A QUICK LOOK AT US IMMIGRATION

US Immigration law is a confusing mix of procedures, rules, and visas with names that span most of the alphabet from A to S. Here are some basics relating to US immigration. We'll refer to some visas as we go along. We'll discuss sponsors, green cards, and quotas. We hope to answer some of your questions about the sometimes frustrating immigration law.

CONSULS AND VISAS

US Consuls can issue many different visas. The correct visa allows a person to work, attend school, or open a business here. There is a visa for vacationing in the US, attending school; another allows a person to live and work in the US permanently

. There are rules about who can get a visa and what the visa allows the person to do while in the United States. There are two types of visas: Immigrant and Non-Immigrant. An Immigrant visa is needed to get the Green Card which allows a person to live and work permanently in the US. All other visas are Non-Immigrant visas and are for people who do not intend to stay permanently in the US such as visitors, students, and diplomats.

NON-IMMIGRANT VISAS

BUSINESS VISAS

A woman living in Europe wants to come to the US to work for a US employer. Because she will be working here, she needs some kind of business visa. (A visitor visa will not allow her to work here. Also, she cannot work if she comes to the US with a visa waiver from certain countries.)

If the woman is a professional such as an engineer, chemist, computer systems analyst as examples, and if she has a college degree related to her profession, the US company can apply for an H-1 visa for her. An H-1B visa is for a professional coming to the US to do professional work.

Let us consider a man working for an Italian company. The company wants him to open an office in the US which he will manage. If the man has been a manager or executive of the Italian company for at least a year, his company can apply for an L-1 visa. An L-1 visa allows a manager or a person with specialized knowledge of his company to come to the US to open a new office or to work in an existing office of his overseas company.

Both of these people may be able to apply for a green card after they come to the US if they decide they want to stay permanently.

Mr. Kemp works for a petroleum company in the Netherlands. His company wants him to come to the US to take a 10 week company training course. Does he need a student visa? No, because he will be attending a company training program and not a college or university, Mr. Kemp needs a Trainee Visa, H-3. Mr. Kemp may find it difficult extend his stay beyond the course or to qualify for a green card if he decided to stay here.

There are other non-immigrant working visas available for registered nurses, for members of musical groups, athletes, performers, and more. The visa rules are quite complicated and before applying, it may be wise to speak to an attorney experienced in immigration matters.

VISITOR AND TOURIST VISAS

A fashion consultant in Paris, Mme. Riche, wants to visit the US to see the sights. She intends to stay a few weeks then return to her home in France. Thanks to a law passed in 1988, she will not need a US visa.

Tourists who are nationals of the countries listed here who come for a non-business visit to the US for no more than 90 days can be admitted without visas. This is very convenient since it avoids all the waiting and paperwork needed to get a visa. As of April 2014, the countries are: Andorra, Australia, Austria, Belgium, Brunei, Chile, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, the Netherlands, New Zealand, Norway, Portugal, Republic of Korea, San Marino, Singapore, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, Taiwan, and the United Kingdom.

In return for this quick and easy way to enter the US, the visitor without a visa may not change to another status while in the US such as to student status or to a working visa, must have a return air ticket, and the no-visa visitor cannot extend the visit past the 90 day limit. This is all part of the Visa Waiver Program. Additional countries can be added to the list of visa waiver countries from time to time.

What if the visitor is a citizen of a country not on the list? She would have to apply to the US Consul for a B-2 tourist visa. A B-2 visa allows a person to come to the US for up to six months. The usual visit time is 30 days. An extension of the visit time is possible but only if due to unforeseen events. The visitor may not work while in the US with a B-2 visa.

Does Mme. Riche, the fashion consultant, need a different visa if she wants to visit some potential customers, attend a trade show, or show some samples while she is here? Yes, she needs a Business Visitor visa, a B-1 visa. This visa allows a person who is on a business visit to attend trade shows, show samples, take orders, attend conventions and do other business related activities. The person may not be paid by a US company and cannot fill a job which requires a working visa.

After coming to the US, both the tourist for pleasure and the business visitor can apply to change status to a work or other visa, if they are qualified for the new status and if they have not violated their visit status by working or staying past the allowed time. Change to Student Status is possible only if the intent to be a student was told to the US Airport or Border Inspector at the time of arrival. Changing status can be quite complicated and the advice of an experienced immigration attorney may be a good idea.

US immigration rules and procedures fill many books. There are special rules for people from distressed countries such as El Salvador and others; there are special rules for people from the USA neighboring countries of Mexico and Canada; there are rules for crew members of airlines and ships, and many others. An experienced immigration attorney can give advice on the kind of visa needed in a particular situation and can help take care of the applications and paperwork involved.

IMMIGRANT GREEN CARD VISAS

The US gives green cards (permanent residence) to hundreds of thousands of people every year. Some of these people are sponsored by employers, some are related to US citizens or permanent residents, some are granted political asylum or qualify by other means. We'll mention a few of the many ways to qualify for US residence.

EMPLOYMENT GREEN CARDS

Changes to US immigration law have made it easier for professionals and business executives to qualify for green cards while making it more difficult for unskilled workers such as domestic workers.

Suppose there is a person in Ireland who is a computer systems analyst with a degree in computer science. A US employer can apply for (sponsor) the analyst to receive a green card. Generally, where no US worker can be found to fill a job, a green card can be issued to a worker from another country. (This person might also qualify for an H-1B visa if they wanted work permission as soon as possible.)

In addition to certain technical jobs in short supply, jobs that require a foreign language skill to properly perform the job can also result in a green card. Some professionals and high achievers do not need a job offer or a US employer to sponsor them. Executives, managers, professionals, and transferees from overseas companies holding H-1 or L-1 visas may apply for green cards after they take up their US duties.

People in jobs that require at least 2 years of previous experience will be able to receive green cards in a reasonable time. Jobs requiring less than 2 years previous experience such as domestic workers, baby sitters, may have to wait longer for the green card. A job as a full time cook in a home requires 2 years experience and could qualify to receive a green card faster than lesser skilled domestic workers.

Employment sponsorship is a complicated and technical procedure. It may involve federal and state labor departments, the Immigration Service, and the US Department of State. Most cases will benefit from having an attorney experienced in immigration matters take care of the process.

FAMILY IMMIGRATION

The US immigration laws speak about family unification. The law is designed to help families stay together. For that reason, a permanent resident of the US or a US citizen can apply to have certain relatives come to the US with green cards. This is sometimes called Family Sponsorship.

The rules are quite clear as to who can qualify to come this way. For example, a permanent resident (green card holder) can apply for a spouse and children but not parents. A US citizen can apply for a spouse, children, and parents.

The different relatives fall into various immigration categories. The categories determine the order in which green cards will be issued. These categories are called Preferences.

PREFERENCES, QUOTAS, AND WAITING LISTS

Employment sponsored people, relatives of green card holders, and older or married children of US citizens are all part of the immigrant preference system. The number of visas (visa quota) in each category or preference is set by the law. When the number of applications for green cards exceeds the number of green cards available, waiting lists are set up with the oldest applications at the top of the list and the most recent at the bottom. If a long list develops, it can take several years to reach the top of the list.

You can look at our Easy-To-Read Visa Bulletin which gives the waiting list dates for Family, Employment, and Diversity Visa Lottery categories.

Applications for the spouse, minor children, and parents of US citizens are processed immediately without any wait for quotas or waiting lists.

Waiting times for the skilled employment categories are not very long except for a few countires listed in the Visa Bulletin.

The length of the wait is determined by the number of people on the waiting list, the quota for the applicant's country, and the number of visas available for that preference category. The preference categories have different numbers of green cards available. An attorney can describe the details of the various categories, the waiting lists, and how it may be possible to get a green card for a relative who does not appear to fit into one of the preference categories.

ODDS AND ENDS

A few generalities (which are always dangerous): the immediate family of a person getting a green card can usually get green cards at the same time. A person can choose to have the final green card interview in the US or may decide to attend an interview with a US consul in their home country.

Special situations are covered by the US immigration laws including political asylum, medical and criminal problems, orphans, surviving spouses, people retired from the U.N. or other international organizations, airline and ship crew members, amnesty, visa lotteries, just to name a few. Some unfortunate situations can result in removal (deportation), exclusion (not allowed to enter), and employer penalties for not complying with the immigration laws.

There may be times when an application is not approved or a visa is not issued , (perhaps the applicant has a criminal record, or a serious mental or physical condition. In some of these cases, it may be possible to apply for a waiver or other relief to correct the problem.

An experienced attorney is probably the best guide through the vast immigration maze. Immigration law is not for amateurs. The possibility for problems is great and the price paid for mistakes may be very high.


e-mail to rmadison@lawcom.com

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© Richard Madison 2014