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HOW CAN YOU IMMIGRATE TO THE UNITED STATES?

INTRODUCTION

For many, immigrating to the United States is a lifelong dream. However, the United States places limits on the types and numbers of people who can come to permanently reside in the U.S, like most of the first world countries.

There are a number of ways to immigrate to the U.S. Five of the primary ways to become a permanent resident of the United States are explained below. Other ways to immigrate, for which very few people qualify, are listed but not explained. Many people are surprised at how difficult it is to immigrate to the United States. Please CONTACT an experienced attorney who specializes in Immigration Law or the nearest USCIS office, U.S. Embassy or U.S. Consulate if you wish to immigrate to the United States.

I. FAMILY IMMIGRATION CATEGORIES

480,000 people every year immigrate to the United States because they have U.S. citizen or permanent resident relatives. There are eight categories of people who can immigrate based on relatives. Under normal circumstances, a U.S. citizen or permanent resident must first file a visa petition for a foreign relative before that relative can start his or her own immigration process.

IMMEDIATE RELATIVES (IR VISAS)

Immediate relatives are spouses of U.S. citizens, parents of U.S. citizens, and unmarried minor children (under 21 years of age) of U.S. citizens. There is no cap on the number of visas available each year for immediate relatives.

1. IMMEDIATE RELATIVES – SPOUSES OF U.S. CITIZENS

Becoming the spouse of a U.S. citizen is the fastest, easiest way to immigrate to the United States. However, this is also the most common source of immigration fraud, where a foreign national marries a United States citizen only for the purpose of obtaining a green card. This is against the law and if the USCIS finds out, such immigrant will be required to leave the United States with virtually no possibility of ever immigrating again. To prevent such fraud, the law requires that for marriages less than two years at the time permanent residence is initially granted, both spouses must file a joint petition two years later thereby proving that the marriage is still valid.

2. IMMEDIATE RELATIVES – PARENTS OF UNITED STATES CITIZENS

Any United States citizen over the age of 21 can petition for his or her parents. This is the second group in the category known as immediate relatives and is also a very quick and easy way to immigrate.

3. IMMEDIATE RELATIVES – CHILDREN OF UNITED STATES CITIZENS

Any unmarried minor child (under 21 years of age) of a U.S. Citizen is also considered an Immediate Relative. If the U.S. citizen did not pass on citizenship at the time of the child’s birth, this procedure can be used. As with the other two immediate relative groups, there is no wait to immigrate. Please note; however, that when a child turns 21, he or she is no longer an immediate relative and will be moved into the category known as “first preference.”

4. FIRST PREFERENCE – UNMARRIED SONS AND DAUGHTERS OF UNITED STATES CITIZENS

When children of United States citizens turn 21 or marry at any age, they are no longer classified as immediate relatives. Instead, they move into a preference category. As with all the preference categories, a limit is placed on the number of persons who can immigrate to the United States each year. Because more persons are eligible to immigrate than there are numbers available, there is usually a backlog of a year or more in this category. Countries like India, China & Mexico, have a considerable First Preference backlog since there is a large number of eligible immigrants from these countries who are in this group.

5. SECOND PREFERENCE (A) – SPOUSES AND MINOR CHILDREN OF PERMANENT RESIDENTS

This is also an easy way to immigrate to the United States but it is not fast. The difference between spouses in this category and spouses who are married to United States citizens is 5-8 years wait after a visa petition is filed and approved, before the spouse can immigrate to the United States. The law does not allow a spouse to come to the United States and live with her husband (or his wife) while waiting the 5-8 years to immigrate. Nor does the law allow a spouse who has an approved visa petition and who may be living in the United States, to continue to remain legally in the United States, until he or she is eligible to immigrate.

6. SECOND PREFERENCE (B) – UNMARRIED SONS AND DAUGHTERS OF PERMANENT RESIDENTS

This category is for unmarried children over the age of 21 who have a Permanent Resident parent. The backlog for children under 21 is approximately 5-8 years. The wait for children over 21 is currently estimated as high as 10-15 years. Because there is a substantial backlog, it is advantageous for permanent resident parents to become United States citizens as soon as eligible so that their children can immigrate much quicker under First Preference as sons and daughters of United States citizens. However, a person can opt out of being upgraded when their parent becomes naturalized.

7. THIRD PREFERENCE – MARRIED SONS AND DAUGHTERS OF UNITED STATES CITIZENS

If an adult son or daughter of a United States citizen marries, that person drops from First Preference category to Third Preference. Married children of permanent residents cannot be petitioned for. Instead, they must wait for a parent to become a United States citizen.

8. FOURTH PREFERENCE – BROTHERS AND SISTERS OF UNITED STATES CITIZENS

Brothers and sisters of United States citizens are eligible to immigrate to the United States. The United States citizen must be at least 21 years old. However, the waiting period is 10-20 years (depending on the country of birth). During this time, the brother or sister will normally have to wait outside the United States. If possible, it is important to try to find some other visa category rather than wait for this very long time.

PROCEDURE FOR RELATIVES TO IMMIGRATE

In order for a relative to immigrate, the United States citizen or permanent resident starts the process by filing a visa petition for the relative. The visa petition is normally filed in the United States whether the beneficiary (the relative who wants to immigrate) is in the United States or not. After the visa petition is approved, the second step of the process is to actually apply for permanent residence. Immediate relatives, who are in the United States, may also apply for their permanent residence at the same time the visa petition is filed. All others will not be allowed to file for permanent residence until after the visa petition is approved AND their priority date becomes current. (For information about priority dates and why some preferences take so long, please review “How Long Does It Take to Immigrate to the United States?”)

The persons described above are the only ones who can be petitioned by their U.S. Citizen or permanent resident relative. Grandparents, aunts, uncles, or cousins cannot file a visa petition for you.

II. EMPLOYMENT IMMIGRATION CATEGORIES

The law lists five preference categories of people who can immigrate based on employment. Each employment-based preference category is allotted a certain number of visas each year. Two of the categories require a labor certification; three do not.

A Labor Certification is a process where a United States employer proves that there is a shortage of qualified, willing and available United States workers. To prove this, an employer must try to recruit United States workers by placing newspaper advertisements and making other efforts to find qualified United States workers. Only if no such worker can be found may a labor certification be granted.

Employment Not Requiring Labor Certification – There are three employment-based preference categories, which do not require a labor certification:

1. EMPLOYMENT-BASED FIRST PREFERENCE: PRIORITY WORKERS

There are three groups in Employment-Based First Preference Category: a) persons of extraordinary ability, b) outstanding researchers and professors, and c) certain multinational managers and executives. A person who falls in one of these groups does not need to prove there is a shortage of U.S. workers. Unfortunately, not very many people are eligible for the first preference category.

2. EMPLOYMENT-BASED FOURTH PREFERENCE: RELIGIOUS WORKERS AND OTHER SPECIAL IMMIGRANTS

Although religious workers must have employers, they do not have to prove there is a shortage of qualified U.S. workers. However, the rules are very specific as to the requirements, which must be met in order to be classified as a religious worker. There are a few other special immigrant categories, but they have very limited application.

3. EMPLOYMENT-BASED FIFTH PREFERENCE: INVESTORS

Certain investors are included in the employment-based preference categories. However, because they create employment and do not take employment away from U.S. workers, they do not have to go through a labor certification process. They must instead, be prepared to invest $1,000,000 ($500,000 under certain conditions) in a new business and employ at least ten U.S. workers (See Millionaire Category below.)

Employment Immigration Requiring Labor Certification – There are two preference categories of immigrants, which require labor certifications:

a. Employment-Based Second Preference: Member of Professions Holding Advanced Degrees or Aliens of Exceptional Ability

This group is comprised of persons with advanced degrees or the equivalent who are working in jobs, which require someone with an advanced degree.

b. Employment-Based Third Preference: Skilled Workers, Professionals and Other Workers

There are three groups within this preference category: a) professionals, b) skilled workers performing job duties, which require at least two years of training, education, or experience, and c) other workers in positions that require less than two years of training, education, or experience.

Persons in both second and third preference categories must go through a complete labor certification process. In order to successfully complete this process, an employer must demonstrate that there is a shortage of U.S. workers. To do this, the employer must advertise in a local newspaper and may have to perform other recruitment efforts. This is a time-consuming and very complicated process. Most employers or immigrants who make use of this process retain attorneys to assist them. (For further information, please see “How can you Immigrate to the United States through Employment?”)

III. MILLIONAIRE CATEGORY

The law provides that a person who invests one million dollars in a new commercial business may be able to immigrate to the United States. However, the business must also create jobs for at least ten U.S. workers. The one million dollars normally must be a cash investment. Borrowed funds can be used, but only if secured by property other than the business itself.

The investor can also purchase an ongoing business; however, in doing so, the $1 million investment must increase the value of the business by at least 40%. And, the expanded business must employ at least 40% more persons or an additional ten persons, whichever is higher.

An investor may also qualify with an investment of only $500,000 if the business is located in a targeted employment area (area of high unemployment or a rural area). However, all of the other rules apply, including the need to employ at least ten US workers.

An investor is granted conditional permanent residence for two years. At the end of two years, additional documents must be filed with the USCIS to establish that the business has survived the previous two years, that the required capital was invested, and that the required number of U.S. workers have been employed. If the investor is successful, the condition will be removed and the investor will become a regular permanent resident. (For more information, please see “How Can You Immigrate To The United States Through Investment?”)

IV. REFUGEES/ POLITICAL ASYLUM

A person who has been granted refugee or political asylee status is eligible to apply for permanent residence after one year. The number of refugees accepted is determined each year by the President. Approximately 80,000 persons a year are eligible under this category. There is no limit on the number of people who can be granted asylum each year. However, the vast majority of refugees and asylees come from relatively few countries in the world where political conditions allow for the granting of political asylee/refugee status.

V. DIVERSITY VISA LOTTERY PROGRAM

Congress has created a diversity lottery program allowing 50,000 people to immigrate to the United States per year. Under a lottery-type procedure, nationals from countries with low rates of immigration to the U.S. may apply. Applicants must have at least a high school education or have worked at least two years in an occupation that requires at least two years of training and experience to be eligible to apply. Countries with low rates of immigration to the U.S. are countries from which less than 50,000 people have immigrated within the last five years. This excludes natives of the following countries: Brazil, Canada, China (Mainland-born), Colombia, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, India, Jamaica, Mexico, Pakistan, Philippines, Peru, Poland, Russia, South Korea, the United Kingdom (except Northern Ireland) and Vietnam.

DELAYS IN IMMIGRATING

Only approximately 700,000 people are allowed to immigrate to the United States in any given year. However, there are currently many more people who are eligible to immigrate to the United States. Therefore, some people will have to wait until future years to immigrate. The United States government maintains an orderly immigration process by assigning priority dates to those who are eligible to immigrate to the United States based on relatives or employment. Within the overall worldwide numbers that are available, there are certain limitations. For example, only 65,000 brothers and sisters of United States citizens may immigrate to the United States each year. Since there are currently over 1.5 million persons who have been petitioned by their United States citizen brothers and sisters, the wait in that category is very long, estimated at between 12-22 years. While most other categories have much shorter waits, delays of many years are not uncommon. (For further information, please see “How Long does it take to Immigrate to the United States?”)

OTHER WAYS TO IMMIGRATE

For a very few number of people, there are other ways to immigrate to the United States. These include:

1. Cancellation of Deportation. This is available to persons who have been in the United States for more than ten years. However, in order to apply, you must be in deportation proceedings before an Immigration Judge. In addition, you must prove that there would be an exceptional and extremely unusual hardship on a U.S. citizen or permanent resident spouse, parent or child if you were required by the Judge to leave the U.S. Such hardship is difficult to prove. However, if you convince the Judge, you will be allowed to stay in the United States as a permanent resident. If you do not, the Judge will order you to leave the United States.

2. Registry. This is available to people who have been in the United States since before 1972 but have never filed papers to immigrate to the United States.

3. Persons who have worked with or for the Central Intelligence Agency.

4. Certain Panama Canal Zone employees.

5. Persons who have worked for fifteen years for the United States government abroad.

6. Persons who have had or will have twelve years of active duty in the United States military.

We hope that this article answers most of the frequently asked questions, which we receive in our office about how to immigrate to the United States. If after reading this you still have questions about immigrating to the United States or any other immigration matter, please CONTACT our office and schedule an appointment at our New York office. The information in this article does not constitute any legal advice. The law is constantly changing, and we make no warranties of the accuracy of the information provided.

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HOW LONG DOES IT TAKE TO IMMIGRATE TO THE U.S.?

Immigrating to the United States is a lengthy and cumbersome process that includes long delays due to visa backlogs. In order to maintain an orderly immigration process, the United States has established a waiting list system. While this makes for an orderly process, it has created backlogs of many years for certain countries under certain categories. It is important to understand how the system works which will allow you to estimate more accurately how long it will take a person to actually immigrate to the United States. This will also make it easier to understand why some people seem to immigrate quickly while others take much longer.

FAMILY IMMIGRATION
IMMEDIATE RELATIVES AND PREFERENCES
In order to understand the system, you must know that there are three major categories of people who can immigrate to the United States. Depending into which group a person falls will greatly affect how soon he or she can immigrate:

1. IMMEDIATE RELATIVES
Immediate relatives are:

a. spouses of United States citizens,
b. children (under the age of 21) of United States citizens, and
c. parents of United States citizens who are over 21.

There is no limit to the number of these people who can immigrate to the United States. Therefore, there are no backlogs. This means that such a person can immigrate as soon as the documentation is completed. For a person living outside the United States who fits within this category, there are three distinct steps. The average processing time is: 7-8 months for the visa petition to be approved by the Immigration Service; 1-3 months to receive a set of forms from the Department of State known as Packet 3; and 2-4 months until an interview is scheduled at the American Consulate. For people in the United States, the process is usually shorter. In such a case, the total processing time may be 9-12 months depending upon the Immigration Service office which has jurisdiction over the place where the immigrating person is living.

2. FAMILY PREFERENCES
Approximately 350,000 persons can immigrate to the United States as family preference relatives in any given year. There are four family preferences:

First preference – sons and daughters over 21 years old of United States citizens

Second preference – sons and daughters and spouses of permanent residents, divided into two categories:

2A – sons and daughters under 21 years old and spouses

2B – sons and daughters over 21 years old

Third Preference – married sons and daughters of United States citizens

Fourth Preference – brothers and sisters of United States citizens

Since there are over two million eligible people in the family preference category but only 350,000 spaces available, not all of them will be allowed to immigrate this year. Most preferences have become oversubscribed, creating backlogs. This means that some persons in those preferences must wait until the next year to immigrate and some, even longer. Individuals immigrating under the First Preference category currently have a wait of approximately six years. Historically, Fourth Preference has been greatly oversubscribed, with a waiting list of 12-15 years. Persons who fall in the Second Preference for spouses and children under 21 years old may have a wait of between 5-6 years. Persons who are Second Preference sons and daughters over the age of 21 have a wait of approximately 9-10 years. The third preference backlog is approximately 8 years. The Philippines and Mexico usually have much longer family preference backlogs than the rest of the countries in the world.

EMPLOYMENT IMMIGRATION
3. EMPLOYMENT PREFERENCES
There are approximately 140,000 people who can immigrate under the five employment preferences per year. Employment preferences are as follows:

First Preference – Persons of extraordinary ability, outstanding professors and researchers, and certain multinational executives and managers.

Second Preference – Members of the professions holding Master’s or Ph.D. degrees or persons of exceptional ability in the sciences, arts or business.

Third Preference – Professionals, skilled workers, and other workers. Other Workers are a sub-category of persons who are in jobs which require less than two years of education, training and experience. This sub-category is currently experiencing a 5-8 years or more backlog.

Fourth Preference – Special immigrants, including religious workers.

Fifth Preference – Investors who create employment in the United States.

Except for the Other Workers category and some people from the Philippines, China, and India, employment preferences currently have no serious backlog for Second Preference and a 2-3 years backlog for Third Preference. However, the government processing time is considerable. Even when there is no per country backlog, the average processing time a labor certification/visa petition/adjustment of status process is approximately 1 to 3 years.

OTHER ELEMENTS AFFECTING IMMIGRATION BACKLOGS
Besides an overall cap as to the number of people who can immigrate to the United States in one year, there are other factors which affect how quickly a person can immigrate to the United States, including:

1. COUNTRY OF NATIONALITY
Congress has established a maximum limit as to the number of people that can come from any one country in any given year. Historically, certain countries in the world have contributed more immigrants than others. Currently, there are four countries in the world which reach their maximum each year: China, India, Mexico and Philippines. Persons who are born in these countries therefore, have a greater likelihood of having to wait longer to be able to immigrate than persons in the same preference category from other countries.

2. PER CENT ALLOCATIONS BETWEEN PREFERENCES
The law does not allocate equal numbers to each preference category, nor is there an equal demand for each preference category. For example, family first preference (unmarried sons and daughters of U.S. citizens) is allocated 23,400 visa numbers per year. Fourth preference (brothers and sisters of adult U.S. citizens) is allocated almost three times as many visa numbers per year, 65,000. Unfortunately, currently over 1.5 million people are waiting in Fourth Preference. Therefore, there are substantial delays in this category.

3. FALL DOWN
The law requires that all numbers be used each year. Under certain circumstances, one category may not use all of its numbers. The leftover numbers from a higher preference category usually fall down to a lower preference category. For example, if all the numbers allocated for Family First Preference are not used up in a year, the unused numbers would go to Family Second Preference to be used by spouses and sons and daughters of permanent residents. Brothers and sisters of United States citizens are eligible to receive any numbers not used by the first three Family preferences. Unfortunately there are no unused numbers that ever reach fourth preference.

VISA BULLETIN
Each month, the State Department notifies the public as to who can actually immigrate to the United States in that particular month. Visa bulletin information is available through our web site, or at www.state.gov or by calling (646) 429-9700. Based on the preferences (remember that immediate relatives are not limited, and therefore, are not included in the Visa Bulletin), three pieces of information are given based on each category.

Current: means no backlog exists at all and everyone in that category can immigrate, assuming all of the paperwork has been properly completed. When a category is current, it is noted in the Bulletin by the letter “C”.

Unavailable: means no visas are available during that month for the category. Therefore, no one who fits within that category can immigrate to the United States. When there are no numbers available, this is designated by the letter “U”.

Cut-Off Date: by considering all of the factors explained earlier, the State Department tries to estimate how many people can be allowed to immigrate in a given month so that all the numbers available for that year will be used up by the end of the year. They do this by establishing cut-off dates. These dates are used by the Immigration Service and the State Department so they can issue visas to people who then become permanent residents of the United States that month.

Each person who is within one of the family or employment preferences is given a priority date. This is the date that a visa petition or labor certification was filed on the person’s behalf. By keeping track of that date, it can be estimated, by looking at the Visa Bulletin, how quickly a person will be able to immigrate to the United States.

When person files visa petitions for family members, they usually want to know how soon their relatives will be able to immigrate to the United States. When employment based visas are filed, people want to know how long until they can immigrate. The best way to estimate the time it will take for a category to move to a particular date is to check with the State Department for a few months to see how fast the cut off dates are moving in that particular category. By looking at the cut-off date and calculating the speed it is moving, it is sometimes possible to estimate how long it will take for that priority date to become current.

If after reading this you have questions about immigrating to the United States through investment, or any other immigration matters, please CONTACT A Sharma Law Firm, PLLC and arrange an appointment with our Attorney at our New York office. The information in this article does not constitute legal advice. The law is constantly changing, and we make no warranties of the accuracy of information.

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HOW CAN YOU WORK IN THE UNITED STATES?

Many people plan on working in the United States on a long or short-term basis. Unfortunately, the U.S. government does not issue “work permits” to everyone who would like to work. In order to work in the United States, a person must qualify for a visa which allows him or her to do so. Each “work” visa, however, has its limitations. There are more than 20 different types of nonimmigrant visas. However, not all of them provide permission to work. Therefore, it is important to understand the requirements for each type of visa and its limitations. If after reading this you feel you are qualified to work in the United States, you should contact our office or the nearest U.S. Citizenship and Immigration Services (USCIS) office, U.S. Embassy or U.S. Consulate.

VISAS WHICH DO NOT ALLOW A PERSON TO WORK IN THE UNITED STATES
B VISAS – VISITORS FOR BUSINESS (B-1) AND PLEASURE (B-2)
Persons who are in the United States on B visas are not allowed to be employed in the United States. Under certain circumstances, a person on a B-1 (visitor for business) visa is allowed to do business on behalf of an overseas employer. For example, persons in the United States on B-1 visas may engage in commercial transactions, consult with business associates, and visit companies which are subsidiaries or affiliated their employer. There are only certain permitted activities under B-1 visa, none of which amount to work in the United States. This, however, is not the same as being employed in the United States by a United States employer. If a salary is received for services rendered in the United States, it must be paid by an overseas employer.

F VISAS – STUDENTS
Generally, a person on a student visa is not allowed to work in the United States. In fact, in order to obtain a student visa, a person must demonstrate that he or she has sufficient funds to live and attend school in the United States without working. There are a few exceptions which allow students to work that are explained as below.

While foreign nationals who are in student status are generally not allowed to work, they may be authorized to work in the United States in three situations:

On-campus employment: A person who is maintaining student status may work on the school’s premises for up to 20 hours per week while the school is in session and full-time during vacation periods. Such employment usually takes the form of grants for positions as research assistants, teaching assistants, etc., but may also include other on-campus positions. Normally, such employment should not displace a U.S. worker.
When there is an unforeseen, severe, economic necessity, a student may be authorized to work off-campus on a part-time basis only after having been in F-1 status for one full academic year provided the student is in good academic standing. Permission is granted by the USCIS to obtain part-time employment due to unforeseen economic circumstances. Such circumstances may include the death or illness of a financial sponsor, unanticipated costs to the student, a change in schools where the tuition or living costs may be higher, etc.
Practical Training: A student may apply for two types of practical training: Curricular Practical Training and Optional Practical Training. Curricular Practical Training is authorized by the school only if the training is an integral part of the curriculum. Students who receive one or more years of full-time curricular practical training may not receive optional practical training. Optional Practical Training must be directly related to the student’s major area of study. It is limited to a maximum of one year and may be used either before or after graduation, although most students prefer to use it after graduation.
VISAS WHICH ALLOW PERSONS TO WORK IN THE UNITED STATES
E VISAS – TREATY TRADERS (E-1) AND TREATY INVESTORS (E-2)
The United States has entered into commercial treaties with various countries in the world. Nationals of those countries may come to the United States to open businesses, which will carry on trade between the United States and their country of nationality (Treaty Trader: E-1) or to open businesses in which they will invest (Treaty Investors: E-2) or to be employed by such businesses.

A Treaty Trader must operate a business that has substantial trade primarily between the United States and their country of nationality (no set amount of investment or even trade is required, however, enough trade must take place to provide an adequate living for the Treaty Trader and his or her family.)

A Treaty Investor visa is based on investment. This classification applies to those coming to solely direct and develop operations of an enterprise in which he or she has invested, or is actively involved in the process of investing, a substantial amount of capital.

A Treaty Trader/Investor may come and remain in the United States for indefinite periods of time, but must intend to depart the U.S. upon expiration or termination of their E-1 or E-2 status.

Foreign nationals may work for such a “treaty company” in executive, managerial or supervisory capacities, or in a position where the person has special qualifications which makes his or her services essential to the efficient operation of the enterprise.

The law permits spouses of E-1 Treaty Traders and E-2 Treaty Investors to apply for U.S. work permission.

H VISAS – TEMPORARY WORKERS
The H category of visas is one of the most widely used classifications that allows persons to work in the United States. This classification requires that a person not only have a United States employer, but also meets additional requirements. There are three sub-categories of H visas each with their own specific requirements:

H-1B Temporary Professionals. This is the most popular category used for foreign nationals coming temporarily to the U.S. to perform services in a specialty occupation. However, it is limited to people with college degrees or, under certain circumstances, to persons who have obtained the equivalent of a college degree through many years of experience in their particular field. In order to qualify for this category, four things are required:

a U.S. employer;
a college degree or its equivalent;
a position within the employing company that requires that specific degree; and
the payment of the prevailing wage for that position.
It is important to note that a person must not only have a college degree, but the position for which he or she is applying must also require that specific degree. Persons who qualify for this category are normally referred to as “professionals.” Such persons would include engineers, architects, teachers, and numerous other professionals.

H-1C – This classification applies to a foreign national who is coming temporarily to the U.S. to perform services as a Registered Nurse.

H-2A and H-2B Visas – Temporary Workers. The H-2A classification applies to foreign nationals coming temporarily to the U.S. to perform agricultural work of a temporary or seasonal nature. The H-2B classification applies to foreign nationals coming temporarily to the U.S. to perform nonagricultural work of a temporary or seasonal nature. These visas are limited to situations where both the job being offered and the employer”s need for the specific person are temporary. For example, a restaurant may bring a “Chef Trainer” to the United States to train some of the kitchen personnel. Once the kitchen personnel have been properly trained, there is no further need for the position of “Chef Trainer,” hence no further need for the person. Unfortunately, most applications filed under this category are denied since the employer cannot furnish enough proof that there is only a temporary need for such a person.

An employer may attempt to show a temporary need based on one of four circumstances:

a one-time occurrence;
a seasonal need;
a peak-load need; or
an intermittent need.
H-3 visas – Temporary Trainees. These are persons who seek to enter the United States at the invitation of an employer for the purpose of being trained. A detailed training program must be submitted to the USCIS along with proof that the proposed training is not available in the person’s own country, that the person will not engage in productive employment, that the person will not perform a job in which U.S. citizens and resident workers are regularly employed, and that the training will benefit the person outside the United States. The advantage of qualifying for an H-3 is that the person can be paid a salary in the United States while being trained. The disadvantage of this category is that the USCIS makes it very difficult for employers to be successful in establishing a valid training program.

I VISAS – INTERNATIONAL CORRESPONDENTS
This visa is useful to only a small group of people who are international correspondents working as reporters for newspapers, magazines, radio, or television. The employer must be a foreign entity.

J-1 VISAS – EXCHANGE VISITORS
The J-1 category includes many types of people who may work in the U.S. and receive a salary while they are here. This category includes teachers, professors, research scholars or specialists, trainees and interns. Sometimes, a person who cannot qualify for one of the H visas may qualify for a J visa as a trainee. This visa is only issued pursuant to a program that has been registered with the Department of State. A person who obtains a J-1 visa may be subject to a two-year foreign residency requirement where he/she would be required, by law, to return home for two years before they can apply for other types of U.S. visas or for permanent residence.

L VISAS – INTRACOMPANY TRANSFEREES
A person may work in the United States who is an employee of a multinational corporation, if that corporation will transfer him or her to a parent, subsidiary, affiliate or branch office here in the United States. Such a transfer can only take place if the person is a manager or executive (L-1A), or a person with specialized knowledge (L-1B).

A Manager is defined as someone who manages a company or a department, function, or component of the company; supervises and controls the work of other supervisory, professional, or managerial employees; or manages an essential function within the company or a department or subdivision of the company. If other employees are directly supervised, the person must have the authority to hire and fire or recommend those, as well as other personnel actions. If no other employees are directly supervised, the manager must function at a senior level within the business hierarchy, and exercise discretion over day-to-day operations of the activity or function. A first line supervisor is not considered to be acting in a managerial capacity. A person in an Executive capacity directs the management of a company or a major component of a company, establishes goals and policies of the company, exercises a wide latitude of discretionary decision making, and receives only general supervision from higher level executives, the board of directors, or shareholders.

A person with Specialized Knowledge is an individual with special knowledge of the company’s products, services, research, equipment, techniques, management or other interests, and its application in international markets, or who has an advanced level of knowledge or expertise in the company’s processes and procedures. In order to qualify for L-1 status, a person must be employed for at one year out of the last three years with the company abroad, be coming to the United States to work in a managerial/executive capacity or a capacity which involves specialized knowledge, and must be coming to the United States to work for the parent, subsidiary, affiliate or branch office of the overseas employer.

Certain managers and executives can use L-1A status as a stepping stone to obtain U.S. permanent residence.

The law permits certain spouses of L-1 Intracompany Transfers to work.

O Visas – Aliens of Extraordinary Ability in the Sciences, Arts, Education, Business or Athletics.

The O-1 classification applies to a foreign national who has extraordinary ability demonstrated by sustained national or international acclaim and who is coming temporarily to the US to work in the area of extraordinary ability OR a foreign national with a demonstrated record of extraordinary achievement in motion picture and/or television productions. This visa category can apply to scientists, educators, businessmen, and others who have a level of expertise indicating that they are one of a small percentage who have arisen to the very top of their field of endeavor. In order to qualify for this visa, a person must have received major, internationally recognized award (such as a Nobel Prize) or, alternatively, must meet various criteria set forth by USCIS, which demonstrate extraordinary or outstanding ability.

P VISAS – PERFORMING ENTERTAINERS AND ATHLETES
There are three groups of people who can qualify under this category: (1) internationally known athletes, individually or as part of a group or team, (2) entertainment groups (such as orchestras not individuals) and persons who are performing artists under the auspices of a reciprocal exchange program, and (3) culturally unique entertainers/support personnel.

R VISAS – RELIGIOUS WORKERS
Three categories of religious workers may be able to come to the United States: (1) Ministers, (2) Religious professionals, and (3) other religious workers. To qualify, a person must have been a member for at least 2 years of a religious denomination or organization having a bona fide nonprofit religious organization in the U.S.

OTHER VISAS
There are other visas which may allow persons to work in the United States, but they are so limited that they will only be listed and not explained.

A Visas – Ambassadors and Consular Staff
E-3 Visas – for Australian professionals
G Visas – International agency workers
K Visas – Fiances of United States citizens
M Visas – Non-academic students
Q Visas – Cultural exchange visitors
The above are the only visa categories which allow persons to work in the United States legally. As can be seen, work authorization can only be given in limited circumstances under strict rules and requirements.

This document answers most of the frequently asked questions which we receive in our office about “work visas.” If after reading this you have questions about working in the United States or any other immigration matters, please CONTACT our office and schedule an appointment at our New York office. The information in this article does not constitute legal advice. The law is constantly changing, and we make no warranties of the accuracy of information.

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HOW CAN YOU EMPLOY AN ALIEN WORKER?

INTRODUCTION
Global hiring was commonplace in the 90’s and continues unabated through the last decade. Due to economic restraints, pressure from the Immigration Reform and Control Act of 1990 has caused most employers to refrain from hiring “illegal” aliens. However, for a variety of reasons, U.S. employers continue to have to look outside the United States, or to pools of aliens in the United States, to meet their employment needs. Multinational companies find that they must be able to transfer personnel quickly and easily to ensure sustained international competitiveness. Various other employers have labor needs that cannot be met by the U.S. labor force, and require the use of foreign nationals.

Immigration Law has been characterized as the second most complex area of United States Law, second only to Tax Law. It is little wonder that it has so frequently been given only superficial attention or ignored completely by employers. Many employers feel that the law is too complicated to understand and hope that they will be able to “just blunder through successfully” or, if they do not do anything, “they can get away.” Unfortunately, they will not get away. This following article will familiarize the U.S. employers with the various visa categories, which may be used in order to legally employ aliens.

NONIMMIGRANT VISA CATEGORIES WHICH ALLOW “WORK” IN THE UNITED STATES
Contrary to a belief held by many, there is no such thing as a “work visa,” that is, a visa which will allow a person to come to the United States, seek employment and begin working here. There are, however, certain visa categories which allow aliens, who fit within these categories, to work in the United States. Each of these categories has very definite limitations. It is, therefore, important to know the requirements of each category and the attendant limitations to determine whether the category will be of benefit to you.

There are twenty nonimmigrant visa classifications but only six normally allow persons to work in the United States: B-1 (Visitors for Business), E (Treaty Traders or Treaty Investors), F (Students with work authorization), H (Temporary Workers and Trainees), J (Practical Trainees/Exchange Visitor), and L-1 (Intracompany Transferees). Other classifications, O (Extraordinary Ability), P (Performers), and R (Religious Worker) are available as well. However, due to the very limited use of these classifications, they will be mentioned but not discussed.

1. B VISAS (VISITORS)
There are two types of B visas: B-1 (visitors for business) and B-2 (visitors for pleasure). While neither type allows for employment in the United States, under certain limited circumstances, a visitor for business (B-1) may be able to provide services while in the United States.

A visitor for business (B-1) is generally a person coming to the United States who is employed abroad or self-employed and who will be performing activities on behalf of his employer or himself. This visa does not allow the person to actually perform local employment or labor in the United States and, thereby, compete with U.S. workers. For that reason, the alien may not be paid compensation by any U.S. source but may, in some cases, have expenses reimbursed.

The B-1 visa has its greatest usefulness by providing a way for persons to come to the U.S. who will attend business meetings, meet with clients or customers, takes orders for goods or services, attend seminars or conferences, receive training, consult with the home office, etc.

The primary advantage of a B-1 visa is its simplicity and ease in obtaining. Generally, a letter from the employer in the foreign country to the local American Embassy verifying the business purpose of a trip to the United States is sufficient in order to have the B-1 visa issued. The primary disadvantage is the fact that a B-1 visa is a relatively short-term visa and the alien may not be paid a salary by a United States employer nor perform any work which is in competition with U.S. workers.

A visitor for pleasure (B-2) is generally a person who is coming to the United States on holiday or vacation. Such a person is not supposed to be in the United States to perform any work or business, even on behalf of a foreign company. To do so would be in violation of this nonimmigrant status. However, due to the ease in obtaining a B-2 visa, some employers look at this visa as a quick way to get the services of a new employee: by getting them here on a B-2 and then changing them to the proper status. For a variety of reasons, this should not be considered the best use of the visa.

Some multinational companies encourage their overseas employees to obtain a B-1 or B-2 visas in order to enter the United States and perform the tasks which are required. Keeping the employee on an overseas payroll is a tactic used to make it appear that the alien is coming to the United States legally, but the employer actually has the alien performing work which directly benefits the U.S. company. This is illegal and, while most companies do not intentionally try to break the law, many companies are unaware of the potential problem this can cause to the alien as well as to them.

2. E VISAS (TREATY TRADERS AND INVESTORS)
There are two types of E visas that are applicable to employees: E-1 (treaty traders) and E-2 (treaty investors). Both of these visas require that the United States and the alien’s country of nationality have an appropriate treaty and that the employing company is itself classified as a treaty trader or treaty investor company.

A treaty trader (E-1) is a person or company carrying on substantial trade, principally between the United States and the country of which the person or owners of the company are nationals. Substantial has been defined not so much in terms of the amount of money involved but in terms of the number of transactions involved. Principally means that more than 50% of the trade must be made between the United States and the country of nationality.

The most common type of treaty traders are those companies or individuals who are involved in the import or export of goods. However, other treaty traders may be travel agencies, airlines, international banks, etc.

Employees of treaty trader companies may obtain E-1 visa as long as they are employed by businesses, which are owned principally by persons of the same nationality. To be classified as an E-1, the employee must be in a managerial, supervisory or executive capacity, or have special qualifications that are essential to the employer. As long as a person continues to be the employee of a treaty trader company, an E-1 visa can continue to be extended. It is possible for persons in this category to remain in the United States for many years.

A treaty investor (E-2) is a person or company, which has invested a substantial amount of capital into a business in the United States. As with treaty traders, employees of treaty investor firms may also obtain treaty investor status as long as they are in a managerial, supervisory, or executive capacity or have special qualifications, which are essential to the employer.

3. F-1 VISAS (STUDENTS)
Generally, students (F-1) cannot work in the United States. Under certain circumstances, however, students may apply for permission to work. Those who are given such permission will generally have an “employment authorization” card issued by the Immigration Service. An employer is most likely to encounter a foreign student when that person, upon graduation with a Bachelor’s or Master’s degree, looks for a job pursuant to a grant of practical training from the Immigration Service. Most F-1 students are authorized to work for one year on Optional Practical Training (OPT) after graduation, although sometimes this practical training is used before graduation. STEM (Scientific, Technical, Engineer or Medical) students may be general up to 29 months of OPT. Often, after a student has been hired, an employer who is pleased with his or her performance will file a petition to keep that person’s services longer, usually by filing for a change to H-1 status.

Students may also be eligible for hire when they have work authorization by showing economic hardship or when granted curricular practical training.

4. H VISAS (TEMPORARY WORKERS)
The H category of visas comes closest to a “working visa” under the Immigration and Nationality Act. However, the category has very narrow parameters and the rules must be understood and carefully followed. There are three types of H visas: H-1B (Temporary Professionals otherwise known as persons in specialty occupations), H-2 (Temporary Workers), and H-3 (Temporary Trainees).

The H visas are “petition-type” visas. That means an employer must initially file a nonimmigrant visa petition (Form I-129) with the USCIS in the U.S. on behalf of the alien who it wishes to employ, even if the foreign national is outside the U.S.

Once the visa petition has been approved, if the alien is outside the United States, the approval notice is forwarded to the appropriate American Consulate in the alien’s country of residence. The alien is then notified and applies to have the visa issued to him or her. Please note, however, just because a visa petition is approved in the United States does not mean that the alien will automatically be issued the visa. American Consulates can make their own determinations as to whether the alien qualifies for the visa.

If the foreign national is in the United States, he or she will be granted H-1 status concurrently with the Immigration Service’s approval of the employer’s petition. There will be no need to leave the United States, unless the person is out of status.

A person may qualify for an H-1 visa if he or she will work in a specialty occupation and the occupation requires the attainment of at least a Bachelor’s degree. Experience may be substituted for education in some situations. Present regulations allow for three years of job experience to be substituted for each year of education taking for the completion of a degree.

Under present regulations, an alien may be issued an H-1 visa even if there are other U.S. workers available. Therefore, it is not necessary to establish that the company has tried to find or hire U.S. workers.

The Immigration Reform and Control Act of 1990 added the requirement of filing a Labor Condition Application with the Department of Labor for all new H-1B cases or extensions of stay filed after October 1, 1991. The application must include statements by the employer that it, among other things, is offering the prevailing wage and favorable working conditions, and has given notice to its employees of its intention to file an H-1 petition. Only after the Department of Labor has approved the Labor Condition Application can the employer file the H-1B visa petition with the Immigration Service.

An H-2 visa is issued to hire an alien who is coming to the United States not only temporarily, but to perform a job which itself is temporary. That is, when the alien is through working in the United States, the job will also cease to exist. If a person is not a “professional” and thereby qualified for H-1 status, this is one of the only other visas available. Unfortunately, not only is it difficult, if not impossible, to prove that the job is temporary, but a temporary labor certification must also be obtained proving that there are no available Americans who can perform the job. As a result, this is an extremely burdensome and complex visa to obtain.

An alien may be brought to the United States for training, which is not available in his or her country, by using an H-3 visa. As with all the other H categories, a visa petition must first be filed with the Immigration Service by the employer. Accompanying the petition must be an explanation as to why such training is not available in the alien’s home country, the advantage of the training to the alien, the benefit to the U.S. company which will provide the training and a detailed statement of the training program. If the training program results in anything more than minor productivity, the visa petition may be denied due to the fact that the alien may be taking a job away from a United States worker.

5. L VISAS (INTRACOMPANY TRANSFEREES)
The Intracompany Transferee (L-1) visa is probably one of the most appropriate and useful visas for multinational corporations wishing to transfer employees from abroad. For a foreign national to qualify, he or she must meet each of the following requirements:

One year of employment within the three years immediately preceding the time of application in an executive, managerial or specialized knowledge capacity;
Employment must have been abroad;
Employment must have been with the same employer or an affiliate or subsidiary; and
The alien must be coming to fill a position, which is executive or managerial or involves specialized knowledge. (Regulations specifically define each of these terms.)
This category also requires that the employer initially file a petition (Form I-129) with the Immigration Service. The petition procedure is similar to filing an H-1 classification.

6. TN VISAS
Under NAFTA (North American Free Trade Agreement), certain Canadian and Mexican professionals may enter the United States in TN status. In order to qualify, an alien must qualify for one of the occupations agreed to by Canada, Mexico, and the United States. Most of the occupations require a minimum of at least a Bachelor’s degree.

CHANGE OF STATUS
A foreign national in legal nonimmigrant status in the United States may be eligible to change to any other nonimmigrant status for which he or she is qualified, including a status that allows employment. The alien does not need to leave the United States to do so. However, once an alien changes his or her status, upon leaving the United States, it will be necessary to obtain a visa for the new status at an American Consulate in order to reenter the United States.

In employment situations, the application to change status is usually initiated by the employer. However, the alien will be heavily involved, providing necessary information and documentation since the employer normally must submit documentation concerning the alien’s qualification and eligibility for the new status.

EXTENSIONS OF STAY
Any alien in legal nonimmigrant status in the United States is normally eligible to apply for an extension of temporary stay and work authorization. A legitimate reason must be given for requesting the additional time. An employer’s desire for continuing the alien’s employment is usually a sufficient reason. Persons in H-1 status may remain for up to six years. Persons who are executives and managers in L-1 status may remain up to seven years. An alien in L-1 status with specialized knowledge can remain for five years. An alien who has been in the United States for the maximum amount of time must leave and remain outside the United States for one year in order to be eligible to start the 5-7 year cycle all over again.

PERMANENT RESIDENCE THROUGH EMPLOYMENT
Although there are some extraordinary procedures which a relatively few number of people use every year in order to become permanent residents, the general procedure for obtaining permanent residence is based either on a close family relationship (relative visa petition) or on employment. A person who fails to qualify under one of these two categories will generally not be able to come to or remain in the United States on a permanent basis. (For more information, please see “How can you Immigrate to the United States?”)

The Immigration Act of 1990 provides for three employment-based immigrant preferences relevant to the general work force:

First Preference: Aliens of extraordinary ability, outstanding professors and researchers, and certain multinational executives and managers. No labor certification is needed for this preference.

Second Preference: Members of the professions with advanced degrees and aliens of exceptional ability. A labor certification is usually required but can be waived if a “National Interest” is involved.

Third Preference: Skilled workers, professionals (and other workers (requiring less than 2 years of education, training or experience.) A labor certification is always required.

There are two other less used employment preferences: religious workers and investors of $1,000,000 or $500,000 under certain circumstances.

The labr certification process used in Second and Third preference cases tends to be extremely time consuming and complicated. Essentially, three things must be established in order to successfully obtain a labor certification:

There are no “able, willing, qualified and available” U.S. workers who can perform the job in question. The foundation of this requirement is an advertising campaign as prescribed by Department of Labor regulations.
The foreign national for whom a labor certification is being filed is receiving or will receive the “prevailing wage.” The Department of Labor does not want any “cheap labor” undermining the marketplace for U.S. workers.
All the regulations of the Department of Labor have been followed. It may be possible to establish that there are no U.S. workers available and that the alien is being paid the prevailing wage, however, if all of the proper steps are not followed correctly, a labor certification can be denied.
NUMERICAL LIMITATIONS
Simply because a person has been issued a labor certification and classified under one of the appropriate immigrant preferences, does not mean that the person will be able to immigrate to the United States immediately. Since there are more people eligible to immigrate to the United States than there are numbers available in any given year, it may be necessary for the prospective immigrant to wait awhile before actually being able to apply for permanent residence. The alien cannot apply until reaching the “top of the visa waiting list.” In other words, the alien is in a mythical queue and until he or she gets to the front of the line, he or she is not eligible to immigrate. Currently, every country is experiencing a backlog in the third preference – Other Worker – category. Only China and India are experiencing backlogs in any of the other employment categories. (For further information, please see “How Long Does It Take to Immigrate to the U.S.?”)

If after reading this article you have questions about employing a foreign national in the United States or any other immigration matters, please CONTACT A Sharma Law Firm, PLLC and arrange an appointment for a consultation at our New York office. The information in this article does not constitute legal advice. The law is constantly changing, and we make no warranties of the accuracy of information.

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HOW CAN YOU IMMIGRATE TO U.S. THROUGH INVESTMENT?

Foreign entrepreneurs may be able to immigrate to the U.S. under the EB-5 visa program, which enables certain investors to be considered for green cards. This category was established by Congress, in 1990 as the “employment creation” category which allows people who invest into the United States economy to obtain permanent residence. Requiring an actual investment of $1 million ($500,000 in certain limited situations), some find this method of immigration the most convenient way to immigrate. This category is not for everyone, but if you qualify, it may be possible to invest in the United States, make money, and obtain permanent residence at the same time. A Sharma Law Firm, PLLC is dedicated to representing investors and their families in seeking EB-5 visas, and we can answer your questions and address your concerns regarding your particular immigration needs.

$1 MILLION INVESTMENT
The first requirement is an investment of at least $1 million in capital. Without this amount, it is not possible to fit within this category. (However, a $500,000 investment is acceptable for rural areas and areas of high unemployment. Geographic areas of high unemployment are determined by each state.)

Qualifying investment capital includes cash, equipment, inventory, and other tangible property. It also includes indebtedness secured by assets of the investor. However, the assets of the new commercial enterprise cannot be used as security.

The investor must actually have invested $1 million or be actively in the process of making such an investment. Future plans of investment or uncommitted funds in a bank will not count.

NEW COMMERCIAL ENTERPRISE
The law requires that a new commercial enterprise or business be established with the invested capital. Such a business can be established in four different ways:

Creating an original business – This means developing a business where none was there before.
Purchasing and restructuring an existing business – Changing a business from a sole proprietorship to a corporation may be enough to constitute restructuring, however, ten new jobs must also be created.
Expanding, and thereby substantially changing the net worth and number of employees in a business. The investment must provide at least a 40% addition in the net worth of the company or a 40% increase of employees.
Investing in a troubled business. A troubled business is a business that has lost 20% of its net worth in the last four months. The company must have at least ten employees, which the investor must maintain. There is no requirement to create ten new additional positions.
In addition to creating a new commercial enterprise, the investor must directly participate in the management of this enterprise. The investor, therefore, must be involved in the day-to-day operations of the company.

“Regional Centers”, approved by USCIS, offer another way to be an immigrant investor. A regional center promotes economic growth through capital investment, creator of new jobs, improve regional productivity centers including agricultural projects, hotels, dairy farms, assisted-living facilities, etc. They are located throughout the U.S. A favorable aspect of a regional center is that, even though the investor’s active involvement is limited, it allows him or her in free time to pursue other business endeavors or other interests. A complete list Regional Centers throughout the United States can be found at www.uscis.gov/eb-5centers.

EMPLOYMENT OF AT LEAST TEN FULL TIME U.S. EMPLOYEES
As important as the actual investment, is the requirement that the investment create full time employment for at least ten U.S. workers. Although the investors’ spouse and children may be employed, they cannot be counted toward the ten positions. Independent contractors do not count nor do part time jobs.

CONDITIONAL PERMANENT RESIDENCE
Upon establishing the necessary requirements, the investor is granted conditional permanent residence for two years. At the end of two years, a new set of papers must be filed with the C.I.S. in order to have the conditional residence changed to permanent residence. Final permanent residence will not be granted if:

The new business was established solely to evade immigration laws;
The investor failed to invest the requisite capital or sustain the investment for two years, or
The investor failed to meet the requirements of the other provisions of the employment creation statute.
If after reading this you have questions about immigrating to the United States through investment, or any other immigration matters, please CONTACT A Sharma Law Firm, PLLC and arrange an appointment with our Attorney at our New York office. The information in this article does not constitute legal advice. The law is constantly changing, and we make no warranties of the accuracy of information.