Foundations of Immigration Law, Part II

Posted on: May 21st, 2013
Share on FacebookTweet about this on TwitterEmail this to someoneShare on Google+Pin on PinterestShare on StumbleUponShare on TumblrShare on RedditShare on LinkedInPrint this page

This week you’ll find part one of a two part article. The two articles provide a VERY quick overview of the ways a person can legally come to the US. More in depth discussions of each of these topics can be found in our site’s ABCs section at www.visalaw.com/abcs.html.

Immigrant Visas (“Green Card”)

There are four (4) basic categories of immigrant visas:

  1. Family sponsored immigrants
  2. Employment based immigrants
  3. Diversity immigrants
  4. Refugees and Asylees

 

Family Sponsored Immigrants

1. Immediate relatives – no quotas, faster processing

  • Are you a spouse of a US citizen?
  • Are you a child under 21 years old of a US citizen?
  • Are you the parent of a US citizen over the age of 21?

 
2. Preference categories*

  • First Preference – Are you the adult unmarried child of a US citizen?  [Wait: Three to five years (or more for the nationals of Mexico and Philippines)]
  • Second Preference A – Are you the under 18 child of a green card holder or the spouse of a green card holder? [Wait: Five to seven years (or more for the nationals of India, Mexico and Philippines)]
  • Second Preference B – Are you the adult unmarried child of a green card holder? [Wait: Nine years (or more for the nationals of India, Mexico and Philippines)]
  • Third Preference – Are you a married child of a US citizen? [Wait: Six years (or more for the nationals of Mexico and Philippines)]
  • Fourth Preference – Are you a brother or sister of a US citizen? [Wait: Twelve years (or more for the nationals of India, Mexico and Philippines)]

 
*The above waiting periods are based on the US Department of State’s Visa Bulletin published on March 2004.  The US DOS publishes the Bulletin monthly and announces the current waiting periods therein.  The above periods should be considered as estimates and for accurate waiting periods, the current Visa Bulletin must be checked.

[General Notes: Must file petition with the USCIS to get a place in the queue; marriage to a US citizen is scrutinized to make sure the marriage is genuine; petitions based on green card holder automatically switch to higher preference category when the green card holder becomes a citizen.  The Visa Bulletin can be found at:

http://www.travel.state.gov/visa_bulletin.html]

DV Visas – Green Card Lottery

The US government allocates 50,000 visas a year for people to receive through a random computer drawing. Information on the green card lottery can be found at www.visalaw.com/greencard.html. Entry applications are submitted online. The application is linked at travel.state.gov.

  1. Are you a high school graduate?
  2. Do you work in a field typically requiring two years of work experience and you have at least two years of work experience in the field?
  3. Were you born in an eligible lottery country?

 
[General Notes: Very low odds (fewer than 1 in 40 applicants will succeed); easy to enter; entry period is limited and usually is in the last quarter of the calendar year (October to December); must have job available in US or proof of ability to support self financially. Congress is seriously considering ending the program.]

Employment-Based Green Cards

EB-1-1 – Persons of Extraordinary ability in the sciences, arts, education, business or athletics

  1. Are you one of the top people in your field?
  2. Can you show that you have won a major international award OR at least three of the following?:
    1. Documentation of the alien’s receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
    2. Documentation of the alien’s membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;
    3. Published material in professional or major trade publications or major media about the alien, relating to the alien’s work in the field for which classification is sought, which shall include the title, date and author of such published material, and any necessary translation;
    4. Evidence of the alien’s participation on a panel, or individually, as a judge of the work of others in the same or in an allied field of specialization to that for which classification is sought;
    5. Evidence of the alien’s original scientific, scholarly or business-related contributions of major significance in the field;
    6. Evidence of the alien’s authorship of scholarly articles in the field, in professional journals or other major media;
    7. Evidence that the alien has been employed in a critical or essential capacity for organizations and establishments that have a distinguished reputation;
    8. Evidence that the alien has commanded and now commands a high salary or other remuneration for services, evidenced by contracts or other reliable evidence.

 
[General Notes: No employer required, but you’ll need to show you intend to pursue work in your field; fast category except there are multiyear backlogs for Indian and Chinese nationals (and all other nationals likely to face backlogs soon).]

EB-1-2 – Outstanding Professors and Researchers

  1. Are you recognized internationally as outstanding in a specific academic area?
  2. Do you have three years experience in teaching or research in your area?
  3. Are you coming to the US to work in a tenure or tenure-track teaching position or a long term research position?
  4. Can you present evidence that you are recognized internationally in your academic field by presenting evidence of at least two of the following?:
    1. Receipt of major prizes or awards of outstanding achievement
    2. Membership in an association which requires outstanding achievement
    3. Published material in the professional publications written by others about your work
    4. Evidence of your participation as a judge of the work of others
    5. Evidence of original scientific research
    6. Authorship of scholarly books or articles in the field
[General Notes: Fast category but there are multiyear backlogs for Indian and Chinese nationals and all other nationals likely to face backlogs soon.]

EB-1-3 – Multinational Executives and Managers

  1. Category is virtually identical to L-1 intracompany transfer non-immigrant visa
  2. Key differences
    1. Not available to specialized knowledge employees
    2. US branch must be operating for at least a year

 
[General Notes: Multiyear backlogs for Indian and Chinese nationals and all other nationals likely to face backlogs soon.]

EB-2 – Members of the Professions Holding Advance Degrees or People With Exceptional Ability

  1. Do you have a degree beyond a bachelors degree or do you have a bachelors degree plus five years of work experience in your field?
  2. Or do you meet the definition of exceptional ability by showing three of the following:
    1. Degree relating to the area of exceptional ability
    2. Letter from current or former employer showing at least 10 years of experience
    3. License to practice profession
    4. Person has commanded a salary or remuneration demonstrating exceptional ability
    5. Membership in professional association
    6. Recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organization
  3. Do you have a job offer and labor certification or are you basing your green card application on benefiting the nation’s interest?
  4. If you are planning on basing your green card application on a labor certification, do you work in a field where there is a shortage of American workers in the local area where you intend to work?
  5. If your claim is based on a labor certification, are you going to be paid the prevailing wage for similarly employed workers in the city where you are going to work?
  6. If your claim is based on a labor certification, has your employer attempted to recruit workers to fill the position?
  7. If your claim is based on a national interest waiver, do you meet the following tests?:
    1. The person seeks employment in an area of substantial intrinsic merit
    2. The benefit will be national in scope
    3. The national interest would be adversely affected if a labor certification were required

 
[General Notes: Processing times vary but labor certification cases typically take one to two years and national interest cases take six months to a year and a half; Employer not required in national interest waiver cases; multiyear backlogs for Indian and Chinese nationals and all other nationals likely to face backlogs soon.]

 EB-3 – Skilled Workers, Professionals and Other Workers

[General Notes: Available to university graduates and people working in jobs requiring a worker with at least two years experience can file this category if the employer gets a labor certification (see above). There is a sub-category for unskilled workers that does not have a work experience or education requirement, but still requires a labor certification.  The EB-3 category is backlogged for multiple years for all nationalities. Nurses and physical therapists have a temporary bonus quota that eliminates the queue for those professionals and this supply of visas is expected to last most of 2006 and possibly into 2007.]

EB-4 – Special Immigrants – Religious Workers

[General Notes: Basically the same requirements as the R-1 religious worker non-immigrant category except that the applicant must have been working in the field for at least a two year period. No backlogs in this category as of late 2005 and none are predicted.]

EB-5 – Investor Employment Creation Visa

  1. Are you investing in a business in the US?
  2. Is the business new or are you buying into a restructured business?
  3. Are you investing at least $500,000 if the business is in a rural, high unemployment area or designated target investment area or $1,000,000 if located elsewhere?
  4. Is your investment in the form of cash, equipment, inventory, other tangible property, cash equivalents and indebtedness secured by assets owned by the entrepreneur?
  5. Is the investment “at risk”?
  6. Can you document that the source of the funds is legitimate?
  7. Will the investment result in the creation of at least ten full-time jobs for American workers?

 
[General Notes: The USCIS scrutinizes these cases carefully. While technically the investment and job creation need not take place until after granting the green card, in practice, the USCIS will deny unless the investment and job creation take place before the application was submitted.

More information about immigrant visas may be found at our website http://visalaw.wpengine.com/abcs.html]

Asylees and Refugees

There are certain protected groups of aliens in the US.  Most common are the asylee and refugees.  Under the 1980 Refugee Act, a refugee is defined as “any person who is outside of any country of such person’s nationality . . . who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”

Both refugees and asylees must satisfy this definition.  Indeed, in almost every way, the requirements for refugee status and asylum are the same.  The most important difference is that an asylee makes their application while in the US, while the refugee applies outside of their home country, but also outside of the US.

Asylees and refugees are eligible for employment authorization and have special paths to permanent residency.

There are other protected groups like the TPS (temporarily protected status) aliens, and more information about these special groups and others may be found at our website http://visalaw.wpengine.com/abcs.html