Immigration FAQ

Legal Disclaimer

While every effort has been made to ensure the accuracy of this FAQ, we make no warranty, express or implied, concerning its content.  This FAQ is intended to serve as a basic guide, and should not be construed as legal advice.  Each individual’s circumstances and background must be taken into account to determine the best immigration strategy.  Please consult an attorney to discuss your particular issues and concerns.

Links:

General visa information

Visa Waiver Program information

U.S. Citizenship and Immigration Services H-1B Information

U.S. Department of Labor H-1B FAQ

“Work” refers to:

• Performing any “hands on” work that would need to be performed even if the visa holder were not present
• Performing any and all activities which go beyond consultations or meetings and involve actual “work”
• Receiving payment of any kind from the U.S. company (excluding reimbursement for expenses)

Activities that are not “work” include:

• Participating in business meetings
• Consulting with colleagues regarding business-related matters
• Participating in litigation-related activities
• Attending corporate-related functions/events
• Participating in limited training-related activities (as the recipient of the training rather than the provider of the training)

What is the difference between an immigrant visa and a nonimmigrant visa?

An immigrant visa enables a person to live and work in the United States permanently. Commonly known as a “green card,” this is the visa status most foreign nationals want to secure since it enables them to avoid the limited duration associated with temporary visas, as well as any of the attendant difficulties associated with obtaining nonimmigrant visas.  Moreover, and very importantly, it also enables their spouses and minor (under 21) children to simultaneously obtain permanent residence status.  Also, and once a person becomes a permanent resident, he or she is no longer “tied” to the petitioning U.S. employer.  Instead, that person (like all U.S. citizen workers) becomes eligible to work for any employer that he or she chooses.

What documents will I need to re-enter the United States after international travel?

If you are in a nonimmigrant visa status, you will need a passport and a valid visa stamp.  For certain nonimmigrant visa categories, you will need other documentation, such as pay stubs and a letter verifying current employed.

If you are in adjustment status, you will need a valid visa stamp, advance parole documents, and your adjustment of status receipt notice.

If you are a permanent resident, you may be required to have a re-entry permit to return to the United States.

Must I have an F-1 visa to be a student?

You can study in certain categories other than F-1.  For example, L-2 or H-4 visa holders may study full time.  However, certain visa categories are not valid for study in the United States.

Must my family accompany me to the Consulate when I complete my visa interview?

If your family (spouse or children) will travel with you to the United States as your dependents, they must obtain a visa stamp at the Consulate.  Your family will need to bring proof of their relationship to you, such as a marriage certificate or birth certificate.  If these documents are in a language other than English, you should bring a translated copy with you to the interview.

What is the H-1B cap and does it affect me?

Annually, 65,000 nonimmigrant visas are allocated for the H-1B category.  The U.S. Citizenship and Immigration Services begin accepting visa petitions as early as April 1 for visas valid beginning October 1 (the start of the fiscal year).

Additionally, 6,800 H-1B visas are set aside each fiscal year for the H-1B1 program under the terms of the U.S.-Chile and U.S.-Singapore Free Trade Agreements.  Under the “Advanced Degree Exemption,” 20,000 H-1B visas are set aside for foreign nationals with a master’s (or higher) degree.

Since this category is so popular and the number of available visas is so limited, these visas run out well before their validity date.  In 2006, the cap for regular H-1B visas (bachelor’s degree or equivalent) was reached on May 25, 2006, more than five months before the beginning of the fiscal year.  The Advanced Degree cap was reached on July 26, 2006.

It is important to note that certain H-1B petitions do not count towards the H-1B cap:

• H-1B workers for non-profit institutions, such as universities
• Extension of H-1B visas

Why does it take so long to obtain a green card?

There are a limited number of immigrant visas available each year.  These are allocated among several immigrant visa categories.  Many categories have a wait list, or “backlog.”  In these categories, the date on your approval notice, referred to as a “priority date,” serves as a sort of “place holder” in line.  You will receive a green card when one becomes available to those with your priority date.

What happens if I lose my passport and/or U.S. immigration papers?

You must report a lost or stolen passport immediately.  You must submit a DS-56 Form to the U.S. Department of State Passport Services with as much detail as possible.  Passports reported as lost or stolen are no longer valid for travel, even if they are later recovered.

Next, you will need to request a replacement passport using a DS-11 Form.

For more details, please visit: http://travel.state.gov/passport/lost/lost_849.html.

Can I travel outside of the United States if my adjustment application has been filed but remains pending?

You can travel outside the United States after the adjustment application has been filed as long as you have the following documentation:

• Advance parole and
• An Adjustment of Status Application (Form I-485) receipt notice

It may also be helpful to have a letter from your employer and a few recent paystubs verifying your current employment.

I’d like to visit the United States for travel/business.  What visa can I use?

The Visa Waiver Program (“VWP”) is only available to nationals of certain countries.  The VWP can be used for short trips for business or tourism.  For example, you can come to consult with U.S. colleagues, have meetings concerning business ventures, prepare for litigation in the United States, or travel.  You do not need to file anything with the consulate or U.S. Citizenship and Immigration Services; you simply enter the United States using the VWP by presenting your passport at the port of entry.  The VWP has three principle limitations: you cannot be “working” in the United States, i.e., cannot be paid by U.S. entity, the maximum stay is 90 days, and you cannot change status to another temporary visa category while in the United States.

You can find more information on the Visa Waiver Program at http://www.travel.state.gov/visa/temp/without/without_1990.html

If you need to stay in the United States for more than 90 days, you should consider applying for a B-1 or B-2 visa.  This visa has the same restrictions as the VWP, except the B-1/B-2 visa is valid for a period of up to six months, and can be extended to a total of one year and you can change to a different temporary visa category while in the United States (with some restrictions).

If I have a visa stamp/approval notice, am I guaranteed entry to the United States?

Obtaining a visa stamp or approval notice does not guarantee entry into the United States.  Each visa holder must still successfully pass through inspection by the Customs and Border Protection each and every time he or she enters the United States.

Once I am in the United States, can I change my visa status?

Unless you entered the United States using the Visa Waiver Program, you are allowed to change your visa status.  This is accomplished by filing certain forms with the U.S. Citizenship and Immigration Services.

How can I come to the United States to study?

In F-1 student visa status, you can pursue/complete an academic program at an accredited college or university in the United States.  The basic requirements for this category are: admission to a college/university and full-time academic status (at least 12 credit hours per semester).  Employment in this status is only allowed in certain limited situations.  For example, you may be authorized to complete curricular practical training that is part of your academic program.  In addition, after completion of your degree, you may be eligible for a year of post-completion of studies practical training.

I’m transferring to my company’s U.S. office.  What kind of visa can I obtain?

The L-1 visa category is available to intra-company transferees as long as the following requirements are met:  A “relationship” must exist between foreign business and U.S. business (such as parent/subsidiary or sister company), the employee has worked for the foreign business at least one year during three-year period immediately before transfer to the United States, the employee worked for the foreign entity in an executive, managerial, or “specialized knowledge capacity,” and the employee will work for the U.S. entity in an executive, managerial, or “specialized knowledge” capacity.

The initial L visa is valid for a period of three years (for an established U.S. business) or one year (for a new U.S. office).  An L visa can be extended for up to seven years for executive/managerial personnel and up to five years for “specialized knowledge” employees.

My business conducts regular trade between the United States and my home country.  What status is right for me?

The E-1 “Treaty Trader” visa is available if a commercial treaty exists between U.S. and the foreign country.  The basic requirements for this category are:

• The foreign business is majority owned by foreign nationals,
• The employee is also a national of same foreign country,
• “Substantial” trade exists between the U.S. company, the foreign/treaty country (more than 51%), and
• The employee is filling an executive/supervisory or “essential skills” position with the U.S. employer.

The E-2 “Treaty Investor” visa is available if a commercial treaty exists between U.S. and the foreign country.  The basic requirements for this category are:

• The foreign business is majority owned by foreign nationals,
• The employee is also a national of same foreign country,
• The foreign individual or business has made a “substantial” investment of its own capital into the U.S. business, and
• The employee is filling an executive/supervisory or “essential skills” position with the U.S. employer.

This visa can be renewed indefinitely.

Can my spouse and children obtain a visa to accompany me to the United States?

Your dependents can obtain visas based on your valid visa status.  In most situations, dependant visas are not work-authorized – notable exceptions are dependents of L-1 and E-2 visa holders, who are authorized to work in the United States.

When should I file for an extension of my visa?

Extensions can be filed up to six months before, the expiration date of your current visa.  To avoid additional costs or last-minute hassles, it is better to extend visas at least three months before your current visa expires.

How can I check the status of my pending visa petition?

Status of petitions pending with the U.S. Citizenship and Immigration Service can be found online at:https://egov.immigration.gov/cris/jsps/index.jsp.

How long will my visa be valid?

How do I become a permanent resident?

Permanent residency is obtained in one of four ways:

• Based on a request from a U.S. Citizen or permanent resident family member
• Based on a grant of asylum
• Diversity visa lottery,
• Based on an offer of permanent employment in the United States
• Can I obtain a green card through investment in the United States?

The EB-5 visa is an immigrant visa category for investors.  The basic requirements for this category are: establishment of a new commercial enterprise, the foreign national must play an active role in the day-to-day operation of the U.S. business, the foreign national has already invested (or is in the process of investing) capital into the new enterprise, the amount of the investment must be “substantial” (typically in excess of $1 million), and the investment must create at least 10 full-time jobs.

The foreign national receives “conditional” permanent resident status for two years and, at the end of two-year period, must reestablish (through an interview and submission of documentation) that these requirements are still satisfied.

How do I apply for the diversity visa lottery?

For more details on the diversity visa lottery, please visit:http://travel.state.gov/visa/immigrants/types/types_1318.html.

How do I become a U.S. Citizen?

To become a U.S. Citizen, you must first become a permanent resident.  Permanent residents become a U.S. Citizen by applying for naturalization.  Permanent residents are eligible for naturalization after meeting certain requirements, including maintaining physical presence and a residence in the United States for a designated period of time (three years if your permanent residence is based on marriage to a U.S. Citizen, five years if your permanent residence is based on employment).

During the naturalization interview, you will be tested on your understanding of English, U.S. civics and history.  You will also be asked a series of questions regarding criminal history, affiliation with certain political groups, and other questions dealing with moral character.

After successfully passing the naturalization interview and security check, you will be issued a notice to appear at an oath ceremony.  Once you have taken the oath of citizenship, you will receive a certificate of naturalization.

Information Kindly provided by Cohen & Grigsby.

EB-5 IMMIGRANT INVESTOR VISA You and your spouse and unmarried children can now obtain green cards and permanent US residency with an EB5 visa by investing either: 1)     $500,000 in a rural or high unemployment area; or 2)      $1 million in a commercial enterprise that employs 10 U.S. citizens or authorized immigrant workers full-time and engage in the business through day-to-day management or policy formation. The EB5 visa will give you and your family the security of permanent US residency without repeated visa applications. The EB5 visa begins with a period of conditional residency (approx one year and nine months) after which an application is filed to remove the “conditional” status, thus making you a Legal Permanent Resident (LPR).  This Permanent resident status then allows eligibility for U.S. citizenship after 5 years.
The EB-5 investment visa offers the benefit of securing you a green card before you commit to emigrating. It affords you the flexibility to take any job, run any business, retire and live anywhere in the USA. As a resident you will have access to many of the benefits enjoyed by US citizens such as education and, in certain states such as Florida, you will enjoy substantial savings in property tax.

H-1B VISA
The H-1B Visa allows foreign workers to enter the U.S. and work in a variety of fields and it is a substantial first step toward permanent immigration.  H-1B Visa offers a wide range of employment possibilities with fields ranging from architecture and engineering to medicine and animation and graphics arts.  This visa is issued in three-year increments, for a maximum of six years. Applicants must have a U.S. Bachelor’s Degree in their specialty or a license in fields that require licensing, such as teaching or pharmacy. You will need an employer to sponsor you and this visa is employer specific meaning that you can only work for your sponsoring employer. You can stay in the U.S. for up to six years, after which you are required to leave the U.S. for at least one year before being eligible again. Your spouse and unmarried children under the age of 21 are allowed to join you in the U.S. under H-4 status. They are not permitted to work, unless they personally qualify for a work visa.

O-1 VISA The O-1 visa is for the individual who possesses extraordinary ability in the sciences, arts, education, business, or athletics, or who has a demonstrated record of extraordinary achievement in the motion picture or television industry and have been recognized nationally or internationally for those achievements. This requirement has been interpreted broadly to include most creative fields, including photographers, chefs, carpenters and lecturers.  The person must be coming to the United States to work in his or her field of ability, but the position need not require the services of a person of extraordinary ability. The O-1 visa petition requires specific evidence of your qualifications and international recognition of your extraordinary ability. You may prove your ability by showing evidence that you have received a major, internationally recognized award, such as a Nobel Prize, or evidence of at least (3) three of the following:

E-2 Visa (Treaty Investors)
The E-2 visa is available if you are a national of a country with which the United States has a commercial treaty and you are coming to the United States solely to direct and develop the operations of a business/enterprise in which you are invested, or are actively involved in the process of investing, a substantial amount of capital. The investment involved must place lawfully acquired, owned and controlled capital, at commercial risk with a profit objective, and be subject to loss if the investment fails. Eligibility Criteria In order to be eligible for this classification, you must demonstrate the following:

• You are a national of a country with whom the U.S. has the requisite treaty or agreement.
• The investment must be substantial (normally at least $50,000 or more, though no set minimum is required). It must be sufficient to ensure the successful operation of the enterprise. The percentage of investment for a low-cost business enterprise must be higher than the percentage of investment in a high-cost enterprise.
• Must own at least 50 percent of the business in question.
• The investment must be a real operating enterprise. Speculative or idle investment does not qualify. Uncommitted funds in a bank account or similar security are not considered an investment.
• The investment may not be marginal. It must generate significantly more income than just to provide a living to the investor and family, or it must have a significant economic impact in the U.S.
• The investor must have control of the funds, and the investment must be at risk in the commercial sense. Loans secured with the assets of the investment enterprise are not allowed.
• The investor must be coming to the U.S. to develop and direct the enterprise. If the applicant is not the principal investor, he or she must be employed in a supervisory, executive, or highly specialized skill capacity. Ordinary skilled and unskilled workers do not qualify.

List of E2  treaty countries: Albania, Argentina, Armenia, Aruba, Australia, Austria, Azerbaijan, Bahrain, Bangladesh, Belgium, Bolivia, Bosnia and Herzegovina, Bulgaria, Cameroon, Canada, Chile, Colombia, Costa Rica, Croatia, Czech Republic, the Democratic Republic of Congo (Kinshasa), Ecuador, Egypt, Estonia, Ethiopia, Finland, France, Georgia, Germany, Gibraltar, Grenada, Honduras, Iran, Ireland, Italy, Jamaica, Japan, Jordan, Kazakhstan, Kyrgyzstan, Latvia, Liberia, Lithuania, Luxembourg, Macedonia, Mexico, Moldova, Mongolia, Morocco, Mozambique, the Netherlands, the Netherlands Antilles, New Caledonia, Norway, Oman, Pakistan, Panama, Paraguay, the Philippines, Poland, the Republic of Congo (Brazzaville), Romania, Senegal, Serbia and Montenegro, Singapore, Slovakia, Slovenia, South Korea, Spain, Sri Lanka, Suriname, Sweden, Switzerland, Taiwan, Thailand, Togo, Trinidad and Tobago, Tunisia, Turkey, Ukraine, the United Kingdom, and the Territory of Wallis and Futuna Islands all have agreements authorizing treaty investor classifications to their nationals.

• Receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor
• Membership in associations in the field for which classification is sought which require outstanding achievements, as judged by recognized international experts
• A high salary or other remuneration for services as evidenced by contracts or other reliable evidence
• Published material in professional or major trade publications, newspapers or other major media about you and your work in the field for which classification is sought
• Original scientific, scholarly, or business-related contributions of major significance in the field
• Authorship of scholarly articles in professional journals or other major media in the field for which classification is sought
• Participation on a panel, or individually, as a judge of the work of others in the same or in a field of specialization allied to that field for which classification is sought
• Employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation

If the above standards do not readily apply to your occupation, the you may submit comparable evidence in order to establish your eligibility.     L-1 VISA The L-1 visa enables a U.S. employer to transfer an executive or manager from one of its affiliated foreign offices to one of its offices in the United States.  This L-1 visa also enables a foreign company, which does not yet have an affiliated U.S. office to send an executive or manager to the United States with the purpose of establishing one. The L-1 visa requires the applicant to have worked outside of the U.S. for one continuous year within the preceding three years in an executive, managerial, or specialized knowledge capacity for a qualifying organization.  The applicant can then obtain a non-immigrant L-1 visa to work in the related U.S. Company in the same capacity. This type of visa is very useful for people in business world. International companies most commonly use this type of visa for the transfer of their managerial personnel to fill managerial or executive positions in their U.S. parent, subsidiary, or affiliate companies. The L-1 Visa is a nonimmigrant, temporary visa which authorizes a period of stay of up to seven years. L visa holders are allowed “dual intent”, which means they may seek legal permanent residence while working temporarily in the U.S. This greatly smoothes the progress of the transition to an immigrant employment based visa, leading to a “green card”.
Extra l visa info
Qualified employees entering the United States to establish a new office will be allowed a maximum initial stay of one year.  All other qualified employees will be allowed a maximum initial stay of three years.  For L-1 employees, requests for extension of stay may be granted in increments of up to an additional two years, until the employee has reached the maximum limit of seven years.

P-1 VISA FOR ATHLETES AND ENTERTAINERS
The P-1 allows an athlete to come to the U.S. temporarily to perform at a specific athletic competition as an athlete, individually or as part of a group or team, at an internationally recognized level of performance. It also allows entertainers to come to the U.S. temporarily to perform as a member of a foreign-based entertainment group that has been recognized internationally as outstanding in the discipline for a sustained and substantial period of time. During a stay on a P-1 visa you may perform for payment or prize money and you are allowed to engage in part time study.
Eligibility Criteria for Individual Athletes
You must be coming to the United States to participate in individual event, competition or performance in which you are internationally recognized with a high level of achievement; evidenced by a degree of skill and recognition substantially above that ordinarily encountered so that the achievement is renowned or well known in more than one country. The initial period of stay is the time needed to complete the event, competition or performance, not to exceed 5 years.  An extension of stay can be granted in increments of up to 5 years in order to continue or complete the event, competition or performance. The total stay is limited to 10 years.
Eligibility Criteria for Athletic Teams
You must be coming to the United States to participate in team events and must have achieved significant international recognition in the sport. The event in which your team is participating must be distinguished and require the participation of athletic teams of international recognition. The initial period of stay is the time needed to complete the event, competition or performance, not to exceed 1 year. An extension of stay can be granted in increments of up to 1 year order to continue or complete the event, competition or performance.

Eligibility Criteria for Entertainers
At least 75 percent of the members of your group must have had a substantial relationship with the group for at least one year. This one year requirement does not apply to circus performers and essential circus personnel. Your entertainment group must be internationally recognized, having a high level of achievement in a field evidenced by a degree of skill and recognition substantially above that ordinarily encountered. The reputation of the group, not the individual achievements of its members or the acclaim of a particular production, is essential. The initial period of stay is the time needed to complete the event, competition or performance, not to exceed 1 year. An extension of stay can be granted in increments of up to 1 year in order to continue or complete the event, competition or performance.
B-1 TEMPORARY BUSINESS VISITOR VISA
Business travelers may be eligible for a B-1 visa if they area participating in business activities of a commercial or professional nature in the United States, including, but not limited to:

• Consulting with business associates
• Traveling for a scientific, educational, professional or business convention, or a conference on specific dates
• Settling an estate
• Conducting Negotiations
• Participating in short-term training
• Soliciting sales or investment
• Discussing planned investment or purchases
• Making investments or purchases
• Attending Meetings, and participate in them fully.
• Interviewing and hire staff.
• Conducting research

Please note that “Business Visitors” may not engage in the following activities, which require a work visa:

• Running a business.
• Gainful employment”.
• Payment by an organization within the US.
• Participating as a professional in entertainment or sporting events

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Eligibility Criteria You must demonstrate the following in order to be eligible to obtain a B-1 visa:

• The purpose of your trip is to enter the United States for business of a legitimate nature
• You plan to remain for a specific limited period of time
• You have the funds to cover the expenses of the trip and your stay in the United States
• You have a residence outside the United States in which you have no intention of abandoning, as well as other binding ties which will ensure your return abroad at the end of the visit
• You are otherwise admissible to the United States

Period of Stay/Extension of Stay
Initial Period of Stay: 1 to 6 months; 6 months is the maximum Extension of Stay: Up to 6 months; maximum total amount of time permitted in B-1 status on any one trip is generally 1 year.
Certain B-1 Activities That Require An Employment Authorization Document
The following types of B-1 business visitors require employment authorization:

• A personal or domestic servant who is accompanying or following to join an employer who seeks admission into, or is already in, the United States in A, B, E, F, H, I, J, L, or TN nonimmigrant classification.
• A domestic servant of a U.S. citizen accompanying or following to join his or her U.S. citizen employer who has a permanent home or is stationed in a foreign country, and who is temporarily visiting the United States.
• An employee of a foreign airline engaged in international transportation of passengers freight, whose position with the foreign airline would otherwise entitle the employee to treaty trader nonimmigrant classification (E-1) and who is precluded from such classification solely because the employee is not a national of the country of the airline’s nationality or because there is no treaty of commerce and navigation in effect between the United States and the country of the airline’s nationality.

Note:  All applicants for a B-1 visa or admission as a B-1 business visitor as a personal or domestic servant described above must demonstrate the following:

• You have a residence abroad in which you have no intention of abandoning
• You have at least 1 year of experience as a personal or domestic servant
• You have been employed abroad by your employer for at least 1 year prior to the employer’s admission into the United States or if you have been employed abroad by the employer for less than 1year, the employer must show that while abroad, he or she has regularly employed a domestic servant in the same capacity as that intended for your employment.

For more details, info@usa-bound.com

+321 251 7904

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