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IMMIGRATION QUESTIONS & ANSWERS

From time to time, we get inquiries about immigrating into the United States from people wishing to live and work here. We will be adding to this list and if you have other questions, please let us know.
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For a Glossary of Immigration Terms
The explanation of these terms will help you to better understand the immigration information presented below.

What can I do if I think I qualify for a family-based visa petition?

1. How can I get permission to work in the U.S.? Return to top of page

In general terms, there are two ways to gain permission to be employed in the United States:
  • The first is to apply for Lawful Permanent Residence ("Green Card"). Lawful Permanent Residence may be obtained through sponsorship from a spouse, relative or employer. If you have married an American citizen and you enter the United States legally, you may obtain a work permit while your application for permanent residence is pending by filing Form I-765 with the U.S. Citizenship & Immigration Services (U.S.C.I.S).

Unfortunately, the processes for obtaining Lawful Permanent Residence through a relative or an employer may be more complicated and require more time (unless you are being sponsored by a spouse). Applicants often choose the second option as a way to gain entrance immediately.

  • The second option is for your employer to sponsor you for a temporary non-immigrant visa.

Non-Immigrant Visas

2. What is a temporary non-immigrant visa? Return to top of page

A temporary non-immigrant visa allows applicants to enter the country on a temporary basis for a specific purpose. Applicants may obtain temporary visas for tourism, study and employment purposes.

The three most common temporary work visas are the H-1B Specialty Occupation Visa, L-1 Intra Company Transferee Visa, and the Treaty Trader (E-1) or Treaty Investor Visa (E-2).

3. How do I know if I qualify for a work visa? Return to top of page

Below please find brief descriptions of some of the most common temporary work visas and their requirements:

H-1B Specialty Occupation Visa:

This is a visa for people coming to the U.S. to work for a U.S. employer in a specialty occupation.  A specialty occupation is one that requires a body of highly specialized knowledge in a professional field.  Please keep in mind that not all jobs qualify for this type of visa. Valid for three years initially, it may be extended to six years. For a list of professional positions that may qualify please see the Department of Labor Occupational Outlook Handbook Professional Occupations List.

Requirements:

In order to get an H-1B visa, you will need a U.S. college or university degree in a relevant subject, or the foreign equivalent. If you have been educated outside the U.S., this requirement can often be met by professional evaluations of your credentials, including the foreign university which awarded your degree and your work experience.

For more information regarding H-1B visas please visit the U.S.C.I.S. H-1B Visa Information Page.

L-1 Intra-Company Transferee Visa:

The L-1 visa is used to transfer an employee to a U.S. parent, affiliate, subsidiary, or branch office from a related foreign company. There are two types of L-1 visas:

  • The L-1A for Executive/Managerial staff
  • The L-1B for Specialized Knowledge staff

L-1 visas are issued for an initial one (for new offices) or three years. L-1A visas can be extended to a maximum of seven years. L-1B visas can be extended to a maximum of five years.

Requirements:

  • You must have worked for the transferring employer outside the U.S. for at least one year within the past three years.
  • If you are a manager/executive, you must be coming to the U.S. to manage a major subdivision or function of your employer's U.S. operation.
  • If you are a specialized knowledge worker, you must have in depth experience of your employer's particular products, processes, procedures and/or practices.

Spouses of L-1 visa holders are allowed to work. Minor children may accompany (or follow) the L-1 non-immigrant, but they may not be employed in the U.S.

E Treaty Trader or Treaty Investor Visas:

These are visas for the employees of companies registered as Treaty Traders or Treaty Investors (i.e. those which undertake substantial trade with, or have made substantial investment in, the U.S.). E visas are now generally issued for an initial period of up to five years; they can be renewed indefinitely.

Requirements:

  • A treaty creating the visa must be in existence between the U.S. and your country. For a list of these countries, please visit the following link: E-1 & E-2 Treaty Countries.
  • You must be of the same nationality as the Treaty Registered employer (i.e. if you work for a U.K. company, you can only go to the U.S. on an E visa if you are a U.K. national).
  • You must be experienced in, and coming to the U.S. to undertake, a managerial or executive role OR must have skills or knowledge essential to the operation of the business in the U.S.

For more information on the E Treaty Trader or Treaty Investor Visas please visit the U.S. Department of State Treaty Trader and Treaty Investor Information Page.

E 3 Visa for Australians:

In 2005, the U.S. announced a new visa called the E 3, for Australians only. The E-3 visa allows Australian nationals, along with their spouses and children, to come to the U.S. to work in a specialty occupation. Children under the age of 21 may accompany the E-3 non-immigrant, but they may not be employed in the U.S.


A specialty occupation is one that requires a body of knowledge in a professional field, and at least a bachelor's degree or its equivalent, as a minimum for entry into the occupation in the United States. For Australians interested in the E-3 visa, the process is actually quite similar to the H-1B visa.

Spouses of an E 3 visa holder are permitted to come to the U.S. and work also. A spouse's employment may be in a position other than a specialty occupation.

For more information on the E-3 Visa for Australians, please visit the E-3 Visa Frequently Asked Questions from the U.S. Consular Services in Australia website.

TN Visas for Canadian or Mexican Citizens under NAFTA:

The TN classification applies to a Canadian or Mexican citizen seeking classification as a professional temporarily under the North American Free Trade Agreement (NAFTA).

Requirements:

  • You must have a U.S. company willing to sponsor you in a professional position that is included on NAFTA's list of professions. You can find the list at the NAFTA website: NAFTA Professions.
  • You must also have at least the minimum qualifications of that profession as described on the list found at the above link.

TN visasfor Canadians are issued at ports of entry for a period of up to three years and may be renewed in three year increments without limit. TN visas for Mexicans are issued at American consulates in Mexico for a period of one year, although the approval period for TN status can be up to three years.

For more information on TN Visas, please visit the U.S. Department of State TN Visa Information Page.

J Visas:

Exchange visas can be obtained for up to 18 months through approved J visa programs. The aim of this program is to foster international exchange by bringing exchange visitors into the U.S. to acquire skills that may be utilized in their home country. These programs need to be designated by the United States Information Agency. If you wish to work for a short period of time, the easiest method may be on a J 1 exchange visitor visa. However, if you wish to apply for a "more permanent" non immigrant visa at a later date or permanent residence, depending on the scheme, there may be problems. For some countries, there is a two-year home residency requirement after the J visa program is completed. Please visit the U.S. Department of State website for more details on the types of J visa provided. In addition, the two year home residency requirement may be waived.

For more information on J Visas, please visit the U.S. Department of State J Visa Information Page.

Other Visas:

H Visas:

  • H-1B: Specialty Workers/Fashion Models
  • H-1C: Nurses
  • H-2A: Temporary Agricultural Workers
  • H-2B: Skilled/Unskilled Workers Provided USCs/LPRs Unavailable
  • H-3: Trainees
  • H-4: Accompanying Family Members

I Visas: Foreign Media
0-1 Visas: Aliens with Extraordinary Ability and their Support Team
P Visas: Internationally Recognized Entertainers or Athletes

4. If I obtain a temporary work visa, can my spouse and children accompany me? Can they find employment in the U.S. during our stay? Return to top of page

The dependents (including spouses and children under the age of 21) of a U.S. work visa holder may obtain derivative visas at the same time as the main visa holder, but they are not generally allowed to work in the U.S. Dependents wishing to work in the U.S. will need to qualify for a U.S. work visa in their own right, and find a U.S. employer to sponsor them. Dependents may, however, engage in study in the U.S.

5. How long will it take for me to get a non-immigrant visa? Return to top of page

Processing times vary depending on the visa category you pursue. Some visas, like the H-1B, are subject to "caps" and "quotas." This means that only a certain number of non-immigrant visas are issued each year for that category. Also, U.S.C.I.S. only accepts petitions for certain visas at specific times of the year. Carefully review the information provided on the U.S.C.I.S. website for the visa type you are interested in pursuing to make sure you know when to apply.

6. I'm here as a visitor (B-1/B-2 visa). Can I apply for a non-immigrant or immigrant work visa? Return to top of page

Yes. As long as your status in this country is legal, you may apply for a change of status to an appropriate non-immigrant work visa. All of the requirements must be met as described above, including an employer willing to sponsor you in an appropriate visa category. However, you are not permitted to enter the country as a visitor (B-1/B-2 visa) with the intention of obtaining employment. If you do receive a job offer while in the United States, you may apply for a change of status to a new non-immigrant work category. However, when you depart the U.S., you may have trouble obtaining a visa under your new status with which to re-enter the country. Please consult an attorney to discuss the appropriate ways to change your non-immigrant status.

The application to obtain immigrant work status is usually more time consuming. Please see question 12.

7. I entered the country illegally. Can I still apply for a non-immigrant or immigrant visa? Return to top of page

Please consult an attorney. Non-immigrant and immigrant visa options usually require the applicant to possess valid visa status in the United States. However, the immigration laws are very complex, and there may exist some other avenues for you to legalize your status in this country.

8. I've overstayed my visa. Can I apply for a new non-immigrant visa? Return to top of page

See answer to question 7.

Student Visas

9. I'm a student. Can I apply for a work visa after graduation? Return to top of page

Yes. As a student with legal status in the U.S. (you hold an F-1 visa and have maintained the validity of your Form I-20), you may be eligible to apply for a change of status from F-1 to a non-immigrant work visa category (such as H-1B) without leaving the United States. As explained in the above section, you will need to find an employer willing to sponsor you in a qualifying position.

It is important to note that you will need to maintain legal status within the United States at all times. Attempting to change status may have the unexpected result of creating a gap between your current visa status and your desired non-immigrant work status. If this occurs, you may need to exit the country when your student visa expires and apply for your new work visa at an American consulate overseas in order to re-enter with your new non-immigrant work visa.

Please also note that some graduating students may be eligible for up to 12 months of Optional Practical Training ("OPT"). An additional 17 months of OPT is available for students who successfully completed a degree in a field listed on the DHS STEM (Science, Technology, Engineering & Math) Designated Degree Program list.

10. What is "Optional Practical Training," and how do I know if I qualify? Return to top of page

Optional Practical Training is temporary employment authorization that allows F-1 students an opportunity to apply knowledge gained in the classroom to a practical work environment off-campus. You may use some or all of the available 12 months of practical training during your course of study ("Curricular Practical Training") or save the full 12 months to use after you complete your studies. Authorization for optional practical training is granted by U.S.C.I.S. and may take at least 90 days and frequently up to 120 days to obtain.

To be eligible to apply for optional practical training, you must:

  • Have been in full-time student status for at least one full academic year preceding the submission of your OPT application
  • Maintained and possess valid F-1 status at the time of the application, and
  • Intend to work in a position directly related to your major field of study.

11. I'm about to graduate from college! Is it too late to apply for a work visa? Return to top of page

While the non-immigrant visa category that you would apply for could be unavailable (due to the annual quota, for example), you may still have time to apply for OPT in the interim (see Question 9). It is important to maintain a legal status in this country at all times. Consult an attorney to discuss the appropriate ways to maintain legal status until you are able to apply for a change of status to a non-immigrant work category.

Immigrant Visas

12. I've heard that I can obtain approval from the Department of Labor to work permanently in the United States. How does that work?Return to top of page

If you have a company interested in sponsoring you for a specific position and are outside the country, the company can file a Foreign Labor Certification Application (FLCA) with the U.S. Department of Labor on your behalf. Once this application has been approved, your employer can then file a Form I-140, Immigrant Petition for Alien Worker with the U.S.C.I.S. Please see the following questions for details:

13. What is a Foreign Labor Certification Application (FLCA)? Return to top of page

A Foreign Labor Certification Application (FLCA) allows an employer to sponsor a foreign worker to immigrate to the U.S. in order to work in a specific position. There are different kinds of FLCAs, but currently the fastest process for an FLCA is the PERM Labor Certification Application. These applications require an employer to attempt to recruit an American worker for the offered position before immigration may be completed. If no qualified, ready and willing American workers apply for the position, the Department of Labor may approve the application. If there are qualified applicants, the Department of Labor may deny the application. Once you have an approved FLCA, your company (sponsor) may then file a Form I-140, Petition for Immigrant Worker, with the U.S.C.I.S on your behalf.

14. What is a Form I-140, Petition for Immigrant Worker? Return to top of page

This petition is the second step (after the approved FLCA) to obtaining permanent residence status (Green Card). Based on the job duties and requirements outlined in your approved FLCA, you may qualify as certain kind of alien worker applicant with the U.S.C.I.S:
  • EB-1 - Extraordinary Ability, Outstanding Professors & Researchers & Multinational Executives (this category does not require FLCA)
  • EB-2 - Members of professions holding advanced degrees
  • EB-3 - Professionals and skilled workers
  • EB-4 - Unskilled workers
  • EB-5 - Entrepreneurs (requires a minimum million dollar investment, and does not require an FLCA)

Your company will file your I-140 petition for you as an immigrant worker under the appropriate category. Upon filing, your I-140 petition will be assigned a priority date based on the date the case was received by the Department of Labor. Once the I-140 is approved, the category, along with your priority date, will determine whether visas are immediately available for you to apply for permanent residence status.

15. How do I know if there are immigrant visas available? Return to top of page

Congress determines the number of immigrants allowed to enter the United States in each category by allocating the number of immigrant visas issued each year. This determination affects the number of visas available for all family-based immigrants and employment-based immigrant categories. This allocation is often referred to as "the quota."

Every month the Department of State publishes a visa bulletin which lists the different visa categories and the cut-off date (visa availability date) in each category of immigration. (Due to historically higher demands on visas by natives of certain countries such as Mexico, India, the Philippines and China, natives of those countries may have longer waits for the quota.) If your priority date is earlier than the cut-off date listed for your category, you are eligible to apply for immigration.

16. If there are no visas available for me, how long will I have to wait? Return to top of page

The wait may often be a matter of a few years, depending on your category, and it is difficult to determine just how long. The current visa bulletin is available for public viewing at the Department of State website: Visa Bulletin. You may also refer to archived visa bulletins to track the movement of your category and project your remaining wait.

17. Can I hold a non-immigrant visa while I apply for an immigrant visa? Return to top of page

This is a common practice, although caution is required. A non-immigrant work visa is meant only for applicants who wish to work in the U.S. temporarily. While your legal presence in the U.S. may be based on a non-immigrant work visa while your immigrant visa petition is pending, you may have difficulty re-entering the U.S. as a non-immigrant. Please consult with an attorney.

18. What can I do if I think I qualify for an immigrant or non-immigrant work visa? Return to top of page

Contact an experienced immigration attorney to assess your qualifications and to begin the application process. Seeking temporary or permanent residence in the U.S. may be a confusing and difficult endeavor, but with proper assistance and determination your path to legal U.S. employment should be successful.

19. My relative wants to sponsor me for an immigrant visa. How do family-based visa petitions work? Return to top of page

Similar to an immigrant work visa, family-based immigrant visa petitions are assigned preferences based upon the relationship between the sponsor and beneficiary. For example, the first preference includes unmarried children of U.S. citizens over the age of 21. Your relative will file an I-130, Petition for Alien Relative, on your behalf. It will be assigned a priority date (date the petition is filed), and, based on that date and your country of origin, as described above in Question 15, you will be able to determine if there are immigrant visas available in your category.

20. Can I work while I am waiting for a visa to become available? Return to top of page

If you already maintain legal status as a non-immigrant worker, you may be permitted to continue working in that status depending on which category of visa you hold and how long it has been held. However, if you leave the country, you may not be able to re-enter using your non-immigrant visa. Please consult an attorney.

Once a visa becomes available and you apply for adjustment of status within the U.S., you will be able to apply for an Employment Authorization from the U.S.C.I.S. Please note, however, that only individuals who have always maintained valid non-immigrant status are eligible to apply for an adjustment of status. Only individuals who are married to American citizens (or who are minor children of U.S. citizens or parents of U.S. citizens older than 21 years old), may be eligible for adjustment of status after falling out of valid non-immigrant status.

Consult an attorney to assess your options.

21. How long will it take for a visa to become available? Return to top of page

Please see the answer to Question 16.

22. What can I do if I think I qualify for a family-based visa petition? Return to top of page

Contact an experienced immigration attorney to assess your qualifications and to begin the application process.
 

The above information was prepared and provided by the Law Offices of Friedberg & Trombi. If you have any further questions, please feel free to contact them at 213-385-1888.

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