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What Are My Immigration Options?
Immigrant Visas –
Obtaining Permanent Residence Status in the United States
Obtaining your permanent residence in
the United States can be accomplished through a number of different
processes. Depending on who your sponsor is will determine which
road you will take. If you are being sponsored by a family member
you are pursuing family sponsored immigration. If you are being
sponsored by an employer you are pursuing employment based immigration.
If you are self sponsoring you are most likely obtaining your permanent
residence through investments or extraordinary ability in your specialty.
If you apply for the diversity lottery and you are chosen then you
could possibly gain your residence through that method. There are
many different ways to become a permanent resident that this website
will not go into in detail, for example, Refugee and Asylum Benefits.
The following will describe a framework to determine which road
to immigration is best and appropriate in your situation:
Family
Sponsored Immigration
Are you:
- Spouse or minor child of a US Citizen
- an unmarried son or daughter of a US Citizen
- Spouse and minor child of a permanent resident
- an unmarried adult son or daughter of a permanent resident
- a married son or daughter of a US Citizen
- a Brother or sister of a US Citizen and are 21 years of age
or older
The path to obtain your permanent residence
through any of the family relationships listed above is handled
in a different way and has a different time frame. Also, depending
on where you are located will determine your path to residence.
Living in the United States versus outside the United States will
change the time it will take to get your residency status and the
procedures required in order to get your residency. Currently, the
fastest and smoothest path to your residency is either through a
United States Citizen spouse or child.
The class of your preference will be determined, depending on your
relationship to the person sponsoring you. Spouses of United States
Citizens or parents of United States Citizens have immediate access
to permanent resident status, therefore, do not fall under any preference.
The following lists the preferences:
The first preference is for unmarried sons and
daughters of U.S. citizens regardless of age. There is a waiting
line of several years for first preference immigrants.
The second preference includes two sub-categories: one for spouses
and minor children of permanent residents; and the other for unmarried
adult sons and daughters of permanent residents. The first sub-category
presently has a waiting line in excess of five years. There are
no benefits granted to applicants waiting for a visa to become available.
Because of the very limited number of visas allocated, and the large
number of applicants, adult unmarried sons and daughters of permanent
residents have to wait even longer to obtain permanent resident
status. Caution should be exercised before filing a second preference
petition for unmarried adult sons and daughters. They will generally
not be able to legally immigrate for at least seven years, and if
out of status during this period, new laws could bar their entry
to the U.S.
The third preference category is for married sons
and daughters of U.S. citizens. This category has a waiting line
in excess of three years, and may get even longer.
The fourth preference is for brothers and sisters
of U.S. citizens who are 21 years of age or over. This category
is backlogged over 10 years and is moving slowly. It is possible
that it could take anywhere from 15 to 20 years to immigrate through
a citizen sibling.
To obtain the actual waiting times for each preference please contact
our office.
Employment
Based Immigration
Are you:
- a person with extraordinary ability in the sciences, art, education,
business or athletics
- an outstanding professor or researcher
- a multinational executive or manager
- a person holding an advanced degree (at least a masters degree)
- a person with bachelors degrees
- a Person with a position that requires at least 2 years of education,
training or experience
- a religious worker
- a large investor
There are three main categories under employment
based immigration, each with a 40,000 annual visa allocation.
To obtain permanent residence through an employment relationship,
the process usually begins with obtaining a labor certification.
This requires the U.S. Department of Labor to state that there are
no qualified U.S. workers that can fill the position that your employer
is sponsoring you for. For this reason, it is desirable to qualify
under a labor certification exempt category. All first, fourth and
fifth preference immigrants are exempt, and some second and third
preference immigrants are exempt also.
The first preference immigrant category is most
desirable because it can be processed quickly. There are three groups:
A) persons with extraordinary abilities in the sciences, art, education,
business or athletics; B) outstanding professors and researchers;
and, C) multinational executives or managers.
A) Persons of extraordinary ability in the sciences,
art, education, business or athletics, do not require job offers
and can process quickly. This category is available to that small
percentage of applicants who have risen to the top of their field.
The top of their field is a very complex qualification and needs
to be analyzed carefully on a case by case basis.
B) More generous standards are available for outstanding professors
and researchers with three years of teaching or research experience.
A job offer for a permanent position from a U.S. research or teaching
institution is required. Since no certification is required from
the Department of Labor, these cases can be processed quickly.
C) Managers and Executives of companies with United States affiliates
are eligible to obtain permanent residence under the first preference
category if their services are required permanently by the United
States company. They must have been employed by the overseas affiliate
company for at least one of the three years immediately preceding
their transfer to the United States, in a managerial or executive
capacity. The United States company must also have been in existence
for at least one year.
The second preference visa category is for professionals
holding an advanced degree (at least a Master's degree) or a Bachelor's
degree plus 5 years of progressively senior work experience. Also,
the job must require such qualifications. It is possible for individuals
with exceptional abilities in the sciences, arts, or business to
qualify under this category. This category usually requires a Department
of Labor certification, although it is possible to obtain a waiver,
if it can be shown that the employment of the applicant will be
in the "national interest", a very difficult qualification
to prove.
The third preference immigrant visa category usually
requires a labor certification except for registered nurses and
physical therapists. It is divided into three separate categories:
A) one for professionals with Bachelor's degrees; B) another for
individuals performing a job which requires at least two years of
education, experience or training; and C) one for other workers,
including individuals performing jobs which require less than two
years of education, training or experience. Persons in this last
category are only eligible to compete for 10,000 visas. This has
resulted in long waiting periods. However, there is no waiting line
for most other employment third preference immigrants but labor
certifications routinely take over two years to process.
The fourth preference category includes the religious
workers category. These "special immigrants" have a 10,000
annual visa limit. Ordained ministers, as well as other religious
workers whose services are required by non-profit religious, or
other qualifying, organizations can benefit. This includes ministers,
religious professionals, and a broad range of religious workers.
These two last groups will only be eligible until October 1, 2000.
This is a very specialized area and our office should be contacted
to determine if you qualify under this preference.
To obtain the actual waiting times for each preference please contact
our office.
Investment
Based Immigration
To obtain permanent residence through an investment is a very challenging
path, but with the right situation it is a very attractive option.
The Investor category is the fifth preference and
is reserved for immigrants who make very large
investments. 10,000 visas are allocated annually to individuals
who invest $1 million and create at least ten new jobs. The law
permits the amount to be reduced to $500,000 if the business is
located in a rural area, or in an urban area with high unemployment.
Many desirable areas have been designated as high unemployment areas
which qualify investors to obtain immigrant visas with a $500,000
investment, provided they create 10 jobs. The requirement of ten
full-time jobs, excluding independent contractors and immediate
family members - is usually the obstacle. It is possible to qualify
with investments in troubled businesses which lost at least 20%
annually for two successive years prior to filing. Investments in
troubled businesses sometimes allow an applicant to show that the
ten jobs have been saved rather than created. It is important to
note two things 1. This category provides for a conditional green
card. Therefore, after Twenty-one months after approval, a new petition
must be filed to remove the conditional nature of the visa and 2.
It is not guaranteed if you have an E visa (Investor Non Immigrant
visa) you will be guaranteed to get your green card through this
preference.
Diversity
Visas Lottery
If you have completed high school you are likely to be eligible
to enter in this annual program which issues 50,000 "green
cards" each year. Once selected in the "drawing",
winners must act quickly to be among the first to qualify for their
visas. Be aware that if you are chosen in the drawing does not guarantee
that you will receive you permanent residence.
Non-Immigrant
Visas – Getting to the United States or Staying in the United
States
There are many reasons to come to the United States temporarily
either to visit relatives, see the sights, see clients for business
purposes, go to a convention, close a deal, work for an international
company, work for a US company, study, start a business, and many
more reasons. Each of these reasons, unfortunately or fortunately,
require a legal document in order to enter the United States. This
legal document is called a visa or if you are in the United States
an I-94 card. It is important prior to classifying yourself under
one of these categories to evaluate each option carefully in order
to obtain the best overall experience necessary. Many individuals
come into the United States with the intention to stay temporarily,
but change their mind once they enter and want to stay permanently.
This is a very important reason to consult an attorney in order
to evaluate all the options with your long term goals in mind. The
following are some of the non-immigrant visa options available to
individuals and when it is appropriate to use each one:
B - Visitor
E – Treaty Trader/Treaty Investor
F – Student
H – Specialty Occupation for Professional Workers
J – Trainee
K – Fiancée
L – Intracompany Transferee
M – Vocational Student
O – Persons of Extraordinary Ability in Arts, Business, Education
or Science
P – Entertainers and Athletes
Q – Cultural Exchange
R – Religious Worker
TN – NAFTA
B – Visitors Visa:
When would you use this type of Visa?
When you are coming to the United States as a visitor for a short
period of time. There are two types of B visas: B-1 Visitor for
Business and B-2 Visitor for Pleasure.
How do I obtain one of these visas?
You request the visa from the United States Consulate in your country
of residence. Depending on each country’s reciprocity schedule,
these visas may be granted for up to 10 years, however, periods
of authorized stay in the United States are usually only 6 months
or less. Business visitors are usually only admitted for the duration
of business.
How long may I stay in this country with
this type of visa?
You may only stay as long as the INS Officer at the port of entry
determines is reasonable. You are able to request an extension only
if you have a legitimate reason for the extension of stay.
Visa Waiver Program
When would you use this type of visa?
Allows you to enter the United States as a visitor without first
obtaining a B visa. You may utilize this type of visa if your country
of citizenship is one of the qualifying countries. To see a list
of the qualifying countries click
here
How long may I stay in the United States
with this type of visa?
You may stay in the United States for a period of 90 days without
having to apply for a visa. You may not request for an extension
of stay or change your visa status with this type of visa, therefore,
you should be aware of the period and reason for your visit.
E Visa
When would you use this type of visa?
Allows you to enter the United States to conduct business in the
United States through either a substantial investment or to conduct
trade on behalf of a foreign company.
How do I obtain this visa?
There are two types of E visas: E-1 Treaty Trader Visa and E-2 Treaty
Investor Visa. If you would like to obtain an E-1 visa at least
51% of the company’s trade needs to be between the treaty
country and the United States. The visa may also be issued to managers,
executives and essential employees of the same nationality who work
for the United States branch office. To see a list of treaty countries click
here
How long may I stay in the United States
with this visa?
The visas may be granted, depending on the treaty involved, for
an initial period of 5 years. However, the period of stay is authorized
by the INS in 2 year increments. The E Visa can be extended indefinitely
as long as there is a need for the investor to direct and control
the United States enterprise. Be aware that essential employees
are expected to be replaced by United States trained personnel.
F Visas
When would you use this type of visa?
If you would like to study in the United States and at the same
time become acquainted with American culture.
How do I obtain one of these types of
visas?
Students may petition for this type of visa once they have been
admitted to an educational institution in the United States.
How long may I stay in the United States
with this type of visa?
Students are admitted for the duration of their studies. Currently,
there are very strict rules regarding F visas. Severe restrictions
apply to persons who violate the F visa status. Be aware that if
you enter and intend to change your status to a student you must
have the officer upon entry notate it on the I-94 card.
H Visas
When would you use this type of visa?
If you are planning to temporarily work in the United States and
have a job offer. There are different types of H visas. One of the
most popular is the H1B visa. This type of visa requires that you
have a bachelor’s degree or its equivalent.
How do I obtain one of these types of
visas?
It is necessary to first find an employer in the United States who
is willing to sponsor your visa. After you have obtained a sponsor
you must obtain a labor condition attestation form the Department
of Labor prior to filing any petitions with the Immigration and
Naturalization Service. This is to ensure that the wages and working
conditions do not undermine those of United States workers. Secondly,
you file a petition with the Immigration and Naturalization Service
requesting issuance of an H visa. Your spouse and children are also
able to enter on this type of visa as dependents, but are not allowed
to work.
How long may I stay in the United States
with this type of visa?
Approval may be granted for up to three years and the visa may be
extended for a total of up to six years.
J Visas
When would I use this type of visa?
Useful for individuals who want to come to the United States temporarily
who do not have university degrees and receive an offer for training.
How do I obtain one of these types of
visas?
The J-1 Exchange Visitor Program is aimed at promoting cultural
exchange. This visa may be an option for students, researchers,
specialists, visiting faculty, medical and industrial trainees.
The J visa also in some cases may permit employment. Another advantage
is that spouses may also obtain discretionary employment authorization.
How long may I stay in the United States
with this type of visa?
This visa may be granted for up to an 18 month period and has exemptions
form certain taxes.
K Visas
When would I use this type of visa?
Used by individuals who are married to United States Citizens, but
are resident outside the United States or individuals engaged to
be married to a United States Citizen and wants to enter the United
States to marry the United States Citizen.
How do I obtain one of these types of
visas?
The United States Citizen spouse or fiancée must petition
for the foreigner to come to the United States. Once the petition
has been approved in the United States then the individual outside
the United States must arrange with the consulate to obtain the
non immigrant visa.
How long may I stay in the United States
with this type of visa?
If you enter as a fiancée you must marry the United States
Citizen within 90 days of entry into the United States subsequently
you can adjust your status to a green card holder. If you want to
enter as a spouse of a United States citizen then you can enter
and exit freely.
O and P Visas
When would I use this type of visa?
Used for individuals who are of extraordinary ability in the arts,
business, education, science or athletics and want to come to the
United States temporarily in the capacity of one of the listed abilities
to work.
How do I obtain one of these types of
visas?
First you must consult with the relevant U.S. labor union, peer
and management organizations. These organizations must provide advisory
opinions as to whether the applicant shows “extraordinary
ability” or “extraordinary achievement” in the
field, and whether the position they are coming for requires such
high qualifications. Once this is completed a petition is filed
with the Immigration and Naturalization Service.
How long may I stay in the United States
with this type of visa?
O visas may be granted for up to three years, depending on the period
of the event, but may be extended indefinitely. P visas are limited
to the period of the event for a maximum of 10 years.
Q Visas
R Visas
When would I use this type of visa?
If you are a person affiliated with Internal Revenue Service-recognized
tax exempt religious organizations and they allow you to obtain
a work visa.
How do I obtain one of these types of
visas?
Need to file a petition with the Immigration and Naturalization
Service requesting issuance of this type of visa. The applicant
must have been a member of the religious denomination. Also, the
applicant must be seeking to enter the United States solely to work
for the organization
TN Visas
When would I use this type of visa?
If you are either from Mexico or Canada and are seeking admission
into the United States to work. You must have a bachelor’s
degree or the equivalent and the position must qualify. This visa
was established under the North American Free Trade Agreement (NAFTA)
that was established between the United States, Mexico and Canada.
How do I obtain one of these types of
visas?
Canadian nationals may enter the United States by showing documentation
at the port of entry that they are engaged in the qualifying professions
and that they have the required level of education in the area they
intend to work. Mexican nationals must apply for the TN non immigrant
visa at the U.S. consulate.
How long may I stay in the United States
with this type of visa?
The TN visa is issued in one year increments with no limit on the
total number of years given. If you are Canadian or Mexican and
have run out of time under the H1B or L visa you can immediately
qualify for a TN visa.
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