The Law Office of Linda M. Hoffman, P.C. Visa and Immigration Options

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1 The Law Office of Linda M. Hoffman, P.C th Street, N.W., Suite 250 Washington, D.C Tel: (202) Fax: (202) Immigrant Visa Green Card Visa and Immigration Options There are a number of ways to obtain permanent residence status (the "Green Card") in the United States. Below, we outline several of those options: Sponsorship by U.S. citizens Sponsorship by permanent resident relatives Special Immigrants A petition based upon a job offer and sponsorship by an employer Registry Refugee or asylum status Diversity Visa Lottery Program Sponsorship by U.S. Citizens U.S. citizens may petition for their children who are under the age of 21, for their spouse, and for their parents under the immediate relative classification. The U.S. citizen child petitioning for a parent must be 21 years of age or over. An alien who was the spouse of a U.S. citizen for at least two years at the time of the citizen's death is also considered an immediate relative. There are no limitations on the number of persons admitted as immediate relatives, and visas are always available. U.S. citizens can also petition for their unmarried children over age 21 under the first preference and for their married children over age 21 under the third preference. U.S. citizens over age 21 can petition for their siblings under the fourth preference. There is a waiting list for visas to immigrate in these categories. Sponsorship by Permanent Resident Relatives Lawfully admitted permanent residents may petition for their spouses and for their unmarried children under the second preference. There is a waiting list for visas to immigrate in these categories. It is necessary for a permanent resident to become a U.S. citizen to be eligible to sponsor other relatives.

2 2 G-4 Special Immigrant Applications The G-4 Special Immigrant section of the Immigration and Nationality Act provides that certain G-4 visa holders who, while maintaining status as a G-4, have resided in the U.S. for specified periods can become permanent residents. The United States Citizenship and Immigration Services (USCIS) requires an applicant for G-4 special immigrant status file a petition (Form I-360) to establish eligibility. The I-360 petition can be filed as part of the adjustment of status application to the Nebraska Service Center. If the individual is not filing an adjustment of status application, but is visa processing abroad, the Form I-360 is filed first with USCIS. Those eligible under these provisions include the following: 1. The unmarried son or daughter of an officer or employee, or of a former officer or employee, of an international organization who, while holding a G-4 visa or an N visa, has resided and been physically present in the U.S. for periods totaling at least one-half of seven years preceding the date of the application, and for a period or periods aggregating at least seven years between the ages of 5 and 21 years. Absence by the unmarried son or daughter while enrolled in school abroad will not be counted toward the physical presence requirement. The application for a visa or adjustment of status must be made no later than his/her 25th birthday. 2. The surviving spouse of a deceased officer or employee of an international organization who, while holding a G-4 visa or an N visa, has resided and been physically present in the U.S. for periods totaling at least one-half of seven years before the date of the application, and for a period or periods aggregating at least fifteen years before the date of the death of the officer or employee of an international organization. The petition must be filed no later than six months after the date of the death of the officer or employee. 3. A retired officer or employee of an international organization who, while holding a G-4 visa, has resided and been physically present in the U.S. for periods totaling at least one-half of the seven years before the date of the application and for a period or periods aggregating at least fifteen years before the date of the officer or employee's retirement is eligible for permanent residence. The spouse of the retiree is also able to become a permanent resident and is not required to hold a G-4 visa for these periods. However the spouse can not file independent of the principal G-4 retiring. The petition must be filed no later than six months after the retired officer or employee's date of retirement. "N" Visa Nonimmigrant Visa Status for Parents or Children of G-4 Special Immigrants A nonimmigrant visa is available under the "N" visa category to the parent of a child who has obtained permanent residence under the G-IV special immigrant provisions, but only until the child reaches his or her 21st birthday. The "N" visa is also available to the child under the age of 21 of a parent who has obtained permanent residence under the G-IV special immigrant provisions or who has been granted an "N" nonimmigrant visa. The "N" visa includes permission to work although an employment authorization document must be obtained. The "N" visa is not available to the parents of U.S. citizen children born in the U.S. and under the age of 21. Visa Status of Same-Sex Domestic Partners In 2009, the U.S. Department of State (DOS) amended the definition of "immediate family" to allow samesex domestic partners of staff members holding G-4 visas to apply for G-4 visas. The term "immediate family" previously required that immediate family members other than the spouse and unmarried sons and daughters be related to the principal or spouse by blood, marriage or adoption. The definition now includes, upon authorization from the DOS on a case by case basis, any other alien who is not a member of some other household; will reside regularly in the household of the principal alien; and is recognized as a family member of the principal alien by the sending Government as demonstrated by eligibility for rights and benefits from that Government, such as the issuance of a diplomatic or official passport or travel or

3 3 other allowances. In requesting the G-4 visa the domestic partner will need to provide the relevant U.S. consulate "appropriate evidence" to show that he or she is a member of the principal alien's household. What constitutes "appropriate evidence" will be up to the particular consulate. The domestic partner can request a G-4 visa at a U.S. Consulate or in some circumstances can change status while in the U.S. from another nonimmigrant visa category to G-4. G-4 Domestic Partners are eligible to apply for work authorization through the international organization following the same procedures as other eligible G-4 dependents. Employer Petitions PERM (Labor Certification) When an employer sponsors a foreign national for permanent residence, he or she must show that the individual will not be taking a job from a U.S. worker. This is shown by obtaining a labor certification (PERM) from the U.S. Department of Labor. If the alien meets the qualifications for the job as stated in the PERM application and meets all other USCIS requirements, permanent residence status is granted. Categories for employment-based immigration include the following: professionals with advanced degrees or the equivalent, or with exceptional ability in the arts, sciences, or business; professionals with bachelor's degrees and skilled workers performing jobs that require at least two years of experience; and unskilled workers performing jobs requiring less than two years of experience. PERM applications are required for these categories. After successfully obtaining an approved PERM application, the alien may apply for permanent residence and await the availability of a visa under the applicable preference classifications. When an immigrant visa becomes available, the alien can either adjust status to permanent residence at a USCIS office, if eligible, or obtain the visa through consular processing abroad, if eligible. In addition there is the priority worker category for which a PERM application is not required. Priority workers include individuals with extraordinary ability in the arts, sciences, business, education, and athletics; outstanding professors and researchers with three years experience and international recognition; and certain multi-national corporate executives and managers employed overseas by a parent, subsidiary or branch of the petitioning U.S. employer. Another category that does not require a PERM application is for aliens with advanced degrees in professional fields or of exceptional ability in the sciences, arts, or business whose employment would be in the national interest. Since there are no regulations defining national interest, the USCIS exercises discretion in determining whether benefits to the U.S. in such areas as business, medicine, science, culture, and education are sufficient to qualify for this category. While the procedures for obtaining permanent resident visas based on a job and a PERM application or as a priority worker are complex, obtaining the visa is worth the effort: permitting the principal visa holder to work and stay indefinitely in the U.S., and qualifying to file taxes as a resident. Spouses and minor children can usually apply for permanent resident status with the sponsored alien. There may be a waiting list for visas for some employment-based categories. It will be necessary to obtain a valid nonimmigrant visa to stay in the U.S. during the application process and while waiting for an immigrant visa. Please note that a G-4 dependent with employment authorization can be sponsored by his/her employer while in G-4 status through the PERM process.

4 4 Registry Applications Registry is a procedure whereby an alien who has resided continuously in the U.S. since before January 1, 1972, and is not otherwise inadmissible, may obtain permanent resident status. Refugees and Asylees Refugees and Asylees seek to reside permanently in the U.S. because of persecution in their home countries. Refugees are not yet in the U.S. and apply for admission at U.S. consulates abroad. Asylees are already in the U.S. and are unable to return to their home countries. Under the Refugee Act of 1980, the President, in consultation with Congress, determines an annual numerical quota for the admission of refugees and Asylees. The standard for qualifying as an asylee or refugee is an inability to return home due to a "well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. "Winning asylum and refugee cases can be very difficult and requires a great deal of documentation. The State Department can issue advisory opinions to USCIS on asylum, advising in favor of the granting of asylum in few cases. The body of law which addresses the fleeing of persecution involves numerous complex, statutes, regulations, and international laws. There are also deadlines which impact eligibility. It is recommended that the foreign national contact an immigration specialist with specific experience in this highly complicated and controversial area. Diversity Visa Program This program provides 55,000 diversity visas annually to natives of countries selected through a complicated formula based on the numbers of immigrants to the U.S. by country and region. Eligible countries will be designated by the State Department each fiscal year. The list of countries can be expected to change from year to year. To qualify under the diversity program, a foreign national must come from a designated country, have at least a high school education, or have worked at least two years in an occupation requiring two years of experience or training. Re-entry Permit Once you become a lawful permanent resident, you need to maintain and protect that status. If you travel outside the United States and stay outside the United States for more than 6 months, you may encounter difficulties with the USCIS officers at the United States port-of-entry upon your return. Staying outside the United States for more than 6 months can also create difficulties for you if you ever decide to apply for United States citizenship. Any absence from the United States for more than one year will be treated by USCIS as abandonment of your permanent residence and your status will be terminated. Therefore, if you plan to be outside the United States for more than 6 months, it will be advisable for you first to obtain a re-entry permit from the USCIS. Please note that you must be physically present in the United States at the time the application for the re-entry permit is filed with the USCIS. You cannot file an application for a re-entry permit from outside of the United States. In addition USCIS requires biometrics before the re-entry permit will be issued. Citizenship and Naturalization U.S. citizenship is acquired by birth or through naturalization. A person is a U.S. citizen at birth if they are born in the U.S. and subject to its jurisdiction. Under certain circumstances, children born outside of the U.S. of U.S. citizen parents are also a U.S. citizen at birth. Citizenship can also be acquired by naturalization. To be eligible for naturalization an applicant must meet the following basic requirements: 1. Has been admitted as a lawful permanent resident.

5 5 2. Is at least 18 years old. 3. Has continuously resided in the U.S. following admission as a permanent resident for at least five years immediately preceding the filing of a naturalization petition. Spouses of U.S. citizens, however, are eligible for naturalization after three years of marriage. If an alien was married to the U.S. citizen before becoming a permanent resident, the period of continuous residence starts upon admission as a permanent resident. 4. Has resided for 3 months immediately preceding the filing of the petition and attending the naturalization interview with USCIS in the state where the petition is filed. 5. Has been physically present in the U.S. for an aggregate total of one-half of the period of continuous residence. 6. Is able to read and write English. 7. Has knowledge of U.S. history and government. 8. Has been of "good moral character" for at least the period required for continuous residence. 9. There are special processes for children, and spouses of U.S. citizens assigned temporarily overseas by the U.S. government. Please see the following Guide to Naturalization posted by USCIS for answers to your general questions about the naturalization process: Non-Immigrant Visas There are numerous situations in which foreign nationals desire to come to the U.S. to visit, study, or work, but are not seeking to remain permanently or intend only to stay here temporarily. A nonimmigrant visa may also be needed for an individual who is awaiting availability of an immigrant visa in a classification for which visas are not immediately available. A list of many of the temporary visa categories is below. For a complete list of nonimmigrant visas, please visit the USCIS website at A-1, A-2, and A-3: The A-1 and A-2 visas are for diplomats and members of their immediate family. Domestic employees of A-1 or A-2 visa holders are issued A-3 visas. B-1 and B-2: The B-2 is the "tourist" visa with which the visitor can stay up to six months in the U.S. Legitimate activities of an alien classified as a B-2 nonimmigrant "visitor for pleasure" include visiting family, tourism, or medical treatment. An alien holding a B-2 visa is not permitted to work in the United States. The B-1 visa for business enables the visitor to attend professional meetings, oversee contracts with U.S. companies, make investments in the U.S., and attend to other activities related to his/her company and his/her work outside the U.S. The number and duration of such visits is limited. The B-1 visitor must intend to leave the U.S. when his/her temporary stay expires, and cannot receive a salary or other remuneration from a U.S. employer. Visa Waiver Program: The Visa Waiver Program (VWP) enables citizens of participating countries to travel to the U.S. for tourism or business for 90 days or less without obtaining a U.S. visa. Currently,

6 6 participating countries include: Andorra, Austria, Australia, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, The Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, and the United Kingdom. Periodically, the Department of State removes countries from this program. Travelers using the VWP are advised to confirm that their country of nationality remains on the list. Under a different provision, please note that visas are not required for Canadian citizens. Consistent with regulations pertaining to B-1/B-2 temporary visitor visas, travelers coming under the VWP cannot work or study. There are certain limitations placed on individuals using this program including the inability to extend one's stay or change to another status. The following State Department website provides an overview of the VWP: E-1, E-2, and E-3: The E category is especially useful for business owners, managers, and employees who need to remain in the U.S. for extended periods of time in order to oversee or work in an enterprise engaged in trade between the U.S. and a foreign state or that represents a major investment in a U.S enterprise. The E nonimmigrant category is available, however, only if a treaty of commerce and navigation or a bilateral investment treaty providing for nonimmigrant entries is in existence between the United States and the foreign state. The E visa category can be used for purposes of conducting trade between the U.S. and the country of majority ownership of the company (E-1) or overseeing investment in the U.S enterprise. (E-2). The E visa category can be used by many different types of companies from one owned by a single investor to a large multinational corporation. The E visa category can be used by the company s principals or by its employees, as long as they are performing functions approved by the applicable rules. An E-3 visa is for Australian nationals who will work temporarily for a U.S. employer in a specialty occupation. Spouses of nonimmigrant E-1, E-2, and E-3 visa holders are eligible to work in the U.S. F-1: Foreign nationals desiring to come to the U.S. to study full-time in schools and colleges can obtain the F-1 student visa. This visa permits the student to work under certain limited circumstances. Under optional practical training, students are permitted to engage in employment related to their education. Optional practical training may be applied for prior to completion of the course of study. Usually, it is for work after graduation but may also be available during school vacations and for limited hours while school is in session. An application to USCIS for an employment authorization card (EAC) is required and upon receipt of the EAC the F-1 can begin employment. Curricular practical training allows for employment if authorized by the Designated School Official on the student s SEVIS document. No USCIS endorsement is required. This is for an internship, cooperative training program or work-study program, which is part of an established curriculum. F-1 students can also work with an international organization through a program that requires an application to the Nebraska Service Center under special procedures. G-4: G-4 visas are issued to personnel who are proceeding to the United States to take up an appointment at a designated international organization (including the United Nations). Members of their immediate families may also be issued G-4 visas. Domestic employees of G-4 visa holders are issued G- 5 visas. U.S. Department of State regulations require that all eligible family members in the U.S. of the G-4 principal also hold G-4 status. With few exceptions, eligible family members therefore cannot hold any other nonimmigrant status while the G-4 principal is employed at the international organization. H-1B: The H-1B visa is for persons with at least a bachelor's degree or its equivalent who will be employed in a specialty occupation requiring related professional skills. Highly skilled professionals including, but not limited to, scientists, university teachers, lawyers, engineers, computer analysts, doctors, other health care professionals, economists, pharmacists, and translators fit into this category. Individuals may be granted H-1B visa status for up to six years and can only be employed by the

7 7 petitioning employer. The principal alien s total period of stay in H-1B status may not exceed six years except in certain circumstances. The 21st Century Department of Justice Appropriations Authorization Act, enacted on November 2, 2002, contains a provision allowing H-1B visa holders at the end of the sixyear limit to apply for visa extensions if they have had a labor certification or an immigrant petition pending for more than one year. In this situation, the foreign worker may apply for one to three year extensions as necessary and as allowed. The H-1B visa has an annual numerical limit "cap" of 65,000 visas each fiscal year. The first 20,000 petitions filed on behalf of beneficiaries with a U.S. master s degree or higher are exempt from the cap. Additionally, H-1B workers who are petitioned for or employed at an institution of higher education or its affiliated or related nonprofit entities or a nonprofit research organization, or a government research organization are not subject to this numerical cap. J-1: The J-1 visa category is for individuals who are coming to the United States as exchange visitors, including foreign students, scholars and medical residents, to participate in U.S. government approved Exchange Visitor Programs. Some individuals coming with J-1 visas, including all medical residents, are subject to a two year foreign residence requirement. If subject to this requirement the individual must return to his or her country for two years upon completion of the J-1 program - unless a waiver is obtained - before he or she may apply for a green card or for certain other nonimmigrant visas. J-1 visa holders can work only with authorization from the responsible officer of his/her program. The program must provide for academic training. J-2 spouses can work only with permission of USCIS and the issuance of an EAC. Please see the following link from the State Department for answers to many of your J-1 visa questions: K-1, K-2, K-3, and K-4: An alien admitted as the fiancé/fiancée of a U.S. citizen holds a K-1 visa. A K-1 visa holder can work in the U.S. with an EAC. The K-2 visa is for minor children (unmarried and under 21 years of age) of K-1 visa holders who enter the United States with their K-1 parent. The K-3 visa is for the spouse of a U.S. citizen who wishes to enter the United States prior to completion of his or her immigrant visa process. A K-3 visa holder can work in the U.S. with an EAC. A K-4 visa is for a child (unmarried and under 21 years of age) of an alien entitled to K-3 classification. L-1: The L-1 nonimmigrant visa is one of the most useful options for an international company to bring foreign workers to the United States. The L-1 intra-company transferee visa is used to transfer staff from an affiliated entity abroad to the U.S. organization. The individual must have been employed by the foreign affiliate, parent, subsidiary, or branch of the U.S. company for at least one year within the preceding three years in an executive, managerial, or specialized knowledge capacity. There are two classifications for L-1 visa holders: L-1A and L-1B. An employee qualified as an executive or manager may remain in the United States for up to seven years in L-1A status. Briefly, a manager is defined as an employee who primarily oversees the organization, or a department, subdivision, function or component of the organization and supervises the work of others. An executive primarily directs the organization s management by establishing goals and policies, exercising decision-making authority and taking direction from the highest corporate levels. An employee classified in the specialized knowledge category may stay up to five years as an L-1B. A foreign employee is considered to hold specialized knowledge with respect to a company if an alien has particular knowledge of a company s service or product or has an advanced understanding of the company s processes or procedures. The employee who holds the L-1 visa is authorized to work only for the U.S. entity. Unlike the H-1B, there are no numerical limitations on the number of L-1 visa holders who enter the U.S. annually. An alien admitted as the spouse of an L-1 is eligible to work in the U.S. M: The M visa is for aliens who have been accepted by a non-academic U.S. institution for a program of study or training. N8 and N9: This visa is for parents or children of individuals who obtained lawful permanent residence through the G-4 Special Immigrant provisions described in the Immigrant Visa section. (See discussion above.)

8 8 O-1: This visa is for individuals who have demonstrated extraordinary ability in the sciences, arts, education, or athletics. The alien must be coming to the United States to continue working in his/her area of extraordinary ability. The O visa is initially granted for the duration of the particular project or assignment up to three years. An alien must have a U.S. employer petitioning for O status. P: The P visa covers entertainers and athletes who cannot qualify under the extraordinary ability standard for the O category. Q: The Q visa is for aliens engaged in certain international cultural exchange programs that give the alien practical training and employment. TN (Trade NAFTA Status): The U.S., Canada, and Mexico entered into the North American Free Trade Agreement ( NAFTA ), which provides for expedited admission of businesspersons and professionals to be employed by U.S. companies. Canadian and Mexican citizens whose profession is on a designated list of occupations under NAFTA may enter the United States on a temporary basis to work for a U.S. employer. An alien may be admitted in TN status for a maximum initial stay of one year. TN professionals can receive extensions of stay in one-year increments, with no limit on the total period of stay. Limitations on H and L visa holders do not apply to TNs. TNs, however, must maintain a nonimmigrant or temporary intent during their U.S. stay. Unlike H-1Bs, there is no cap on the admission of Canadian or Mexican TN professionals. V-1, V-2, and V-3: V-1 visas are for spouses of lawful permanent residents who are the principal beneficiaries of family-based petitions filed before December 21, 2000 and pending for at least three years. V-2 visas are for children of lawful permanent residents who are the principal beneficiaries of family-based petitions filed before December 21, 2000 and pending for at least three years. A child of a principal alien entitled to classification under V-1 or V-2 may accompany the V-1 or V-2 parent to the United States and will be granted V-3 status.