Practice Areas

Immigration Basics

Whether you plan to come to the United States for a short visit or a permanent stay, your first step is to apply for a visa.

Many people think they can show up at a U.S. embassy or border post, describe why they'd make a good addition to U.S. society, and be welcomed in. Unfortunately, this is the exact opposite of how the U.S. immigration system works.

Instead, people who want to come to the U.S., whether temporarily or permanently, must determine whether they fit into eligibility categories for either "permanent residence" (a green card) or for a temporary stay ("nonimmigrant visa").

Then they must submit an application -- in fact, often a series of applications -- to one or more of the U.S. agencies responsible for carrying out the immigration laws. These include U.S. Citizenship and Immigration Services (USCIS), which has offices across the United States, and the U.S. Department of State (DOS), which manages consulates and embassies around the world.

What Permanent Residence (a Green Card) Is

If you want to be able to make your permanent home in the United States, you'll need what is called "permanent residence," or a "green card." Green card holders can live and work in the U.S. and travel in and out, with very few restrictions (though they can't vote, and can be deported if they abuse their status).

Family members of U.S. citizens make up the largest number of green cards issued each year. Others are issued to investors and workers who have been petitioned by U.S. employers or have special skills. Still other categories have a humanitarian basis, such as refugee or political asylum status (which can lead to a green card), for people who are fleeing persecution.

What a Temporary (Nonimmigrant) Visa Is

People who want to come to the United States for a limited time need what is called a "nonimmigrant" visa. This lets them participate in specified activities (such as studying, visiting, or working) until their visa runs out. Students and businesspeople make up the largest groups of nonimmigrant visa holders. Nonimmigrant visas are also issued for tourists, exchange visitors, and workers with some kind of specialty that is lacking in the U.S. workforce.

Exception: Visa Waiver Program

A visa is not necessary for short-term visitors from one of the Visa Waiver Program countries listed at http://travel.state.gov. You can come to the U.S. for up to 90 days for business or pleasure purposes if you're from one of these countries. You will, however, need to present a machine-readable passport. Also, beware: The ease of your entry is balanced by the ease with which you can be kicked out -- you automatically give up many rights and benefits when traveling without a visa.

To enter on a visa waiver, simply present yourself, your passport, and your ticket home to the officers you'll meet upon arrival. If you come by land through Canada or Mexico, you'll also be asked for proof of sufficient funds to pay for your stay.

Applying for Immigration Rights

After figuring out what type of visa or green card you're eligible for, you'll need to figure out how to get it. Most people (with the occasional exception of Mexicans and Canadians) must obtain a visa at a U.S. consulate before departing for the United States. If you're already in the United States legally, you may be able to apply to "adjust" your status to permanent resident, or "change" your status to another type of visa.

Where to Find the U.S. Immigration Laws

Your possibilities for a visa or green card are set out under U.S. federal law. Being "federal," the law is the same across the United States, unlike state laws, which can vary by state. If you want to read the U.S. immigration laws -- which very few people actually want to do -- they're found in Title 8 of the U.S. Code, or in the Immigration and Nationality Act (I.N.A.) In addition, information on how USCIS intends to carry out these laws is found at Title 8 of the Code of Federal Regulations (C.F.R.). The DOS regulations are at Title 22 of the C.F.R. The CFR can be searched at the Government Printing Office website.

The trouble is that even lawyers have trouble researching the U.S. immigration laws -- they're considered to be the most convoluted and easily misunderstood portions of all U.S. law. But if you have a specific reference to a section that you'd like to read for yourself, by all means look it up, then seek professional help if you need it.

Your best bet for getting any professional help with your immigration situation is to hire an experienced immigration lawyer. Ask friends or local nonprofits for referrals or go to the website of the American Immigration Lawyers Association (AILA).

Whatever you do, don't go straight to USCIS for advice. The people who staff their front desk are not all well trained, and if they give you wrong information, they take no responsibility, even if it causes your deportation or destroys your chances of immigrating. This happens!

Many of these immigration laws are interpreted in U.S. Immigration Made Easy, by Attorney Ilona Bray (Nolo), including how to obtain many different visas, including the K-1 visa for fiancés, the B-1 and B-2 business and tourist visas, the H-1B, H-2B, and H-3 visas for temporary specialty or agricultural workers, the L-1 visa for intracompany transferees, the E-1 and E-2 visas for treaty traders and investors, the F-1 and M-1 visas for students, the J-1 visa for exchange visitors, or the O, P, or R visas for temporary workers, and how to get a green card through a family member, through the Diversity Visa Lottery, or as an asylee or refugee.

The Risks of Lying to the U.S. Government

One of the worst things you can do to your chances of getting a visa or green card is to lie, either on paper or during an interview with a U.S. border or other immigration inspector. Lies can have both immediate consequences, such as not being able to enter the U.S., and long-term consequences, such as not being able to get a green card -- ever.

Who Can Be Kept Out

No matter what eligibility category you fall into -- whether you've married a U.S. citizen, received a job offer, or been accepted to a school -- the U.S. has the right to say no. And not just because there's something wrong with your application. The immigration law contains a list of things, like crimes and certain diseases, that makes someone "inadmissible." For more information, see When the U.S. Can Keep You Out.

Copyright 2008 Nolo 

AREAS OF PRACTICE 

ASYLUM

“Affirmative” Asylum

In the affirmative asylum process, individuals who are physically present in the United States, regardless of how they arrived in the U.S. and regardless of their current immigration status, may apply for asylum. They do so by submitting an application to the Asylum Office with the USCIS. Asylum-seekers must apply for asylum within one year from the date of last arrival in the United States, unless they can show changed circumstances that materially affect their eligibility or extraordinary circumstances relating to the delay in filing, and that they filed within a reasonable amount of time given those circumstances. They file an asylum application (Form I-589) by sending it to a USCIS Service Center, and are interviewed by Asylum Officers. The Immigration and Nationality Act (INA) provides in Section 208(d)(5) that the initial interview asylum applications should take place within 45 days after the date the application is filed, and a decision should be made on the asylum application within 180 days after the date the application is filed, unless there are exceptional circumstances.

Affirmative asylum applicants are free to live in the U.S. pending the completion of their asylum processing with the USCIS and, if found ineligible by the USCIS, then with an Immigration Judge. Asylum applicants referred to an Immigration Judge for such processing are usually not detained.

U.S. “Defensive” Asylum Processing with Immigration Courts (EOIR)

Immigration Judges hear asylum applications only in the context of “defensive”  asylum proceedings. Applicants request asylum as a defense against removal from the United States. Immigration Judges hear such cases in adversarial proceedings. If the applicant is not found eligible for asylum, the IJ determines whether the applicant is eligible for any other forms of relief from removal and, if not, will order the individual removed from the United States.

Aliens generally are placed into defensive asylum processing in one of two ways:

1) they are referred to an IJ by Asylum Officers who did not grant asylum to them, or

2) they are placed in removal proceedings because they:

a) are undocumented or in violation of their status when apprehended in the U.S. or

b) were caught trying to enter the U.S. without proper documentation (usually at a port-of-entry) and were found to have a credible fear of persecution or torture.

Asylum-Seekers and Expedited Removal

Most undocumented immigrants stopped by immigration officers at a U.S. port-of-entry (POE) may be subject to expedited removal. This means that, for persons other than genuine asylum seekers, refusal of admission and/or removal from the United States can be effected quickly. Any person subject to expedited removal who raises a claim for asylum - or expresses fear of removal - will be given the opportunity to explain his or her fears to an Asylum Officer.

If the individual expresses a fear of return, the individual is detained and given an interview by an Asylum Officer. The role of the Asylum Officer is as an Asylum Pre-Screening Officer (APSO) who interviews the person to determine if he or she has a credible fear of persecution or torture. This is a standard that is broader — and the burden of proof easier to meet — than the well-founded fear of persecution standard needed to obtain asylum. Those found to have a “credible fear” are referred to an Immigration Judge to hear their asylum claims. Most individuals who are found to have a credible fear are released. However, some are not released, and instead are detained while their asylum claims are pending with the Immigration Judge.

Please read here our legal analysis on Belarus Religious Persecution cases.

CITIZENSHIP AND NATURALIZATION

Naturalization is defined as the process by which eligible U.S. Permanent Residents may apply for and be granted U.S. citizenship.

Below are the seven general requirements for naturalization:

1. An applicant for naturalization must be at least 18 years old; 2. An applicant for naturalization must be a Lawful Permanent Resident for at least five years. A notable exception to this general rule may include a person who has been married to a U.S. citizen for at least three years;

3. After having been granted Lawful Permanent Residence, an applicant for naturalization must have resided continuously in the United States for at least five years;

4. Most applicants must have been physically present in the United States for at least 30 months of the five years of required continuous residence;

5. At the time of filing an application for naturalization, an applicant must have lived for at least three months in the USCIS district where the filing took place;

6. An applicant must be a person of good moral character, attached to the principles of the Constitution of the United States, and favorably disposed toward the good order and happiness of the United States; and

7. A naturalization applicant must demonstrate an understanding of the English language, including an ability to read, write, and speak words in ordinary usage in the English language. An applicant must also demonstrate a knowledge and understanding of the fundamentals of the history, and of the principles and form of government, of the United States.

If you have a “deportable”  conviction, and you apply for naturalization, not only your naturalization application can be denied, but you also can end up in removal proceedings. That means that you will have to defend yourself from deportation in Immigration Court.

Some people will be able to apply for Cancellation of Removal, which is a one-time pardon from deportation. If you committed an offense within 7 years after you were admitted to the U.S., you may be ineligible for this defense. If your conviction was for an “aggravated felony” (see below), you will be ineligible for this pardon. But if you pled guilty before April 24, 1996, and have no other offenses, then you may be eligible for a pardon under old laws.

Convictions for the following offenses may trigger initiation of deportation/removal proceedings. You cannot always tell if your conviction fits a particular category just by looking at the name of your offense, so expert advice is highly recommended.

Crimes Involving Moral Turpitude (CIMT) This category of offenses is hard to define. Examples include, but are not limited to:

• Most offences that require an intent to steal or defraud (like theft, larceny, robbery)
• Certain assault offenses
• Most sex offenses

You are deportable for a CIMT if:

• You committed the CIMT within the first 5 years after your admission to the U.S., OR;
• You committed 2 CIMTs not arising out of a single scheme at any time after admission, regardless of the potential or actual sentence.

Firearm Offenses 
 
Any firearm or destructive device offence.  
 
Drug offences 
 
Any drug offense, except 1 offence for marijuana possession of 30 grams or less. 
 
Domestic Crimes & Crimes Against Child

• Crimes of domestic violence, stalking, or child abuse, neglect or abandonment
• Certain violations of orders of protection (civil or criminal court)

Applies to convictions or violations of orders of protection on or after October 1, 1996.  
 
Aggravated felonies 
 
If you have an aggravated felony, you will have very little chance of fighting deportation. This category includes, but is not limited to:

• Drug trafficking(may include some drug possession offences)
• Crime of violence if you received a 1-year or longer sentence, even if suspended or you served little or no time
• Theft or burglary if you received a 1-year or longer sentence, even if suspended or you served little or no time
• Certain document fraud offences if you received a 1-year or longer sentence, even if suspended or you served little or no time
• Fraud, deceit, or tax evasion in which loss to the victim was more than $10,000
• Certain prostitution business offenses
• Certain “alien smuggling” offenses
• Murder, rape, or sexual abuse of a minor

Other offenses  
 
Other offenses, like some national security and immigration security and immigration-related offences.  

CONSULAR PROCESSING OF IMMIGRANTS

Immigrant visa processing at a U.S. Consulate abroad is one of the two methods of acquiring lawful permanent residence by an alien. The alternative method available to aliens already present in the United States is called adjustment of status (”AOS”).

According to 22 CFR §42.61(a), an alien applying for an immigrant visa shall make application at the consular post that has jurisdiction over his or her place of residence.

In certain situations, the alien may be permitted to process with another consular office. However, such situations usually involve hardship. 9 FAM §42.61 N2.2-3 provides the following guidance regarding hardship:

a. Hardship would not usually be considered to exist when an alien does not wish to return to the place of last foreign residence only because of inconvenience or expense.

b. A brief, temporary absence from work would not generally be considered a hardship.

c. Inability of an alien to travel long distances because of physical infirmity or advanced age would be considered to entail hardship.

d. The presence of war, widespread civil disturbance, revolution, or other similar phenomena in an alien’s country of last foreign residence would be evidence that hardship could result if the alien were required to return to that country.

The timing of an immigrant visa depends on the availability of a visa number. Although immediate relatives and certain special immigrants are not subject to numerical limits, all other visa applicants are so limited.

As a result of these numerical limitations, visa backlogs exist in certain preference categories. The priority dates of cases currently being processed in each category appears in the DOS Visa Bulletin.

Available visa numbers are allocated within each preference based on each alien’s priority date. In family-based cases (I-130) and employment-based preference categories (I-140) where no individual labor certification needs to be filed, the alien’s priority date will be the date that the approved preference petition was filed and received by USCIS. Where an individual labor certification must first be filed, its date of filing and acceptance by the Department of Labor is considered the alien’s priority date. Once a visa application has been properly completed and executed before a consular officer, a visa must be either issued or denied. Where an alien is ineligible under a ground of inadmissibility for which a waiver is available, he or she will need to apply for an immigrant waiver before an immigrant visa can be issued. Immigrant waivers are different from nonimmigrant waivers granted under INA §212(d)(3).

Requirements for Consular Processing:

A. Eligibility Criteria

To be eligible to receive an immigrant visa through consular processing, you must prove that:

1. You satisfy all the admissibility criteria to enter the U.S. as an immigrant 
 
2. You have an approved immigration petition

3. You plan to engage in the activities that are consistent with your immigrant visa category 
 
4. Your immigration petition’s priority date is current

The following are considerations when an individual may wish to avoid consular processing:

- immigration history of having changed status from B-2 to F-1 or H

- employment-based labor certification cases where the beneficiary has insufficient English language abilities for the job. - employment-based labor certification cases.

- must be prepared to discuss job and qualifications. Expect “pop quizzes” about the job, especially for computer industry-based jobs.

- 3 and 10 year bars: if individual has been unlawfully present in the U.S. for over 180/365 days, may be subject to the 3 or 10 year bar. If unsure, should get an advisory opinion in advance.

- multinational executives if prior foreign employer and U.S. employer no longer have same qualifying affiliation or have ceased doing business.

- applicants relying on “green card portability” of INA section 204(j) to change employers before completion of LPR process.

DEPORTATION AND WAIVERS

Immigration law provides certain types of relief from removal in the Immigration Court, the BIA and various Federal Courts. Among possible avenues of relief are:

(1) cancellation of removal for permanent residents;

(2) cancellation of removal for non-permanent residents;

(3) adjustment of status to permanent residence;

(4) asylum, withholding of removal and UN Convention Against Torture; and

(5) waivers of inadmissibility and deportability.

Eligibility for waivers of removability depends upon the alien’s ability to establish extreme hardship to his or her immediate family members if he were to be removed from the U.S. For instance, a person who has committed fraud or material misrepresentation may apply for a waiver under §212(i) if the failure to admit him to the U.S. would result in “extreme hardship” to his lawful permanent resident (LPR) or U.S. citizen (USC) spouse or parents. Similarly, a person who is inadmissible on certain criminal grounds may be eligible for a waiver under §212(h) if the failure to admit him to the U.S. would result in “extreme hardship” to his LPR or USC spouse, parents, or children.

In representation of aliens in deportation proceedings, we pursue the following major stages:

If an alien is detained by the USCIS, we seek his release (on his own recognizance or bond) from detention during removal proceedings;

We use our experience to persuade the USCIS to exercise favorable prosecutorial discretion;

We deny deportability or inadmissibility based on denial of one or more of the following legal doctrines and theories: alienage, conviction, admission of offense, reason to believe that individual is a drug trafficker, aggravated felony, crime involving moral turpitude, controlled substance offense, crime of domestic violence; and;

During removal proceedings, we examine the facts of the case, and possibly apply for one or some of the following types of relief from removal: termination of proceedings to permit naturalization hearing, application for 212(c) waiver, application for cancellation of removal, application for adjustment of status, application for 212(h) waiver of inadmissibility, application for 209(c) waiver of inadmissibility, application for asylum, withholding of removal, relief under Torture Convention.

Moreover, we pursue post-conviction relief tactics using statutory and case law. We cooperate with experienced criminal lawyers to vacate convictions and render an alien admissible and non-deportable.

An immigrant is a foreign national who is authorized to live and work permanently in the United States. You must go through a multi-step process to become an immigrant based on employment.

The USCIS must approve an immigrant petition (application) that was filed for you, usually by an employer.

In most employment categories (See EB-2 and EB-3 eligibility and filing information below), a U.S. employer must complete a labor certification (ETA Form 9089) on your behalf. This important stage involves advertising for the position. Once the labor certification is approved, your employer can file Form I-140.

If you are already in the United States, you must apply to adjust to permanent resident status when a visa number becomes available. Please see How Do I Get an Immigrant Visa Number? and How Do I Become a Lawful Permanent Resident while in the United States? If you are outside the United States when an immigrant visa number becomes available, you will be notified to go to the local U.S. Consulate to complete the processing for an immigrant visa.

LABOR CERTIFICATION

In the complex Labor Certification process, a U.S. employer seeks a Labor Certificate from the U.S. Department of Labor for the benefit of a prospective alien employee. A Labor Certificate is a pre-requisite for a U.S. employer to file an immigration petition for the alien employee based on EB-2 and EB-3 categories.

The Labor Certification requirement is waived for a National Interest Waiver petition under EB-2 and is not required in an EB-1 petition. For information on whether you qualify for the National Interest waiver under EB-2 or EB-1 categories, please consult with our experienced immigration attorneys.

In Labor Certifications, the U.S. sponsoring employer is the petitioner and the prospective alien employee is the beneficiary. Since the Labor Certification is filed on the basis of prospective employment, it does not matter whether the alien works for the sponsoring employer during the application or after it is approved. However, the foreign employee has to work for a reasonable period of time for the sponsoring employer after receiving permanent residency.

EB-1 CATEGORY

A First Preference Immigration Petition (EB-1) is an employment-based petition for permanent residence reserved for those who are among the most able and accomplished in their respective fields within the arts, sciences, education, business, or sports. There are three (3) types of EB-1 petitions:

. Alien of Extraordinary Ability EB-1(a)

. Outstanding Researcher/Outstanding Professor EB-1(b)

. Managers and Executive Transferees EB-1(c)

The most notable advantage for those who qualify for an EB-1 petition is the lack of a Labor Certification requirement.

EB-2 CATEGORY

A Second Preference Immigration Petition (EB-2) is an employment-based petition for permanent residence reserved for members of the professions holding advanced degree or aliens of exceptional ability. Applicants must have a job offer and labor certification. However, USCIS may waive the job offer and labor certification requirements if it is in the national interest to do so.

EB-3 CATEGORY

A Third Preference Immigration Petition (EB-3) is an employment-based petition for permanent residence reserved for skilled workers, professionals and other workers including foreign nationals with less than two years of training and work experience. All applicants in EB-3 category must have a job offer and labor certification.

FAMILY IMMIGRATION:

Congress, by conferring permanent residence eligibility upon certain family-based groups, has properly emphasized the importance of family unification in American immigration law. The preference system is a method, based on categories (or “preferences”), of distributing the limited number of immigrant visa numbers available each year. Obtaining an immigrant visa number is an essential step in the immigration process, and it means that an immigrant visa has been assigned to you. The documentation needed for a family-based petition for permanent residence is the same for immediate relative and family preference applicants. In short, the following is required:

Immediate Relatives:

§201(b) of the Immigration and Nationality Act (”INA”) defines “immediate relatives” to include:

a. spouses,

b. children (under the age of twenty-one), and

c. parents of U.S. citizens (if the citizens are at least 21 years old).

This category is clearly reserved for immediate relatives of U.S. citizens, not permanent residents. There is no limit to the number of immediate relative visas that may be issued in this category in any given year.

Spouses:

In order to obtain immigration benefits available to a “spouse”, there must be a valid and subsisting marriage between the parties. Generally, marriage is valid for immigration purpose if it is recognized by the law of the state or country where it occurs. However, a marriage between persons of the same sex will not be valid for immigration purposes, regardless of its possible validity where the marriage took place. Proxy marriages are specifically excluded by the INA, unless the marriage has been consummated. A marriage that is legally valid may still be disregarded if it is found to be a sham marriage, entered into by the parties to obtain immigration benefits and without any intention to live together as husband and wife. Religious ceremonies alone may not create a binding marriage in some jurisdictions. However, if a religious ceremony alone is in fact sufficient in the jurisdiction where it occurs, the marriage is valid. A marriage ceremony might also be valid for immigration purposes, if the parties entered into it in good faith, believed themselves to be married and lived together as husband and wife.

The marriage must be legally subsisting at the time that the immigration benefit is sought. The only exception to this requirement applies to certain spouses of deceased U.S. citizens (discussed below). A marriage can be treated as legally subsisting even though the parties are separated, so long as they are still legally married. The courts have generally rejected the view that marriage must be “viable” to support entitlement to immigration benefits. It is now the administrative view that immigration benefits based on marriage may be sought even if the parties are separated, although the separation may be considered in determining whether the marriage was bona fide. However, if the couple is legally separated (i.e., by written agreement recognized by a court, or by court order) the alien no longer qualifies as a “spouse” for immigration purposes even through the couple has not obtained a final divorce (see Matter of McKee 17 I&N 332 and Matter of Zenning 17 I&N 2816).

Please read here our firm’s cutting edge legal analysis on the issue of Approval of Adjustment of Status after Divorce and Separation.

As a result of the Immigration Act of 1990, immediate relative status may be granted to an alien who was the spouse of a U.S. citizen for at least two years at the time of his or her death and not then legally separated, provided the alien spouse files a visa petition as an immediate relative within two years and has not remarried. This applies even if the deceased spouse was not a U.S. citizen for the entire two-year period before his or her death. However, the deceased spouse must have been a U.S. citizen at the time of his or her death. In July 2009, the law has changed, and the two year requirement of being married has been removed.

Children:

General
The meaning of “child” is not as simple as it first appears. For the purposes of family-based immigration, a “child” is defined in INA §101(b)(1) as follows:

A. a child born in wedlock;

B. a stepchild whether or not born out of wedlock, provided the child had not reached the age of eighteen years at the time the marriage creating the status of stepchild occurred;

C. a child legitimated under the law of the child’s residence or domicile, or under the law of father’s residence or domicile, whether in or outside the United States, if such legitimation takes place before the child reaches the age of eighteen years and the child is in the legal custody of the legitimating parent or parents at the time of such legitimation;

D. a child born out of wedlock, by, through whom, or on whose behalf a status, privilege, or benefit is sought by virtue of the relationship of the child to its natural mother or to its natural father if the father has or had a bona fide parent-child relationship with the person;

E. a child adopted while under the age of sixteen years if the child has been in the legal custody of, and has resided with, the adopting parent or parents for at least two years: provided that no natural parent of any such adopted child shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this Act; or

F. a child, under the age of sixteen at the time an immediate relative petition is filed on his or her behalf, who is an orphan because of the death or disappearance of, abandonment or desertion by, or separation or loss from, both parents, or for whom the sole or surviving parent is incapable of providing the proper care and has in writing irrevocably released the child for emigration and adoption; who has been adopted abroad by a United States citizen and spouse jointly, or by an unmarried United States citizen at least twenty-five years of age, who personally saw and observed the child prior to or during the adoption proceedings; or who is coming to the United States for adoption by a United States citizen and spouse jointly, or by an unmarried United States citizen at least twenty-five years of age, who have or has complied with the pre-adoption requirements, if any, of the child’s proposed residence: provided that the Attorney General is satisfied that proper care will be furnished the child if admitted to the United States: Provided further, that no natural parent or prior adoptive parent of any such child shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this Act.

The parent-child relationship must continue to exist at the time that immigration benefits are sought. A child includes only an unmarried person under the age of 21. Accordingly, the child must be both unmarried and under 21 at the time the visa is issued by a consulate and at the time that he or she applies for entry to the United States. If the child marries or becomes 21 after the visa is issued and before he or she applies for entry, he or she becomes disqualified for immediate relative status. However, certain exceptions to this “age-out” problem exist as a result of the Child Status Protection Act, which is discussed elsewhere in this web site.

Parents:

In order to petition a parent under the immediate relative category, the U.S. citizen petitioner must be at least 21 years old. “Parent” means a parent who is such by reason of his or her relationship to a “child” within the statutory definition of the term. However, the “child” must have qualified as such within the statutory definition at the time their relationship was established and the parent-child relationship must continue to exist at the time that the immigration benefit is sought.

The Family-Based Preference Categories:

Family-based preference categories apply to family immigrants, other than immediate relatives. The first preference category consists of unmarried sons or daughters of U.S. citizens. The second preference family-based category deals with relatives of permanent residents of the United States and is divided into two subgroups each with a separate waiting list for available visas: (a) spouses and minor children of permanent residents, and (b) unmarried sons or daughters (but not their children) of permanent residents. A married son or daughter of the U.S. citizen falls under the third preference category. The fourth preference category permits U.S. citizens over the age of twenty-one to petition their brothers and sisters for permanent residence.

These preference categories are subject to annual visa limits. This means that there are visa backlogs in some preferences. Available visas are issued to beneficiaries in order of their priority date, which is the date that their petition for permanent residence is filed. To see the applicable priority dates for each family-based category, click here.

Preference categories for relatives of permanent residents have longer backlogs than preference categories for relatives of U.S. citizens. Also, India, Mexico and the Philippines have a higher demand for immigrant visas and are subject to country-specific annual limits. Country of birth is relevant rather than citizenship. Therefore, Canadians originally born in one of these countries will be placed on the longer country-specific waiting lists.

Priority dates do not necessarily progress in real time. For example, although the backlog for the family-based fourth preference may be 10 years, the actual wait is far longer. The rate of progression for priority dates often varies. In fact, as the end of each fiscal year approaches (September 30th), it is not unusual to see a retrogression in priority date. This is done to keep visa issuances within the annual numerical limitation.

Derivative Status for Spouses & Children of Family Based Immigrants:

The immediate relative category normally does not confer derivative status on a spouse or child of an immediate relative. In other words, the alien spouse or child of an immediate relative does not automatically acquire permanent residence when the principal applicant obtains such status. The only exception is for children of a widow or widower of a U.S. citizen.

Notwithstanding the unavailability of derivative status, some family members of an immediate relative may be entitled independent immediate relative status. For example, an alien child of the principal beneficiary who is under the age of 18 at the time of the principal beneficiary’s marriage to the petitioner will qualify as a stepchild. However, a separate visa petition must be filed for each immediate relative.

In contrast, the spouse or child of a preference immigrant accompanying or following to join him or her, is entitled to the same status and the same order of consideration as the principal immigrant. The derivative classification of such spouse or child attaches immediately upon approval of the principal alien’s classification, and requires no separate visa petition.

COMMON NON-IMMIGRANT VISAS

Nonimmigrant visas are for international travelers coming to the U.S. temporarily. This visa allows you to travel to a U.S. port-of-entry (airport, for example) and request permission of the CBP Officer to enter the U.S. A visa does not guarantee entry into the United States.

International travelers come to the U.S. for a wide variety of reasons, including tourism, business, medical treatment and certain types of temporary work. The type of visa needed is defined by immigration law, and relates to the purpose of your travel. For an overview of the types of nonimmigrant visas available under immigration law, please see Nonimmigrant Visa Classifications on the USCIS website.

Advance planning can smooth the visa application process for you. These are the following non-immigrant visas:

B-1 (Business Visitor): This visa covers business related trips for a short duration. A B-1 will only be granted for a period of time necessary to conduct the alien’s business. Business visitor cannot work in the U.S. and be compensated for services rendered in the U.S. The alien must maintain a residence abroad which the alien has no intention of abandoning to be approved a visa in this sub-category.

B-2 (Tourist Visa): This visa covers short visits for pleasure such as tourism or visiting a family member.

E-1 (Treaty Trader Visa): An E-1 nonimmigrant is defined as an alien entitled to enter the United States pursuant to a treaty of commerce and navigation between the United States and the foreign state of which he is a national, and the spouse and children of any such alien if accompanying or following to join him, solely to carry on substantial trade (Import or Export) which is international in scope principally between U.S. and the foreign state of which s/he is a national.

E-2 (Investor Visa): An E-2 nonimmigrant is defined as an alien entitled to enter the United States pursuant to a treaty of commerce and navigation between the United States and the foreign state of which he is a national, and the spouse and children of any such alien if accompanying or following to join him, solely to develop and direct the operations of an enterprise in which he has invested, or of an enterprise in which he is actively in the process of investing, a substantial amount of capital (at least $50,000).

F-1 category: Aliens who wish to pursue academic studies in the U.S. apply for an F-1 visa. Aliens admitted under this category can remain in the United States as long as it takes to complete their intended course of study. They may also engage in a specific period of practical training (OPT) after completion of their studies as long as the training would not be available in their own country. Aliens applying for a visa under this category do not need pre-approval from the USCIS, but they do need to present to the U.S. consulate a certificate of eligibility from the institution they plan to attend (I-20).

J-1 category: A J-1 Visa is a special form of non-immigrant visa for certain aliens known as “exchange visitors.” To obtain a J-1 Visa, an alien must be sponsored by an employer working through an Exchange Visitor Program as designated by the U.S. State Department. Generally, immigration regulations permit J-1 holders to work for the program sponsors. In some limited circumstances, however, J-1 holders may work for non-sponsor employers and the eligibility varies from one category to another. The duration of J-1 status depends on the J-1 holder’s program of study. A J-1 holder’s IAP-66, Certificate of Eligibility, usually indicates the duration of his program. However, a J-1 holder may extend his stay under the J-1 status if his total stay period does not exceed the maximum duration of stay for the program, and his program sponsor agrees to the extension. Certain persons who entered and/or stayed in the United States as J-1 “exchange visitors” are required to return to their home country or country of last permanent residency for a period of two years after completion of J-1 status before they can be eligible for H or L status or permanent residency status. There are a number of circumstances where the foreign residency requirement can be waived.

L-1A category: This category allows international companies to bring aliens to the United States to work in the United States for a limited period of time (up to 7 years). In this category, the employer files a petition with the USCIS in order to obtain permission to transfer the alien to the company’s U.S. location for a limited initial period of one year or three years. The employer cannot petition for an alien to be transferred to its U.S. operation unless it does business systematically in the U.S. and at least one other country. The alien employee must have worked abroad for the overseas company for a continuous period of one year in the preceding three years. Furthermore, the alien to be transferred must have been employed abroad in an executive or managerial position, and he must be coming to the U.S. to fill one of those capacities. In this category, the alien must have an intent to depart the U.S. upon completion of his authorized stay, however, he may also pursue permanent residence at the same time.

L-1B category: This category contains many of the same requirements as the L-1A  category and allows the beneficiary to remain in the U.S. for a limited period of up to 5 years. The alien must have “specialized knowledge” which is defined as special knowledge of the company product, service, research, equipment, techniques, management or other interests and its application in international markets or has an advanced level of knowledge of processes and procedures of the company.

L-2 visa may be issued to an L-1 holder’s spouse and children under twenty-one years of age. L-2 holders are considered to be the dependents of L-1 holders. L-2 holders may be entitled to enter and remain in the United States for the duration of the L-1 holder’s authorized stay. Their duration of valid stay is the same as that of the L-1 holder. L-2 holders are permitted to attend school on their L-2 status, and they do not have to be full-time students. L-2 holders are not permitted to work unless they are independently qualified and thereby eligible for work authorization.

O category: To qualify under this category, the alien must have an extraordinary ability in the sciences, arts, education, business, or athletics. Different standards of eligibility apply for the various fields listed above. The alien must be coming to the United States to work in his area of extraordinary ability or achievement. Under this category, the initial period of the alien’s stay in the United States is approved for the time necessary to complete the activity for which the alien is admitted, up to a period of three years. Approval must be obtained from the USCIS prior to the alien applying for this visa at the U.S. consulate. An alien can be approved for the O visa even if he previously applied for permanent residence.

P category: This category is for entertainers and athletes who cannot qualify under the extraordinary ability standard for the O category. To qualify, the alien must either be an athlete who competes individually or as part of a team at an internationally recognized level, or be an essential part of an entertainment group that has received qualifying international

K-1 visas are issued to the fiancés (or fiancés) of U.S. citizens. The purpose of the K-1 visa is to allow the fiancés of U.S. citizens to travel to the United States for marriage. The maximum period of stay in the U.S. is ninety days. A K-1 holder cannot change his K-1 status without marrying the U.S. citizen fiancé. Once the K-1 holder marries the U.S. citizen within the authorized time period, he may apply to adjust his status to permanent resident status.

H-1B category: The H-1B classification allows professionals to work in the U.S., on a temporary basis, within their profession. It is suitable and ideal for engineers, nurses, professors, researchers, computer programmers and other professionals. The H-1B category is designed to attract highly skilled professionals to work in the U.S. on a temporary basis. H-1B classification is available only to workers in occupations requiring highly specialized knowledge normally acquired through attainment of a four-year college degree. The applicant must possess at least a bachelor’s degree, or its equivalent. The H-1B visa allows specialty occupation workers to enter the United States and work in a professional capacity for a maximum period of six years. In this category, the U.S. employer petitions the USCIS for the alien’s entry to the United States for purposes of working with that employer. There is no foreign residency requirement, and the alien may apply for permanent residence while he is in H-1 status or before or after he applies for an H-1B visa.

H-3 category: This category allows for a temporary worker to be invited by an individual or organization for purposes of receiving instruction and training other than to receive graduate medical education or training. The training program must be one that is not designed primarily to provide productive employment.

H-4 category: H-4 visas are issued to H-1 holders’ spouses and children under twenty-one years of age. H-4 holders are considered to be the dependents of H-1 holders. Spouses and children under twenty-one years of age may be entitled to enter and remain in the United States for the duration of the H-1 holder’s authorized stay, as H-4 status holders. Their duration of valid stay is the same as that of the H-1 holder. H-4 holders are permitted to attend school on their H-4 status, and they do not have to be full time students. H-4 holders are not permitted to work.

TN category for Canadian and Mexican professionals: The TN category is a special category created under NAFTA (North American Free Trade Agreement) for qualifying professionals who are nationals of Canada or Mexico. Aliens qualified to enter the U.S. under this category can work for a company located in the U.S. for a temporary period. They can also work for a Canadian or Mexican company in the U.S. when those companies are engaged in projects with U.S. based companies. The initial time limit for a TN professional to work in the U.S. is one year. However, this period can be renewed at one-year increments indefinitely. An alien must posses the necessary credentials to be considered a qualifying professional under this category. A bachelor’s degree or higher is usually required to be considered a professional in the TN category. The alien must intend to depart the U.S. upon completion of his authorized status. If the alien applies for permanent residence while he is in TN status, he will have difficulty in obtaining renewal of his TN status. Mexican nationals require a visa before they can be admitted to the U.S. in this status, whereas Canadian nationals need only apply with the USCIS at the border and bypass the visa requirement.

Third Country National Visa Processing

A third country visa is a solution for an alien who has a valid legal status in the U.S. but does not have valid visa and wants to leave and come back to the United States. An alien with a valid legal status but expired visa would have to apply for a new visa if the alien wants to leave and come back to the U.S. An alien must apply for a visa at the U.S. consulate outside the U.S. If the alien leaves the U.S. and plans to regain entry by applying for a visa, the alien risks being denied the visa and being unable to re-enter the U.S. The following is a useful rule for an alien who is faced with this predicament. A visa is deemed extended for thirty days if the alien has a valid legal status and travels to and from Canada or Mexico within those thirty days. It is important to note that the extension is only good for travel to and from Canada or Mexico. If a person stays in Canada or Mexico for more than thirty days or exits Canada or Mexico and attempts readmission to the United States from another country, the extension does not apply, and the alien has to apply for a new visa to be readmitted into the U.S. Furthermore, an alien will be denied admission if his visa expired and he leaves the United States, and then attempts readmission through Canada or Mexico.

Due to the above rule, an alien with an expired visa, but a valid status, can apply for a new visa at the US consulate in Canada or Mexico and be able to be readmitted to the United States. According to current policy, an alien who has sought but been denied a visa, is not eligible for re-entry on the basis of the prior unexpired status. Therefore, there is some risk for attempting to obtain a third-country visa. At the same time, any alien who travels with an expired visa to a country other than Canada or Mexico can gain readmission only by applying for a new visa at a US consulate.