Immigration FAQs and Updates
The law as passed by Congress provides an alphabet soup of possible work visa options for foreign workers. The requirements for each category are detailed and precise. There is no overarching “work visa” applicable all situations. Restrictions imposed by the law as well as the realities of how specific visa programs are administered must be taken into account in developing a successful strategy for obtaining a lawful U.S. work authorized status. Factors include the type of work to be performed, the foreign worker’s qualifications, and in some case the ownership structure of the employing entity. Some types of visas, including E and TN visas, are based on treaties and are only available to citizens and nationals of specified countries. Other visas are available to all qualified applicants regardless of nationality. Further, timing may also be an important factor as in the case of H-1B and H-2B visas, which are only available at certain times of the year due to quota restrictions. Visas may also be limited a specific maximum duration of stay in the U.S. The maximum possible stay can range from a few months for some types of J-1 visas, to 6 years for the H-1B visa, to a much longer possible timeframe for E-1 and E-2 visas.
The B-1 business visitor visa and visa waiver categories DO NOT provide a U.S. work authorized status. Business visitors can come to the U.S. to sign a contract, to engage in meetings and consultations, or to attend a trade show as an attendee. Domestic employment in positions of a type normally filled on a competitive basis with U.S. workers is not allowed. A business visitor must remain on the foreign employer’s payroll for the duration of his or her stay in the U.S. Business visitors who enter on the visa waiver program must enter with evidence confirming an intent and an ability to depart the U.S. at the end of the stay, which is normally provided in the form of a pre-paid round trip ticket to facilitate a return abroad. Training or after sales service scenarios must be reviewed on a case-by-case basis to determine eligibility.
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Categories frequently used to facilitate U.S. employment include the following:
- E-1 treaty traders engaging in substantial international trade (applies only to nationals of treaty countries)
- E-2 treaty investors who have made a substantial investment (applies only to nationals of treaty countries)
- E-3 professionals (applies only to Australians)
- F-1 students with CPT (Curricular Practical Training) or OPT (Optional Practical Training) authorization
- H-1B professionals (any nationality)
- H-1B1 professionals (applies only to nationals of Singapore or Chile)
- I visa – foreign media representatives
- J-1 international exchange program participants
- L-1 intracompany transferees
- O-1 persons of extraordinary ability
- P-1 performers
- Q-1 cultural exchange program participants
- R-1 religious workers
- TN professionals (applies only to Mexican and Canadian nationals)
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A person born in the United States is a U.S. citizen pursuant to the 14th Amendment. A person born abroad to a U.S. citizen parent or parents may also be a citizen in some cases. Birth abroad complicates this matter because the determination as to whether a child born abroad is a citizen involves factors including the child’s date of birth, whether or not the parents were married, and the length of the parent’s previous residence in the U.S. Citizenship can sometimes be established through the careful review of a family tree to trace eligibility from U.S. citizen parents and grandparents to a person seeking to ascertain his or her status today.
Naturalization is the process through which a foreign national becomes a citizen. In most cases, the foreign national must first obtain lawful permanent residence prior to becoming eligible to apply for citizenship. A lawful permanent resident of good moral character who has regularly resided in the U.S. for at least five years may apply to become a citizen. A shorter wait time may apply to an applicant who has been married to a U.S. citizen for at least 3 years after obtaining lawful permanent residence. Under special provisions found at Section 319(b) of the Immigration and Nationality Act, an even shorter period of time may apply to the spouse of a U.S. citizen who will be transferred abroad on behalf of a U.S. entity. The law also provides special provisions for foreign nationals who have served in the U.S. military during a time of war.
An applicant who has spent a continuous period of more than 6 months outside the U.S. or who has been outside of the U.S. more time than inside the U.S. in the most recent 5 years should speak to an immigration attorney to confirm filing eligibility. Also, certain criminal problems can prevent naturalization, and in some cases, subject the applicant to deportation proceedings. Thus, an applicant who has been convicted of a crime or who has experienced a problem with immigration officials or the police at any time should consult with an experienced attorney to confirm filing eligibility.
The immediate relative category allows a U.S. citizen petitioner to sponsor a spouse, parents, and children for lawful permanent residence. The immediate relative category is not subject to visa quota restrictions and can be made “immediately available” to qualifying relatives. A separate petition must be filed for each immediate relative who is sponsored.
The law also allows for the sponsorship of family members based on additional qualifying relationships which fall under specific preference categories. Preference applicants are subject to wait times outlined in the U.S. State Department’s Visa Bulletin, which is updated and published on a monthly basis. Depending on the preference category, wait times can range from a few years to decades. The family based preference categories include: unmarried sons and daughters of citizens; spouses and children of lawful permanent residents; unmarried sons and daughters of lawful permanent residents (age 21 or older); married sons and daughters of citizens; and brothers and sisters of citizens. The preference categories allow beneficiaries to bring children, and in some cases spouses, with them to the U.S. at the time of the principal beneficiary’s immigration. A separate petition is not required for a qualifying derivative beneficiary.
Unfortunately, there is no preference category for the parent of a lawful permanent resident. A permanent resident seeking to sponsor a parent must first become a citizen in order to be able to do so.
Physicians may immigrate to the U.S. through the national interest waiver and labor certification processes referred to in the employment-based permanent residency section of our website. Additional options may be available to physicians not engaged in patient care through the extraordinary ability and outstanding researcher categories. Physicians who received medical training in the U.S. may be required to obtain a waiver prior to pursuing employment sponsorship in the U.S.
Healthcare workers including nurses, occupational therapists, physical therapists, speech language pathologists and audiologists, medical technologists and technicians, and physician assistants may also be able to obtain a U.S. work authorized status. The law in this area is complex, with both nonimmigrant and immigrant visa options available for some positions.
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Making a substantial investment in a U.S. business may provide the opportunity to pursue a nonimmigrant work visa through the E-2 treaty trader visa classification. The business must be more than marginal enterprise purchased solely for the purpose of supporting the investor and the investor’s immediate family. Further, the amount of the qualifying investment must be considered in proportion to the overall cost of business.
At this time, the E-2 visa is available to nationals of countries including: Albania, Argentina, Armenia, Australia, Austria, Azerbaijan, Bahrain, Bangladesh, Belgium, Bolivia, Bosnia & Herzegovina, Bulgaria, Cameroon, Canada, Chile, Colombia, Congo (Brazzaville and Kinshasa), Costa Rica, Croatia, Czech Republic, Ecuador, Egypt, Estonia, Ethiopia, Finland, France, Georgia, Germany, Grenada, Honduras, Iran, Ireland, Italy, Jamaica, Japan, Jordan, Kazakhstan, Kyrgyzstan, Latvia, Liberia, Lithuania, Luxembourg, Macedonia, Mexico, Moldova, Mongolia, Morocco, Netherlands, Norway, Oman, Pakistan, Panama, Paraguay, Philippines, Poland, Romania, Senegal, Serbia & Montenegro, Singapore, Slovakia, Slovenia, South Korea, Spain, Sri Lanka, Suriname, Sweden, Switzerland, Taiwan, Thailand, Togo, Trinidad & Tobago, Tunisia, Turkey, Ukraine, and the United Kingdom.
Another nonimmigrant alternative can be found in the E-1 treaty investor visa. This visa is based on substantial trade in an amount of more than 50% of the trade between the U.S. and the treaty country as measure by trade volume. The trade should be of a continuous flow and involve numerous transactions over time. A business requiring a small start-up investment may not qualify for the E-2 visa. Nonetheless, a useful alternative may be found in the E-1 category provided that the business will carry out numerous trade transactions between the U.S. and the treaty country, even if many of those transactions are of a relatively small monetary value.
At this time, the E-1 visa is available to nationals of countries including: Argentina, Australia, Austria, Belgium, Bolivia, Bosnia & Herzegovina, Brunei, Canada, Chile, Colombia, Costa Rica, Croatia, Denmark, Estonia, Ethiopia, Finland, France, Germany, Greece, Honduras, Ireland, Israel, Italy, Japan, Jordan, Latvia, Liberia, Luxembourg, Macedonia, Mexico, Netherlands, Norway, Oman, Pakistan, Paraguay, Philippines, Serbia & Montenegro, Singapore, Slovenia, South Korea, Spain, Suriname, Sweden, Switzerland, Taiwan, Thailand, Togo, Turkey, and the United Kingdom.
It is also possible to pursue lawful permanent residence (informally referred to as green card status) based on a $1 million dollar investment in a new enterprise that employs at least 10 U.S. workers. For certain targeted employment areas, the required investment amount may be reduced to $500,000.
Employment-based lawful permanent residence status is allocated through a quota system divided into five separate preference categories. Each year, immigration under the five categories is limited to no more than 140,000 individuals. A per country limitation of 7% means that the process can take longer for persons from certain high immigration countries, including China, India, Mexico and the Philippines. The State Department publishes a monthly visa bulletin listing the wait times for the various preference categories, with specific reference made to those countries whose nationals can expect the process to take longer.
The first preference category includes processes that allow multinational managers, outstanding researchers, and persons of extraordinary ability to obtain lawful permanent residence. These persons are exempt from the labor certification process described below. Also, certain persons of exceptional ability may also qualify under the second preference category for an exemption from the labor certification process if such a waiver is found to be in the national interest.
Except as noted above, the second and third preference categories require a certification from the U.S. Department of Labor confirming that the labor market has been adequately tested and that no U.S. workers were able, available, qualified or willing to take the proposed position. To qualify under the second preference, the job must require at least a master’s degree or alternatively, a bachelor’s degree followed by at least 5 years of progressive job experience. Cases requiring less are allocated to one of two subcategories found under the third preference. There is a third preference subcategory for professional positions requiring a degree or at least two years of work experience as well as a separate subcategory for skilled worker positions that require less than two years of experience.
The fourth preference category allows for the immigration of special immigrants, including certain religious workers. The fifth preference was established to facilitate the immigration of investors who have invested at least one million dollars in the U.S. and hired at least 10 full-time U.S. workers. For certain targeted employment areas, the required investment amount may be reduced to $500,000.
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