Immigration FAQs

1. What is the difference between a nonimmigrant visa and an immigrant visa?
2. What is an H-1B visa?
3. Can I get Permanent Residency /Green Card through my Employer?
4. Do I have to go through the Labor Certification process?
5. How can an individual become a permanent resident through relatives?
6. How can an individual become a citizen of the US?
7. What is the Diversity Visa Lottery (DV)?
8. What if I stay in the US illegally?

1. What is the difference between a nonimmigrant visa and an immigrant visa?

A. Nonimmigrant visas: There are several visas that fall into this category; (B-2), business visitors (B-1), students (F-1, M-1), workers (H-1B, L-1, etc.) or for a variety of other reasons. These are temporary visas also known as nonimmigrant visas and are issued at US embassies and consulates abroad. The applicant must establish and convince the Officers at the US embassy or consulate abroad that if they issue the visa they will not remain in the US after expiration of the authorized stay.  Out side of the H1b visa category, the other categories of visas are not subject to an annual quota.  Nonimmigrant visas can usually be obtained rather quickly and may be valid for one or more entries into the US. However, a visa does not guarantee entry into the US. The immigration officer at the US port of entry makes the final determination.

B. Immigrant visas more commonly known as Green cards:  An individual holding this status is considered a legal Permanent Resident Alien, and they have the right to reside and work in the permanently in the US. An individual may gain this status if they have immediate family members in the US or job skills needed by a US employer and the process can take place in the US or the US Consulate abroad. Additionally, a number of green cards each year are granted to investors, refugees, highly educated individuals and Diversity Lottery winners.   The processing time for this type of visa varies since they are subject to a numerical limitation dictated by the category a visa applicant falls into.

2. What is an H-1B visa?

H-1B visas are work visas. They are the most common route to work in the United States for professional foreign workers. Currently, 85,000 H1Bs are issued every year (with 20,000 of those reserved for graduates of US Graduate Schools), usually in three year increments, with a maximum duration of six years.  However if an individual has a labor certification or I-140 petition pending. A new six year period commences if the person departs the US for one year. The basic requirements needed to obtain an H-1B visa are a job offer from a US employer, where the position itself requires a minimum of a specific 4 year Baccalaureate degree and the applicant has the relevant education and/or work experience to fulfill these requirements. Additionally, the employer must pay the prevailing wage in that specific area for that specific position (and file a Labor Condition Application with the US Department of Labor). H-1B visas usually take between 2 weeks (through premium processing-for an additional $1000 filing fee) and 12 weeks to process and receive, depending upon the jurisdiction of the work site. Among the many positions considered specialty occupations in this category are: information technology professionals such as programmers, analysts and network engineers, Physicians (who graduated from US Medical schools and passed parts 1 and 2 of the USMLE), Physicians (who graduated Foreign medical schools and passed all 3 parts of the USMLE) some senior/managerial registered nurses, journalists, accountants, teachers, researchers and scientists. Immediate family members of H-1B visa holders are entitled to H-4 visas, which are not work authorized.

More about H1B visas

2a. What is H-1B Portability? i.e When can I switch H-1B employers? When an individual already holds H-1B status/visa, they may change employers by having the new employer file a petition on behalf of a new employee. The individual may begin employment with the new employer upon filing (and receipt of the I-797 receipt notice) the new petition. The individual does not need to wait for approval of the new petition to begin working for the new employer.

2b. What if I have a gap in H-1B employment? Often, when applying for a "change of employer" H-1B, CIS will request copies of the individuals most recent pay statements with the previous employer to show that the individual maintained his/her status. Officially, workers are out of status immediately upon termination or resignation. While no official grace period exists, H-1B change of employer petitions are commonly approved when filed within a reasonable period time (2-4 weeks) from the last date of employment. ILG strongly recommends filing before leaving the previous position, if possible. The oft-quoted "10 day rule" only applies to H-1B visa holders who fulfilled their entire period of sponsorship, and are given 10 days to leave the United States upon the expiration of their visas.

2c. What is the H-1B cap? The H-1B cap is currently set at the very low number of 65,000 per year, and 20,000 were recently added as cap-exempt for graduates of U.S. master's degree programs or higher. The visas are released each year on October 1, however, one can apply for the October 1 released visas on April 1, 6 months in advance. ILG strongly recommends filing as early as possible, as all of the FY 2005 H-1B visas were taken on the first day of the year, October 1. Certain employers and employees are exempt from the annual H-1B cap. (see below)

2d. Who is exempt from the H-1B Cap?

• H-1B visa holders who seek to change employers
• H-1B workers filing to work concurrently in a second H-1B position
• H-1B workers filing to change the terms of their employment
• H-1B workers who will be employed at an institution of higher education or a related or affiliated nonprofit entity, or at a nonprofit research organization or a governmental research organization.
• Conrad 30 J Waiver Recipients-Physicians working in medically underserved areas (MUA)
• USCIS will also continue to process H-1B petitions for workers from Singapore and Chile consistent with Public Laws 108-77 and 108-78.

2e. What is Dual Intent? An H-1B alien can be the beneficiary of an immigrant visa petition, apply for adjustment of status, or take other steps toward Lawful Permanent Resident status without affecting his/her H-1B status. This is known as "dual intent" and has been recognized in immigration law since passage of the Immigration Act of 1990. During the time that the application for LPR status is pending, an alien may travel on his or her H-1B visa rather than obtaining advance parole or requesting other advance permission from Immigration to return to the U.S.

2f. How can I get a 7th Year Extension (and beyond) of my H-1B visa? An H-1B visa holder who is reaching his/her 6 year limit can extend past the 6th year if they have a labor certification or I-140 pending for more than 365 days, or if they are prevented from gaining their US permanent residence status due to an unavailability of immigrant visas under the per country quota system (see Visa Bulletin).

2g. Can I get an H-1B if I haven't graduated from college? Work experience evaluations in lieu of baccalaureate degree: Shanti, Inc. v. Reno, 36 F. Supp. 1151, 1161-1166(D.Minn.1999) reaffirmed the longstanding INS rule allowing for 3 years of experience to be equivocated as one year of college. Therefore, H-1B applicants can display the equivalent of a college degree by proving 12 years of relevant, progressive work experience. One should get an accredited evaluator to make such a determination before presenting to CIS.

3. Can I get Permanent Residency through my Employer?

Yes. The first step in obtaining permanent resident status through employment is for the employer to show the U.S. Department of Labor that there are no qualified American workers available to take the specific job that has been offered. Applicants apply for green cards under preference categories and are subject to country-by-country quotas. The date on which the employer files the labor certification papers is called the priority date. The priority date marks the legally recognized moment when the waiting period for a green card starts to elapse.

4. Do I have to go through the Labor Certification process?

No. If a person is in the First Employment-based Preference Category (EB 1), one does not need to go through the labor certification process. Furthermore, persons of extraordinary ability do not need a job offer from a US employer.

EB-1 subcategories are:

Persons of Extraordinary Ability: in the sciences, arts, education, business or athletics, as demonstrated by national or international acclaim, which should be recognized through extensive documentation. The individual should continue the work in the field and the entry should substantially benefit the US.

Outstanding Professors and Researchers: requires that the individual be internationally recognized in an academic area and possess at least 3 years of academic research or teaching experience; have a tenure or tenure track position at a university or an institute of higher education or a comparable research position in an institution that employs at least 3 persons full time in research and which institution has achieved documented accomplishments in the field. Additionally, researchers may accept a job conducting research in industry.

Multinational Executives or Managers requires that the individual be employed abroad in that capacity during at least one of the three years preceding the application for admission to the US as priority worker. He/she must enter the US to be employed as an executive or manager for the same firm, corporation or legal entity or a subsidiary or affiliate of the entity that employed him/her abroad. Most L-1A visa holders qualify for this category.

5. How can an individual become a permanent resident through relatives?

There are five categories under which an individual can obtain permanent residency through relatives. They are:

1. Immediate relatives of US citizens: There are no quotas and no priority date waiting for immediate relatives of US citizens. They are defined as: spouses of US citizens (including widows and widowers who were married to the US citizen for at least 2 years and are applying within 2 years of the citizen's death); unmarried people under 21 who have at least one US citizen parent; parents of US citizens, if the US citizen is over 21.
   
2. First Preference-Unmarried sons and daughters of US citizens (23,400 per year, plus unused visas from the fourth Preference);
   
3. Second Preference-(F2A) Spouses and unmarried children of permanent residents (114,000 per year, plus excess over 226,000 the floor for family based immigration, plus unused visas from the first Preference); (F2B) Unmarried sons and daughters of green card holders who are at least 21.
   
4. Third Preference-Married sons and daughters of US citizens (923,400 per year, plus unused visas from the first and second Preferences);
   
5. Fourth Preference- Brothers and sisters of US citizens (65,000 per year, plus unused visas from the first second and third Preferences).

The waiting period to obtain an immigrant visa through relatives will vary depending on one's preference category and one's country of origin. Nationals of Mexico, India, People's Republic of China and the Philippines generally have longer waits in these categories.

Common family-based immigration FAQ's:

What if my spouse/relative overstayed his/her authorized period of stay I-94 card? For spouses of US citizens and other immediate relative filings, one may still adjust status in the US even if you have overstayed your visa. However, for the other family preference categories, an alien cannot adjust status if he/she has overstayed their visa. In fact, if one overstays a visa by 180 days or more, one is barred from adjusting or reentering for 3 years. Furthermore, if one overstays for 365 days or more, one is barred from adjusting or reentering for 10 years.

Do I make enough money to sponsor my relative? All sponsors must submit form I-864, Affidavit of Support, which assures the government that you are financially capable of bringing an immigrant relative to the United States. Most sponsors must earn 125% of the poverty income level-please see form I-864P for the current guidelines (see the current poverty level guidelines- http://uscis.gov/graphics/formsfee/forms/files/I-864p.pdf ).
All sponsors must submit the following documentation with their I-864.

• Proof of current employment or self employment
• Your individual Federal income tax returns for the most recent 3 tax years, or an explanation if fewer than 3 are submitted. Your W-2s or 1099 forms may also be required, see the I-864 instructions for details. If you are using the income of persons in your household or dependents to qualify as a sponsor, you must also submit a separate Form I-864A, Contract Between Sponsor and Household Member, for each person whose income you will use. If you are unable to show enough income on your own, one may use a joint sponsor for the Affidavit of Support.

6. How can an individual become a citizen of the US?

There are 4 ways to become a US citizen:

1. By Naturalization Petition
2. By birth in the US: Under the 14th Amendment, all persons born ... in the United States ... are citizens regardless of the status of their parents, who may be citizens, green card holders, or illegal aliens.
3. By acquisition at birth: A child born outside the US where one or both parents are US citizens may acquire US citizenship at birth.
4. By derivation through naturalization of parents: A child born outside the US may become a citizen by virtue of the parents' naturalization.

7. What is the Diversity Visa Lottery (DV)?

The Immigration Act of 1990 created a new green card category to benefit people from countries that have low immigration to the United States. The goal of the program is to diversify the pool of immigrants entering the United States. The DV program grants 55,000 immigrant visas each year by random drawing (hence the term "lottery). The visas are divided among geographic regions . A greater number of visas will go to those regions that have lower immigration rates and no visas may be issued to countries that have sent more than 50,000 immigrants to the U.S. during the previous five years. DV applicants must have a high school education or its equivalent, or within five years have two years of work experience in an occupation that requires at least two years of training or experience. The DV registration period is usually between early October and early November of each year and successful registrants are usually notified between April and July of each year. Registrations submitted one year are not held over until the next, so if you are not chosen one year you must reapply the next year to be considered.

8. What if I stay in the US illegally?

Most immigrants don't realize or understand the very grave consequences of remaining in the United States illegally. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 created substantial penalties for aliens who overstay their visas or enter the country illegally.

Aliens subject to these penalties are termed to have been "unlawfully present" in The United States. INS defines unlawful presence with three categories: (1) those who entered without inspection (EWI), or crossed the border illegally; (2) those who stayed in the country beyond the date on their I-94 arrival/departure card (overstays); and (3) those who are found by the INS or immigration judge to have violated the terms of their stay.

If someone is unlawfully present in the US for between 180 and 365 days, they are then barred from reentering, changing or adjusting their immigration status for 3 years. People unlawfully present for more than one year are barred for 10 years.

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 makes remaining in the U.S. illegally a much more dangerous act than most people realize. As stated above, unlawful presence can affect one's ability to enter the United States for years to come. This harsh law has trapped a class of aliens in a permanent state of illegality. While there are a number of bills pending before the Congress to soften this severe law, the current political atmosphere does not make passage likely. Potential immigrants must be vigilant in maintaining valid immigration status.

Glossary

Adjustment of Status (I-485) - The final stage of the green card process involving the filing of paperwork with the USCIS within the U.S., rather than filing at an embassy or consulate abroad, known as consular processing. Applicants may only file for adjustment of status if they are inside the United States, a visa is immediately available, and they are not barred from doing so do to an immigration violation, entry without inspection, criminal conduct, or other reasons.

Application refers to a formal request for a green card or nonimmigrant visa. In the case of most green cards and nonimmigrant visas, an application cannot be made until one obtains proof that one is qualified through an approved petition. In some cases, a petition is not required and only an application is needed.

Applicant refers to the person who makes a formal request for a green card or nonimmigrant visa. In some cases, one cannot be an applicant until a petition is approved. Depending on where one is in the overall immigration process, one can be called an applicant or beneficiary.

Beneficiary refers to the individual who benefits from a petition by becoming qualified to make an application for a green card or visa.

Department of Labor (DOL) is the U.S. government agency involved with many types of employment-based green cards. The DOL receives applications for Labor Certifications and decides whether or not there is a shortage of American citizens available to fill a particular position in a U.S. company.

Department of State is the U.S. government entity that operates U.S. embassies and consulates. It is the DOS that determines who is entitled to a visa or green card when the application is filed outside the U.S. at U.S. embassies or consulates. The USCIS under the Department of Justice regulates immigration processing inside the U.S.

Diversity Program refers to the annual lottery program held for nationals of certain countries who want to immigrate to the U.S. It is called the diversity lottery program because this program is available to nationals of countries with low immigration rates to the U.S.

Green Card is a popular term used to describe the Alien Registration Receipt Card, a card that proves one is a United States Permanent Resident. The green card (actually pink) allows you to re-enter the U.S. without a visa, work without a work permit, and allows you to permanently reside in the U.S. unless you abandon your U.S. residence or commit certain types of crimes.

I-94 Card is a small green or white card given to all nonimmigrants when they enter the U.S.. The I-94 card serves as evidence that a nonimmigrant has entered the country legally and also governs the non-immigrant's authorized period of stay in the U.S.

Immediate Relative refers to spouses of U.S. citizens, children under 21 with at least one U.S. parent, or parents of children over 21 who are U.S. citizens. If you are an immediate relative of a U.S. citizen, you are eligible to receive a green card immediately.

Inadmissible refers to potential immigrants who are disqualified from obtaining visas or green cards because they are judged by the U.S. government to be in some way undesirable. Inadmissibility is usually based on criminal, financial, or national security grounds. In many cases, inadmissibility can be overcome.

Labor Certification refers to a process that allows you to get a green card through a job offer from a U.S. Employer, if the U.S. Employer proves that there are no qualified U.S. workers available and willing to take the job. People who fall under the employment second and third preferences usually need labor certifications in order to get their green cards.

National Visa Center (NVC) is a private company under contract with the Department of State for the purpose of processing the final green card application process by sending forms and instructions to the applicant and forwarding the file to the appropriate U.S. consulate abroad.

Naturalization refers to foreign individuals who take legal action to become U.S. citizens. A naturalized U.S. citizen has virtually the same rights as a native-born American citizen. Almost everyone who goes through naturalization must first have held a green card for several years.

Nonimmigrant is one who comes to the U.S. temporarily for some particular purpose but do not intend to remain permanently in the U.S.. An Immigrant is one who comes to the U.S. to take up permanent residency. There are many types of nonimmigrants. Students, temporary workers and visitors for instance. A nonimmigrant visa is a visa to allow a person to enter the U.S. temporarily for some particular purpose. An immigrant visa is a visa issued to a person who has been approved for a green card.

Parole or Advanced Parole allows a person, under certain circumstances, to enter or re-enter the United States for humanitarian purposes, even when he or she does not meet technical visa requirements.

Permanent Resident is a non-U.S. citizen who has been given permission to live permanently in the U.S. Permanent resident and green card holder refer to exactly the same thing.

Petition refers to a formal request that one be legally recognized as qualified for a green card or certain nonimmigrant visas.

Petitioner/ Sponsor refers to the U.S. person or business who makes the formal request that one be legally recognized as qualified for a green card or nonimmigrant visa. The petitioner can be a U.S. citizen, green card holder, or U.S. business.

Political Asylum refers to a humanitarian process whereby those in the United States who seek save haven from being returned to their home country for political, religious or other reasons, are allowed to stay in the United States. A refugee is one who seeks safe haven while outside the United States. A refugee or asylee can eventually get green cards.

Preference Categories refers to groups of people who fall into certain categories (or preferences) and who are given their chance at green cards under the annual quota system according to their respective preference category. Preference categories are broken into two broad groups: family preferences and employment preferences.

Priority Date refers to a green card applicant's "ticket in line". Those who are subject to the annual quota under the preference system are given priority dates The date on which one first makes a formal filing for a green card is the priority date. Each month the U.S. Department of State publishes a "Visa Bulletin" which tracks the progress of priority dates for each preference category.

Quota refers to those qualified green card applicants who are allowed into the U.S. in limited numbers, while others are allowed to enter the U.S. in unlimited numbers.

Removal (formerly deportation) refers to a legal proceeding in a U.S. Immigration Court to decide whether or not an individual will be allowed to remain in the U.S. If an individual is found removable, he or she can then be forced to leave the U.S. Those who are removed or deported are barred from returning to the U.S. for at least five years unless a special waiver is granted by the USCIS.

Special Immigrants refers to special groups of people (religious workers, former U.S. government workers, foreign doctors who have been practicing medicine in the U.S. for many years) who qualify for green cards under the annual quota.

Temporary Protected Status (TPS) refers to allows someone to temporarily stay in the U.S. if they come from certain countries designated by law as experiencing conditions of war or natural disasters. TPS allows someone to live and work in the U.S. temporarily, but does not lead to a green card.

Unlawful Presence Generally refers to either being present in the U.S. after entering without inspection (EWI) or after staying past the expiration date on an I-94 card, though there are other situations where unlawful presence accrues as well. 3 and 10 year bars: One who was unlawfully present for 180 days and then leaves voluntarily, before being placed into removal proceedings, is subject to a three-year bar on returning to the U.S. If the period of unlawful presence is a year or more, then the bar is for ten years. A Duration of Status (which usually occurs for F-1 or J-1 visa holders) overstay does not qualify as unlawful presence unless an actual determination is made by the USCIS or an Immigration Judge.

U.S. C.I.S. or U.S. Citizenship & Immigration Services refers to the U.S. government agency having responsibility for most immigration matters including border patrol and adjudicating immigrant and nonimmigrant visas.

Visa Waiver Program allows national from certain countries to come to the U.S. without a visa as tourists for 90 days. Persons who enter under the Visa Waiver Program are issued a green-colored I-94 card. Visa Waiver entrants cannot change their status (unless the change is based on an immediate relative spouse petition) or extend their stay 

Processing Times

Labor Certification:
DOL and State Labor Offices Processing Times
Check the processing times for State Labor Offices and the US Department of Labor
http://workforcesecurity.doleta.gov/foreign/times.asp
 
USCIS
USCIS Service Centers and District Offices Processing Times
Check the processing times for USCIS Regional Service Centers and District Offices
https://egov.immigration.gov/cris/jsps/ptimes.jsp;jsessionid=bHXOlPOCEinb

CASE STATUS:
For a USCIS Case status inquiry, please visit the USCIS page here, and along with a case #, check your specific case online.

Embassy/consulate visa processing times:
Find out how long it will take you to process your visa at your embassy or consulate by visiting this page.