The topic of who a green card holder or a U.S. Citizen may sponsor seems to be a very popular one. Thus far, it has drawn the most comments and questions to date. I wrote the original post in December 2007 to help folks identify which relatives they could sponsor.  That information has not changed, so make sure you read that post. What does change from time to time are the current wait times. Current wait times or “priority dates” are updated every month by the State Department in a document known as the Visa Bulletin. Times can advance, but they can also go backwards which can be very frustrating for those who are awaiting green cards and the family members who have sponsored them.  To illustrate how far (or in some cases how little) the times have advanced, I have outlined the preference categories and current average waiting periods are below.  Please note these are approximated.

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.

Since I launched my website almost a year ago, I frequently get questions that come to me via my “Ask Vida” button.  I personally answer these questions from visitors to my website and thought it would be helpful to post some commonly asked questions here and share the answers with everyone.

One of the most common questions is, “How do I get a work visa?”  Work-based visas normally require the sponsorship of an employer.  Therefore, you generally have know the company you will be working for before you can obtain a work visa because they have to submit the application letting USCIS know that they wish to hire you.

Oftentimes, the person asking the question also asks, “Can you get me a visa?”  As an immigration attorney, I do work with a number of companies to help them bring foreign workers to the U.S., however, we do not do the actual matching of employer to employee.  There are occasions where a company may not have an immigration attorney and the company asks the potential employee to find an immigration attorney to work on the petition, but they have typically already found each other before we are retained to help in the immigration process. So, we can either initially be brought in to the case by the employee or the employer.

Note though that there are certain situations where a person may not have to find an employer.  In some cases you may “self-sponsor”.  An E-1 Treaty Trader or E-2 Treaty Investor visa can be considered to be a self-sponsored visa as the person may have started a company or is planning to start a company involved in trade to the U.S. or opening a business within the U.S.  A wide variety of businesses may qualify for the E-2 visa for example: restaurants, dental practices, technology consulting, and various types of retail businesses.

Another self-sponsoring situation may arise for an L-1 Intracompany Transferee.  An L-1 visa allows a foreign company to transfer or send a manager or executive to the U.S. in order to establish a U.S. office.  Therefore the CEO or owner of a foreign company may use this type of visa to “self-sponsor” himself or herself to the U.S.

Other self-sponsored possibilities fall in the immigrant visa category more commonly known as green cards.  One option is the EB-1 Priority worker visa category.  This category is for a person with “extraordinary ability”.  Persons qualifying for this type of green card typically have received significant national or international recognition and awards and have often been published in their fields.

Another self-sponsored green card is the EB-5 Immigrant investor category.  An EB-5 green card typically requires a $1 million dollar investment.

This is intended to be a short overview of the possibilities and is not an exclusive list.  More info about each of the categories can be found by clicking on the links.  Also check out our “Quick Link to Immigration” page for a list of various types of visas.

President Bush announced this past week that nationals from the Czech Republic, Estonia, Hungary, Latvia, the Republic of Korea, Lithuania and the Slovak Republic will be added to the list of Visa Waiver eligible countries.  The Visa Waiver Program allows visitors from approved countries to travel to the U.S. for business or pleasure for 90 days or less without having to obtain a visa.  Twenty-seven countries currently on the list are: Andorra, Australia, Austria, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, the Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland and the United Kingdom.  The State Department has noted that it will take a bit of time for the new countries to be initiated into the program, but they expect visitors from the newly added countries to be able to take advantage of the visa waiver program sometime in mid-November.  A machine-readable passport and registration online through the Electronic System for Travel Authorization (ESTA) will be required to participate in the Visa Waiver Program.

As expected, fiscal year 2009’s H-1B cap was quickly reached. Read USCIS’s April 8, 2008, announcement below.

USCIS Reaches FY 2009 H-1B Cap

WASHINGTON – U.S. Citizenship and Immigration Services (USCIS) announced today that it has received enough H-1B petitions to meet the congressionally mandated cap for fiscal year 2009. USCIS has also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the “advanced degree” exemption. Before running the random selection process, USCIS will complete initial data entry for all filings received during the filing period ending on April 7, 2008. Due to the high number of petitions, USCIS is not yet able to announce the precise day on which it will conduct the random selection process.

USCIS will carry out the computer-generated random selection process for all cap-subject petitions received. USCIS will select the number of petitions needed to meet the caps of 65,000 for the general category and 20,000 under the “advanced degree” exemption limit. USCIS will reject, and return filing fees for all cap-subject petitions not randomly selected, unless found to be a duplicate. USCIS will handle duplicate filings in accordance with the interim final rule published on March 24, 2008 in the Federal Register.

The agency will conduct the selection process for “advanced degree” exemption petitions first. All “advanced degree” petitions not selected will be part of the random selection process for the 65,000 limit.

This is Part II in a three-part series on options for F-1 students after graduation and OPT. Part I focused on H-1B visas. Part II focuses on other non-immigrant visa options including L-1 Intra-Company Transferee visas and O-1 Persons with Extraordinary Ability visas.

Since the L-1 visa requires that the employee must have been employed by the foreign employer for at least one year out of the last three years, it may not be likely for a student to have had this prior experience, but it is possible. Requirements for the L-1 visa follow:

Non-Immigrant Visas: L-1- Intra-Company Transferee

An L-1 visa is suitable for a foreign company that wishes to transfer an
executive or manager to the U.S. to supervise an office in the U.S. An L-1
visa can also be used to set up a new subsidiary, affiliate or branch office in
the U.S. An L-1 visa can also be used to bring specialized knowledge employees
of foreign companies that have related U.S. branches, subsidiaries, affiliates
or joint venture partners.

Eligibility

1) A qualifying relationship must exist between the U.S. company and the
foreign company abroad.

2) Both the foreign company and the U.S. company must continue to remain
open and active for the entire duration of the L-1 employment in the U.S. If
the foreign company ceases to exist or ceases business activities, the L-1 visa
will result in loss of status.

3) The transferee, must have been employed overseas by the foreign company
for at least one year within the last three years and transferee will be
performing duties in the U.S. for the same or related company.

4) The transferee must be a manager, executive or a specialized knowledge
professional.

5) Transferees in Managerial and Executive positions are given L-1A visas.
They may be admitted initially for 3 years if there is an existing company or 1
year if opening a new office. Extensions are granted in 2 year increments for
a maximum of 7 years.

6) Transferees in specialty positions are given L-1B visas. They may be
admitted initially for 3 years if there is an existing company or 1 year if
coming to a newly established company. Extensions are granted in 2 year
increments for a maximum of 5 years.

7) Spouse and children of L-1 visa holders can accompany the principal visa
holder on L-2 visas. L-2 spouses can apply for employment authorization (work
permits).

Non-Immigrant Visa: O Visas - Persons with Extraordinary Ability

O Visas

The O visa is an option for individuals with extraordinary ability in the sciences, arts, education, business and athletics, or extraordinary achievement in motion picture and television production, and essential support personnel. O visas are temporary work visas granted for a specific event such as a tour, lecture series or project or for a temporary work contract.

O Visa Requirements

Supporting documentation for an O visa should include:

1) A written advisory opinion from a peer group (including labor organizations) or a person designated by the group with expertise in the alien’s area of ability;

2) A copy of any written contract between the employer and the alien or a summary of the terms of the oral agreement under which the alien will be employed;

3) Evidence that the alien has received a major, internationally-recognized award, such as a Nobel Prize, or evidence of at least three of the following:

a) Receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor;

b) Membership in associations in the field for which classification is sought which require outstanding achievements, as judged by recognized international experts;

c) Published material in professional or major trade publications, newspapers or other major media about the alien and his work in the field for which classification is sought;

d) Original scientific, scholarly, or business-related contributions of major significance in the field;

e) Authorship of scholarly articles in professional journals or other major media in the field for which classification is sought;

f) A high salary or other remuneration for services as evidenced by contracts or other reliable evidence;

g) Participation on a panel, or individually, as a judge of the work of others in the same or in a field of specialization allied to that field for which classification is sought;

h) Employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation.

If the above standards do not readily apply to the alien’s occupation, the petitioner may submit comparable evidence in order to establish the alien’s eligibility.

Assistants of O Visa Holders

Only individuals, not groups qualify for the O-1 visa category. However, for athletes and members of the entertainment industry, it is possible for an assistant who is an integral part of the performance, who has skills and experience which are not available in the U.S, to apply for a O-2 visa to accompany the O-1 visa holder.

Who may apply for the visa?

The employer must file a petition on behalf of the individual in the U.S. Once the petition is approved, the individual may apply for the O visa at a U.S. consulate or embassy.

Spouses, Children & Partners

Spouses and/or children under the age of 21 who wish to accompany or join the principal visa holder in the U.S. for the duration of his/her stay require derivative O-3 visas. To qualify for a dependent visa, applicants must prove their relationship to the principal applicant, i.e. spouses: original marriage certificate, children: original birth certificate. Spouses and/or children who do not intend to reside in the U.S. with the principal visa holder, but visit for vacations only, may be eligible to apply for a B-2 visitor visa. The holder of an O-3 visa may not work. If he or she wishes to work, the O-3 visa holder will need to apply for an appropriate work visa. An O-3 visa holder may however attend school or college.

Applying for a green card from an O visa

Dual intent is allowed for those who are on O-1 visas. An O-1 visa holder may apply for permanent residency or a “green card” without creating a problem with his/her current O-1 status. The requirements necessary for an O-1 visa are similar to the requirements for an EB-1A green card – Aliens of Extraordinary Ability. The benefit is that a Labor Certification would not be required for this type of green card application.

The next part of this series on “Options for F-1 Student Visa Holders After Graduation” will discuss E investor visa options.

Congratulations! You’ve finished your studies and you’ve finished your optional practical training period (OPT). What now?

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.

In an employment-based permanent residence (green card) process, both employer and employee must qualify under U.S. immigration laws. On the one hand, the U.S. employer needs to demonstrate that there are no U.S. Citizens or permanent residents in the state who are ready, willing and able to do the work that the foreign employee is being hired to do at the prevailing wage. On the part of the employee, he/she must demonstrate that he/she is qualified for the position in terms of either academic, work experience or a combination of both.

There are 3 steps to obtaining a Green Card (Permanent Residence) through employer sponsorship.

Step 1: PERM Labor Certification & Recruitment

Step 2: I-140 Immigrant Petition for Alien Worker

Step 3: I-485 Adjustment of Status Application

Step 1 - PERM Labor Certification:

• PERM Labor Certification first involves advertising the position to show that there are no qualified U.S. workers that want the position.
• The attorney prepares a prevailing wage request based on information obtained from the company regarding the qualifications for the position and the salary offered. The attorney prepares an advertisement for the position and makes a prevailing wage request to the State Workforce Agency (SWA).
• Once the prevailing wage is issued by the SWA, the attorney provides the required guidelines on where and how often the ad must be run. The guidelines for this process are very specific and have to be tracked during the recruitment period.
• The advertising involves 2 Sunday ads in the major newspaper where the job is located, and a 30-day posting with the State Workforce Agency. Additionally other recruitment must be conducted and documented such as participation in job fairs, campus placement offices, employer’s website, placement agencies, local papers etc.
• After the required 30 day recruitment period is completed, the PERM petition is filed with the Department of Labor (DOL).
• It takes the DOL an estimated 1 to 6 months to provide the PERM labor certification – though times may vary from case to case and may also vary depending on the DOL’s caseload.

Step 2 - I-140 Immigrant Petition for Alien Worker:
• Once the PERM Labor Certification is approved, the Alien Worker Petition is filed.
• The I-140 Petition is submitted to the USCIS with documentation showing the employee’s experience and qualifications such as diploma, resume, transcript.
• The employer provides documentation such as brochures and information on the work and history of the company as well as the company’s last three years’ tax returns. Tax returns are required to show that the employer has the ability to pay the salary offered to the employee.
• The employer drafts a letter about the background of the company as well as detailing the specific position and how the particular employee meets the required experience for the position.
• Processing time is approximately 9 months, but may vary from case to case and on the caseload currently being processed by USCIS.

Step 3 - I-485 Adjustment of Status:
• After the Alien Worker Petition is approved, the employee is eligible to file for Adjustment of Status. The adjustment of status process is the application for the actual green card.
• The adjustment of status application cannot be filed until the employer’s priority date is current. The Department of State issues these dates every month and are subject to change each month. Visa priority dates may also retrogress, meaning visa numbers may become backlogged and therefore unavailable. Whether or not a visa number is available depends on the type of green card petition filed and can vary depending on the classification of the employee.
• An employee in this stage of the process may concurrently apply for a temporary work permit while he/she awaits adjudication of the green card. Typically a work permit is issued within 90 days after the application is received. The work permit is issued in one year increments and can be renewed each year until the green card is approved.
• Current I-485 processing time is approximately 9 months.

An immigration attorney can assist companies and potential employees in determining the likelihood of success of a petition and the best method to employ in order to increase the chances of approval at all stages of the multi-step process.

For more info on green cards through employment click here.

For info on temporary work visas, work in the U.S. click here.

Overview

When you enter the U.S. on a nonimmigrant visa, such as on a visitor (B), student (F1), temporary worker visa (H-1B; L; E etc.), you are allowed to be present in the U.S. for a specific purpose and for a limited time period.

The time period allowed will typically be stamped by a U.S. immigration inspector after the inspector has examined your passport and visa. The inspector will provide you with a Form I-94 (Arrival/Departure Record) which is normally a white card stapled inside your passport. This record should indicate when you must leave the U.S. When you leave the U.S. you will need to turn in your Form I-94.

It is important not to confuse the validity dates of the underlying visa itself with the date provided on your I-94. For example, having a ten-year tourist visa in your passport does not mean that you can stay in the U.S. for ten (10) years upon a single entry. A typical period of stay provided on a tourist visa is usually six (6) months. After six (6) months, to comply with U.S. immigration laws, you will either need to request an extension of your stay, change status or depart the U.S.

Some nonimmigrants such as F-1 students and diplomats have the abbreviation “D/S” written on their I-94 cards. D/S means “duration of status”, which indicates that person may remain in the U.S. as long as he/she continues a course of studies or continues with required employment.

The Importance of Staying in Status

If you are in the U.S. and you wish to stay longer, you must apply for an extension BEFORE your authorized stay expires. It is extremely important to keep valid status in the U.S. if you wish to be eligible for further immigration benefits such as an extension of your current stay, or changing status to another status. Failure to apply for an extension can have serious consequences and may subject you to removal (deportation).

Eligibility
You may apply to extend your stay if you were lawfully admitted into the United States with a nonimmigrant visa, your nonimmigrant visa status remains valid, and you have not committed any crimes that would make you ineligible. You must apply to extend your status if you wish to stay longer than the date indicated in the lower right-hand corner of your Form I-94 (Arrival-Departure Record). As mentioned earlier, you must submit the application for an extension of stay BEFORE your current authorized stay expires. You must also keep your passport valid for your entire stay in the United States.

You may not apply to extend your stay if you were admitted to the United States in the following visa categories:

• (VWP) - Visa Waiver Program
• D - As a crewman
• C - As an alien in transit or in transit without a visa
• K - As a fiancé of a U.S. citizen or dependent of a fiancé
• S - As an informant (and accompanying family) on terrorism or organized crime

For the following categories of nonimmigrants, your employer will need to file an extension for you:

E - International Traders and Investors
H - Temporary Workers
L - Intracompany Transferees
O - Aliens of Extraordinary Ability
P - Entertainers and Athletes
Q - Participants in International Exchange Programs
R - Religious Workers
TN - Canadians and Mexicans Under NAFTA

If you are in the following nonimmigrant categories, you may file an Application to Extend/Change Nonimmigrant Status and submit any required supporting documents:

A - Diplomatic and other government officials, and their families and employees.
B - Temporary visitors for business or pleasure.
F - Academic Students and their families
G - Representatives to international organizations and their families and employees.
I - Representatives of foreign media and their families
J - Exchange Visitors and their families
M - Vocational Students and their families
N - Parents and children of the people who have been granted special immigrant status because their parents were employed by an international organization in the United States.

Extension of Stay for Spouse and Children

If you are here under a status that requires your employer to file for your extension, then your spouse and child file an Application to Extend/Change Nonimmigrant Status and submit any required supporting documents to extend their stay. It is best to submit both your extension and your family’s extension forms at the same time.

If you are eligible to file for your own extension, you may include your spouse and any unmarried children under the age of 21 in your application if you are all in the same nonimmigrant category. You may also include your spouse or children in your application if they were given derivative nonimmigrant status. This means that your spouse and children were given nonimmigrant visas based on your nonimmigrant status. For instance, if a student is given an F-1 “Academic Student” visa, then the spouse and child are given F-2 “Spouse and Child of an Academic Student” visas.

When to Apply

USCIS recommends that you apply to extend your stay at least 45 days before your authorized stay expires, but the USCIS Service Center must receive your application by the day your authorized stay expires. It is not recommended to wait until the last minute to prepare an application. An attorney who is preparing a filing for you will also need some time to properly advise and prepare an extension request.

Filing Late (Filing after stay has expired)
If you are late filing for an extension and your authorized stay has already expired, you must prove that:

• The delay was due to extraordinary circumstances beyond your control;
• The length of the delay was reasonable;
• You have not done anything else to violate your nonimmigrant status (such as work without USCIS approval);
• You are still a nonimmigrant (This means you are not trying to become a permanent resident of the United States. There are some exceptions.); and
• You are not in formal proceedings to remove (deport) you from the country.

It is not easy to have to provide evidence of the above therefore it is obviously best not to be put in this position in the first place. It is advisable to consult with an attorney if you are in this position.

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.

Earlier this year, our office sent an advisory to clients, friends and community members on our email list to inform them of a scheduled increase in immigration filing fees. We encouraged anyone thinking of filing for naturalization (citizenship) in particular to file if they were eligible. We submitted many petitions and applications for our clients just before the July 30, 2007, deadline.

Because of the increase in applications, U.S. Citizenship and Immigration Services (USCIS) released an advisory stating that the tremendous increase in applications has created a backlog in their processing of fees and issuing of receipt notices.

To give perspective on the volume of cases received, USCIS reported receiving nearly 2.5 million applications and petitions, more than double the 1.2 million received in the same period last year. Of the 2.5 million applications, 1.4 million applications were for those seeking to be U.S. citizens.

Those waiting for applications to be processed will very likely experience a significant delay. USCIS is stating that naturalization applications filed after June 1, 2007, may take approximately 16 - 18 months to process. Prior to June, naturalization applications were taking only 6 to 8 months to process on average.

This backlog will need to be taken into account when applying for various “time sensitive” applications, in particular, advance parole, employment authorization (work permit) renewals and the like.

We’ll keep you posted with any updates.