1. Do I need to hire a lawyer in order to obtain an H-1B visa?
  2. What are the different ways to come to and stay permanently (obtain a Green Card) in the United States?
  3. What family members can sponsor me for a Green Card?  How long will it take for me to obtain a Green Card through family sponsorship?
  4. How do I obtain permanent residency through employment?
  5. What is Adjustment of Status?
  6. How do I obtain the right to work while in the United States?
  7. How can a U.S. employer ascertain that a foreign employee is eligible to work and comply with INS verification regulations?
  8. Can I travel outside the United States and return if I have overstayed on my Visa?

 

 

 

 

 

 

 

1. Do I need to hire a lawyer in order to obtain an H-1B visa?

Yes
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2. What are the different ways to come to and stay permanently (obtain a Green Card) in the United States?

There are several ways:

    1. Family based - through petition of certain close categories of relatives.
    2. Employment based – requires job offer and petition by U.S. employer
    3. Asylum/Refugee Application – by proving past or well founded fear of future persecution by the government of the native country or country of last residence or by group of people that the government is unable or unwilling to control.
    4. Employment Creation - by investing $1,000,000 (one million U.S. dollars) in the U.S. economy and creating positions for 10 (ten) U.S. workers. For certain designated underdeveloped areas, the required investment is $500,000 (five hundred thousand U.S. dollars).
    5. Self-petitioning, if you possess extraordinary or exceptional abilities in the sciences, business, arts, or athletics (also education for the extraordinary-ability category) as evidenced by sustained national or international acclaim and extensive documentation.
    6. In case you are in removal proceedings (formerly known as deportation or exclusion) you may obtain Green Card through different Waivers, or Cancellation of Removal, or other special procedures created for certain categories of aliens. Most such procedures require certain period of residence in the U.S. and close relatives who are U.S. citizens or permanent residents.
    7. Diversity Visa Lottery – every year the Department of State administers a lottery by way of which fifty thousand lucky winners obtain the right to apply for a Green Card. To enter the lottery, you must file a simple entry form and submit during a particular short period of time (usually in October). The Department of State posts instructions on eligible countries, entry form, and time of filing. The drawing is random. Do not trust companies claiming to guarantee winning.

 
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3. What family members can sponsor me for a Green Card? How long will it take for me to obtain a Green Card through family sponsorship?

Depending on the closeness of the relationship, there are five groups of relatives that may sponsor you:

    1. Immediate relatives
    2. - your U.S. citizen spouse;
      - your U.S. citizen parent if you are under 21 years of age;
      - your U.S. citizen child if he or she is over 21 years of age.

      This is the fastest moving family sponsored immigration. You need only wait for the petition to be processed. Processing times vary widely at different times and at different Service Centers. Under certain circumstances, a consulate abroad may also process directly your petition. You should make an inquiry about the particular processing time at the time of filing the petition. As an average, you should expect at least a three-four month wait.

    3. First Preference Category
      • your U.S. citizen parent if your are over 21 and unmarried.

      If you are in this category of sponsored relatives, you have to wait about a year for an immigrant visa number to become available to you in order to apply for a Green Card. For citizens of Mexico, the waiting period is about 6 years; for citizens of the Philippines, about 10 years.

      This is the concept of Priority Dates. Your Priority Date is the date your relative filed the Immigrant Petition for Alien Relative (Form I-130) on your behalf. Only when your Priority Date becomes current, as posted in the Visa Bulletin of the U.S. Department of State, can you apply for a Green Card. The Priority Date waiting CANNOT be changed or expedited by an attorney. This may be done only by an act of congress increasing the number of visas.

      When your Priority Date becomes current and you apply for a Green Card, you will also have to wait for your Green Card application to be processed. Processing times vary depending on the particular consulate or INS office anywhere between several months and a year-year and a half.

    4. Second Preference Category
      • your U.S. permanent resident spouse;
      • your U.S. permanent resident parent if you are under 21 and unmarried;

      The Priority-Date waiting time for this category is 4 years for citizens of all countries except Mexico where the waiting is about 6 years.

      • your U.S. permanent resident parent if you are over 21 and unmarried;

      The Priority-Date waiting time is approximately 7 years. For citizens of Mexico it is over 8 years.

    5. Third Preference Category
      • your U.S. citizen parent if you are over 21 and married.

      The Priority-Date waiting time is about 4 years. For citizens of Mexico – about 8 years, for citizens of the Philippines – about 7 years.

    6. Fourth Preference Category
    7. In this category your U.S. citizen brothers or sisters may sponsor you if they are at least 21 years of age.

      You will have to wait about 11 years for a green card number to become available to you. If you are a citizen if India, the Priority-Date waiting is about 13 years; if you are a citizen of the Philippines – about 20 years.

 
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4. How do I obtain permanent residency through employment?

A. The most common way is through job offer by a U.S. employer and Labor Certification.

This route is available to foreign citizens with all kinds of educational and experience backgrounds. The sponsoring employer must file first a Labor Certification Application (LCA) with the Department of Labor (DOL) and show that it offers the foreign citizen a position which matches the person’s qualifications, offers a prevailing wage, and that there are no qualified and willing to accept the position U.S. workers being displaced by the foreign citizen. The last requirement is met by advertising the position.

Upon successful certification by the DOL, the employer files a petition with the Immigration & Naturalization Service (INS) called Petition for Immigrant Worker (at present, form I-140). The INS again reviews the match between the position and the employee’s qualifications. The Service also scrutinizes the employer’s ability to pay the prevailing wage at the time the LCA was filed. Prevailing wages are determined by the DOL depending on the position and geographic area of employment.

The foreign citizen will be able to apply for permanent residency upon approval of the employer’s petition by the INS if the priority date for employment based immigrant visas is current and he or she is not inadmissible for any reason.

The foreign citizen may not work in the U.S. while the Labor Certification Application and employer’s petition with the INS are pending unless the person has other, independent right to work. If the person is in the U.S. and has the right to adjust status here, he or she will obtain employment authorization document (EAD), also known as work permit, upon filing the Application to Adjust Status (at present form I-485).

  1. Self Petitioning. No job offer and sponsoring employer required.
  • Persons of extraordinary ability.

The government requires extensive documentation to show achievements above and beyond the ordinary, sustained national and/or international acclaim. The areas of achievement for persons of extraordinary ability are sciences, arts, education, business, or athletics.

  • Members of the professions holding advanced degrees or aliens of exceptional ability whose work in the United States will be in the National Interest (National Interest Waiver).

INS’ interpretation of advanced degree is Master’s Degree, or as an alternative, a Baccalaureate Degree plus five years of progressive experience. Experience may not substitute for a Bachelor’s or for a Doctoral Degree.

In order to show exceptional ability, the foreign citizen must submit extensive documentation evidencing current widespread acclaim and international recognition in the sciences, arts, athletics, or business.

In order to waive the requirement for a job offer, these two categories of foreign citizens must also show that they seek employment in an area of substantial intrinsic merit, that the proposed benefit is NATIONAL in scope, and that the national interest would be adversely affected if a Labor Certification were required.

  • Physicians working in shortage areas and veterans facilities.

As the heading implies, the foreign physician must agree to work full time as a physician in an area designated by the Secretary of Health and Human Services or the Secretary of Veterans Affairs. An additional requirement is that a Federal agency or a department of public health in any state has previously determined that the physician’s work in such an area was in the public interest. The foreign citizen must work five years in the aggregate in such an area before a permanent resident visa may be issued.

C. Job offer and petition by a U.S. employer required. No Labor Certification required.

  • Outstanding professors and researchers

The foreign citizen must be internationally recognized as outstanding in a specific academic field, have a minimum of three years of experience in teaching and/or research in that field, and enter the U.S. in a tenure or tenure-track teaching or comparable research position at a university or other institution of higher education. In the case of comparable research position, the employer may be a private company that employs at least three full-time researchers and has documented accomplishments in the academic filed for which the position is offered.

  • Multinational Executives and Managers.

The executive or manager must have been employed outside the United States in a managerial or executive position for at least one of the three years immediately preceding the filing of the petition (or preceding entry to the U.S.). The past employment must have been with the same employer, affiliate, or a subsidiary of the employer abroad. The U.S. petitioner must have been doing business for at least one year.

  • Religious workers.

The law provides permanent resident status for three categories of religious workers: 1) ministers of religion; 2) professionals working in religious vocations or occupations; 3) other workers in religious vocations or occupations if a U.S. nonprofit, religious organization petitions for them. The foreign citizen must have been a member of the religious denomination and have been carrying on religious work continuously for at least two years immediately preceding the filing of the petition.

Under the current law the second and third category religious workers must obtain permanent residency by midnight, September 30, 2000. A pending bill in Congress may extend the September deadline. However, should this not happen, such workers must attempt to expedite their cases or consider other avenues of obtaining Green Card.

  • Nurses and Physiotherapists.

Nurses and physiotherapists are exempt from a labor certification requirement. However, foreign professional nurses seeking permanent residency must obtain the Visa Screen certificate or a certified statement from the International Commission on Health Care Professions (ICHP), a part of the Commission on Graduates of Foreign Nursing Schools (CHFNS) to be filed with the employer’s petition. The nurse must be licensed either in the country of nursing study, or in the state of intended employment.

For all employment based categories, the Priority Date (the date on which the immigrant petition was filed with the INS) must be current, as posted in the Visa Bulletin of the Department of State, in order for the foreign citizen to apply for Green Card.

 
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5. What is Adjustment of Status?

This is a procedure by way of which foreign citizens who are already in the United States may obtain permanent residency (Green Card) without leaving the country. The application is made with the Immigration and Naturalization Service.

Not everybody who is on the territory of the U.S. may adjust status. Unlawful presence or other violations of previous immigration status will bar you from adjustment (with few exceptions). It is advisable to review your immigration history with a qualified immigration expert to make sure that you will be able to adjust status here; if not, to consider the possibility of consular processing.

 
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6. How do I obtain the right to work while in the United States?

In addition to the employment based temporary visas or statuses (such as H and R) you may be able to obtain an Employment Authorization Document (EAD) in several other situations. This is a list of the most common:

  • You have applied and have a pending asylum application;
  • You are an applicant to adjust status;
  • You have a Temporary Protected Status;
  • You have entered the United States as a fiancée) of a U.S. citizen on a K visa;
  • You have a student status and you seek Optional Practical Training;
  • You have a student status, have attended school for at least nine months, you are in good academic standing, you are able to prove to the INS severe economic hardship due to unforeseen circumstances beyond your control and insufficiency of on-campus employment opportunities;
  • You have a J2 status;
  • You have applied for Cancellation of Removal.

A full list of eligibility categories is found in the instructions of Form I-765, Application for Employment Authorization.

The application is made on Form I-765 (please see link to the INS web site to download form). You must enclose proof of eligibility or copy of previous EAD if you seek only extension of EAD from the same category. Most EAD applications require a fee of one hundred dollars. Initial EAD applications for asylum seekers are free. If you apply with a Service Center you must submit two photographs according to INS specifications (tell the photographer that you need pictures for immigration, or green cards). The Application instructions specify where to file and give Service Center Addresses. For addresses of local District INS Offices, you may consult the INS web site (see Links on this web site). Contact the local office to inquire of specific application procedures; they vary among offices.

 
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7. How can a U.S. employer ascertain that a foreign employee is eligible to work and comply with INS verification regulations?

A U.S. employer must fill out and keep on record INS form I-9 and attest that it has verified the individual’s identity and that the individual is not an unauthorized alien by examining certain original and un-expired documents listed below. The employer will satisfy the employment verification regulations if it reviews the necessary identity documents and they reasonably appear on their face to be genuine.

The employer will satisfy the verification requirements if it examines one of the following documents:

Documents establishing both identity and employment eligibility

  • A United States passport;
  • A permanent resident card or an alien registration receipt card;
  • A foreign passport with a temporary I-551 (Green Card) stamp;
  • An employment authorization document issued by the INS that contains a photograph (Form, I-766, Form I-688, Form I-688A, or Form I-688B)

The employer will be in compliance if it examines one document from EACH of the following two groups of documents:

Documents that establish identity only

  • A driver’s license;
  • An identification card issued by federal or local authorities;
  • A school identification card with photo;
  • A voter’s registration card;
  • A U.S. military card;
  • A military dependent’s identification card;
  • A U.S. Coast Guard Merchant Mariner card;
  • For individuals under age 18 who are unable to produce an identity document, a school record or report card, clinic doctor or hospital record, or day care or nursery school record.

Documents that establish employment authorization only

  • Social Security Card;
  • A Native American tribal document;
  • Form I-94 containing an endorsement of the alien’s nonimmigrant status and the name of the approved employer for whom employment is authorized.

 
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8. Can I travel outside the United States and return if I have overstayed on my Visa?

It is not advisable.

If you have overstayed with less than 180 days, under the law, you may still return to the U.S. However, have in mind that consular officers and border inspectors have very broad discretion in allowing foreign citizens to enter the U.S. A previous overstay never looks good at a consular interview or a border inspection.

If you have overstayed with over 180 days but less than a year, you may be barred from entering the U.S. for 3 years. If you have overstayed for over a year, you may be barred from returning for 10 years. There are various exceptions and waivers; however, overstays (also called unlawful presence) are a complex and ever-changing area of immigration law; it is imperative that you consult an immigration attorney if you believe that you have overstayed and intend to travel overseas.

 
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