Providing Legal Services on Immigration Matters
- PERM: Employer Recruitment Requirements
A US employer wishing to sponsor a foreign worker for a green card must complete the process of labor certification, or PERM. The process requires the employer to complete several tasks in order to ensure the Department of Labor (DOL) that no willing and qualified American worker applied and was denied the position in favor of the foreign worker. Essentially, the employer must circulate several advertisements for the prospective job through different sources, along with a few other tasks that include submitting forms to the DOL and the US Immigration and Citizenship Services (USCIS).
The labor certification process is multifaceted and can be difficult, involving strict time frames and rules for the advertisements. It is the sole responsibility of the employer to pay for these advertisements and any other PERM associated fees. The foreign worker may not contribute in any way.
- Religious Workers
To be eligible for a green card in the religious worker category, you must:
- Have been a member of a bona fide non-profit religious denomination for at least two years prior to the filing of form I-360;
- Have been working continuously for the past two years immediately prior to filing the immigrant petition: As a religious minister in a religious vocation either professional or non-professional capacity, or in a religious occupation either professional or nonprofessional capacity; and
- Seek to enter the United States solely to carry out such religious occupation of the employer’s denomination
- Marriage: A green card through marriage to a US citizen is the most common way to become a permanent resident. The spouse of a US citizen is an “immediate relative”. There is no limit on the number of people who can obtain a green card through marriage to US citizens. The US citizen starts the process by submitting a form I-130 visa petition on behalf of his/her spouse. If the spouse entered the US lawfully, he/she can file for adjustment of status at the same time and get a green card without having to leave the US.
- Immediate Relative: A green card through marriage to a US citizen is the most common way to become a permanent resident. The spouse of a US citizen is an “immediate relative”. There is no limit on the number of people who can obtain a green card through marriage to US citizens. The US citizen starts the process by submitting a form I-130 visa petition on behalf of his/her spouse. If the spouse entered the US lawfully, he/she can file for adjustment of status at the same time and get a green card without having to leave the US.
- For Parents: If you are a citizen of the United States and over 21 years of age then you are eligible to get green cards for your parents by sponsoring them. Parents of adult US citizens are considered “immediate relatives” under US immigration laws and are therefore not subject to numerical immigration quotas. In this case the process only takes as long as needed for the paperwork to move through the bureaucracy. There is a time difference based on if your parents are lawfully in the US, unlawfully in the US, or abroad.
- Green Cards for Unmarried Sons and Daughters of U.S Citizens: US citizen parents may apply for green cards for unmarried sons and daughters who are 21 years of age and older. This is true whether their son or daughter has never married or if they are divorced or widowed. Their grandchildren may also immigrate at the same time as their parent as long as they are under the age of 21 and unmarried.
- Green Cards of Married Sons and Daughters of U.S Citizens: If you are a citizen of the United States you are eligible to sponsor your married children for US green cards. Their spouses and children, if unmarried and under the age of 21, may also immigrate with them. If their children turn 21 during the petitioning process, they can subtract the time that your visa petition was pending from their ages at the time that their priority date becomes current under the Child Status Protection Act.
- Green Cards for Siblings: If you are a citizen of the United States and over the age of 21, you can get green cards for your siblings by sponsoring them. Their age and marital status are not relevant but, if they are married, their spouses and children can immigrate at the same time. The children have to be unmarried and under the age of 21 at the time you apply. If they turn 21 during the process, you can subtract the time that your visa petition was pending from their age at the time that their priority date becomes current under the Child Status Protection Act. Legal Permanent Residents are not eligible to sponsor siblings to live permanently in the US.
- Spouses and Children of LPR’s: You can file a petition for your spouse and children. However, the process could take a couple of years under the family-based 2A category (spouses and unmarried children of LPRs) since the number of people who are allowed to immigrate under this category are limited. And due to per-country limitations, if you were born in a country where many people are seeking to immigrate to the US, the wait could be even longer.
- Unmarried Adult Sons and Daughters of LPR’s: You can file a petition for your unmarried adult son or daughter. However, the process could take many years under the family-based 2B category (unmarried adult sons and daughters of LPRs) since the number of people who are allowed to immigrate under this category are extremely limited. And due to per-country limitations, if you were born in a country where many people are seeking to immigrate to the US, the wait could be off the chart (i.e., 28+ years for persons born in the Philippines, 115+ years for persons born in Mexico). If you later naturalize and become a US citizen, your unmarried adult sons and daughters will retain the priority date of the 2B visa petition and will automatically convert to the 1st preference category (unmarried adult sons and daughters of US citizens). If the wait under the 1st preference category turns out to be longer, the Child Status Protection Act (CSPA) permits your son or daughter to “opt-out” of the conversion, and return to the 2B category despite the fact that you are now a US citizen.
A person who qualifies to be a permanent resident may be able to apply to obtain a green card without leaving the U.S. This procedure is called adjustment of status. When a person applies for adjustment of status, he also applies for a work permit and, if he is eligible, for a travel permit (“advance parole”). Generally, an applicant for adjustment of status must have entered the U.S. legally and have never violated his immigration status.
However, there are some exceptions to this general rule.
Section 245(i) of the law provides that certain persons with old priority dates may pay a penalty fee and adjust their status despite entering the U.S. illegally or violating or overstaying their nonimmigrant status.
Section 245(k) provides that if a person is applying for adjustment of status pursuant to an employment-based immigrant visa petition, he is eligible to do so as long as he has not been out of status for over 180 days since his most recent admission to the U.S.
Also, persons who are immediate relatives (parents, spouses and children of U.S. citizens) may adjust their status if they entered the U.S. lawfully even if they overstayed or worked without authorization without having to pay a penalty fee.
If you are a foreign-born person who is the victim of a crime and have suffered substantial physical or mental abuse, you may be eligible to apply for a U visa if you are willing to assist a law enforcement agency in investigating the crime. After being in the US for 3 years in U status, you may apply for a green card. A U visa (or U status) permits you to live and work in the US. Once you obtain a U visa, you can apply for lawful status for your spouse and children.
A citizen of a foreign country who wishes to enter the United States must first obtain a visa, either a nonimmigrant visa for temporary stay, or an immigrant visa for permanent residence. The “B” visitor visa is a nonimmigrant visa for persons desiring to enter the United States temporarily for business (B-1), or for pleasure or medical treatment (B-2). Persons from countries where few people tend not to overstay their visitor’s visas are eligible to visit the U.S. for up to 90 days without having to apply for a B-1/B-2 visa. This is known as the Visa Waiver Program. Such persons are required to complete the Electronic System for Travel Authorization (ESTA) online before traveling to the U.S.
E-1 (Trader) are authorized for nationals of countries with which the United States has a commercial treaty, who are coming to the U.S. solely to engage in trade of a substantial nature principally between the United States and their country of nationality. The trade involved must be international exchange (successfully negotiated contracts binding on all parties) of items of trade between the US and a treaty country. Title to the trade item must pass from one treaty party to the other. If you are inside the US, use form I-129 to apply for a change of status, extension of stay, or change of employment. If you wish to speed up the processing of your petition, you may wish to use USCIS’ premium processing procedure. This classification does not require a petition for employment if the applicant is outside of the US. Those outside of the US, apply for E-1 visas at a US consular office abroad.
E-2 (Investor) are authorized for investors who are nationals of a country which has a treaty of commerce and navigation with the US. The investor must be coming to the US to direct and develop the operations of an enterprise in which has invested, or is actively involved in the process of investing, a substantial amount of capital. A petition is not required if the investor is applying for an E-2 visa outside of the US. The investment involved must place lawfully acquired, owned, and controlled capital at commercial risk with a profit objective, and be subject to loss if the investment fails.
TN (Professionals): The North American Free Trade Agreement (NAFTA) makes temporary employment with TN visas easier for certain Canadian and Mexican workers. NAFTA created this visa category for eligible Canadian and Mexican professional workers and also affected terms of admission for Canadians admitted to the U.S. under other non immigrant 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.
To be eligible for an H-1B visa, you must
- Have a minimum of a 4-year university degree or equivalent;
- Be paid at the “prevailing wage” or the “actual wage”, whichever is higher;
- The job must require a minimum 4-year university degree or equivalent.
H-1B visas are subject to a numerical cap of 65,000 per fiscal year. In addition, 20,000 persons who obtain advanced degrees from universities in the U.S. have their own H-1B cap. Up to 6,800 H-1B visas are reserved for persons who are citizens of Chile and Singapore.
O (Extraordinary Ability): O visas are for persons who possesses extraordinary ability in the sciences, arts, education, business, or athletics, or who have a demonstrated record of extraordinary achievement in the motion picture or television industry and have been recognized nationally or internationally for those achievements.
O visas are divided into the following subcategories:
- Persons of extraordinary ability in the sciences, arts, education, business, or athletics (O-1),
- The artist’s or athlete’s support staff (O-2), and
- The O-1 visa holder’s spouse and children) (O-3).
To qualify, the person must be coming to the US to work in his or her area of extraordinary ability or achievement. There is no cap on O visas.
P (Athletes, Entertainers, Artists): P visas are granted to foreign nationals coming to the U.S. temporarily to work as an athlete, entertainer, or artist. Please read on for specific criteria for each category: P-1, P-2, and P-3.
The P-1 classification applies to a person coming to the U.S. temporarily to perform at a specific athletic competition as an athlete, individually or as part of a group or team, at an internationally recognized level of performance.
The P-2 classification applies to a person coming temporarily to perform as an artist or entertainer individually or as part of a group, who will perform under a reciprocal exchange program between an organization in the U.S. and an organization in another country.
The P-3 classification applies to persons coming temporarily to perform, teach or coach as artists or entertainers, individually or as part of a group, under a program that is culturally unique.
Q (International Exchange Visitors): The Q-1 classification applies to participants in an international cultural exchange program approved by the USCIS for the purpose of providing practical training, employment, and to share the history, culture, and traditions of the alien’s home country. Including more than one alien in a petition; Aliens who will apply for their visas at the same consulate or, if they do not need visas, will enter at the same port of entry may be included in one petition if they will be involved in the same international cultural exchange program.
R (Temporary Religious Worker): are required for foreign nationals who are coming to the United States temporarily to be employed at least part time (average of at least 20 hours per week) by a non-profit religious organization in the U.S. (or an organization which is affiliated with the religious denomination in the U.S.) to work as a minister or in a religious vocation or occupation. To qualify for an R visa, a foreign national must have been a member of a religious denomination having a bona fide non-profit religious organization in the United States for at least 2 years immediately preceding the filing of an R visa petition.
F1 (Student): If you wish to pursue academic studies in the United States, you may be eligible for F-1 student status.
Citizenship: To be eligible to become a US citizen through naturalization, you must:
- Be a lawful permanent resident of the United States for 5 years, or 3 years if married to a U.S. citizen for a minimum of the 3 years (although there are certain exceptions to this requirement for persons who have honorable service in the U.S. Armed Forces);
- Be physically present in the United States for over 50% of the required residency period;
- Be a person of good moral character;
- Take an oath of loyalty to the United States;
- Be able to speak, read and write simple words and phrases in the English language (although there are certain exceptions to this rule); and
- Pass a test in US history and government.
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