Visa and Immigration Overview
Foreign nationals coming to the U.S. must have the proper visas to work, study, stay, travel internationally and immigrate. Having the proper visa and supporting paperwork is more important than ever, as the terrorist attacks of 9/11 have resulted in heightened scrutiny by the immigration agencies and consulates.
This site provides information about many temporary and permanent visas. Understanding the criteria for a visa and the procedures used to obtain it, help the overall process.
Applying for visas can be stressful and emotional for the applicants because the procedures are not well understood, is largely out of the applicants’ control, and is often lengthier than expected. The Department of Homeland Security’s immigration agencies are sometimes slow and disorganized in deciding cases. Their decisions in some cases can be unreasonable. An informed person, HR professional or legal department working hand-in-hand with experienced immigration counsel will be important as visa matters are decided by the immigration agencies and American consulates.
Here is an introduction to aid in understanding how the U.S. visa system works.
U.S. visa law has four basic components:
1) temporary visas, such as a student (F-1), tourist (B-2), or professional worker (H-1B); 2) permanent resident status (green card); 3) U.S. citizenship; and 4) provisions for removal and inadmissibility of those who are not legally permitted in the U.S. Often people come to the U.S. with a temporary visa. They then become a permanent resident before seeking U.S. citizenship.
Temporary visas are assigned a letter and number designation. They are valid for a few days to a few months or years. For example, P-1 athlete and E-2 investor visas may be valid for up to five years. Upon admission with a temporary visa, the immigration inspector stamps the Form I-94 with the date, designates the visa status and length of time the foreign national is permitted to stay in the U.S., and staples the I-94 into the passport.
This site discusses the commonly used work visas. A list of all temporary visas is also provided.
Permanent Resident Status
Permanent resident status (green cards) can be obtained by many applications. Briefly speaking, one may become a permanent resident by:
- Family petition
- Employment labor certification or petition
- Self petition as a person of extraordinary ability or national interest waiver
- Employer sponsored outstanding researcher or professor, or executive or manager of a multinational
- organization
- Investment
- Lottery
- Asylum
- Relief from deportation called “cancellation of removal”
The employment-based (EB) preference system contains five preferences. The first employment-based preference (EB-1) is available to persons of “extraordinary ability,” “outstanding professors and researchers,” and certain “executives” and “managers” of multinational organizations. The second preference (EB-2) is for people in the “national interest” and those sponsored for a labor certification, and have a master’s degree or bachelor’s degree plus 5 years of work experience (or greater). The Third preference (EB-3) is for all other workers who usually must be sponsored for a labor certification issued by the Department of Labor to prove worker shortage.
The fourth preference (EB-4) is principally for religious workers, and the fifth (EB-5) for investors.
The law provides a limit on employment-based preference immigrants to at least 140,000 plus unused family-sponsored preference visas from the previous year. Shortage of visa numbers creates a waiting list administered by the Department of State.
The Immigrant Visa Petition – USCIS Form I-140
The DOL-approved labor certification (which is discussed at length in this site) is attached to the immigrant visa petition, Form I-140, which is filed with the USCIS service center to classify the foreign national pursuant to the EB-2 or EB-3 preference categories. Supporting documents must accompany the petition to show that the foreign national qualified for the position on the date the labor certification application was filed. This evidence typically includes copies of college degrees and transcripts, and letters verifying the foreign national’s work experience.
The petition must also be supported by the company’s tax returns. A corporation with more than 100 employees may submit a statement of income by a company officer. This is to show that the company can pay the salary listed on the labor certification. If the company is losing money, other criteria may be used including 1) net current assets; and/or 2) the fact that the employee has been paid the wage listed on the labor certification since the time of filing the application.
Filing the Form I-140 petition initiates a case for an EB-1, EB-2 national interest, and Schedule A occupation (nurse or physical therapist). Separate petitions are used for EB-4 religious worker or EB-5 investors.
Family sponsored immigration includes parents, spouses, children, and siblings of adult U.S. citizens and spouses and unmarried children of permanent residents. For some categories there are long waiting times because the 226,000 visa numbers are insufficient for demand. Some categories are visa number exempt. This site describes the many types of family based visas.
One may derive citizenship via an ancestor or apply for naturalization after becoming a permanent resident. The criteria for naturalization includes:
- Permanent residence for 5 years, or 3 years if married to a U.S. citizen
- 50% of the 5 or 3 years of required residence in the U.S.
- Good moral character
- Passing an English and History test
- Oath of Allegiance to the U.S.
Inadmissibility/removal
This site briefly discusses remedies for remaining in the U.S. when charged with removal or inadmissibility. This area is very complex and cases are often determined by the facts.
END NOTE
Look through this web site for details on temporary visas, permanent resident status, and naturalization.
Please contact us if you have questions or would like to retain our professional services for visa matters or give a presentation.
This site is not intended to provide legal advice or to be a substitute for expert legal counsel. We hope it is helpful to increase your knowledge of the visa process.
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