The following Frequently Asked Questions (FAQs) and their answers are here to provide an overview of the scope of business and family-based immigration to the U.S. It is only a starting point for an in-depth investigation into issues pertaining to business and family-based immigration issues.

1. How does an individual obtain a temporary visa to enter the U.S.?



2. What are the different categories for temporary work visas?



3. Who is entitled to an H1B status and for how long?



4. What does the Labor Certification process for Green Cards entail?



5. Qualifications for Employment Based Priority workers for Green Cards?



6. What is an National Interest Waiver (NIW)?



7. Can an individual obtain permanent residence through investment?



8. Can an individual obtain permanent residence by marriage to a U.S. citizen?



9. Can an individual become a permanent resident through relatives?



10. Can an individual become a citizen of the U.S.?



11. I want to apply for my citizenship ASAP and then apply for a green card for my mother who is an India Citizen but resident of Great Britain, UK. I believe I can apply for citizenship 90 days before the 5 years are up but what is the starting point. Is it the date I completed my interview in the UK under Consular Processing (CP) or is it the date I entered the country after CP or is it the date I got my green card? The reason is that the green card is dated in August 2000 but I returned from the CP interview in March 2000.



12. What happens if someone has an h1-b visa for three years then quits his job before the three years is up? Must he return to his home country or can he remain unemployed in the US until the visa is expired?



13. Here is my situation. I was laid off after concurrent filing of I 140 and I 485 on "outstanding researcher" (EB-1, I guess) category. This happened within 180 days of filing where AC21 portability will not apply. The company that laid me off is lenient and promises not to withdraw my I-140 petition. I landed on another similar job immediately afterwards on new H1B without using my EAD. What's my best strategy to ensuring getting my green card at this moment?



14. My wife and I are both on H1’s. Our I-140/I-485 have been filed on Oct 9th-03 in TSC through my wife's company. My EAD was approved today and my wife will be getting hers soon. She will be resigning from the job in a week's time, because of some health reasons and we are filing for her H4 soon.



15. Is there any way she can take up another job of similar/same responsibilities with another company AFTER 6 to 8 months (hopefully her I-140 will be approved by then) by invoking AC21 portability?



16. Is it possible for me to use my EAD?



17. Is there any way I can hire an attorney to continue processing the GC?



18. I work in Dallas, TX and would like to know what is the prevailing minimum salary for a person working on H1B Visa in the State of Texas? The job being that of an Entry-Level Programmer.

1. How does an individual obtain a temporary visa to enter the U.S.?

One can enter the U.S. temporarily for a variety of other reasons: as a visitor or tourist, business person, student, or employees etc. These temporary visas are known as "non-immigrant" visas and are issued at U.S. embassies and consulates located in most countries. At the issuing embassy or consulate, the visa officer must be convinced that the visa applicant will not remain in the U.S. after expiration of the authorized stay. The burden is on the applicant to demonstrate through strong personal, professional, or other evidence that his/her intent is to depart the U.S. within the prescribed time frame. Visas may be valid for one or more entries into the U.S. and are accordingly referred to as single entry or multiple entry.

A visa, however, does not automatically guarantee entry to the U.S. The immigration Officer at the U.S. port of entry makes that final determination.

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2. What are the different categories for temporary work visas?

Specialty Occupations (H1B):
Up to 115,000 H1Bs are issued every year, a number that will decrease to 107,500 for fiscal year 2001 and 65,000 for fiscal year 2002 and thereafter, unless legislation is passed to increase the quota or to do away with the limit entirely. H1Bs are usually issued in three-year increments, with a maximum duration of six years. The six-year clock is paused if the person departs the U.S. for one year. A few examples of positions considered specialty occupations in this category are: accountants, computer programmers, dietitians, graphic designers, industrial designers, journalists, researchers and scientists.

Requirements include a job offer from a U.S. employer, with the prospective employee possessing a minimum of a bachelors' degree or its equivalent and the employer paying a salary commensurate with the prevailing wage rate for persons in that occupation and geographic location.

Exchange Visitors (J-1):
A wide variety of organizations and educational institutions may qualify to sponsor persons as exchange visitors on the J-1 visa. Persons with skills listed on the Exchange Visitors Skills list, and those participating in government funded programs or graduate medical training must comply with a two-year home residency requirement.

Treaty Traders (E-1) and Treaty Investors (E-2):
Owners and key employees of businesses which conduct a substantial volume of trade between the U.S. and the home country are treaty traders (E-1); and where a substantial amount of capital has been invested in the U.S. and jobs have been created for U.S. workers are referred to as treaty investors (E- 2). To qualify, the home country must have a treaty with the U.S. Some treaties enable only E-1s, or only E-2s, while others provide for both categories.

Countries with Trade treaties include: Argentina, Australia, Austria, Belgium, Bolivia, Brunei, Canada, China (Taiwan), Colombia, Costa Rica, Denmark, Estonia, Ethiopia, Finland, France, Georgia, Germany, Greece, Honduras, Iran*, Ireland, Israel, Italy, Jamaica, Japan, Korea, Latvia, Liberia, Luxembourg, Mexico, Netherlands, Norway, Oman, Pakistan, Paraguay, Philippines, Spain, Sri Lanka, Suriname, Sweden, Switzerland, Thailand, Togo, Turkey, U.K. and Yugoslavia (valid also for Bosnia-Herzegovina, Croatia, Macedonia, and Slovenia).

Countries with Investor treaties include:
Argentina, Armenia, Australia, Austria, Bangladesh, Belgium, Bulgaria, Cameroon, Canada, China (Taiwan), Colombia, Republic of Congo, Democratic Republic of Congo (former Zaire), Costa Rica, Czech Republic, Ecuador, Egypt, Estonia, Ethiopia, Finland, France, Georgia, Germany, Grenada, Honduras, Iran*, Ireland, Italy, Jamaica, Japan, Kazakhstan, Korea, Kyrgyzstan, Liberia, Luxembourg, Mexico, Moldova, Mongolia, Morocco, Netherlands, Norway, Oman, Pakistan, Panama, Paraguay, Philippines, Poland, Romania, Senegal, Slovak Republic, Spain, Sri Lanka, Suriname, Sweden, Switzerland, Thailand, Togo, Trinidad and Tobago, Tunisia, Turkey, Ukraine, UK, and Yugoslavia (valid also for Bosnia-Herzegovina, Croatia, Macedonia and Slovenia).

* Treaty with Iran inoperative as long as Executive Order remains in place preventing trade with Iran. Note that the list of treaty countries changes often as new treaties are signed and ratified.

Intra-company Transferees (L-1):
Executives, managers, or persons with specialized knowledge employed in a company abroad, may transfer to the U.S. branch, affiliate, or subsidiary to assume a similar position. To qualify, the individual must have been employed in one of the above capacities, for the foreign-based company during one of the past three years before entering the U.S. Maximum duration of status is seven years for executives and managers and five years for persons with specialized knowledge.

Other temporary visas are also available for Persons of Extraordinary Ability in the arts, sciences, education or business or sports(O-1/2); Athletes and Entertainers (P); Religious Workers (R-1); and family members of the aforementioned categories.

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3. Who is entitled to an H1B status and for how long?

In order to qualify for H1B status, one must have a job offer from a U.S. employer offering a salary commensurate with the prevailing wage rate for persons in that occupation and geographic location. One must also possess the minimum of a university baccalaureate degree (which should be considered equivalent to a degree from an accredited university in the U.S.) in the specialty occupation.

There is a limited number of H1Bs that can be issued each fiscal year (Oct 1-Sep 30), usually in three-year increments, with a maximum duration of six years. The six-year clock can be paused if the person departs the U.S. for one year. A few examples of positions considered professional in this category are: accountants, computer programmers, dietitians, graphic designers, journalists, researchers, and scientists.

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4. What does the Labor Certification process for Green Cards entail?

This process is for persons immigrating under the following Employment-Based categories:

Second Preference: Members of the professions holding advanced degrees who do not meet the national interest waiver criteria;

Third Preference: Skilled workers, i.e. those capable of performing work requiring at least two years experience or training, for which qualified workers are not available in the U.S.;

Professionals, i.e. those with baccalaureate degrees; and

Other workers, i.e. unskilled labor, not of a temporary or seasonal nature, for which qualified workers are not available in the U.S.

In the employment-based preference categories, the law requires that employers obtain labor certification from the U.S. Department of Labor. Such certification is valid only when, at the time of filing the application, the employer provides notice of filing to:

a. The bargaining representative of the employees in the occupational classification and area for which the aliens are sought, or,

b. In the absence of such a representative, to those already employed at the facility through posting in conspicuous locations.

Any person has the right to submit to the Department of Labor documentary evidence bearing on or challenging the statements made in the application for labor certification on file with the Department of Labor. This evidence may take the form of information on available workers, wages and working conditions, and any information on the employer's failure to meet the terms and conditions pertaining to the employment of alien workers and co-workers.

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5. Qualifications for Employment Based Priority workers for Green Cards?

The First Preference* Category (EB 1) or Priority workers consists of:

a. Persons of Extraordinary Ability: in the sciences, arts, education, business or athletics, as demonstrated by national or international acclaim that should be demonstrated through extensive documentation. The individual should continue the work in the same field and the entry should substantially benefit the U.S. prospectively.

b. Outstanding Professors and Researchers: requires that the individual be internationally recognized in an academic area and possess at least 3 years of academic research or teaching experience. S/he must have a tenured or tenure-track position at a university or an institute of higher education or a comparable, research position in an institution that employs at least 3 persons full time in research. The institution must also demonstrate documented accomplishments in the field.

c. Multinational Executive or Manager requires that the individual be employed abroad in that capacity during at least one of the three years preceding the application for admission to the U.S. as priority worker. S/he must enter the U.S. to be employed as an executive or manager for the same firm, corporation or legal entity or a subsidiary or affiliate of the entity that employed her/him abroad.

*Note: Preferences are numerical limitations or quotas.

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6. What is an National Interest Waiver (NIW)?

The Employment-based Second Preference Category involves members of the professions who hold advanced degrees and individuals of exceptional ability in the arts, sciences, or business. Although this category generally requires an employer and labor certification, the Attorney General may waive this requirement if the work by the foreign national is in the "national interest."

To qualify for a national interest waiver the individual's work must benefit the U.S. in the national interest. Since the term "national interest" has not been defined in the statute, certain factors are taken into account in determining national interest. These factors include improvement of: the U.S. economy; wages and working conditions for U.S. workers; education, health care, the environment, and housing. An interested government agency request is an added factor, which is given considerable weight by the INS.

Please note that approvals in this category have become more difficult to obtain since August of 1998, due to a case known as the ""New York State Department of Transportation (NYSDOT)"" case. INS is scrutinizing these petitions more carefully and in many instances is applying a higher standard similar to the ""extraordinary ability"" standard. The Law Office of Peter Pappas, P.C. files applications in these categories on a regular basis and we have been extremely successful in obtaining approvals even subsequent to the NYSDOT case. Like most immigrants to the U.S., these highly-skilled immigrants contribute richly to the diversity and strength of the U.S. and not only help themselves by being here. They also help to make the U.S. a better and stronger country.

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7. Can an individual obtain permanent residence through investment?

In order to qualify as an immigrant investor, the individual must invest at least $1 million in a new commercial enterprise, which employs at least ten U.S. citizens on a full-time basis (exclusive of the individual, spouse, and children). If the investment is made either in a rural area or an area experiencing high unemployment, the minimum investment may be reduced to $500,000, but the latter option has a restricted quota of 3000 investor visas for what are termed "targeted investment areas." Due to the limited number of people applying under this category, the INS has issued regulations allowing more subjective and less literal readings of the law in these cases. However, because of fraud issues, there is a two-year conditional status accorded to such investors, similar to the conditional status of spouses of U.S. citizens.

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8. Can an individual obtain permanent residence by marriage to a U.S. citizen?

If the U.S. citizen resides in the U.S.:
An application to the INS office having jurisdiction over the petitioner's (U.S. citizens) residence is the first step. The papers filed can include applications for employment authorization and a travel permit. The INS issues the employment authorization and temporary travel permit early in the process. The couple will be scheduled for an interview, which may take place about a year after filing the application, depending on the INS office.

The INS will examine identification, wedding photographs, and documents (such as tax returns and insurance documents) and interview the couple to establish the legitimacy of the marriage. If unconvinced, they may conduct separate interviews and investigate at the couple's places of work and residence.

If the U.S. citizen resides abroad:
The immigration paperwork is generally processed at the appropriate U.S. consulate. At some locations, it is possible to file all the paperwork directly at the consulate. In other cases it is necessary to first submit a form to the INS. After that form is approved, the remaining processing, including the interview, takes place at the consulate. The procedure is similar but the waiting time may be less.

Conditional Green Card:
If the marriage is less than two years old when permanent residency is granted, the Green Card will expire in two years. The couple will be required to submit a joint petition to remove the two-year condition within the 90-day period immediately preceding the Green Card expiration. If the marriage has been terminated due to death or divorce, or if the immigrant spouse is a victim of spousal abuse, the immigrant spouse may apply to the INS for a waiver of the joint petition requirement.

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9. Can an individual become a permanent resident through relatives?

There are four categories under which an individual can obtain permanent residency through relatives. They are:

a. First Preference - Unmarried sons and daughters of U.S. citizens (23,400 per year, plus unused visas from the Fourth Preference);

b. Second Preference - Spouses and unmarried children of U.S. permanent residents (114,000 per year, plus excess over 226,000 the floor for family based immigration, plus unused visas from the First Preference);

c. Third Preference - Married sons and daughters of U.S. citizens (923,400 per year, plus unused visas from the First and Second Preferences);

d. Fourth Preference - Brothers and sisters of U.S. citizens (65,000 per year, plus unused visas from the First, Second and Third Preferences).

Family-sponsored immigration has an overall quota of 480,000 visas per year, less immediate relatives (parents, spouses and minor children of U.S. citizens) who are exempt from numerical limitations, plus unused Employment-Based Preferences.

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10. Can an individual become a citizen of the U.S.?

There are three ways to become a U.S. citizen:

1. By Birth in the U.S. : Under the 14th Amendment of the U.S. Constitution all persons born ... in the United States ... are citizens regardless of the status of their parents, who may be citizens, Green Card holders, or illegal aliens.
2. By Acquisition at Birth : A child born outside the U.S. where one or both parents are U.S. citizens may acquire U.S. citizenship at birth.
3. By Derivation through Naturalization of parents : A child born outside the U.S. may become a citizen by virtue of the parents' naturalization.
4. By Naturalization Application : Individuals who satisfy the following criteria:
   1. Must obtain permanent residence before applying for naturalization unless the person served in the armed forces during a period of hostilities.
   2. Must be 18 years or older.
   3. Must be a permanent resident for five years. However, if a person is married to an U.S. citizen, the individual may be eligible for naturalization in three years if: a) the couple has been married for 3 years, b) if the spouse was a citizen during that entire period, and c) if the couple are living in marital unity.
   4. Must have resided for three months in the state where the petition was filed.
   5. Must be physically present in the U.S. for at least one half of the five years (or one half of three if spouse is a citizen).
   6. Must have resided continuously within the U.S. from the date the application was filed to the time of admission to citizenship.
   7. Must not have been absent from the U.S. for a continuous period of more than one year during the periods for which continuous residence is required. Exceptions are: military service abroad and employees posted abroad who have approval to preserve residency.
   8. Must be a person of good moral character for the five years. i.e. no criminal record, etc.
   9. Loyalty to the U.S. as opposed to home country.
   10. English - An elementary level of understanding, reading, writing. Exceptions are: persons over fifty, resident in the U.S. for 20 years as a permanent resident; persons over 55 , living in the U.S. for 15 years as a permanent resident. Certain disability exemptions may apply in appropriate cases.
   11. A knowledge of the fundamentals of U.S. government and history. Again, disability exemptions may be available in certain cases.
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11. I want to apply for my citizenship ASAP and then apply for a green card for my mother who is an India Citizen but resident of Great Britain, UK. I believe I can apply for citizenship 90 days before the 5 years are up but what is the starting point. Is it the date I completed my interview in the UK under Consular Processing (CP) or is it the date I entered the country after CP or is it the date I got my green card? The reason is that the green card is dated in August 2000 but I returned from the CP interview in March 2000.

It would be the date you entered the US after approval of your permanent residency at the consulate. That's the date that should be on your green card.

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12. What happens if someone has an h1-b visa for three years then quits his job before the three years is up? Must he return to his home country or can he remain unemployed in the US until the visa is expired?

The moment the H-1B holder is no longer employed, he or she goes out of status and must leave the US. The exception to this rule is if another visa application is filed before termination. We typically advise clients to file a visitor visa application if a new job has not been lined up before the old job is terminated. It is really important to avoid going out of status so definitely find an immigration lawyer before this happens.

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13. Here is my situation. I was laid off after concurrent filing of I 140 and I 485 on "outstanding researcher" (EB-1, I guess) category. This happened within 180 days of filing where AC21 portability will not apply. The company that laid me off is lenient and promises not to withdraw my I-140 petition. I landed on another similar job immediately afterwards on new H1B without using my EAD. What's my best strategy to ensuring getting my green card at this moment?

You could look at a couple of things. First, there is debate over whether AC21 means that you need to be working for the sponsoring employer for 180 days or more or whether the I-485 simply needs to be pending for 180 days or more. If the latter - and I tend to believe this is the case - then you would be fine in most cases if you find a job in your field. The alternative is to file a new I-140 application and then use that application to substitute for the first one if there is a question.

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14. My wife and I are both on H1’s. Our I-140/I-485 have been filed on Oct 9th-03 in TSC through my wife's company. My EAD was approved today and my wife will be getting hers soon. She will be resigning from the job in a week's time, because of some health reasons and we are filing for her H4 soon.

We enquired with the HR and they said they would NOT be withdrawing her I-140.

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15. Is there any way she can take up another job of similar/same responsibilities with another company AFTER 6 to 8 months (hopefully her I-140 will be approved by then) by invoking AC21 portability?

The AC21 portability provisions have never been fully interpreted by USCIS so I can't say with certainty how USCIS will interpret the 180 day provision you seek to use in your case. There is an argument that can be made that as long as the adjustment is not adjudicated within 180 days, it does not matter whether one remained with an employer or not. I usually recommend that clients try and wait 180 days before switching employers in order to be on the safe side. But in those cases where this is not possible, we usually seek to get a new I-140 substituted if we have time. If that is not possible, then you should certainly try to argue that the law should be read literally.

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16. Is it possible for me to use my EAD?

As for using your Employment Authorization Document, I don't see a problem with this as long as the adjustment application is pending.

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17. Is there any way I can hire an attorney to continue processing the GC?

As for hiring a lawyer, yes, you can hire a lawyer and the lawyer can certainly be of use in arguing that the 180-day provision includes your wife's situation. Good luck.

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18. I work in Dallas, TX and would like to know what is the prevailing minimum salary for a person working on H1B Visa in the State of Texas? The job being that of an Entry-Level Programmer.

You can look this up yourself by going to http://www.flcdatacenter.com.

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