Frequently Asked Questions Regarding Immigration

The immigration information provided below is of a general nature and should not be 

construed as legal advice.

1.       What is the difference between a Nonimmigrant Visa and an Immigrant Visa?

2.       What are the different categories for Temporary Work Visas?

3.       What is a Labor Certification?

4.       How can you obtain a Green Card without the Labor Certification process?

5.       What is a National Interest Waiver ( NIW )?

6.       How can an individual obtain Permanent Residence through marriage to a 

United States Citizen?

7.       How can an individual become a Permanent Resident through Relatives?

8.       How can an individual become a Citizen of the United States?

9.       What is Political Asylum?

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

1. What Is The Difference Between A Nonimmigrant Visa And An Immigrant Visa?

A. Nonimmigrant Visas: Foreign nationals can enter the United States temporarily as tourists (B-2), business visitors (B-1), students (F-1, M-1), temporary workers (H-1B, L-1, etc.) or for a variety of other reasons. These temporary visas are known as nonimmigrant visas and are issued at United States Embassies and Consulates abroad. Officers at these Embassies or Consulates must be convinced that the visa applicant will not remain in the United States after expiration of the authorized stay. The visa applicant must demonstrate that he/she intends to depart the United States within the prescribed period of time. While some Nonimmigrant Visa categories are subject to annual quotas (i.e. H-1B), most are unrestricted in number. Visas may be valid for one or more entries into the United States. However, a visa does not guarantee entry into the United States. The Immigration Officer at the United States port of entry makes the final determination.
B. Immigrant Visas (a.k.a. "Green Cards") grant the holder the right to live and work in the United States permanently. Holders of these visas are referred to as Lawful Permanent Residents. They are obtained either in the United States or abroad at a United States Embassy or Consulate. Green Cards are available mostly to those individuals who have immediate family members in the United States or possess job skills needed by a United States employer. Additionally, a number of Green Cards each year are granted to investors, refugees, highly educated individuals and DV Lottery winners. The number of Green Cards issued each year is subject to an annual quota on each category.

2. What Are The Different Categories For Temporary Work Visas?

H-1B Specialty Occupations H-1B visas are the most common route to work in the United States for most professional foreign workers. Currently, 65,000 of these visas are issued every year usually in three year increments, with a maximum duration of six years. A new six year period commences if the person departs the United States for one year. The basic requirements needed to obtain an H-1B visa are a job offer from a United States employer, where the position itself requires a minimum of a 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 the position offered.

Exchange visitors (J-1): The Department of State (formerly United States IA) grants numerous educational institutions and organizations the right to sponsor persons as Exchange Visitors on the J-1 visa program. J-1 visa holders are restricted to participating in the specific exchange programs for which the visa has been approved. Government-funded programs (either the United States or foreign government), persons with skills listed on the United States IA's Exchange Visitors Skills List, or graduate medical training requires that the J-1 visa holder comply with a two year foreign residency requirement (INA sec. 212(e)) after the expiration of his/her stay. This restriction means that these types of J-1 visa holders must return to their home countries for at least 2 years before they are permitted to get a Green Card or change to another Nonimmigrant Visa Category Waivers can be sought to avoid this requirement.

Treaty Traders (E-1) and Treaty Investors (E-2): Owners and key employees of businesses which conduct a substantial volume of trade between the United States and home country are Treaty Traders (E-1); and where a substantial amount of capital has been invested in the United States and jobs have been created for United States workers are referred to as Treaty Investors (E- 2). To qualify, the home country must have a Treaty with the United States.

Intracompany Transferees (L-1). An individual may qualify for an L-1 visa if they have been employed outside the United States as a Manager, Executive (L-1A) or person with specialized knowledge (L-1B) for at least one of the last three years, and if they have been transferred to the United States to be employed in a similar position. The United States company to which they are transferring to must be a branch, subsidiary, affiliate or joint venture partner of the non-United States company. The non-United States company must remain in operation for the duration of the L-1 visa. The company may be either a foreign division of an American-based company or it may have originated outside the United States. Any form of business is adequate, including but not limited to corporations, LLCs, LLPs, partnerships, joint ventures and sole proprietorships. There are no quota limits on L-1 visas.

Religious Workers (R-1). To qualify for an R-1 visa, the applicant must be a member of a religious denomination for at least 2 years and have a job offer in the United States to work for an affiliate of that same religious denomination. R-1 visas are for either clergy or lay religious workers. Successful applicants need not have worked for the religious organization, but rather just be members of it for at least 2 years.
Other temporary work visa categories include: Temporary Trainees (H-3), Persons of Extraordinary Ability in the Arts, Sciences, Education, Business or Sports (O-1/2); Athletes and Entertainers (P).

3. What Is Labor Certification?

The first step in obtaining permanent resident status through employment is 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. The employer files the forms, and the local Department of Labor office sends back instructions on how to advertise for the job. If no qualified applicants arise, the Labor certification will be approved and the second step can begin. In some states, the Labor Certification process can take several years.
The following are the preference categories for employment-based immigration:
· First Preference: Priority workers, requires no Labor Certification.
· Second Preference: Members of the professions holding an advanced degree or exceptional ability; if their work falls under the "National Interest" requirement, then the Labor Certification and job offer requirement can be waived;
· Third Preference: Skilled workers, i.e. those capable of performing work requiring at least two years experience or training for which qualified workers are not available in the United States; Professionals, i.e. those with baccalaureate degrees, but not advanced degrees; and other workers, i.e. unskilled labor, not of a temporary or seasonal nature.

4. How Can You Obtain A Green Card Without The Labor Certification Process?

If a person is in the First Employment-based Preference Category (EB 1), you do not need to go through the Labor Certification Process. Furthermore, persons of extraordinary ability do not need a job offer from a United States 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 United States.
· Outstanding Professors and Researchers: The individual must 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. The Institution must have 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 United States as priority worker. He/she must enter the United States 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 after one year of work in the United States.

5. What Is A National Interest Waiver (NIW)?

The employment based Second Preference Category (EB-2) includes members of the professions who hold advanced degrees and individuals of exceptional ability in the arts, sciences or business. Although this category requires a job offer and Labor Certification, the BCIS may waive this requirement if the work of the alien is in the "National Interest".

6. How Can An Individual Obtain Permanent Residence Through Marriage To A United States Citizen?

If the United States citizen resides in the United States:
An application to the BCIS office having jurisdiction over the U.S. Citizens (petitioners) residence is the first step. Usually, this is a one-step filing, meaning that you apply for petition approval, adjustment of status and work authorization all at the same time. The BCIS will issue an employment authorization document (EAD) usually within 90 days of applying. The BCIS will then require that the couple attend an interview.. This may take from twelve months to over two years, depending on the BCIS jurisdiction. The BCIS will examine documents and question the applicants to determine that the marriage is bona fide. Documents that will need to be submitted include: wedding photographs, tax returns, joint bills, joint leases or deeds, joint bank accounts, insurance documents naming each spouse as beneficiaries. If the Immigration Officer suspects that the marriage was entered into solely for immigration purposes, the BCIS may conduct an investigation. If the marriage is less than 2 years old at the time of interview, then the Green Card will be issued as conditional, and expire in 2 years. The applicant and spouse must file papers to have the conditions removed within the 90 day period prior to the expiration of the Green Card. They must then return for another interview to have the conditions removed.
If the United States citizen resides abroad:
If the United States citizen resides abroad, the paperwork must be submitted and processed at the appropriate United States Consulate. The process is nearly the same but the waiting time is less.

7. 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 United States citizens: There are no quotas and no priority date waiting times for immediate relatives of United States citizens. They are defined as: spouses of United States citizens (including widows and widowers who were married to the United States 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 United States citizen parent; parents of United States citizens, if the United States citizen is over 21.
2. First Preference - Unmarried sons and daughters of United States citizens.
3. Second Preference -Spouses and unmarried children of United States citizens.
4. Third Preference-Married sons and daughters of United States citizens.
5. Fourth Preference- Brothers and sisters of United States citizens).
Family sponsored immigration has an overall quota of 480,000 visas per year, less immediate relatives (who are 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.

8. How Can An Individual Become A Citizen Of The United States?

There are 4 ways to become a United States citizen:
A. By Naturalization.
(i) Must be a Lawful Permanent Resident.
(ii) Must be 18 years or older.
(iii) Must be a Permanent Resident for five years. However, if a person obtained Permanent Residence through marriage to a United States citizen, you may be eligible for Naturalization in three years if: a) the couple has been married for 3 years, b) if the spouse was a citizen during that entire period, and c) if the couple are still living in marital unity.
(iv) Must have resided for at least three months in the State where the petition was filed.
(v) Must be physically present in the United States for at least one half of the five years (or one half of three if spouse is a citizen), with no absences longer than 1 year. (Absences longer than 6 months, but less than 1 year can also break this rule if the Immigration Officer deems that the applicant did not give a "reasonable explanation" for the absence).
(vi) Must have resided continuously within the United States from the date the petition was filed to the time of admission to Citizenship.
(viii) Must be a person of good moral character for the five years
(ix) An elementary level of understanding, reading and writing English. Exceptions to this rule for persons over fifty, in the United States for 20 years or more as a Permanent Resident; and persons over 55, in the United States for 15 years as a Permanent Resident.
(x) A basic knowledge of the fundamentals of United States government and history, to be displayed by passing a BCIS examination. This requirement can be waived for people over 65 and have been Permanent Resident for 20 years.
B. By birth in the United States: Under the 14th Amendment, all persons born in the United States are citizens regardless of the status of their parents..
C. By acquisition at birth: A child born outside the United States where one or both parents are United States citizens may acquire United States citizenship at birth.
D. By derivation through naturalization of parents: A child born outside the United States may become a citizen by virtue of the parents' naturalization.

9.What Is Political Asylum?

The BCIS grants aliens political asylum in the United States based upon a well-founded fear of persecution in applicants home country due to race, religion, nationality, political opinion or membership in a particular social group. The fact that you may be suffering economically is not considered a reason for asylum. A person must request Political Asylum within one year of arriving in the United States, unless exceptional circumstances can be shown. The Asylum Officer or Immigration Judge will determine if the applicant's subjective fear of returning to his or her home country is supported by objective evidence and whether the applicant is credible. If political asylum is granted, the applicant is allowed to remain in the United States and eventually obtain Permanent Residence.

10. 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 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.

Nieslen & Doody, LLC provides a wide range of immigration services for both corporate and individual clients. We handle U.S. immigration proceedings for our clients anywhere in North America and throughout the world.

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