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NONIMMIGRANT VISAS (TEMPORARY VISITORS)

There are a variety of nonimmigrant visas available for foreign nationals travelling to the U.S. temporarily.  The purpose of the intended travel and other facts determine what type of visa is required.

LEGAL PERMANENT RESIDENCE (“GREEN CARD”)

U.S. immigration laws permit noncitizens to qualify for lawful permanent residence (a “green card”) through a variety of ways under three major categories: family, employment, and humanitarian and public policy. A Legal Permanent Resident (“LPR”) has the right to live and work in the U.S., and travel in and out of the country.

Family-Based Categories

Family-based categories require a close family member who is a U.S. citizen (USC) or legal permanent resident (LPR) to petition on behalf of the noncitizen. The amount of time between when the USC or LPR files the petition and when the noncitizen family member obtains a visa varies greatly – from six months to more than 20 years. This is because the wait time is determined by a combination of the immigration status of the petitioner (USC or LPR), the type of family member they are petitioning for, and the country the noncitizen family member is from.

The U.S. authorizes a set number of family-based visas each year, and each year more people apply than there are visas authorized.  This creates a lengthy backlog of applications.

In addition, the government separates family relationships into categories, giving preference to some relationships over others. For immediate family members, which includes spouses, unmarried children under 21 years old, and parents (when the petitioner is at least 21 years old), of a USC, a visa is available as soon as the petition is approved. Other family members are categorized & processed by First Preference: unmarried sons & daughters of USC; Second Preference: spouses and children, and unmarried sons & daughters (21 & older) of LPR’s;  Third Preference: married children (21 & older) of USC; and Fourth Preference: siblings of USC. These family members must wait until a visa becomes available. They will use their “priority date” (generally, the date USCIS receives the petition) to check the monthly “visa bulletin” online to see when they are eligible to apply for a visa.

In addition to the overall cap on family visas, there is also a per country cap.   Since the majority of applications come from Mexico, China, India, and the Philippines, family members from these countries experience an especially long wait.

In addition to proving the required family relationship, immigrants intending to apply for permanent residency must also satisfy other requirements, including the criminal, health, financial & immigration inquiries.

Foreign national fiances of U.S. citizens may qualify for a visa to enter the U.S. for 90 days for the purpose of marrying the USC. The couple must be free to marry, showing that any previous marriages were legally terminated by divorce, death or annulment. The couple must have met each other, in person, at least once within the preceding two years (waived if it would result in extreme hardship or would violated strict and long-established customs).

While family-based visas generally require the USC or LPR to petition on behalf of the noncitizen, in some cases of domestic abuse at the hands of the USC or LPR, the noncitizen may be able to self-petition for their family-based visa. The Violence Against Women Act (VAWA) permits battered spouses and children of USC’s and LPR’s, parents of children battered by their USC or LPR step-parent, and parents battered by their adult USC or LPR child, to file their own petition for a visa based on the qualifying family relationship. The applicant must prove the status of the abuser, the relationship with the abuser, the abuse & its effects on the applicant, and the good moral character of the applicant.

Additionally, recently widowed spouses of a USC may self-petition, so long as they were married for two years prior to the death of their spouse, apply within two years after the death of their spouse, and have not remarried.

Certain Employees, Workers, or Investors

Foreign nationals who have certain skills valuable to US employers may qualify for permanent residence.  Each different type of worker is prioritized into preference categories, each with an annual cap on the number of visas allotted.  Each year more applicants apply than there are visas available, so there can be a long wait time between the time the employment-based petition is filed and when the person can apply for permanent residency. Employment visa categories include:

Aliens with “extraordinary ability” in the sciences, arts, education, business or athletics, which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized by others in the particular field of expertise through extensive documentation. Although no offer of employment is required and no labor certification is required for workers in this category, applicants must continue to work in their field of extraordinary ability and their entry into the U.S. must substantially and prospectively benefit the U.S.

Outstanding professors and researchers recognized internationally as outstanding in a specific academic area and that have at least 3 years of experience in teaching or research in that area. Applicants must be entering the U.S. for (1) a tenured position (or tenure track) position within a university or institution of higher education to teach in the academic area; (2) for a comparable position with a university or institution of higher education to conduct research in that area; or (3) for a comparable position to conduct research in the area with a private employer who employs at least 3 persons full-time in research activities and has achieved documented accomplishments in the academic field. While labor certification is not required for workers in this category, an employer is required (ie. a job offer from a university, research institute, private organization, etc.).

Multinational executives and managers that they were employed abroad by their sponsoring employer as an executive or manager during at least one of the three years preceding the application for admission to the U.S. as a priority worker. Most importantly, the applicant must be coming to the U.S. for the specific purpose of working as an executive or manager for the same organization (or a subsidiary or affiliate) which s/he was employed by abroad. Limited to 40,000 per year. (EB-1)

Employment Second Preference covers members of the professions holding advanced degrees or aliens of exceptional ability in science, the arts, or business (or who have the equivalent in education and experience in their particular field). The “professions” refers to those jobs which can only be performed by workers who have attained a bachelors degree or higher. “Advanced degrees” refers to those workers who hold a master’s degree (or its equivalent), or a bachelor’s degree plus 5 years of progressive experience in their field. Applicants must have a standing job offer and the offering employer must complete the “labor certification” process. The labor certification process will test the U.S. job market to show that there are no qualified U.S. workers (USC or LPR) available for the offered position. Where the applicant can show that it would be in the “national interest” to permit him/her to enter the U.S. and work at the particular job, the government may waive both the job offer and labor certification requirements. Limited to 40,000 per year. (EB-2)

Employment Third Preference covers “skilled workers” (a job which requires at least 2 years training or experience), professionals (baccalaureate degree or foreign equivalent and/or a person who is a member of the professions), and “other workers” (those performing unskilled jobs which require less than 2 years of training and who are not temporary or seasonal). Applicants must have a standing job offer and the offering employer must complete the labor certification process. Limited to 40,000 per year, with 10,000 of those going to “other workers”. (EB-3)

Employment Fourth Preference covers special immigrants, juvenile court dependents who are eligible for foster care under state law, foreign medical graduates, religious workers, commuters from the border, retired G-4 nonimmigrant (employee of International Organizations), returning residents, person seeking reacquisition of citizenship, U.S. government workers (at least 15 years), employees of the Hong Kong Consulate, and ex-employees of the Panama Canal zone. Limited to 10,000 per year. (EB-4)

Employment Fifth Preference – The “Investor Visa” requires an active investment in a new commercial enterprise which creates at least 10 new full-time jobs for U.S. workers, not including alien or family members of the applicant. Applicants must either invest $500,000 in “targeted employment areas” (rural areas or areas experiencing high unemployment of at least 150% of the national average rate or a rural area which has a population of less than 20,000) or $1,000,000 anywhere else. This would result in the issuance of a 2 year conditional green card, which condition may be removed by the INS after the expiration of the conditional period if the applicant can prove to the INS that the enterprise was established, the investment was made and it is being maintained as a commercial enterprise. However, in order to have the condition removed, the applicant must file a specific form with the INS within the 90 day period preceding the second anniversary of having been granted conditional residence. Limited to 10,000 per year with at least 3,000 going to investors who invest in the targeted employment areas. (EB-5)

Schedule A Labor Certification: From time to time, the U.S. Department of Labor (DOL) determines that labor shortages exist in certain occupations in the U.S. These occupations are compiled and reported in a “Schedule A List”. Employers in need of workers to fill Schedule A occupations may file green card petitions for immigrant employees directly with the INS and are therefore not required to obtain a labor certification from the DOL. This means that the employer is not required to test the U.S. labor market for qualified U.S. workers.

National Interest Waiver: Workers who can demonstrate that they will be coming to the U.S. to do work that is in the “national interest” may get a visa without having a specific job offer and without obtaining a labor certification from the Department of Labor. Under this particular provision, which applies to persons with exceptional ability and members of the professions holding an advanced degree or its equivalent in the sciences, arts, or business, it is said that the INS “waives” the job offer and the labor certification requirements. While eligible applicants do not need a job offer or employer and may sponsor themselves, they still must show that they will be coming to the U.S. to do work in their particular field and that, if granted permanent residence, they will prospectively and substantially benefit the national interest of the U.S. (ie. economy, culture, welfare, and education).

Asylees and Refugees

Asylum can be sought by an individual inside the United States within one year of their arrival.  The person must prove that they have a well-founded fear of persecution in their native country based on their race, religion, nationality, political opinion, or membership in a particular social group.  Refugees are similar to asylum-seekers except that they apply for refugee status outside of the United States.  A person granted asylum or refugee status can apply for permanent residency after one year.

Diversity Lottery Winners

Fifty thousand immigrant visas are authorized every year for the lucky winners of the diversity lottery.  The winners are randomly selected by the Department of State and the lottery is open to people from countries with low rates of immigration to the United States.

People Who Qualify For Registry

Registry is a provision in immigration law which allows an undocumented person who has lived in the United States since January 1, 1972 to apply for permanent residency.  The person must be of good moral character and must otherwise qualify to receive permanent residency.  A person’s criminal, immigration, or medical history could disqualify them from becoming permanent residents – it is important to speak with an experienced attorney to be sure you qualify.

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