDS?
3. WHAT IS A NATIONAL INTEREST WAIVER (NIW)?
4. CAN AN INDIVIDUAL OBTAIN PERMANENT RESIDENCE THROUGH MARRIAGE TO A U.S. CITIZEN?
5. CAN AN INDIVIDUAL BECOME A PERMANENT RESIDENT THROUGH RELATIVES?
6. CAN AN INDIVIDUAL BECOME A CITIZEN OF THE U.S.?
7. WHAT ARE THE DIFFERENT CATEGORIES FOR TEMPORARY WORK VISAS?
8. WHO IS ELIGIBLE FOR H1B STATUS AND FOR HOW LONG?
9. CAN AN INDIVIDUAL OBTAIN PERMANENT RESIDENCE THROUGH INVESTMENT?

HOW DOES AN INDIVIDUAL OBTAIN A TEMPORARY VISA TO ENTER THE UNITED STATES?

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.  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.

WHAT ARE THE DIFFERENT CATEGORIES FOR TEMPORARY WORK VISAS?

• Specialty Occupations (H1B)
  

  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.

  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.

• Exchange Visitors (J-1)
  

  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.

• Treaty Traders (E-1) and Treaty Investors (E-2)
  

  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.
  Countries with Trade Treaties and Those with Investor Treaties: 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.

• Specialty Occupation Treaty Categories (E-3, Australia, and H1 B1, Chile & Singapore)
  

  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.

  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. 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.

  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.

• Intra-Company Transferees (L-1)
  

  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.

• Trade NAFTA (TN, Canada and Mexico)
  

  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.

  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.

• Temporary / Seasonal Workers (H2B)
  

  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.

  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.

  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.

WHO IS ELIGIBLE FOR H1B STATUS AND FOR HOW LONG?

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.

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.

This process is for persons immigrating under the following Employment-Based categories:

• Second Preference  Members of the professions holding advanced degrees who do not meet the national interest waiver criteria

• Third Preference  Professional workers (those with bachelors’ 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.

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:

the bargaining representative of the employees in the occupational classification and area for whichthe aliens are sought,

OR

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.

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.

WHAT ARE THE QUALIFICATIONS FOR EMPLOYMENT-BASED PRIORITY WORKERS FOR GREEN CARDS?

The First Preference Category (EB1) or priority workers includes:

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.

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.

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.]

WHAT IS A NATIONAL INTEREST WAIVER (NIW)?

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.

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.

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.

CAN AN INDIVIDUAL OBTAIN PERMANENT RESIDENCE THROUGH INVESTMENT?

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.”

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.

CAN AN INDIVIDUAL OBTAIN PERMANENT RESIDENCE THROUGH MARRIAGE TO A U.S. CITIZEN?

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.

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.

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.

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.

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.

CAN AN INDIVIDUAL BECOME A PERMANENT RESIDENT THROUGH RELATIVES?

There are five categories under which an individual can obtain permanent residency through relatives.

They are:

a. Immediate Relative  spouses, parents, and children (under 21) of U.S. citizens (no quota or limit)

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)

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).

d. Third Preference  married sons and daughters of U.S. citizens (23,400 per year, plus unused visas from the First and Second Preferences)

e. Fourth Preference  brothers and sisters of U.S. citizens (65,000 per year, plus unused visas from the First, Second, and Third Preferences)

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.

CAN AN INDIVIDUAL BECOME A CITIZEN OF THE U.S.?

There are four ways to become a U.S. citizen.

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.

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.

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.

d. By naturalization application  Individuals who satisfy the following criteria:

• Must obtain permanent residence before applying for naturalization unless the person served in the U.S. armed forces during a period of hostilities.
• Must be 18 years or older.
• 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.
• Must have resided for three months in the state where the petition was filed.
• 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.
• 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
• 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.
• 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.)
• Loyalty to the U.S. as opposed to home country.
• 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.
• A knowledge of the fundamentals of U.S. government and history. Again, disability exemptions may be available in certain cases.