Legal Encyclopedia - Cont.

Legal Encyclopedia

U.S. Immigration Basics

When the U.S. Can Keep You Out

Who Qualifies for a Nonimmigrant (Temporary) Visa

Entering the U.S.: What to Expect at the Airport or Border

U.S. Immigration: Top Ten Tips for Avoiding Trouble

Applying for a Nonimmigrant (Temporary) Visa

Who Qualifies for a Green Card (Permanent Residence)

Sponsoring a Fiance or Spouse for a Green Card

Sponsoring a Family Member for a Green Card

The Visa Petition: The First Step for Family and Employment Green Cards

Sponsoring a Worker for a Green Card: Employer's Tasks




Applying for a Nonimmigrant (Temporary) Visa

Where and how to get the right to spend a limited amount of time in the United States.

Most visitors to the U.S. are required to apply for visas from their home countries, before arriving in the United States. If you haven't yet identified the type of visa you might qualify for, see Who Qualifies for a Nonimmigrant (Temporary) Visa.

Where to Apply

You will have to locate the consulate nearest you that is authorized to issue the type of visa you want. The U.S. Department of State's website (www.state.gov) can help you find a consulate near you and provides other helpful immigration information. Also check your local consulate's own website. You'll find helpful information about hours and application procedures. For example, some consulates require certain applications to be submitted only by mail, not in person.

You must usually do all or part of the visa application process in the country where you live. U.S. embassies and consulates outside your home country will normally refuse to accept your application -- unless you can show a compelling reason why you are unable to apply at home. If, for example, the U.S. has no diplomatic relationship with the government of your homeland, another country's U.S. consulate may take your application. Check with the embassy or consulate where you want to apply.

How to Apply

For some types of visas, such as visitor visas, applying involves simply filling out a few application forms and attending an interview at the embassy or consulate (though the final decision may be delayed while security checks on you are completed).

For student visas, applying is a two-step process. First, you must find a school to admit you and send you a special form. Then you take that form and your own application to the U.S. consulate. This process is covered in Student and Tourist Visas: How to Come to the U.S., by Ilona Bray (Nolo).

For most work visas, applying is a three- or four-step process. First you must find a U.S. employer willing to sponsor you. Then, your employer must file paperwork with the U.S. Department of Labor (for H-1B and H-2B visas) and an office of U.S. Citizenship and Immigration Services (USCIS), requesting permission for you to apply for a visa. After your employer gets USCIS approval, the third step is for you to file an application for a visa at the U.S. embassy or consulate in your home country.

Personal Interviews Are Likely

Even if you submit your application by mail, you will later probably have to go to the embassy or consulate for a personal interview. (For security reasons, the U.S. government is requiring more personal interviews than ever before.) Contact the U.S. embassy or consulate in your country to learn its requirements.

How Long You'll Wait

Nothing happens as fast as it should in the world of visa applications. For example, while you used to be able to get tourist and student visas in as little as a day, this is rarely true anymore. Many embassies and consulates have switched to requirements that you mail in your application and then come in for a personal interview later. Also, you will not be approved until your name has been checked against various criminal and security-related databases -- which, if you have a common name, has been known to add weeks or months to the process.

For more help on applying for a visa, consult one of the following Nolo books:

  • U.S. Immigration Made Easy, by Ilona Bray
  • Student and Tourist Visas: How to Come to the U.S., by Ilona Bray.

Who Qualifies for a Green Card (Permanent Residence)

Categories of people who can apply for a green card, to make their home in the U.S.

A green card identifies its holder as a U.S. permanent resident, with rights to enter, exit, work, and live here for their entire life. But before you think about applying, make sure you're eligible under one of the following categories.

1. Immediate Relatives of U.S. Citizens

Immediate relatives include:

  • spouses of U.S. citizens, including recent widows and widowers
  • unmarried people under age 21 with at least one U.S. citizen parent
  • parents of U.S. citizens, if the U.S. citizen child is at least age 21
  • stepchildren and stepparents of U.S. citizens, if the marriage creating the stepparent/stepchild relationship took place before the child's 18th birthday, and
  • adopted children of U.S, if the adoption took place before the child reached age 16.

An unlimited number of green cards are available for immediate relatives whose U.S. citizen relatives petition for them -- applicants can get a green card as soon as they get through the paperwork and application process.

Also see the book Fiancé & Marriage Visas: A Couple's Guide to U.S. Immigration, by Ilona Bray (Nolo).

2. Other Family Members

Certain family members of U.S. citizens or permanent residents are also eligible for green cards -- but not right away. They fall into the "preference categories" listed below, meaning that only a certain number of them will receive green cards each year (480,000). The system is first come, first served -- the earlier the U.S. citizen or permanent resident turns in a visa petition, the sooner the immigrant can apply for a green card. The waits range from approximately three to 24 years in the family preference categories, which include:

  • Family First Preference. Unmarried adults, age 21 or older, who have at least one U.S. citizen parent.
  • Family Second Preference. Section 2A: Spouses and unmarried children of a green card holder, so long as the children are younger than age 21. Section 2B: Unmarried children age 21 or older of a green card holder.
  • Family Third Preference. Married people, any age, who have at least one U.S. citizen parent.
  • Family Fourth Preference. Sisters and brothers of U.S. citizens, where the citizen is age 21 or older.

Also see the book How to Get a Green Card, by Ilona Bray (Nolo).

3. Preferred Employees and Workers

A total of 140,000 green cards are offered each year to people whose job skills are needed in the U.S. market. In most cases, a job offer is also required, and the employer must prove that it has recruited for the job and not found any willing, able, qualified U.S. citizens or residents to hire instead of the immigrant. Because of annual limits, this is a "preference category," and applicants often wait years for an available green card. Here are the subcategories:

Employment First Preference. Priority workers, including:

  • persons of extraordinary ability in the arts, the sciences, education, business, or athletics
  • outstanding professors and researchers, and
  • managers and executives of multinational companies.

Employment Second Preference. Professionals with advanced degrees or exceptional ability.

Employment Third Preference. Professionals and skilled or unskilled workers.

Employment Fourth Preference. Religious workers and miscellaneous categories of workers and other "special immigrants" (described below)

Employment Fifth Preference. Investors willing to put $1 million into a U.S. business -- or $500,000 if the business is in an economically depressed area. The business must employ at least ten workers.

Or get the book U.S. Immigration Made Easy, by Ilona Bray (Nolo).

4. Green Card Lotteries: Ethnic Diversity

A certain number of green cards (currently 50,000) are made available to people from countries that in recent years have sent the fewest immigrants to the United States.

Also see the book U.S. Immigration Made Easy, by Ilona Bray (Nolo).

5. Special Immigrants

Occasionally, laws are passed making green cards available to people in special situations. The current special immigrant categories are:

  • clergy and other religious workers for legitimate religious organizations
  • foreign medical graduates who have been in the United States since 1978
  • former employees of the Panama Canal Zone
  • foreign workers who were longtime employees of the U.S. government
  • retired officers or employees of certain international organizations who have lived in the United States for a certain time
  • foreign workers who were employees of the U.S. consulate in Hong Kong for at least three years
  • foreign children who have been declared dependent in juvenile courts in the United States
  • international broadcasting employees, and
  • certain members of the U.S. Armed Forces who enlisted overseas and served 12 years.

6. Refuge and Political Asylum

The U.S. government offers refuge to people who fear, or have experienced, persecution in their home country. A person still outside the United States would apply to be a refugee; a person already here would apply for asylum.

The persecution must be based on the person's race, religion, nationality, political opinion, or membership in a particular social group. If you are fleeing only poverty or random violence, you do not qualify in either category.

For more information, see either How to Get a Green Card or U.S. Immigration Made Easy, both by Ilona Bray (Nolo).

7. Amnesty and Special Agricultural Worker Status

Years ago, a green card based on "amnesty" was offered to people who had been living in the United States illegally since January 1, 1982. There was a similar amnesty for laborers who worked in the fields for at least 90 days between May 1, 1985 and May 1, 1986. Although the application deadlines have long passed, certain class action lawsuits mean that some applications haven't yet been decided on. See an attorney if you should have qualified.

In 1997, Congress added an amnesty for Nicaraguans and Cubans, called the Nicaraguan Adjustment and Central American Relief Act (NACARA). Some provisions also benefit Salvadorans, Guatemalans, and Eastern Europeans. The deadline for filing applications has passed.

8. Long-Time Residents

The law allows certain people who have lived illegally in the United States for more than ten years to request permanent residence, usually as a defense in immigration court proceedings. You must also show that your spouse, parent, or children -- who must be U.S. citizens or permanent residents -- would face "extraordinary and exceptionally unusual hardship" if you were forced to leave. Consult a lawyer if you think you qualify. Do not go straight to USCIS -- you could cause your own deportation.

Another remedy called "registry" allows people who have lived in the United States continuously since January 1, 1972 to apply for a green card. You'll need to show that you have good moral character and are not inadmissible. Your stay in the United States need not have been illegal -- time spent on a visa counts. For more information, see the book How to Get a Green Card, by Ilona Bray (Nolo).

9. Special Cases

Individual members of the U.S. Congress have, on occasion, intervened for humanitarian reasons in extraordinary cases, helping someone get permanent residence even if the law would not allow it.


Sponsoring a Fiance or Spouse for a Green Card

Planning your immigration strategy is as important as planning your wedding.

If you are a U.S. citizen or permanent resident, and you are engaged or already married to a citizen of another country, that person may be eligible for a green card. However, many people believe, wrongly, that they can just bring their fiancé or spouse to the United States and the immigrant will be given an instant green card or even U.S. citizenship -- a belief that has led to sad cases of people being sent right home again.

Your fiancé or spouse will have to go through a multi-step application process. It's your job to start the process, by submitting either a fiancé visa petition (only available if you're a U.S. citizen, but can be used whether you are already married or just engaged) or an immigrant visa petition. Your fiancé or spouse can't enter the U.S. until both the petition and subsequent applications have been approved.

Note: If you're not yet a U.S. citizen, but have U.S. permanent residence (a "green card"), you cannot bring your fiancé to the United States until you're married -- and even then, you can bring your spouse only after he or she spends some years on a waiting list.

No matter what, be prepared for a long wait. Every type of visa application involves several stages, including application forms, a medical examination, fingerprinting, and various approvals.

Don't misuse a tourist visa or other temporary visa. If the immigrant used a tourist or other visa to get to the U.S. for the primary purpose of getting married or applying for a green card, see an attorney. The immigrant could be found liable for visa fraud, and denied the green card as a result.

Eligibility for Various Visas

The requirements for the fiancé visa and the marriage visa are different.

Fiancé Visas

To qualify for a fiancé visa, the immigrant must:

  • intend to marry a U.S. citizen
  • have met the citizen in person within the last two years, and
  • be legally able to marry.

Also, the immigrant must be coming from another country -- a fiancé visa won't be given to someone who is already in the United States.

As part of the fiancé visa application process, you'll have to prove your intention to marry, by providing documents such as copies of your love letters, phone bills, and wedding ceremony contracts. You'll also have to prove that you've met within the last two years, by submitting copies of plane tickets, hotel bills, and more.

This meeting requirement causes problems for many couples. If you simply can't afford to meet, the immigration authorities will say, "Tough luck." If, however, you haven't met because of proven cultural customs or extreme hardship to the U.S. citizen spouse, they may be willing to lift the meeting requirement in for you.

Marriage-Based Visas (Green Cards)

To be eligible for an immigrant visa, or green card, based on marriage, the immigrant must be:

  • legally married (it doesn't matter in what country) to a U.S. citizen or permanent resident
  • not married to someone else at the same time, and
  • not married to someone who has another wife or husband.

Also, the marriage must be the real thing, not just a sham to get a green card.

Within the application process, you'll have to prove all of the above things. Legal marriage is usually the easiest to prove, by simply providing a copy of your marriage certificate -- though people who get married outside the United States sometimes have a little trouble, because USCIS usually demands that the certificate come from a government office, rather than a church, a ship's captain, or other nongovernmental place.

To show that the marriage is the real thing, you'll have to provide copies of documents such as joint bank statements, children's birth certificates, photos of the wedding and afterwards, love letters, and more.

Inadmissibility

To qualify for any type of visa, every immigrant must show that he or she is not "inadmissible" (for instance, has a long criminal record or a communicable disease like tuberculosis).

Overview of Application Process

How and where the immigrant applies for a green card depends on a number of factors, including who he or she is marrying, where the immigrant is now, and, if he or she is in the United States, whether he or she got there legally. For details on these matters, and help completing the application forms, assembling the appropriate documents, and having a successful interview, see Fiancé & Marriage Visas: A Couple's Guide to U.S. Immigration, by Ilona Bray, J.D. (Nolo).


Sponsoring a Family Member for a Green Card

Can relatives come to the U.S.? It depends on how the family member is related.

Many people in the United States have family members living in other countries, and wonder whether they can bring them here. It's a myth that if one immigrant settles in the United States, that one can bring in the whole extended family, and so on. The truth is both more limited and more complex.

Who You Can Help Immigrate

You can petition to bring family members to the United States only if you are a U.S. citizen or a permanent resident (green card holder). Even then, you can bring in only those family members listed on the chart below. Before reading the chart, click the links explaining the meanings of "immediate relative" and "preference relative."

Who Can Sponsor Who

Who You Are

Immigrants You Can Petition

The Immigrant's Category

U.S. citizen

Parents

Immediate relative

U.S. citizen

Spouse

Immediate relative

U.S. citizen

Minor, unmarried children

Immediate relative

U.S. citizen

Married children or adult children

Preference relative

U.S. citizen

Brothers and sisters

Preference relative

U.S. permanent resident

Unmarried children

Preference relative

U.S. permanent resident

Spouse

Preference relative

Notice who is not on this list: grandparents, cousins, aunts, uncles, parents-in-law, and other extended family members.

However, if allowed to immigrate to the United States, most of the people on the above list will be permitted to bring their own spouses and children with them. And it is true that once someone has a green card, they can sponsor other people on the list.

How Long Must Relatives Wait?

Immediate relatives can get green cards without worrying about waiting periods or numerical limits. Preference relatives may have to wait between approximately one and 23 years before being allowed to apply for their visa or green card.

Also, only a certain percentage of the green cards go to any one country each year. That means if a particularly high number of people from certain countries submit petitions -- as is often the case with India, Mexico, China, and the Philippines -- their family members end up waiting even longer than others.

Because of the annual limits on how many green cards (immigrant visas) are given out, and the unpredictability of how many people submit petitions each year, no one can say exactly how long each applicant will wait.

As a general rule, applicants in higher preference categories wait less time. The average wait these days from most countries (excluding India, Mexico, China, and the Philippines) is as follows:

Current Average Waiting Period

Type of Preference Relative

Preference Category

Average Wait

Adult, unmarried children of U.S. citizens

First preference

Six years

Spouses or children of permanent residents

Second preference

Five years for spouses and for minor children; nine years for adult children

Married children of U.S. citizens

Third preference

Nine years

Brothers and sisters of U.S. citizens

Fourth preference

Eleven years

The longest waits are endured by siblings of U.S. citizens from the Philippines -- currently a staggering 23 years.

How to Start the Application Process

The family member who you will sponsor will have to go through a multi-step application process. It's your job as a U.S. citizen or green card holder to start the process, by submitting a visa petition. Your family member can't enter the U.S. until both the petition and subsequent applications have been approved.

Sponsor vs. Petitioner

Although the term commonly used to describe a U.S. citizen or resident who helps someone immigrate is "sponsor," this isn't the technical term. You "petition" for your family member, so you're a "petitioner." Your incoming family member is called a "beneficiary."

Strategies for Success

There are some important steps you can take to speed up your family member's progress toward a green card.

Apply for U.S. Citizenship

If you are a U.S. permanent resident, not a citizen, you can help by applying for citizenship as soon as you're eligible. That's usually five years after getting your green card.

As soon as you're a citizen, your family members can move to a speedier immigration category. For example, your spouse would become an "immediate relative," and could apply for a green card right away. Your parents would go from having no immigration rights to being immediate relatives, and your children would become immediate relatives or move to higher preference categories, depending on their age and whether they are married.

Warn Your Waiting Children Not to Marry

Children who marry have it tough when it comes to immigrating. If you're a permanent resident and you have petitioned for an unmarried child, that child's marriage will destroy the right to immigrate under your petition. If you're a U.S. citizen and your child marries, that will drop the child down into the third preference category, meaning a long wait.

Make sure your children know these risks before they marry. It won't matter that they were unmarried when you started the immigration process for them; they have to be unmarried when they pick up their immigrant visa or green card.

Have Multiple U.S. Family Members Sponsor the Same Immigrant

Hopeful immigrants (beneficiaries) shouldn't pin all of their hopes on one petitioner. If something goes wrong -- for example, the petitioner dies or divorces the beneficiary before the beneficiary gets a green card -- the opportunity is, in most cases, lost.

There is no harm in having more than one U.S. citizen or resident file visa petitions for a waiting immigrant. For instance, both parents could file for a child, to insure against the death of one parent. Or a person married to a permanent resident could have both the resident and their U.S. citizen parent file a visa petition for them.

For more information, see How to Get a Green Card, by Ilona Bray (Nolo).


The Visa Petition: The First Step for Family and Employment Green Cards

Family members and workers need an "invitation" from the U.S. before they can start their green card application.

A visa petition is the first step in applying for a green card. Let's say you qualify to immigrate through either a family member or a company that wants to hire you. Perhaps, for example, your father is a U.S. citizen or permanent resident. Or perhaps you've been offered a high-level job, and the employer has already recruited for American employees and found none who are qualified, willing, and able.

Can you apply for your green card yet? No, not quite. It’s up to your family member or employer to start the process for you. They must do that by filing a form called a "visa petition" -- at which time they become your "petitioner," and you become a "beneficiary."

The Visa Petition

The idea of the visa petition is to prove your petitioner's interest in helping you immigrate, and that the petitioner has the right and ability to do so, based on your relationship. If, for example, your mother, who is a U.S. permanent resident, filed a visa petition for you, she would need to include a copy of your birth certificate showing that she is really your mother, and of her green card, showing that she is really a permanent resident.

Or, for example, if an employer filed a visa petition for you, it would need to attach proof that a labor certification was granted, proof that it can actually pay the wages it’s offering you (such as its tax returns or annual reports), copies of your college degrees if the job requires a certain level of education, and more.

The visa petition also takes care of some other details, like informing USCIS whether you will be continuing with your application through a consulate outside of the U.S. or through a U.S.-based USCIS office.

The Waiting List

Once your visa petition has been approved, it serves another important function: It establishes your place on the waiting list, if you're applying in a category where only limited numbers of green cards (immigrant visas) are given out each year. (That applies to almost everyone except the immediate relatives of U.S. citizens and certain highly qualified workers.)

The date your family member or employer sent in the visa petition becomes your "priority date," which is like your number in line at a bakery counter. By checking the monthly Visa Bulletin on the State Department's website, you can see which priority dates are currently being served -- that is, who is being allowed to move forward with How to File a Green Card Application.

Shortcut for Immediate Relatives

Immediate relatives, such as the parents, spouse, or minor, unmarried children of a U.S. citizen, not only don't have to worry about priority dates, they have an important advantage if they are living in the United States. If they qualify for what's known as "adjustment of status," a procedure in which the entire green card application is done without leaving the United States, they can submit the adjustment of status application to USCIS together with the visa petition. That can save several months of waiting for USCIS to decide on the visa petition. However, this option is not available to everyone -- in particular, immigrants who entered the U.S. illegally normally can't use this option.

How to Prepare the Visa Petition

For more information on preparing and submitting a visa petition, and ultimately the green card application, see How to Get a Green Card (if you're immigrating through family); Fiancé and Marriage Visas: A Couple's Guide to U.S. Immigration (if you're immigrating based on marriage); or U.S. Immigration Made Easy (if you're immigrating through an employer). All three are by Ilona Bray and published by Nolo.


Sponsoring a Worker for a Green Card: Employer's Tasks

Republished with Permission © 2009 Nolo.

Obtain U.S. residency for foreign workers by getting a labor certification.

Foreign workers may obtain green cards to come to the United States only if their potential U.S. employer can prove that no American worker is qualified, willing, and available to take the job. The process of proving this to the U.S. government is called "labor certification." (The requirements are much less for foreign workers seeking to enter the U.S. on temporary, nonimmigrant visas, such as H-1Bs and H-2Bs, which are not covered here.)

Step-by-Step Procedures for Labor Certification

The procedures for obtaining labor certification were radically changed in 2005, in an effort to streamline and shorten the application process.

1. Employer Requests Prevailing Wage Determination

Under the new procedures, the first step is for the employer to approach the state workforce agency (SWA) serving the state where its office is located. The employer must request what's called a "prevailing wage determination" (PWD), which will indicate how much is normally paid to people in jobs equivalent to the one being offered. This information is important because the employer must offer the immigrating worker 100% or more of the prevailing wage.

2. Employer Recruits in the U.S.

Next, the employer can begin recruiting for the job in the United States. (Actually, the employer can start recruiting before this, but must make sure to offer a salary that’s at least as high as the prevailing wage.)

The Department of Labor (DOL) regulations spell out strict rules for recruiting. For starters, the employer must announce the job in a statewide computer databank and in newspapers or other journals of general circulation, with ads appearing on two different Sundays. If the application is for a professional, the employer must conduct three additional steps chosen from a list published in the DOL regulations.

3. Employer Files Labor Certification Application Form

If, after the recruiting is done, the employer has not found a qualified, willing, available, and able American to take the job, it can submit the labor certification application to the U.S. Department of Labor (DOL). The application involves completing a ten-page DOL form (ETA-9089), available on the DOL website at www.foreignlaborcert.doleta.gov. No supporting documents need be submitted, though they must be available in case DOL requests them.

The DOL is supposed to make a decision on the labor certification within 45 to 60 days, but often fails to meet this deadline.

Further Resources

For detailed information on applying for the labor certification and employment-based green cards, as well as nonimmigrant work visas, such as the H-1B visa, see U.S. Immigration Made Easy, by Ilona Bray (Nolo).

Next Steps Toward a Green Card

Only after the labor certification is approved can the employer and immigrant proceed forward. First, the employer must file a visa petition on USCIS Form I-140. After the visa petition has been approved, the immigrant must apply for a green card, either through a procedure called adjustment of status (if the immigrant is legally in the U.S.) or consular processing (if the immigrant is overseas). For more information, see How to File a Green Card Application.

Exceptions to Labor Certification Requirement

For workers in the following categories, no labor certification needs to be filed before the worker applies for a green card. These exceptions include:

  • workers in what is called the "employment first preference" category, including persons of extraordinary ability in the arts, sciences, education, business, or athletics; outstanding professors and researchers; and managers and executives of multinational companies
  • millionaire entrepreneur immigrants ("employment fifth preference")
  • religious workers coming as "special immigrants" ("employment fourth preference"), and
  • people whose occupations are listed on "Schedule A," meaning that the U.S. government recognizes there is a shortage of such workers.