Countries such as Mexico, India and the Philippines may have longer waiting times since the demand for immigrant visas are higher than in other countries.  In comparing the wait times noted from a little over a year ago in the last post, unfortunately, not much progress has been made. In many cases, although a year has passed, advances in the wait times have only moved forward by a couple of months.

This is the first part in a three-part series.

Non-Immigrant Visas – The H-1B Skilled Worker Option

An H-1B visa is a nonimmigrant visa which allows U.S. employers to employ highly skilled temporary workers. H-1B workers are admitted for an initial period of three years, which may be extended for an additional three years. In some cases an extension beyond the six-year limit is allowed.

Basic Requirements

1) The position must be a “specialty occupation”

• An occupation that requires highly skilled specialized knowledge; and

• The position normally requires at least a bachelor’s degree or higher (or its equivalent) in the specialty

2) The potential H-1B employee must specifically meet the requirements of the occupation

• The employee’s degree must be related to the occupation;

• Related experience may be used in place of a degree (3 years of experience equals 1 year of study);

• If the occupation requires a license or professional credentials, such as a doctor, certified public accountant, lawyer etc.) you must already possess the license or credential prior to the employer applying for the H-1B;

3) The employer must have the capability of paying, and must actually pay the prevailing wage (what U.S. workers are paid) and follow the posting requirements.

Procedure

Assuming you meet the requirements above, the potential employer files the Petition for Alien Worker on your behalf. It is highly recommended that the employer files premium processing – which for $1000.00 will give you and your potential employer a response within two weeks. Last year (for fiscal year 2008), the H-1B cap of 65,000 was reached in one (1) day and the H-1B cap of 20,000 for those with master’s degrees or higher was reached in about one (1) month. Some employers such as university, or nonprofit or government research organizations are exempt from this cap.

Obtaining an H-1B is highly competitive and can be a complex process. Due to the scarcity of H-1B numbers available, it is extremely important that the petition is done properly to avoid delays and denials and to avoid violating the Department of Labor’s terms of H-1B employment.

H-1Bs typically require the student to find a company willing to file an H-1B petition, which may not be an easy task. Companies unfamiliar with the process may be reluctant to go through the process. While not common, it is possible for an entrepreneurial student to form his/her own company which can then sponsor the student’s own H-1B. All typical H-1B requirements must be met, but note that a “self-petition” will be carefully scrutinized. This also may not be a practical solution for a student who may not have sufficient funds to open his/her own company. For more information on H-1B for Entrepreneurs, click here.

Later this week, I will discuss other nonimmigrant visa options such as TN visas, L-1 Intracompany Transferee visas, O visas and E Investor visas, and other immigrant visa (green card) options.

The U.S. State Department has announced an increase in the application fees for a U.S. non-immigrant visa. Effective January 1, 2008, fees will increase from $100 to $131. The increase is related to the cost of new security measures. The full text of the State Department’s release is provided below:

Application Fees for Non-Immigrant Visas to Increase On January 1, 2008

Effective January 1, 2008, the application fee for a U.S. non-immigrant visa will increase from $100 to $131. This increase allows the Department to recover the costs of security and other enhancements to the non-immigrant visa application process. This increase applies both to non-immigrant visas issued on machine-readable foils in passports and to border crossing cards issued to certain applicants in Mexico.

Applicants who paid the prior $100 application fee before January 1 will be processed only if they are scheduled and appear for a visa interview on or before January 31. Applicants who paid the prior $100 application fee and appear for visa interviews after January 31, 2008 must pay the difference — $31 — before they will be interviewed.

The Department is required by law to attempt to recover the cost of processing non-immigrant visas through the collection of the Machine-Readable Visa application fee. Because of new security-related costs, new information technology systems, and inflation, the $100 Machine-Readable Visa fee is lower than the actual cost of processing non-immigrant visas. In fact, the $100 fee was already lower than the cost of processing non-immigrant visas when the fee was reviewed as a part of the cost of service study in 2004. The Department has been absorbing the additional cost. We are now collecting 10 fingerprints from each applicant, and the cost charged by the FBI to review those fingerprints no longer allows us to do this. The application fee has increased twice since September 11, 2001, the last time in 2002.

The answer depends on whether you are a permanent resident (green card holder) or a U.S. Citizen. U.S. Citizens can sponsor additional family members that green card holders cannot sponsor. Additionally, U.S. Citizens can petition for a fiance/fiancee to come to the U.S. to be married, while a green card holder is not given the same privilege. The person filing the petition is called the Petitioner. The person you are filing for is called the Beneficiary.

What is the difference between an Immediate Relative and Preference Relative?

An immediate relative has an immigrant visa (green card) immediately available to them. An immediate relative does not have to wait for an immigrant visa number to be available. Once a visa petition is filed for an immediate relative and the petition is approved by USCIS, the visa will be immediately available. The wait involved for an immediate relative is due to the green card processing time. In contrast, a preference relative does not have the benefit of an immediately available immigrant visa number. A preference relative must wait for a visa number to become available which can be several years, even more than a decade in some circumstances. The preference categories and current average waiting periods are outlined below:

The wait times are determined by checking current priority dates. The U.S. Department of State posts the priority dates, monthly in a chart called the Visa Bulletin. The posted wait times can change from month to month. Countries such as Mexico, India and the Philippines have longer waiting times since the demand for immigrant visas are higher than in other countries.

Make sure you also read the February 2009 update on this post, it has information from the State Department Visa Bulletin.

Some permanent residents have held their green cards for decades and for various reasons have not applied for citizenship through the process known as naturalization. One client had been wavering back and forth for about 30 years as to whether or not he should apply. When he came to meet me for his immigration consultation he brought in the various versions of the forms that changed over the decades and showed me a history of the fee increases over time. He had finally felt it was time to become a citizen after seeing how the forms had only gotten longer and the fees higher. Our office prepared his application and he is now happily a U.S. citizen.

Why do people who are eligible for citizenship, not apply?

Frequent responses include: 1) I won’t be able to own or inherit land in my home country; 2) I can’t speak English very well and I’m afraid I won’t be able to pass the citizenship exam.

These concerns though valid, aren’t necessarily a barrier. Although I can’t speak to the laws of another country, some countries have changed their laws regarding “dual citizenship”. Secondly, fear of the exam should not keep a person from applying. There are free guides that one can study to prepare for the exam. There are also waivers available for those who have a medical disability, or for those who are aged 50 and older who meet certain residency requirements. Some of these waivers could potentially excuse you from taking the English test. In some cases you may be able to take the civics portion of the exam in your native language.

Who is Eligible to Apply for Citizenship?

To be eligible to apply for citizenship, generally you must have held your green card for three years if you obtained your green card through marriage to a U.S. Citizen, or for five years if you obtained your green card through another method such as employment. Additionally, you should not have spent more than 6 months outside the U.S. for the last three years, or five years, whichever is applicable.

Assuming you are eligible, what are the benefits of U.S. citizenship?

Right to Vote

The right to vote is an important privilege that comes with citizenship. It gives you the right to participate in our government and a voice regarding the laws that are passed.

Right to Apply for Family Members to Join You in the U.S.

A green card holder can only petition for a spouse and unmarried children. A citizen however may also apply for his/her parents, married children, brothers, sisters and fiancés. Additionally, the spouse, parents and minor, unmarried children of a citizen are considered immediate relatives. There is no limit to the number of visas issued each year for immediate relatives and therefore the wait time is potentially much less for the relatives of U.S. citizens versus green card holders. For example the current approximate wait for a green card holder to sponsor his/her spouse is approximately 4 years. A U.S. citizen on the other hand, does not have to wait for visa numbers to be available and is only subject to current processing times which are much shorter.

To be Eligible for certain State and Federal Jobs

To be Eligible for Certain Public Benefits

To Enjoy Less Restrictions on Travel and Easier Re-entry

A U.S. citizen no longer needs to worry about absences from the U.S. of greater than six months. A U.S. citizen could potentially live outside the U.S. and not have to be concerned about being allowed to re-enter the U.S. even after long absences.

            To Save on Costs of Renewing Green Card

New laws require green card holders to renew their cards every 10 years. The fees have increased and may continue to do so in the years to come.

      A Criminal Record Effects Non-Citizens Very Differently from Citizens

      A green card holder who commits a crime may also be subject to deportation or removal from the U.S., however, U.S. Citizens are not subject to deportation.

      To Protect Yourself from changes in the law regarding non-citizens

      New laws can be passed that adversely affect green card holders and have a                greater impact than they would on citizens.

If you have any questions regarding this post or the naturalization
process, feel free to contact me.

The Offer and Acceptance

Assuming that you are working with a real estate agent or realtor, after you find a property that you like, your agent or realtor can help you write up an offer on the house or condo. Typically a buyer provides $1000.00 in earnest money to accompany the offer. An important point to remember is if you make an offer and it is accepted by the seller, you now have a binding contract, so make sure that you are actually willing to buy the property before making an offer. If you change your mind later and want to terminate the contract, you can only do so if the terms of the contract allow it, and by following the procedures that the contract provides for termination. Typically it’s best to consult a lawyer if you are thinking of terminating the contract.

Attorney Modification and Home Inspection

Typically a contract will contain a provision allowing your attorney to review the contract and make suggestions or changes to the contract by a certain deadline, usually five business days after the seller has accepted the contract. During that time, you can review the contract with your attorney and he/she can let you know of any important issues. If you do not provide the contract to the attorney before the deadline has passed, your attorney will not be able to make any changes. Typically before the deadline passes, a buyer may terminate the contract if a buyer changes his/her mind, but once again, it has to be terminated properly.

One important note regarding new construction contracts. In some cases, a buyer does not bring his/her contract to an attorney until after the attorney review deadline has passed. Typically this happens when the buyer has gone straight to the developer and signed a contract without being aware of the attorney review period. A developer may or may not allow an attorney to modify the contract, after the deadline has passed, and in some limited cases, a buyer may unknowingly waive the attorney review period. If the review period has passed, the developer is normally acting within its rights to not allow any changes. New construction contracts should particularly be reviewed by an attorney for several reasons: 1) Buying new construction often means the building does not exist. If a property is not built yet, there are more “unknowns” involved; 2) Construction, labor and permitting problems, may cause a significant delay in the building process and may greatly delay closing, which can have an adverse effect on the timing of the sale of your current property, or effect your career or family plans; 3) Tax credits need to be reviewed to make sure that buyers will be properly compensated for unbilled or undivided taxes.

For existing properties, the attorney modification period normally runs concurrently with a home inspection period. I always recommend that a buyer hire a home inspector. While some repairs and problems may be easily spotted, a home inspector has certain expertise and experience to know for example, whether electrical wiring complies with local codes or whether a roof has been surfaced properly. It is better to know before you buy a property what repairs may need to be done. The price you contracted for may not be as good if major repairs are needed. In some cases, you may ask the seller to repair the defective items, or give you a credit for the cost of the repairs.

Mortgage Contingency

Unless you are paying cash for a property, you will need to make sure you qualify for a loan. Normally, 30 to 45 days from acceptance of the contract is the time frame given to buyers to find financing. When you have a signed contract, you should provide it along with your tax returns, bank statements and other financial documents to a mortgage broker or bank who will evaluate your credit history along with your loan application and let you know the interest rate and other loan options.

Final Walkthrough

It is a good idea to take a final walkthrough the property to make sure that no changes have occurred or other repairs have arisen. You want to make sure that appliances, furnace and air conditioning are still in working order. The walkthrough is not as in-depth as the initial inspection, but is still a good idea.

Closing

The closing location and time are coordinated between the buyer’s and seller’s attorneys which if all goes according to plan, occurs on the date written in the contract. The buyer must also have his or her loan ready to fund. The closing typically takes place at a title company. The title company acts as title insurer and as escrowee. As title insurer, the title company conducts a search of the property to make sure that there are no liens on the property such as unpaid taxes or boundary issues. As escrowee, the title company also takes in all funds from the closing such as the lender’s funds and the buyer’s funds. The title company closer makes sure that all lender requirements are met and that both the buyer and seller have provided all documentation and funds to complete the transaction. The buyer’s attorney reviews the loan documents, deed and title with the buyer. If everyone has met their obligations, the closer releases the funds to the appropriate parties and the closing is completed.

The only thing left is to move in (and of course pay your mortgage and property taxes on time).

Info from USCIS.gov