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 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.

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.

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 visa lottery is formally known as the Diversity Immigrant Visa Program. The U.S. government makes available up to a maximum of 55,000 diversity green cards annually. 5,000 of these visas are reserved for a visa program for certain Central American nationals, leaving 50,000 visas available to be drawn at random from a pool of applicants who meet specific criteria.

Thailand is one of the countries eligible for the program. As long as a country has not sent more than 50,000 immigrants to the U.S. in the last five years, that country’s nationals are eligible. For the Diversity Visa program in 2007, more than 5.5 million applications were received. Of that number, 82,000 applicants were notified and advanced forward in the green card process. Because not all applicants move forward in the process for various reasons, more than 50,000 applicants are selected to ensure that all visa numbers are used. Once 50,000 visas are used, the program ends. The 2007 numbers show that 81 Thai nationals were invited to apply for green cards.

In most cases your country of birth is what is taken into account, but there are some exceptions. You may be able to claim your spouse’s country of birth if you meet certain further requirements even if you on your own would not be eligible. You may also be able to claim the country of birth of one of your parents as long as that parent was not a resident of the country in which you were born.

Other Qualifications

The applicant must have:

1) A high school education or its equivalent; OR

2) Two years work experience in a job requiring at least two years of training or experience to perform.

Deadlines & Other Important Information

1) You may only submit your application electronically;

2) There is NO FEE to apply for the diversity visa (but you will have to pay the normal green card fees and diversity visa processing fee if you are selected);

3) Winners are notified by mail by the Department of State (not by e-mail);

4) Simple mistakes may disqualify you for the green card even if you are selected in the lottery. You would not want to be selected, only to find out at the green card interview that you are ineligible because of a mistake, especially after you have paid the filing fee for the green card which is non-refundable. Make sure to read all directions carefully and answer the questions accurately;

5) Even if you are selected in the lottery, in order to qualify for a green card, you must meet the normal eligibility requirements for a green card. So, if you would be barred from entering the U.S. because of a previous overstay, or you have been out of status for more than 180 days, or if you fail to meet standards for good moral character such as a having a criminal history, you may not be issued a green card even if your name is drawn in the lottery.

Fraud Warning

As stated, there is no fee to download the diversity visa application and submit your application electronically. Be careful of non-official websites that look like the official U.S. Citizenship and Immigration Services (USCIS) website, as there have been instances of fraud.

For detailed info on the visa lottery at the Department of State:
Official Visa Lottery Info

If you need any assistance or have any questions about this type of visa, please contact us.

Vida Gosrisirikul is a Thai American attorney born and raised in Chicago, Illinois. She has been in private practice for the last six years as a founding partner of The Law Office of Vida Gosrisirikul, PC and D’Souza & Gosrisirikul, Ltd. She serves as legal counsel to the Thai American Association of Illinois and the Illinois affiliate of the national Asian American Real Estate Association. Vida also served as President of the Asian American Bar Association of the Greater Chicago Area from 2001 to 2002. She has been a member of the Illinois Bar since 1997 and is admitted to practice before the United States District Court for the Northern District of Illinois. She is also fluent in Thai.

Find out about how to apply for the 2009 visa lottery.

The visa lottery is formally known as the Diversity Immigrant Visa Program. The U.S. government makes available up to a maximum of 55,000 diversity green cards annually. 5000 of these visas are reserved for a visa program for certain Central American nationals, leaving 50,000 visas available to be drawn at random from a pool of applicants that meet specific criteria. The main requirements are:

Country of Origin

The applicant must be from a country with low rates of immigration to the U.S. If a country has sent more than 50,000 immigrants to the U.S. over the previous five years, that country’s nationals will not be eligible. For the 2009 Diversity Visa program for example, South Korea, Philippines, Vietnam, Brazil, Canada, China (mainland born), India, and Mexico are NOT eligible. In contrast, applicants from Thailand, Japan, Burma, Laos, Malaysia, Mongolia, Singapore, Taiwan, France, Norway, Spain, Turkey ARE eligible.

In most cases the country of birth is what is taken into account, but there are some exceptions. You may be able to claim your spouse’s country of birth if you meet certain further requirements even if you on your own would not be eligible.  You may also be able to claim the country of birth of one of your parents as long as that parent was not a resident of the country in which you were born.

Education or Work Experience

The applicant must have:

1) A high school education or its equivalent; OR

2) Two years work experience in a job requiring at least two years of training or experience to perform.

Deadlines & Other Important Information

1) Your application must be submitted no later than Sunday, December 2, 2007; 12 noon Eastern Standard Time;

2) You may only submit your application electronically;

3) There is NO fee to apply for the diversity visa (but you will have to pay the normal immigrant visa fees and diversity visa processing fee if you are selected);

4) Winners are notified by mail by the Department of State;

5) Simple mistakes may disqualify you for the green card even if you are selected in the lottery. You would not want to be selected, only to find out at the green card interview that you are ineligible because of a mistake, especially after you have paid the filing fee for the green card which is non-refundable. Make sure to read all directions carefully and answer the questions accurately;

6) Even if you are selected in the lottery, in order to qualify to get a green card, you must meet the eligibility requirements for a green card. So, if you would be barred from entering the U.S. because of a previous overstay, or you have been out of status for more than 180 days, or if you fail to meet standards for good moral character such as a criminal history, you may not be issued a green card even if your name is drawn in the lottery.

Fraud Warning

As stated, there is no fee to download the diversity visa application and submit your application electronically. Beware of non-official websites that look like the official U.S. Citizenship and Immigration Services (USCIS) website as there have been instances of fraud. The official website is at: USCIS.gov

For detailed info on the visa lottery at the Department of State:
Official Visa Lottery Info

If you need any assistance or have any questions about this type of visa, please contact us.