Buffington Law Firm

If you are the parent or spouse of a US citizen, permanent residence is relatively easy to obtain with no lengthy waits.  If, however, you are the spouse or child of a permanent resident or the child of a US citizen or, even worse, the sibling of a US citizen then it can take a long time to become a US permanent resident.  The State Department Visa Bulletin contains the latest news on the length of wait for each immigrant preference category.

The main task if all of these categories is documenting the relationship between the sponsoring US relative and the applicant.  The basic form used to apply for permanent residence through family relationship is Form I-130,  Petition for Alien Relative.

For the past decade the US has been emphasizing immigration by skilled, educated individuals.  Most (but not all) employment-based categories require a US-sponsoring employer but an individual with an advanced degree (master's degree and PhD) will find the US most welcoming. 

As in the case of family-based immigration, there is a basic form used to establish eligibility for employment-based immigration, that is Form I-140, Immigrant Petition for Alien Worker.  In addition, most individuals seeking to immigrate to the US through employment must obtain an approved alien labor certification from the Department of Labor. 

, For the first time since the inception of the "investor green-card" over 10 years ago the US seems seriously interested in attracting investors who want to obtain US permanent resident status through investment.  A variety of investment vehicles have arisen which makes it both safe and attractive for an individual to consider coming to the US as an investor; especially at a time when the US dollar is weak relative to other currencies. 

Permanent resident status based on EB-5 eligibility is available to investors, either alone or coming with their spouse and unmarried children. Eligible aliens are those who have invested -- or are actively in the process of investing -- the required amount of capital ($500,000 or $1 million) into a new commercial enterprise that they have established. They must further demonstrate that this investment will benefit the United States economy and create the requisite number (10) of full-time jobs for qualified persons within the United States.

Regional Centers (approved by USCIS) may permit an investor to invest in a major metropolitan area with a $500,000, as opposed to $1 million, investment. 

Significant documentation is required to establish eligibility as an investor-immigrant.  Form I-526, Immigrant Petition by Alien Entrepreneur, asks for the basic information necessary to obtain this classification. 

USCIS has issued recently a Memorandum explaining the requirements for this immigrant visa.

The events of September 11, 2001, increased the difficulties in obtaining a visa to visit the US whether as a tourist or a business person.  However, the authorities have no interest in cutting off the US from the world so it is still possible to obtain temporary visas for tourism or business although the necessity to document the trip is now more stringent.  Do you have sufficient ties to the home country to overcome the US consul's doubts?? 

The State Department visa application form lets you know what information is needed to apply for a visitor's visa.  Since the attacks on 9/11, a supplemental application form (D-157) is required for all male applicants between 16-45 years of age. It is also required for all applicants from "state sponsors of terrorism" age 16 and over, irrespective of gender, without exception. Five countries are now designated as state sponsors of terrorism, including North Korea, Cuba, Syria, Sudan, and Iran

An individual who is a citizen of a country that has a treaty of commerce and navigation with the US may be eligible for a non-immigrant Treaty Trader (“E-1”) or Treaty Investor (“E-2”) visa.   

A TREATY TRADER is an individual who is a national of a treaty country who is coming to the US to conduct "substantial" (measured by volume and number)  trade between the US and the treaty country and who is employed in a supervisory or executive capacity or who has highly specialized skills essential to the efficient operation of the company.  Ordinary skilled or unskilled workers do not qualify.

A TREATY INVESTOR is an individual or corporation who is a national of a treaty country coming to the US to make a "substantial" (depending on the size and nature of the investment) investment in an operating business (not passive investments).  The investment must generate significantly more income than is needed just to provide a living to the investor and th investor's family, or it must have a significant economic impact in the United States.   The investor must have control of the funds, and the investment must be "at risk" in the commercial sense (that is, the investor could lose his investment). Loans secured with the assets of the investment enterprise are not allowed.  Finally, the investor must be coming to the U.S. to develop and direct the enterprise. If the applicant is not the principal investor, he or she must be employed in a supervisory, executive, or highly specialized skill capacity. Ordinary skilled and unskilled workers do not qualify.

The “E” visas are valid for so long as the qualifying trading company or investment exists and must be renewed every 12-months.  Spouses and unmarried children under 21 years of age, regardless of nationality, may receive derivative “E” visas in order to accompany the principal alien. Spouses of “E” visa holders are now authorized to work in the United States.

Traditionally, the US has welcomed foreigners to study at US educational institutions.  This continues to be the case although the bias in the system is towards those individuals who apply for student visas overseas; rather than coming to the US and then seeking to change their status. 

The two main problems for those seeking to study in the US are: (1) Overcoming the consul's concerns about non-immigrant intent (i.e., the individual is not coming to the US to stay on a permanent basis) and (2) Post-9/11 security clearances.  

Those desiring to study in the US may seek an “F” (academic student) or “M” (vocational student) visa.

An applicant for an F academic student visa must come to the United States to pursue an academic program in an institution recognized by the United States government. The foreign citizen must have a valid educational purpose for coming to the United States and be a full time student. It is not possible to be a part-time student on an F-1 Visa. The student can stay in the United States for as long as he/she is enrolled in school plus 60-days to prepare to leave the US.

The M vocational student visa is suitable for foreign students wishing to attend a full vocational or non-academic course, other than language training, at colleges, universities, or conservatories in the United States. An M-1 student can remain in the US for one year or for as long as he is a full time student in the course of study plus 30-days to prepare to leave the U.S.

While M-1 visa holders are able to apply to change to other categories of US temporary visas, they cannot change to an H-1B visa if the employment offered is based on knowledge gained through studies while in M-1 status.

There are two nonimmigrant visa categories for persons who want to participate in exchange visitor programs in the United States. The “J” visa is for educational and cultural exchange programs designated by the Department of State, Bureau of Consular Affairs, and the “Q” visa is for international cultural exchange programs designated by the U.S. Citizenship and Immigration Services (USCIS).

The "J" exchange visitor program is designed to promote the interchange of persons, knowledge, and skills in the fields of education, arts, and sciences. Participants include students at all academic levels; trainees obtaining on-the-job training; teachers of primary, secondary, and specialized schools; professors coming to teach or do research at institutions of higher learning; research scholars; professional trainees in the medical and allied fields; and international visitors.  Some,  but not all, of the J visa programs require that the participants return to their home country for a period of 2 years after completion of the program before they are eligible for immigrant status, temporary worker or intra-company transferee status.

The "Q" international cultural exchange program is for the purpose of providing practical training and employment, and the sharing of the history, culture, and traditions of the participant's home country in the United States.  There is a special Q-2 visa available to people from Northern Ireland and the six border counties of the Republic of Ireland.

A debate rages in the US about allowing people to enter in order to work on a temporary basis.  There are opportunities for skilled and unskilled workers but they are limited and prescribed by quotas.  Of paramount importance is the sponsorship of a US employer. While there are a variety of "temporary worker" non-immigrant visa classifications, for purposes of this section we are concentrating on the “H” visa, consisting of: 

The “H-1B” visa classification applies to persons in a "specialty occupation" (a job that requires the theoretical and practical application of a body of highly specialized knowledge).  At a minimum an applicant should have a bachelor's degree from an university (US or foreign equivalent to a US degree). This classification requires a labor attestation certificate (which must be filed on-line) issued by the Secretary of Labor.  Currently, only 65,000 new H-1B visas are issued each fiscal year (October 1st to September 30th being the Federal Government's fiscal year).

Chilean nationals are eligible for a treaty-established visa known as the “H-1B1” FTA Professional visa (FTA stands for Freee Trade Agreement).

The “H-1B3” visa is available to fashion models who are nationally or internationally recognized for achievements, to be employed in a position requiring someone of distinguished merit and ability.  Evidence that establishes national or international recognition consists of at least 2 (or more) of the following:

1. Has achieved national or international recognition in the field as evidenced by major newspaper, trade journals, magazines or other published material;
2. Has performed and will perform services as a fashion model for employers with a distinguished reputation;
3. Has received recognition for significant achievements from organizations, critics, fashion houses, modeling agencies or other recognized experts in the field; and
4. Commands a high salary or other substantial remuneration for services, as shown by contracts or other reliable evidence.

“H-1C” visas are available to foreign nurses coming to perform nursing services in medically underserved areas for a temporary period up to 3 years.  The foreign nurse must have passed an appropriate examination (at present, the only "appropriate examination" available for a prospective H-1C foreign national is the examination offered by the Commission on Graduates of Foreign Nursing Schools (CGENS) or have a full and unrestricted license under state law to practice professional nursing in the state of intended employment.  Only 500 nurses can be granted H-1C status in a fiscal year.

The “H-2A” non-immigrant visa classification applies to temporary or seasonal agricultural workers (no annual cap);

The “H-2B” classification applies to temporary or seasonal nonagricultural workers. This classification requires a temporary labor certification issued by the Secretary of Labor (66,000 visas per fiscal yer);

The “H-3” non-immigrant visa classification applies to trainees other than medical or academic. This classification also applies to practical training in the education of handicapped children although the applicant must show that he is nearing completion of a bachelor's degree in special education, already holds such a degree or has already had extensive prior training and experience teaching handicapped children.

U.S. citizens who will be getting married to a foreign national in the United States may petition for a fiancé(e) classification (“K” ) for their fiancé(e). You and your fiancé(e) must be free to marry. This means that both of you are unmarried, or that any previous marriages have ended through divorce, annulment or death. You must also have met with your fiancé(e) in person within the last two years before filing for the fiancé(e) visa. This requirement can be waived only if meeting your fiancé(e) in person would violate long-established customs, or if meeting your fiancé(e) would create extreme hardship for you. After the petition is approved, your fiancé(e) must obtain a visa issued at a U.S. Embassy or consulate abroad.

You and your fiancé(e) must marry within 90 days of your fiancé(e) entering the United States (A fiancé(e) may not obtain an extension of the 90-day original nonimmigrant admission).  You may also apply to bring your fiancé(e)'s unmarried children, who are under age 21, to the United States.

An employee of a foreign company that has or wants to open a branch, subsidiary or affiliate in the US may be able to transfer to the US as an employee of the US entity.  The main requirements for this non-immigrant visa (“L” intracompany transferee visa) are:

1. The visa applicant mst be boing to the US to work for the US parent, branch, affiliate or subsidiary of the company they are employed with overseas;
2. The applicant must be a manager, executive or person having specialized knowledge of the overseas company's products or methods of operation;
3. The US company and the visa applicant must have an employer-employee relationship;
4. The US parent, branch, affiliate or subsidiary must continue to do business in the United States and at least one other country;
5. The visa applicant must, within the 3 years preceding the time of application for the visa, have been employed by the overseas company continuously for 1 year.

The US company (which may be newly-established), applies for the visa on behalf of the foreign employee.  A newly-established company may obtain an “L” visa for one year with possibilities for extensions for up to 5 or 7 years (extensions may be difficult to obtain).  Established companies can get an initial period of 3 years plus extensions up to 5 or 7 years. There are no quotas for this visa and immediate family members (spouse and children younger than 18) may accompany the applicant.

You have to be VERY good to get this visa but it applies to a wide range of activities.  Applicants for this visa include extraordinarily talented and nationally or internationally known scientists, educators, artists, athletes or business people.  The “O” visa is also available to those in motion pictures and television who can demonstrate a record of "extraordinary achievement."

To qualify you need an employer/sponsor who requires the services of an individual with extraordinary ability and evidence of at least 3 (or more) of the following:

1. Receipt of major prizes or awards for outstanding achievements in the academic field;
2. Membership in academic associations which require outstanding achievements of their members;
3. Participation on a panel, or individually, as the judge of the work of others in the same or an allied field;
4. Citations in professional publications, written by others, about the individual's work in the field;
5. Authorship of scholarly books or articles in the field published in journals with international circulation;
6. Original scientific or scholarly research contributions to the academicfield;
7. Evidence of previous employment in a critical or essential capacity for organizations having a distinguished reputation (for example, the National Institutes of Health);
8. Evidence of receipt of a high salary or other remuneration for services in relation to others in the field.

The “O” visa may be issued for a period up to 3 years (depending on the requirements of the job or event).

Americans love to be entertained (as does everyone else).  A special non-immigrant visa exists for individuals and groups coming to perform in the US.  The “P” non-immigrant visa category runs the artistic gamut from actors, singers and dancers to jugglers and ventriloquists.

There are four “P” visa classifications:  “P-1” visas are for internationally recognize individuals coming temporarily to the United States to perform at a specific athletic competition, individually or as part of a group or team, or to perform at a specific entertainment performance as a member of an entertainment group.  “P-2” visas are for individuals coming temporarily to the United States to perform as an artist or entertainer, individually or as part of a group, under a reciprocal exchange program between the United States and a foreign country.  “P-3” visas are for individuals coming temporarily to the United States to perform, teach, or coach as an artist or entertainer, individually or as part of a group under a commercial or noncommercial program that is culturally unique.  “P-4” visas are for the spouse or children of “P-1,” “P-2,” or “P-3” visa recipients.

Religious workers include ministers of religions who are authorized by a recognized denomination to conduct religious worship (the term does not apply to lay preachers), individuals involved in a religious vocations  (for example, nuns and monks), and those who work in a religious occupation which includes activities such as: liturgical workers, religious instructors or cantors, catechists, workers in religious hospitals, missionaries, religious translators, or religious broadcasters. It does not include janitors, maintenance workers, clerks, fund raisers, solicitors of donations, or similar occupations. The activity of a lay-person who will be engaged in a religious occupation must relate to a traditional religious function.

Religious workers may be immigrants or non-immigrants.  The immigrant religious worker is classified as a fourth employment-based special immigrant.  Non-immigrants apply for an “R”  non-immigrant visa.  In general, both types of religious worker should be able to meet the following criteria:

1. The applicant must be a member of a religious denomination having a bona fide nonprofit religious organization in the U.S.;
2. The religious denomination and its affiliate, if applicable, are exempt from taxation, or the religious denomination qualifies for tax- exempt status;
3. The applicant has been a member of the denomination for two years immediately preceding admission;
4. The applicant is entering the United States solely to carry on the vocation of a minister of that denomination, or, at the request of the organization, the applicant is entering the United States to work in a religious vocation or occupation for the denomination or for an organization affiliated with the denomination, whether in a professional capacity or not.

If the applicant has been in the US in the non-immigrant “R”  visa classification for 5 years then the applicant must also show that he or she has resided and been physically present outside the US for 12-months before the date of the new application for the visa.

Becaus of past abuses in this area Premium Processing has been suspended and the program is being reassessed.  Application is made by filing Form I-360, Petition for Amerasian Widow(er), or Special Immigrant.

The 1994 North American Free Trade Agreement (NAFTA) makes temporary employment in the U.S. easier for certain Canadian and Mexican workers. NAFTA created a new classification, “TN” for eligible Canadian and Mexican professional workers and also affected terms of admission for Canadians admitted to the U.S. under other nonimmigrant classifications.

TN employment must be in a profession listed in Appendix 1603.0.1 to NAFTA and the TN employee must possess the credentials required. There is no annual limit on TN-1 admissions from Canada or Mexico.

Canadian and Mexican citizens applying for a “TN” non-immigrant visa must provide:

1. A letter of support from the US employer containing a full description of the nature of the duties the beneficiary will be performing, the anticipated length of stay and arrangements for pay;
2. Evidence that the applicant meets the education and/or alternativecredentials for the activity;
3. Evidence that all licensure requirements, where applicable, have been met; and
4. Evidence of Canadian or Mexican citizenship.

The “TN” classification does not require a petition for employment if the alien is a Mexican citizen and is outside the U.S. However, Mexican citizens are still required to obtain “TN” visas at the U.S. consulate abroad. Canadian citizens need not obtain “TN” consular visas and may apply directly at Class A US ports of entry.

The “T” visa provides temporary immigration benefits to individuals who are victims of severe forms of trafficking in persons ("principals") and to their immediate family members ("derivatives").  Victims must have been brought to the US for the purpose of a commercial sex act induced by force or fraud or for the purpose of forced labor.

To qualify as a "principal" the applicant must provide evidence that the applicant:

1. Is physically present in the US as a result of trafficking;
2. Is or has beena victim of a severe form of trafficking in persons;
3. Would suffer extreme hardship involving unusual and severe harm if removed from the US;
4. Has complied with any reasonable request for assistance in the investigation and prosecution of acts of trafficking in persons, unless the applicant is less than 18 years old.

Application is made on Form I-914, Application for T Nonimmigrant Status.

The “U” nonimmigrant visa is set aside for victims of crimes who have suffered mental or physical abuse because of the crime and who not only have information regarding the activity, but also are willing to assist government officials in the investigation of the criminal activity. USCIS can grant up to 10,000 “U” visas each year authorizing the holder to remain in the United States for up to four years.

Application for the visa is made on Form I-918, Petition for U Nonimmigrant Status.  The form requests information regarding the petitioner's eligibility for “U” status, as well as the petitioner's admissibility to the United States. In addition, a Form I-918, Supplement B, “U” Nonimmigrant Status Certification, must be submitted from a federal, state, or local law enorcement official that demonstrates that the petitioner "has been helpful, is being helpful, or is likely to be helpful" in the investigation or prosecution of the criminal activity. The petitioner does not need to be physically present in the U.S. to request “U” status.

The Legal Immigration Family Equity Act and its amendments ("LIFE Act") established a new nonimmigrant category (“V”) within the immigration law that allows the spouse or child of a U.S. Lawful Permanent Resident ("LPR") to live and work in the United States in a nonimmigrant category. The spouse or child can remain in the United States while they wait until they are able to apply for lawful permanent residence status.

A person may apply at a U.S. consulate abroad for a “V” visa or seek “V” nonimmigrant status while in the United States, if:

1. The person is lawfully married to an LPR, or is the unmarried child (under the age of 21) of an LPR;
2. The person is the principal beneficiary of a relative petition (Form I-130) that was filed by the LPR spouse/parent on or before December 21, 2000;
3. The person has been waiting at least 3 years since the petition was filed for status as an LPR because the petition is still pending, or has been approved:

But an immigrant visa is not yet available or there is a pending application to adjust status or application for an immigrant visa.

Asylum is a form of protection that allows individuals who are in the United States to stay, provided that they meet the definition of a refugee and are not barred from either applying for or being granted asylum, and eventually to adjust their status to lawful permanent resident.

Unlike the U.S. Refugee Program, which provides protection to refugees by bringing them to the United States for resettlement, the U.S. Asylum Program provides protection to qualified refugees who are already in the United States or are seeking entry into the United States at a port of entry. Asylum-seekers may apply for asylum in the United States regardless of their countries of origin. There are no quotas on the number of individuals who may be granted asylum each year (with the exception of individuals whose claims are based solely on persecution for resistance to coercive population control measures).

To apply for asylum in the United States, you may ask for asylum at a port-of-entry (airport, seaport, or border crossing), or file Form I-589, Application for Asylum and for Withholding of Removal, at the appropriate Service Center within one year of your arrival in the United States. You may apply for asylum regardless of your immigration status, whether you are in the United States legally or illegally.  You must apply for asylum within one year of your last arrival in the United States, but you may apply for asylum later than one year if there are changed circumstances that materially affect your eligibility for asylum or extraordinary circumstances directly related to your failure to file within one year.

Feeling lucky?  The Diversity Visa Lottery is an inexpensive way to seek US Legal Permanent Resident status.  The Congressionally mandated Diversity Immigrant Visa Program makes available 50,000 permanent resident visas annually, drawn from random selection among all entries to persons who meet strict eligibility requirements from countries with low rates of immigration to the United State.  See more, including how to apply, at http://travel.state.gov/visa/immigrants/types/types_1318.html.

There are some interim appeals available to an individual whose application has been denied by the CIS, ultimately, however, it is quite possible that the individual will end up in immigration court.  The immigration court is the last step in the administrative process.  After that, an individual would have to seek recourse in a Federal court (where deference is usually given to the decision of the immigration court).

Today, we no longer call it "deportation," the current term used is "removal."  Whatever you call it, at the end of the day one is required to leave the US and in most cases will not be able to return for 10 years.

It is very important to have legal representation in immigration court.  The grounds for "removal" are many but there are few forms of relief available (withholding of deportation, cancellation of deportation and the like) and it is difficult to obtain relief in any event.  Individuals who are not citizens or Lawful Permanent Residents are not entitled to free legal representation in judicial proceedings.  As a result, many people are unrepresented and unable to properly defend themselves.  Some organizations offer free or inexpensive assistance to those individuals. 

We, of course, recommend that you locate your own attorney and satisfy yourself of his or her background and experience.

US Lawful Permanent Residents ("LPR") are entitled to apply for US citizenship after residing in the US for a specified period of time.  This right is available in a handful of countries only and LPR's should give serious consideration to becoming citizens at the earliest opportunity.

An applicant is eligible to file for naturalization (citizenship) if, immediately preceding the filing of the application, he or she:

1. has been lawfully admitted for permanent residence;
2. has resided continuously as a lawful permanent resident in the U.S. for at least 5 years prior to filing (3 years if LPR through marriage to a citizen) with no single absence from the United States of more than one year;
3. has been physically present in the United States for at least 30 months out of the previous five years with no single absence of more than 6 months (if your absent for more than 6 months then you start counting all over again); 
4. has resided within a state or district for at least three months (to qualify applying to a particular District Office or Regional Center).

Generally, an applicant must show that he or she has been a person of "good moral character" for the statutory period (3 or 5 years or 1 year for Armed Forces expedite) prior to filing for naturalization.  If an individual has been convicted of a serious crime or has failed to live up to legal commitments such as child support then that person will not be able to establish good moral character.  It is also a crime not to disclose one's entire criminal history, regardless of whether the criminal history disqualifies the applicant for citizenship.

With a few exceptions, applicants for naturalization must be able to read, write, speak, and understand words in ordinary usage in the English language.  In addition, an applicant must demonstrate a knowledge and understanding of the fundamentals of the history and of the government of the United States.  USCIS publishes sample questions about US history and government.

Applicants may be exempt from language and history/government knowledge requirements in certain circumstances relating primarily to age and health.