U.S.Immigration Law

INTRODUCTION

Immigration Law can be very confusing in many respects. It may become even more so if recent proposed legislation becomes law.

Terminology is just one aspect which causes confusion. Here are some basic terms you will see quite frequently and an overview of some of the more common status

and visa requirements. Of course this is not to be considered as legal advice. The reader should consult an immigration attorney for changing laws, application to particular

fact patterns and the many issues not addressed in this brief introduction to the subject.

TERMINOLOGY:

Nonimmigrant: denotes temporary immigration

Immigrant: denotes a permanent immigration

Lawful Permanent Resident: (LPR): This status is sometimes called a green card status. It means that the holder who is a citizen of another country can live and work permanently in the U.S.A.

Department of Homeland Security (DHS): This handles the work of the old now eliminated Immigration and Naturalization Service (INS).

DHS has three parts within it. These are U.S. Citizenship and Immigration Services (USCIS; Customs and Border Protection (CBP);

Immigration and Customs Enforcement (ICE).

Status: This controls what you can do and how long you can be in the U.S.A

Visa: This is a document which allows a person to come into the U.S.A.

Visa status: Granted by CBP at time of entry into U.S.A. Regulates the category of admission and thel ength of stay. In those instances where a change of category of admission or extension may be sought, this application must be made to USCIS. Sometimes USCIS will require that people leave the U.S.A and reapply for a new visa.

 SOME INITIAL CONSIDERATIONS:

Employer Petitioned Entry:

                               

The employer petitions the USCIS for permission to employ the person and then the employee must apply for a visa.

Nonimmigrant Visa Applications: These can be found at https://ceac.state.gov/genniv/

Visa Waiver:

Pursuant to agreements between the U.S.A and some other countries people with passports from those counties can come into the U.S.A for limited business or pleasure purposes. They must generally leave

within 90 days.

Passports:

You may be denied entry into the U.S.A if your passport will expire before certain time frames. The general rule is that it should be valid for at least six months. The Department of State has a list of

countries which that extend passport validity beyond the stated expiration date.

Business and Employment:

People who come to the U.S.A with the desire to work here must meet certain requirements in order to be considered for admission on these grounds.

1. NONIMMIGRANT STATUS

  

• Business Visitors: B1 or WB Status:

                                        

B1 status and visa is for temporary commercial or professional activity for a person who will permitted entry for a set period. If the worker does not have a visa then she may enter the U.S.A for 90 days under

the Visa Waiver Program or for 6 months for a Canadian citizen. The general rule is that the activity must NOT be gainful employment by a U.S. entity. There are limited exceptions.

Additional grounds (specific activities) for entry are provided to Canadian and Mexican citizens under the North American Free Trade Agreement (NAFTA). Note that Canadians have special rules and do not

need a B visa although they can apply for one. The process for a B1 visa is greatly simplified for them.

Family members of the business visitor may apply for a B-2 visa for the same duration as the business visitor.

WB status: Often people enter WB Waiver Business or WT Waiver Tourism status. If admitted this is for a maximum of 90 days.

Treaty Trader and Treaty Investor: E-1 and E-2 Status.

U.S. employment status may be granted by virtue of treaties with foreign countries.

See: http://travel.state.gov/visa/fees/fees_3276.html.

E1: Treaty Trader status: the individual and the business must be citizens of the treaty country and the business must be “substantial”.

E2: Treaty Investor status: Available to the investor and employees if conditions are met and the investment is substantial and at risk. The investor and employee must have the treaty nationality. The investor

must develop or direct the enterprise and the worker must be supervisor executive or essential worker with specialized skills.

General comments about E 1 and 2 Status:

                                                         

If approved a visa for E status applicant may be issued for up to 5 years but one still needs to get through the U.S border or airport where he duration may be limited, often to 2 years. Spouses and qualified

children may be granted permission to stay for the equivalent amount of time as the E1 or E2 individual. Spouses may apply to work in the U.S.A.

Treaty info can be found at: http://www.travel.state.gov/visa/reciprocity/index.htm.

More information can be found at:

http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a

7543f6d1 a/?vgnextoid=05536811264a3210VgnVCM100000

b92ca60aRCRD&vgnextchannel=05536811264a3210VgnVCM100000

b92ca60aRCRD

and

http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a

7543f6d1 a/?vgnextoid=2ea36811264a3210VgnVCM100000b92ca60aRCRD&

vgnextchannel=2ea3 6811264a3210VgnVCM100000

b92ca60aRCRD

E-3 and H1B: Specialty Occupations:

                                                      

For jobs that require a particular degree or equivalent based on education or experience. Currently employers can only hire those who already have the approved H1-B classification.

For those workers who do not then they have to wait until October 2014 to apply. Only a set number are issued. Australian workers are fortunate. Their E-3 status is presently always

open for application.

Approval of E-3 is for 2 years and indefinitely renewable; H1B can only be approved for 6 years in 3 year increments.

For more information see:

http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a

7543f6d1a /?vgnextoid=71256811264a3210VgnVCM100000b92ca60aRCRD

&vgnextchannel=71256811264a3210VgnVCM100000

b92ca60aRCRD

and

http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a

7543f6d1a/?vgnextoid=73566811264a3210VgnVCM100000b92ca60aRCRD

&vgnextchannel=73566811264a3210VgnVCM100000

b92ca60aRCRD

L and EB-1 Status: Transfer of worker

For transfers from a related foreign based entity to a U.S. one. The individual must have worked in the foreign based entity in an executive, managerial or specialized

knowledge capacity for at least one year within the last 3 and be coming to the U.S.A in that capacity. The relationship between the businesses must be a corporate

relationship or common ownership. This can be temporary positions for approval up to 7 years or “permanent” ( commonly called a “green card” ).

Canadians enjoy special treatment with a greatly expedited process.

For more information see the following:

http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a

7543f6d1a/?vgnextoid=64d34b65bef27210VgnVCM100000082ca60aRCRD

&vgnextchannel=64d34b65bef27210VgnVCM100000082

ca60aRCRD

and

http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a

7543f6d1a/?vgnextoid=bfd10b89284a3210VgnVCM100000b92ca60aRCRD&

vgnextchannel=bfd10b89284a3210VgnVCM100000b92

ca60aRCRD

and

http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a

7543f6d1a/?vgnextoid=17b983453d4a3210VgnVCM100000b92ca60aRCRD&

vgnextchannel=17b983453d4a3210VgnVCM100000b92

ca60aRCRD

O Status:

The individual must have “sustained national or international acclaim” and be coming tothe U.S.A to continue the work in her area of “extraordinary ability”.

O-1 status may be granted for the period necessary to accomplish the event/activity not to exceed 3 years with extensions not to exceed 1 year at a time.

Spouses and eligible children may be permitted O-3 status.

For more information see:

http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a

7543f6d1a/?vgnextoid=b9930b89284a3210VgnVCM100000b92ca60aRCRD&

vgnextchannel=b9930b89284a3210VgnVCM100000b92

ca60aRCRD

TN Status: For Mexicans and Canadians:

Employment based applications can be quick and inexpensive for these persons. There are minimum education requirements and specified professions.

Admission can be up to 3 years.

For more information see:

http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a

7543f6d1a/?vgnextoid=bac00b89284a3210VgnVCM100000b92ca60aRCRD&

vgnextchannel=bac00b89284a3210VgnVCM100000b92

ca60aRCRD

2) IMMIGRANT STATUS

This is often called “green card” by non- lawyers.

• EB-1

These priority workers are 3 categories:

1) Have extraordinary ability

2) Outstanding professors or researchers.

3) Multinational executives and managers.

For more information see:

                                                           

http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d

1a/?vgnextoid=816a83453d4a3210VgnVCM100000b92ca60aRCRD&

vgnextchannel=816a83453d4a3210VgnVCM100000b92

ca60aRCRD

• EB-2

Those whose professions require advanced degrees; those with exceptional ability; those whose presence is in the national interest ( National Interest Waiver (NIW) ).

The first two categories require a testing of the U.S employment market.

For more information see:

http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a

7543f6d1a/?vgnextoid=816a83453d4a3210VgnVCM100000b92ca60aRCRD&

vgnextchannel=816a83453d4a3210VgnVCM100000b92

ca60aRCRD

• EB-3

This is a very common category. It requires testing the U.S job market.

For more information see:

http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a

7543f6d1a/?vgnextoid=74da83453d4a3210VgnVCM100000b92ca60aRCRD&

vgnextchannel=74da83453d4a3210VgnVCM100000b92

ca60aRCRD

• EB-5 and Regional Center Filings

This is an investor status where the investor can obtain a green card for herself and her qualifying family members. The investment must be at least one million dollars and employ 10 workers,

or $500,000 in certain circumstances. The investor must be involved in the management of the business through day to day managerial control or through policy formulation.

Regional center filings focus on targeted employment areas and require only $500,000 investment areas, the employment can be indirect and the management minimal.

For more information see:

http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a

7543f6d1a/?vgnextoid=facb83453d4a3210VgnVCM100000b92ca60aRCRD&

vgnextchannel=facb83453d4a3210VgnVCM100000b92

ca60aRCRD

• K-1

This allows people (fiancés) to enter the U.S.A for 90 days to get married or leave. If the marriage occurs then the couple may apply for a conditional two year green card and

later if conditions are met the foreign national may obtain a permanent green card.

For more information see:

http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a

7543f6d1a/?vgnextoid=640a3e4d77d73210VgnVCM100000082ca60aRCRD&

vgnextchannel=640a3e4d77d73210VgnVCM100000082

ca60aRCRD

• Spouse of U.S. Citizen

In order for a foreign spouse of a U.S. citizen to be admitted to live in the U.S.A the citizen must petition to have his spouse authorized for an immigrant visa at a U.S consulate abroad.

A conditional two year green card or regular green card may be issued.

For more information see:

http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a

7543f6d1a/?vgnextoid=10093e4d77d73210VgnVCM100000082ca60aRCRD&

vgnextchannel=10093e4d77d73210VgnVCM100000082ca60aRCRD

3.) APPLICATION FOR CITIZENSHIP:

Spouses of citizens can apply after 3 years of residency. Those whose green cards are based on employment have to wait 5. A test of English and U.S. history and civics.

For more information see:

http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a

7543f6d1a/?vgnextoid=a2ec6811264a3210VgnVCM100000b92ca60aRCRD&

vgnextchannel=a2ec6811264a3210VgnVCM100000b92

ca60aRCRD