Entry into the U.S. is controlled by visas. Nonimmigrant visas are for temporary periods. Immigrant visas (green cards) offer lawful permanent residence. Immigrant visas are divided into two categories: employment based and family based.
All immigration to the U.S. is controlled by annual numerical limits both for individual visa categories and country limits. Visa availability may retrogress or become unavailable in high demand categories (EB-3, other workers) and for certain high visa demand countries (Mexico, The Philippines, China and India). This is true for both the employment-based and family based immigration categories.
It is important to completely understand your available visa options when determining your visa strategy. A qualified professional can help you make the most of your initial strategy to avoid common pitfalls and unnecessary complications.
TEMPORARY VISAS (NON-IMMIGRANT)
E-1/E-2 VISA: Citizens of countries that have a trade/investment treaty with the U.S. are eligible for long term visas which permit them to conduct on-going trade between their country and the U.S. (E-1), OR develop and direct a business investment (E-2). The dollar value required for the investment is determined by the amount necessary to adequately fund and operate the particular enterprise. Key managerial and executive employees and those with qualifications essential to the firm’s efficient operations are eligible for derivative E status. The visa status is available so long as the enterprise is doing business.
H-1B VISA: A very valuable visa which has recently been elusive because the yearly demand exceeds the annual limitation of 65,000, requiring a lottery when more than 65,000 are received by the CIS. The H-1B is available to professionals (holders of a baccalaureate degree) who seek to work in their occupation or field of expertise. Employment must be in accordance with the prevailing wage for the position in the geographical area where the applicant seeks to work. When granted, visa approval is for an initial period of 3 years, and a maximum of 6 years, with a 7th year under compelling circumstances. Canadian and Mexican members of certain professions can circumvent an H-1B process by establishing eligibility under the North American Free Trade Agreement (NAFTA). Special H-1B status is also available to citizens of Chile, Singapore, and Australia.
H-2B VISA: Temporary employment based on an offer for a temporary position. Approval is conditioned on evidence that the job is temporary and that there are no willing, able, or qualified U.S. workers for the position. A PERM labor certificate must be obtained from the U.S. Department of Labor. Approval is only for 1 year, with a maximum 3 year presence.
H-3 VISA: Employment authorization for the purpose of receiving training in a field that is not available in the applicant’s home country. Period of approval depends on the nature of the proposed training, but no longer than 2 years total.
L-1A VISA: Available to applicants who within 3 years preceding their application have been employed abroad for at least 1 year, and who are coming to the U.S. to work for the same employer, its affiliate or subsidiary in a position that is managerial, executive, or requires specialized knowledge (L-1B). A maximum stay of 7 years is afforded to managers and executives; 5 years are available for specialized knowledge employees..
O-1 VISA: Available to members of the arts, entertainment, sports, science industries and business. Documentation of extraordinary ability & achievement in the applicant’s field is required. In the case of the performing arts, consultations from unions, guilds and peer groups must be obtained to support a successful petition. … There is no limit to the number of years in this visa status.
IMMIGRANT VISAS (GREEN CARDS)
EXTRAORDINARY ALIENS (EB-1): MANAGERS AND EXECUTIVES who in the 3 years prior to application, have been employed abroad for at least 1 year by a company or employer, and who are coming to the U.S. to work in a managerial or executive capacity for the same employer, an affiliate or subsidiary thereof. This category has been historically open for visas and can be processed fairly quickly.
ARTIST, ENTERTAINERS, ATHLETES, PROFESSIONALS, ENTREPRENEURS, SCIENTISTS, PROFESSORS, & RESEARCHERS of extraordinary ability (EB-1) Like the managerial/executive category, this too has been historically open for visas and can be processed fairly quickly. To establish extraordinary ability, the applicant must document achievements in 3 out of 10 accomplishments enumerated by the CIS, and demonstrate that (s)he is one of the very few ……
ADVANCED DEGREE or EXCEPTIONAL ABILITY WORKERS (EB-2): A baccalaureate plus five years progressive experience, or a master’s degree meets the CIS definition of the “equivalent” of an advanced degree. This subcategory of EB-2 requires an offer of employment from a U.S. source and a PERM labor certificate. In the alternative, by meeting just 3 of 7 CIS criteria, eligibility may be established in the exceptional ability category. A waiver of an offer of employment and PERM process may be waived by establishing that the applicant’s immigration is in the U.S. national interest. For most countries, this visa category has remained open with ample visa numbers available every fiscal year since its enactment in 1996.
SKILLED WORKERS BASED ON OFFERS OF EMPLOYMENT (EB-3): Applicants (1) holding a baccalaureate degree or (2) persons whose occupations require 2 years of education, training and/or experience may immigrate through this classification; both an offer of employment and a PERM labor certification are required. .
ENTREPRENEURIAL INVESTORS (EB-5): Investment of $1,000,000 or a lower $500,000 in designated high unemployment or rural areas, with employment of 10 U.S. workers secures a green card. If the $500,000 investment is made in a CIS approved Regional Center, no evidence of direct employment of U.S. workers is required. While the investment may be made in any Regional Center, the investor is not required to live in the geographical area of the investment. There are a variety of ways to structure the investment, suiting the preferences of the investor.
IMMIGRANT VISAS (GREEN CARDS)
While at first glance immigration based on family relationships may appear to be straightforward, many issues can cause the collapse of eligibility. An experienced and aggressive immigration lawyer can avert a disaster. Some examples follow:
In marriage situations, the bona fide (good faith) of the marriage is frequently the focus of government inquiry. It can take the form of separating the husband and wife at the immigration interview and at worst, an investigation that includes an unscheduled home visit, resulting in denial of the visa petition.
In new marriages, even when conditional resident status is granted, serious issues can arise when two years later it is time to file for removal of the condition (form I-751). At this time the entire issue of bona fide can be revisited. If the I-751 is denied, the foreign spouse will find himself/ herself in removal (formerly deportation) proceedings in Immigration Court.
Another obstacle to resident status through family relationship is the required Affidavit of Support (I-864) which must be signed by the U.S. citizen on behalf of the immigrant. This applies not only in marriage situations, but also when immigrating parents, minor and adult children, as well as brothers and sisters.
Yet another example is the complex definition of “child” in immigration law. It includes the biological child, adopted child, and legitimated child.
The Child Status Protection Act of 2000 (CSPA) protects the right of children to immigrate with their parents, even if they turn 21. This provision was enacted to protect against separation of family. Under certain circumstances, if a visa became unavailable during the immigration process and the child turned 21 while waiting, a complex mathematical calculation prevents the child from aging out, allowing immigration with his parents and sibling.