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.

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.

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.

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.

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.