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.

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.

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.

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.

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.

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.

Info from USCIS.gov