FAMILY-BASED IMMIGRATION / NON-IMMIGRANT VISAS / CITIZENSHIP
FAMILY-BASED IMMIGRATION BY US CITIZEN/PERMANENT RESIDENT
The spouse of U.S. citizen can acquire permanent residence status through marriage. If the marriage is less than 2 years at the time the immigrant status is granted, the spouse will get conditional permanent residence. The alien spouse and U.S. citizen spouse need to jointly file their petition to remove the condition within 90 days of the second anniversary that conditional residence was granted and before the end of the 2-year period. But if the U.S. citizen dies or the couple divorce, the alien may file a waiver to allow her/him to file by him/herself.
If an alien marries a U.S. citizen while administrative or judicial proceedings are pending against the alien, the alien may not adjust status to permanent residence or have a visa petition for permanent resident status as a spouse unless the parties establish by clear and convincing evidence that the marriage was entered into in good faith. If clear and convincing evidence cannot be established then the alien must remain outside the U.S. for two years before a residency visa is granted.
An alien who was previously married to a United States citizen or permanent resident may not file for a visa petition for another alien spouse if the new marriage occurs within five years that the alien became a permanent resident unless:
The petitioner establishes by clear and convincing evidence that the marriage through which the petitioner gained permanent residence was not entered into for the purpose of evading the immigration laws; or the marriage through which the petitioner obtained permanent residence was terminated through death.
Child includes the following:
- Child born in wedlock;
- Step child, whether legitimate or not, as long as child was under 18 at the time when step-relationship was created;
- Child legally legitimated before 18 if in custody of father at time of legitimating;
- Child born out-of-wedlock;
- Child adopted before 16, and having 2 years legal custody and residence with adopting parents; if the family has already adopted a sibling, the second brother or sister who is adopted may be under 18 at time of adoption.
A child can only petition for a parent when the child is 21 or older. Stepchildren can petition for their stepfather or stepmother.
U.S. citizen can petition for their brothers or sisters for permanent residence. Permanent resident cannot petition for their brothers or sisters for permanent residence. Half siblings may petition for one another. The natural sibling of a child who is adopted by another family and acquired permanent residence through this adoption is not considered a brother or sister of the adopted child for immigration purposes.
NON-IMMIGRANT VISAS WORKING VISAS
- Treaty Trader/Investor Visa (E1/E2 Visa)
E visa is for an alien investor/trader who is a national of a country that has treaty of friendship, commerce and navigation or bilateral investment treaty or other arrangements with the U.S.
The treaty trader or investor must, whether an individual or business, possess the nationality of the treaty country. The nationality of the individual is determined by the authorities of the country the alien claims nationality. The nationality of a business is determined by the nationality of the individual owners of that business. The country of incorporation is irrelevant to the nationality requirement for E visa purposes.
To qualify under an E1 Visa (Treaty Trader Visa), the alien’s activities in the U.S. must constitute trade (commercial exchange of goods or services in the international market place, in existence already). example, international banking, insurance, transportation, tourism, communications, and news gathering activities.
Representatives of Taiwan employed by the Taipei Economic and Cultural Representative Office (TECRO) currently receive E non-immigrant visas and are admitted to the United States in E-1 non-immigrant classification.
To qualify for an E2 Visa (Treaty Investor Visa), the alien has invested or is actively in the process of investing. The alien must demonstrate possession and control of the capital assets, including funds invested. The source of these funds is not required to be outside the United States. The concept of investment connotes the placing of funds or other capital assets at risk, in the commercial sense, in the hope of generating a financial return. To be in the process of investing for E-2 purposes, the funds or assets to be invested must be committed to the investment, and the commitment must be real and irrevocable. The investment must be a commercial enterprise and it must be for profit, eliminating non-profit organizations from consideration.
No minimum amount of investment fund is required for E-2 Visa. But the investment should be substantial to be compared to the cost (value) of the business. The lower the cost of the business the higher a percentage of investment is required. On the other hand, a highly expensive business would require a lower percentage of qualifying investment.
Investment is more than a marginal one solely for earning a living. A marginal enterprise is an enterprise that does not have the present or future capacity to generate more than enough income to provide a minimal living for the treaty investor and his or her family.
Applicant is in a position to develop and direct the enterprise. And if the applicant is also an employee, the applicant must be destined to an executive/supervisory position or possesses skills essential to the firm’s operations in the United States.
- Specialty Temporary Worker (H1B Visa)
An alien can apply for H1B visa, a non-immigrant visa, to work in the U.S. if he/she meets the following criteria:
- A person in a specialty occupation*, fashion model of distinguished merit and ability, or person providing services related to Department of Defense cooperative research and development project or co-production project;
- Coming temporarily to U.S.;
- Has filed Labor Condition Application;
- Payment of fees by employer: there are three sets of fees to the government: (1) Standard petition fees for the I-129 petition; (2) $1,500 fee, but if the employer employs not more than 25 full-time employees, then $750; but certain employers are exempt from this fee; (3) $500 fraud prevention and detection fee;
- Employer must pay 100% of the prevailing wage;
- The position must be a permanent position;
- Petitioner must be a U.S. employer; and
- Before the annual cap is reached: H1B visas per year are capped at 65,000 per fiscal year less the Free Trade Visas for Chile and Singapore resulting in 58,000 H1B visa. This cap does not include an additional 20,000 visas per year for persons who have earned a masters or higher degree from a United State institution of higher education. Employment in institutions of higher education, or related or affiliated nonprofit entities, or nonprofit research organizations, or governmental research organizations is not counted in the 65,000 cap.
* Specialty occupation is defined as theoretical and practical application of a body of highly specialized knowledge and attainment of a bachelors or higher degree in the specific specialty as a minimum for entry into the occupation in the U.S. It includes accountants, acupuncturists, computer programmers, chiropractors, marketing research analysts, teachers (public primary and secondary) and a few others.
The Period of Stay: Approval for H1B visa allows the applicant to stay in the U.S. for three years and can be extended for another three years. So, the maximum period is six years. Two major exceptions allow H1B holder to stay beyond the period of six years: (1) if a labor certification, an I-140 or employment-based adjustment application has been filed at least 365 days before the expiration of his current period of H-1B status then this visa can be extended in one-year increments; and (2) the H1B holder is a beneficiary of a first, second, or third employment-based petition but due to per country limitations is unable to file for or obtain his or her immigrant visa; the person has obtained an approved I-140 petition. The extension period can be up to three years at a time for more than once.
Spouse and Children: Spouse and children of H1B visa holder accompanying him/her will be granted an H-4 visa. The 6-year limit on admission and extensions for an H1B applies to spouses and children in H4 visa.
- Exchange Visitor Visa (J Visa)
J-1 visa is for an alien who is accepted to a designated exchange visitor program. There are two kinds of exchange visitor programs:
- Academic and Government Exchange Visitor Program Categories: College and University Students, Professors, Research Scholars, Short-Term Scholars, Specialists, International Visitors, Government Visitors; and
- Private Sector Exchange Visitor Program Categories: Alien Physicians, Au Pairs, Camp Counselors, Interns, Secondary School Students, Summer Work Travel, Teachers, and Trainees.
Two Year Foreign Residence Requirement. The following J-1 visa holders are subject to a requirement that they must return to their home country or country of last residence upon completing their training in the U.S. before they are eligible to adjust status, apply for a an immigrant visa, or apply for an H or L visa or change status inside the U.S. (except for change to A or G, or except for change to H-1B for physicians receiving waivers on the basis of a three-year waiver job.):
- Whose participation was financed in whole or in part, directly or indirectly, by an agency of the government of the U.S. or by the government of his nationality or last residence;
- Who at the time of admission or acquisition of status was engaged in a field which was on the DOS Skills List (1984 EXCHANGE-VISITOR SKILLS LIST)
- Who came to the U.S. or acquired J status after Jan. 10, 1977 to receive graduate medical education or training.
Waiver of Two Year Foreign Residence Requirement. There are five kinds of waivers: (1) the return to home country may subject J visa holder to possible persecution; (2) Exceptional hardship on spouse or child who is U.S. citizen or legal permanent resident; (3) No objection statement from the J visa holderâ€™s home country; (4) waiver is requested by U.S. Federal Executive Agency; or (5) a foreign medical graduate may obtain a waiver through a recommendation issued by an interested state or federal agency interested in facilitating the physicians employment in a designated medically undeserved area.
The period of stay is different for different fields:
- Post-Secondary Student: time needed to complete the degree plus 18 months practical (academic) training;
- Postdoctoral Degree: degree plus up to 36 months academic training, granted in increments of up to 18 months at a time;
- Business/Industrial trainees: 18 months (12 months if hospitality, tourism or agriculture).
- Internships: maximum duration is 12 months;
- Professor and Scholars: generally 5 years;
- Short term scholars: 6 months generally;
- Summer Work/Travel: 4 months.
Spouse and Children of J1 visa holder may apply for J-2 visa. J-2 visa holders are also subject to two year foreign residence requirement.
- Intra-Company Transferee Visa (L1 Visa)
L1 Visa is for an alien who seeks to enter U.S. temporarily to continue to work for same employer or its affiliate or subsidiary. The first criterion for this kind of visa is two companies: one is foreign company and another is U.S. company (already established or to be established) and both companies are the same legal entity or have the relationship of parent, branch, affiliate or subsidiary. L1A visa is for an alien who is coming to be a manager or executive of the U.S. company and L1B visa for an alien holding a position requiring specialized knowledge of the U.S. company.
To be eligible for L1 visa, you must meet the following requirements:
- Visa Petitioner is a U.S. business entity;
- The beneficiary has been employed abroad by a non-U.S. business entity;
- The petitioning U.S. business entity and Non-U.S. business entity is the same firm, corporation, or other legal entity, or parent, branch, affiliate, or subsidiary thereof,
- The petitioning U.S. business entity and beneficiary have the requisite employer-employee relationship
- The beneficiary is a manager, executive, or an alien having specialized knowledge in the non-U.S. business entity
- The beneficiary is destined to a managerial or executive position (L1A) or a position requiring specialized knowledge (L1B);
- The petitioner will continue to do business in the United States and at least one other country;
- The beneficiary meets the requirement of having had one year of prior continuous qualifying experience at the non-U.S. business entity within the previous three years;
- The beneficiary can come to the U.S. to open, or be employed in a new office. New office means an organization which has been doing business in the United States through a parent, branch, affiliate, or subsidiary for less than one year. The mere presence of an agent or office of the qualifying organization in the United States and abroad is not doing business.
Approval of L1 visa will grant a period of three years (except a new office in the U.S., only one year for the first time and thereafter petitioner must show compliance with managerial/executive standards). The maximum period of L1 visa is seven years for managerial/executive position (L1A) and five years for a position requiring specialized knowledge (L1B).
Spouses and Children of L1 visa holder can apply for L2 visa. The 5/7 year limitation on admission and extensions for L-1s applies to spouses and children as well.
- Extraordinary Ability Visa (O Visa)
O1 Visa is for
- an alien who has extraordinary ability in the sciences, arts, education, business, or athletics (O-1A); or
- an alien who has a demonstrated record of extraordinary achievement in the motion picture or television industry (O-1B)
Extraordinary ability in the field of science, education, business, or athletics means a level of expertise indicating that the person is one of the small percentage who have arisen to the very top of the field of endeavor. The alien who applies for this kind of visa must demonstrate sustained national or international acclaim and recognition for achievements in the field of expertise by providing evidence of:
- Receipt of a major, internationally recognized award, such as the Nobel Prize; or
- At least three of the following forms of documentation:
- Documentation of the alien’s receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
- 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;
- 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 must include the title, date, and author of such published material, and any necessary translation;
- 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;
- Evidence of the alien’s original scientific, scholarly, or business-related contributions of major significance in the field;
- Evidence of the alien’s authorship of scholarly articles in the field, in professional journals, or other major media;
- Evidence that the alien has been employed in a critical or essential capacity for organizations and establishments that have a distinguished reputation;
- Evidence that the alien has either commanded a high salary or will command a high salary or other remuneration for services, evidenced by contracts or other reliable evidence.
An O2 Visa is for an accompanying alien who is coming temporarily to the United States solely to assist in the artistic or athletic performance by an O-1.
- Religious Worker Visa (R Visa)
A religious minister, a person working in a professional capacity in a religious vocation or occupation or a person working for a religious organization in a religious vocation or occupation can apply for this non-immigrant visa (R-1 Visa). He/she must, for two years immediately preceding the application, have been a member of the religious denomination having a bona fide nonprofit religious organization in the U.S. This visa does not require prior employment with the organization.
The period of stay of R-1 visa holder is five years. Initial admission period is three years. After 5 years the alien must reside and be physically present outside U.S. for one year, except for brief visits, to be eligible for R visa again.
Spouse or children may accompany or follow to join asÂ R-2 VisaÂ holder. R-2 visa holders cannot work.
- Employment Authorization (Working Permit)
The following people frequently file application for employment authorization:
- Approved Refugee;
- Paroled as a Refugee;
- Asylee (approved);
- Asylum applicant;
- The holder of temporary protected status;
- F-1 student seeking optional practical training either before completion of study or after completion of the study;
- F-1 student who meets certain criteria and seeks off-campus employment;
- J-2 spouse or minor child of an exchange visitor;
- Spouse of an E-1/E-2 (treaty trader/treaty investor);
- Spouse of an L-1 Intracompany transferee;
- K-1 non-immigrant fiance of U.S. citizen;
- K-2 non-immigrant dependent of U.S. citizen;
- K-3 non-immigrant spouse of U.S. citizen;
- K-4 non-immigrant dependent of U.S. citizen; or
- Applicant who has filed for application for adjustment of status.
NON-IMMIGRANT VISAS FAMILY TEMPORARY VISAS (K)
This visa is for fiances, spouses and children of U.S. citizen.
K-1 Visa is for an alien fiance of a U.S. citizen, seeking to enter U.S. solely to legitimately marry a U.S. citizen within 90 days after entry. Minor children of finances can get K-2 Visa to accompany them. K-1 and K-2 visa holders can work. A K-1 visa holder cannot change status or adjust status based on grounds other than marriage to the person who filed K-1 petition.
K-3 Visa is for an alien spouse of U.S. citizen. The U.S. citizen has filed an immediate relative petition (I-130) on his/her behalf, and he/she seeks to enter the U.S. to await the approval. An unmarried child of K-3 applicant need only establish that she/he is the child of a K-3 to receive a K-4 visa. She/he does not need a separate petition by the U.S. citizen.
K-3/K-4 visas are admitted for two years. An extension of stay will be granted for additional 2-year intervals but only if the U.S. citizen spouse has filed and has not yet received an approval of an I-130 petition or the K-3 has filed for Immigrant visa and has not yet received an approval.
K-3/K-4 Visa holders cannot change their status in the U.S. They also cannot adjust status except on the basis of the marriage to the same U.S. citizen who petitioned for the K-3 status.
K-3/K-4 can apply for employment authorization to work.
K-3/K-4 may travel outside the U.S. without obtaining an advance parole as long as they are in valid K-3/K-4 status and they are returning on a valid K-3/K-4 visa.
NON-IMMIGRANT VISAS BUSINESS/TOURIST OR PLEASURE VISAS (B)This visa is for an alien who comes to the U.S. for business or pleasure. The initial admission period is 6 months usually with a maximum period of one year.
B-1 Visa for Business: for example,
- Engaging in commercial transactions not involving gainful employment;
- Participating in scientific, education, professional, religious or business conventions;
- Foreign corporate personnel to set up U.S. subsidiary, as well as persons exploring E-2 investment; or
- Observing the conduct of business or other professional or vocational activity that does not involve hands-on business activity.
B-2 Visa for Pleasure: for example,
- Social visits to friends/relatives;
- Health purposes or medical treatment;
- Participants in conventions of social organizations;
- Participants in amateur musical, sports or similar events with non remuneration;
- Accompanying B-1 aliens;
- If coming to U.S. to marry United States citizen but will depart;
- If coming to U.S. to marry nonimmigrant;
- H1b spouse or child eligible for H-4 but inconvenient or impossible to obtain it;
- Parent seeking to remain with F-1 child;
- Language students in course of short duration when the course of study is under 18 hours per week.
A person entering the U.S. as a B-1/B-2 can no longer begin to attend school as an F-1/M-1 without first obtaining a change of status in the U.S. or a F-1/M-1 visa abroad.
NON-IMMIGRANT VISA STUDENT VISA (F)
This visa is for an alien who comes to the U.S. for a full course of study temporarily at an established institution of learning or other recognized place of study in the U.S.
An F1 visa holder cannot attend a public elementary school or public funded adult education programs and may not attend a public secondary school unless she/he attends the secondary school for a period not in excess of 12 months and demonstrates she/he has reimbursed the school board the full, unsubsidized per capital cost of the education.
To obtain an F-1 student visa, the applicant must acquire an I-20 from a school approved by the Department of Homeland Security. All students will be admitted a maximum of 30 days before program start date. F-1 student will be given duration of status for the period needed to complete one educational program. A person may change of status from F-1 visa to H-1B during the 60-day departure period. In cases where F-1 student timely files a change of status to H1B and the H-1B cap has been reached, the regulations automatically extend the student’s F-1 stay (whether or not in Optional Practical Training or OPT and employment authorization (if in OPT) until October 1 start-up date for the H-1B.
F-1 students cannot work during their first academic year except for on-campus work which can begin as soon as the student is admitted in F-1 status. After the 1st year, the student in good standing may obtain employment off campus as determined by the Designated School Officer if there is a severe economic hardship or an employment offer from a recognized international organization. Practical training can be acquired after at least one academic year as a full time student. There are two types of practical training: Curricular Practical Training (CPT) before graduating from the school and Optional Practical Training (OPT) after graduation from the school.
The period of OPT will be different based on student’s major. If student’s majors are not in the areas of science, technology, engineering and mathematics (STEM), the OPT period is limited to 12 months for these students and must complete training within 14 months of graduation. STEM students who can obtain additional 17 month period (29 months in total) if the employer is enrolled in the E-verify program and agrees to report the student’s departure within 48 hours.
Spouse or children of F-1 visa holders can apply for an F-2 visa. F-2 visa holders may not be employed nor attend school except that a child may attend elementary through twelfth grade.
To be naturalized as a U.S. citizen, the following must be met:
- Must be a lawful permanent resident or conditional permanent resident;
- Must be 18 years or older;
- Must have continuous residence in the U.S. for five years (if married to a U.S. citizen, only three years are required if other requirements are also met);
- Must have resided for at least three months in the state where the application is filed;
- Must be physically present in the U.S. for at least one-half of the five years (or three years if the applicant is the spouse of a U.S. citizen);
- Must reside continuously in the U.S. from the date of filing the application to admission to citizenship;
- Cannot have absence from the U.S. for certain period of time: an absence between 6 months and one year raises a rebuttable presumption that continuity of residence has been interrupted; an absence of one year or more disrupts the continuity of residence. Certain employees working outside the U.S. or his/her spouse might qualify for an exemption.
- Must meet the good moral character requirements;
- Must be attached to the principles of the Constitution and well disposed to the good order and happiness of the U.S.;
- Must demonstrate knowledge of English language, U.S. history and government.
Test for English Language, U.S. History and Government
Any person who fails the English or civics test will be offered a second test within 90 days.
A person can be exempted from taking the test if he/she is (1) over 50 years old and has lived in U.S. for 20 years in lawful permanent resident status; or (2) over 55 years old and has lived in U.S. for 15 years in lawful permanent resident status.
A person who is physically or developmentally disabled or has a mental impairment is exempt from the test. To be qualified for this exemption, the person must apply and be approved for a medical disability waiver.