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FREQUENTLY-ASKED QUESTIONS – AND ANSWERS – ON IMMIGRATION TO THE UNITED STATES
H-4: This is a Visa for the spouse of an H-1 Visa holder. This visa does not give employment authorization.
J-1: The J-1 "status" is an Exchange Visitor status which allows people to come to the United States for short durations to engage in educational and cultural exchange activities. A J-1 "visa" is a stamp in the foreign national's passport which allows them to enter the U.S. in J-1 status. However, the I-94 card, rather than the visa, drives their status while here. This visa assumes the foreign employee will be actively engaged in on-the-job training and the employer will be gaining some productive benefits from the foreign employee's activities. One of the most unusual characteristics of this visa category is that the foreign exchange visitor will be barred from filing a permanent visa petition or applying for a change of status to H or L for a period of two calendar years from the date of United States training completion. There is a Foreign Residency Requirement. This requirement states that the visa applicant may have to go back to their country of origin for 2 years before applying for a renewed visa.
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K1: The K1 visa is only a single step in a procedure for obtaining permanent residency or a “green card” based on a marriage to a U.S. citizen after entry. It gives someone the right to come into the country for 90 days. Within 90 days they are required to get married. When they enter the country they can apply for an Employment Authorization Card. The card is good for 90 days. When they actually get married, they petition the USCIS (formerly known as INS) and they are granted a conditional status for residency.
At the end of two years they petition the USCIS again and they are granted a permanent residence. But they must prove they have lived together as man and wife. They have to show documents, such as tax returns, joint bank accounts, et cetera.
- The US Citizen files the I-129F petition for the foreign fiancé(e) with the USCIS. Approval timelines vary with each Service Center , with the processing times ranging anywhere from one to five or six months.
- After the I-129F has been approved, the petition is sent to the Department of State's National Visa Center (NVC), where it is processed and forwarded to the correct embassy and consulate. That process alone takes about one month. The fiancé(e) has four months from the time the I-129F was approved at the Service Center to obtain the K1 Visa at the United States Consulate in the foreign country. This time period can be extended by a consular officer if required. The visa application process is generally similar in all countries, although each Consulate will vary a bit in their requirements.
- Once you have the K1 Visa it is good for only one entry into the United States within 6 months of the issue date.
- Once in the United States , you have 90 days to get married
- Immediately after marriage, you must apply for an Adjustment of Status, Form I-485, to become a permanent resident. You can also apply for an Employment Authorization card.
- If your I-485 is approved prior to two years after you were married you will be issued a "Conditional" Permanent Resident status valid for two years. If you are interviewed and approved greater than two years after you were married you will get a full normal Permanent Residency with no conditions valid for ten years.
- If you were given a "conditional permanent residency," after two years from the date you were granted this status, you will have to apply to have the "conditional" status removed; if approved you will get a full 10-year green card. If you had a full permanent residency status without conditions then this step is not required.
- Further on down the road, you can apply for citizenship through naturalization.
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TN: The Trade NAFTA Professional visa (TN-1 for Canadians and TN-2 for Mexicans) is a non-immigrant visa issued to particular Canadian and Mexican citizens. TN visas are granted for one year increments. Evidence must be submitted at the Port of Entry to show that both the intended U.S. business activity and the application qualify under Schedule 2 of NAFTA.
Common Visa Questions
How do I get a green card?
There are five major ways to get lawful permanent residence in the U.S: 1) through a family member; 2) through an employer; 3) through the diversity visa lottery; 4) by being granted asylum; 5) by entering the U.S. as a refugee. There are some other ways to get a green card, but they are more limited and usually involve a special program through USCIS.
What are the various methods to obtain lawful permanent residency in the United States ?
Two of the most common methods to obtain permanent residency are through immediate family members who are already citizens or through employment.
How long does it take to obtain an H-1B?
Processing times vary greatly dependent upon Department of Labor and US Citizenship and Immigration Service work loads; however it is best to allow at least 4 months for the process. For individuals outside the U.S. allow at least an additional 2 months for obtaining the Visa Stamp.
How do I apply for H-1B status?
The sponsoring employer must file a labor condition application (LCA) with the Department of Labor attesting to several items, including payment of prevailing wages for the position, and the working conditions offered. The employer must then file an I-129 petition with the USCIS and a fee to sponsor the H-1B worker. Based on approval of the petition, the alien may apply for the H-1B visa.
Can dependents of an H-1B work?
No, individuals in H-4 status cannot work. However, they may be eligible to obtain their own H-1B.
What is the Labor Condition Application?
The Labor Condition Application is a step of the H-1B in which the employer must obtain certification from the Department of Labor that the wage is a fair wage. The Labor Condition Application is required to be posted at the employees work site for 10 business days. Once approved by the Department of Labor the H-1B case can proceed.
What is O-1 status?
The O-1 status is used for individuals of "extraordinary ability" in the sciences, arts, education, business and athletics and is intended for those individuals who have risen to the top of their field. Immigrants who qualify for O-1 Visas include extraordinarily talented and nationally or internationally known scientists, educators, artists, athletes or businessmen. These individuals must have "extraordinary ability" in their field of expertise. Such ability must be extensively documented and substantiated through awards won, publicity, and association with other renowned experts in the same field, and innovation or major contributions in the specific field of expertise. National and international acclaim of the individual is important in establishing extraordinary ability.
What are the basic requirements for obtaining permanent residency through employment? What are the time frames involved?
It is recommended that the candidate have at least a bachelor's degree or equivalent in order to obtain permanent residency through employment.
- The first stage is to obtain a work visa (i.e., H-1). The employer needs to petition with The United States Immigration and Naturalization Service (INS) for the work visa. The work visa may take up to ninety days to receive. After this time, it is initially valid for up to three years.
- The second stage is applying for Labor Certification which is regulated by the United States Department of Labor. The process for Labor Certification varies from state to state. It may take anywhere from six month to three years.
- The "Green Card" is the final stage. This application is filed with INS after Labor Certification is granted. Citizenship may be obtained after a minimum period of three to five years as a permanent resident.
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