Immigration law can be very complex with very specific laws that dictate which visas are available, who qualifies for each type of visa, and the process that must be completed before a visa is granted. The following are some of the most common questions our attorneys have received at Soliman Law Group. If you have additional questions or need help getting a visa, sponsoring a family member, or hiring a foreign national for your business, contact a Los Angeles immigration attorney at our firm for a consultation.
What is the difference between an immigrant and a non immigrant?
An immigrant is a foreign-born national who is admitted for permanent residency in the United States as a Lawful Permanent Resident (LPR). An LPR can become a citizen of the U.S. through the naturalization process. A nonimmigrant is someone who is permitted into the United States for a limited amount of time through a nonimmigrant visa.
How can I become a U.S. citizen?
There are three common ways to becoming a U.S. citizen: through a qualifying family relationship, such as a child, parent, or spouse who is a citizen; through a sponsoring employer; and by winning the diversity lottery.
Why type of visa do I need to become a permanent resident of the U.S.?
Depending on your situation, there are several types of visas available to foreign nationals who want to become a permanent U.S. resident. Fiance visas are available to foreign nationals who are engaged to a U.S. citizen, family visas are designed for foreign nationals with a family member who is a permanent resident or U.S. citizen who can sponsor them, and work visas may offer permanent residence if you have unique skills or fit the requirements of a particular industry or field.
How long is a green card valid?
A green card grants permanent residency so a foreign national can live and work in the United States on a potentially indefinite basis. In most cases, a temporary green card is issued first and valid for two years. If you have not been convicted of a crime and have maintained eligibility, you will receive a permanent green card that is valid for 10 years.
How can I become a citizen once I have a green card?
Once someone receives a green card, they can obtain U.S. citizenship through the naturalization process. There are several requirements that must be met first, including residing in the U.S. as a green card holder for 50% of the time and not leaving the U.S. for more than one year before your citizenship application. To become a citizen, you must not have committed any serious crimes of moral turpitude, you must be able to speak and write in English, and meet other requirements.
What can I do if my visa has expired?
It’s important to contact an immigration attorney right away if your visa expires. An attorney can help you understand your current status and determine the best course of action, but time is of the essence.
I have an H-1B and want to work for another company. Can I change jobs and submit new H-1B papers for my new employer?
H-1B paperwork must be submitted by the employer, not the employee, and H-1B visas grant work authorization for work with a specific employment. Your new employer will need to submit the H-1B paperwork for the transfer and get approval before you change jobs.
I am a foreign national and I want to buy and operate a business in the United States. What can I do?
There are two visas that allow foreign nationals to live and work in the United States by investing. The first visa requires a minimum investment of $500,000. The other requires a smaller investment and is more commonly used. The Treaty Investor visa (E-2) allows foreign nationals of a country with a treaty with the United States to invest and purchase a U.S. business and come to the United States to manage the business for an indefinite amount of time. As long as your investment exists, your visa can be extended. There are currently around 100 countries with a treaty with the U.S. that allows citizens to apply for an E-2 investor visa with the U.S.
While an E-2 investor visa has no minimum investment amount, it must be acceptable to the Consul. The investment required is usually based on the answers to these questions:
- Is the investment large enough to support the investor and family?
- Is the investment significant to the business?
Following these guidelines, a $75,000 investment in a small business worth $150,000 may be acceptable while the same investment in a business valued at $500,000 would not be acceptable.
I am a permanent resident. Can I sponsor my parents for permanent residency in the U.S.?
No, you must be a U.S. citizen to sponsor a parent. You can complete the naturalization process and obtain citizenship, at which point your parents will be considered immediate family and have no wait time.
I have a U.S. citizen child. Can he sponsor me for permanent residency?
A U.S. citizen must be at least 21 years old before sponsoring a parent for a green card.
What is the annual limit on family-based immigrant visas?
Immediate relatives of U.S. citizens, which includes spouses, unmarried minor children, and parents, are immediately eligible for visa processing with no waiting line. Other family-based immigrants are subject to a family preference system that prioritizes visa availability based on the nature of the relationship. These visas are capped at 226,000 per year.
What is the Diversity (DV) Lottery Program?
The DV Lottery Program is designed to award immigrant visas to applicants whose country of origin has low immigration rates to the U.S., which is defined as less than 50,000 in the last 5 years. The program is called a lottery because there are more applicants than available visas, which are awarded every year.
How can I speed up the process of adopting a foreign child?
If you have not yet identified a child to adopt, you can file an Application for Advance Processing of Orphan Petition. This will allow for the part related to the approval of the parent or parents to be completed by the time a child is chosen to expedite the adoption process.
Q. We are 19 years old and we both live in the UK. We want to work in Colorado for the ski season (6 months). We have jobs waiting for us. They are cleaning jobs which will pay for our rooms/food/spending money. We have funds for the return flight. The employer wants us to have work visas. How do we do this?
A. It is difficult to get a work visa in the US unless you can prove there are no US workers available to do the job. With the situation you describe, you will not be able to get working visas. If the consul believes a person is coming to work, no visitor visa will be issued. Being from the UK, if you can save enough so that you do not have to work, then you can come here with a visa waiver and stay for 90 days.
Q. Are summer jobs available in the US for students?
A. Some jobs are available for camp counselors, restaurant waiters, summer resort workers, and others. Contact the Council for International Education Exchange (CIEE) http://www.ngws.org/service/ or the US Information Agency (USIA).
Q. If someone came to the US with a visa waiver , can he change to another kind of visa while here or extend his 90 day visit?
A. A person cannot change in the US to another visa if they entered with a visa waiver. (Exception: if the person married a US citizen then they could apply for a green card here even with a Visa Waiver.) If someone had the required university degree and a firm job offer from a US company while here, they could arrange for an H1 work visa then go back to the home country to apply for the H1 visa from the US consul. If the person had entered with a B2 tourist visa, they could apply to change to another visa while still in the US.
Q. I have a Bachelors degree in Business Administration. Now I am working at a car rental company as an operations manager. I would like to apply for an H1-B visa. Am I qualified?
A. If the employer can show that in the car rental industry an operations manager usually requires at least a bachelor degree to qualify for the job, then you can qualify for an H-1B visa. If you are in legal status and if the H-1 is approved, you can change to H1 status here. If not in legal status, then you have to pick up the visa outside the US. Here is a word of caution: a person who has been in the US and has been out of legal status for more than 6 months can be barred from re-entry to the US for several years.
Q. In regard to getting an H-1 visa which is needed to return to the US, is it possible to get this visa while in the US? If not, is it possible to get it from the US consulate in the Bahamas?
A. The visa must be applied for outside the US. The US Consul in the Bahamas does not accept applications unless the person resides in the Bahamas.
Q. I have an H-1B and want to work for a different employer. Can I change jobs then submit the new H-1B papers for the new employer?
A. All H-1B papers are submitted by the employer. The new employer must prepare and submit the papers for the transfer BEFORE you change jobs.
Q. I was born in Spain and can buy a Children’s Day Care business for $80,000. We would like to buy it and work in it. Is there a way to do this?
A. There are two visas that allow working in the US by investing. One requires an investment of at least $500,000. The other can be a smaller investment. This is a Treaty Investor visa (E-2.) The US and Spain have a treaty that allows a Spanish investor to buy a US business then come to the US to manage that business. The E-2 visa is for an indefinite time. As long as the investment exists, the visa can be extended. About 100 countries have treaties with the US that allow their citizens to apply for E-2 investor visas.
There is no minimum amount for an E-2 investment but it must be satisfactory to the Consul. A very small investment is not likely to be approved for a visa. The required amount is mostly determined by two questions: is the investment amount large enough to more than support the investor and family and, is the investment significant to the business. An investment of $75,000 in a small motel with a total value of $150,000 may be satisfactory while the same $75,000 may be not enough if invested in a business worth $500,000.
Financial data about the investment, the source of the funds, about the business, about the expected earnings, etc. must be submitted. If approved, E-2 visas are issued to the investor and family.
Q. I’m in the process of changing my visa from F-1 (student) to H-1B (professional work visa) but it is taking to long and my permit to work expires in a month. My boss told me that if I don’t get my H-1B by the date, I’ll be off the payroll. Is there a way I can file for a work extension or do something before I lose my job?
A. If your Practical Training will end before the H1 is approved, you will not be authorized to work. Practical training cannot be extended past the one year limit. In some years when H-1B visas have been used up, an extension of student status was allowed until visas again become available.
Q. I’m a permanent resident and would like to know if I can file a petition for my parents, do I have to wait until I become a US citizen before I can apply for them?
A. You must be a citizen to sponsor a parent.
Q. I have a 12-year-old US Citizen child. Can she sponsor me for a green card?
A. A child (or anyone) must be at least 21 years old to file a sponsor petition except that there is no minimum age to file a petition for a spouse.
Q. My friend’s visitor visa expired a few months ago. She wants to extend her stay in the US. She is pregnant and has a green card sponsor who wants to marry her. Can she claim medical condition and extend her stay and eventually convert her status to permanent residence?
A. If her stay has expired (she is past the date on her Form I-94) then she cannot extend her stay even for medical reasons…but if she enters into a genuine marriage to a US citizen, then she can apply for the green card here even if she has stayed past her I-94 date.
Q. I have J-1 Exchange Program status and I want to marry a US citizen. Can I stay and apply for a green card?
A. You can apply unless your J-1 is subject to Section 212e of the Immigration Law. This section requires some J-1 visa holders to reside outside the US for 2 years before they can change to any other visa status. This requirement is noted on the Visa in the passport and also on the pink Form IAP 66 where it says “is” “is not” subject to Section 212e. The US Department of State and the Immigration Service can grant a waiver of this requirement but a waiver may be difficult to get.
Q. My girlfriend is a citizen of Canada and she would like to move to the US . She wants to work here. She has some college but no degree. What does she need to move here and get a job? We don’t plan to be married now so a spouse or fiancee visa is no good. Are there any special rules for Canadian citizens?
A. As a Canadian citizen, she can enter the US at anytime for a visit without a visa. She cannot be coming to work or to definitely be married…only to visit. She will not be able to get work permission unless she marries a US citizen.
Q. What happens when people from a certain country use up all the immigrant visas for that country for the year?
A. When a country reaches its annual limit, then a queue or waiting list is started. The date of the cases eligible to apply for a visa appears in the Visa Bulletin. If Visa Bulletin has separate columns for countries that reach their limit in some categories.
An immigrant visa can be issued only when the applicant’s priority date is earlier than the date shown in the current Visa Bulletin. It is the country of BIRTH (not citizenship) that is used for quotas. Exception: in a petition case with derivative benefits, a husband and wife can use each others country quota (and a child can use the quota of a parent’s country) when they travel to enter the US together. If a husband is India born and the wife is UK born, when they accompany each other to enter the US as immigrants, they can use the quota for India or UK, whichever is better. This is called “cross-chargeability.”
Q. I need some information regarding a fiancee visa. What preference category does this fall into? What are the cutoff dates, etc.? Are there quantity limitations per year in this visa as well? I filed a fiance visa petition for my fiance in India about a week ago. What kind of waiting, hassles, or procedures do I go through the visa is issued?
A. A fiancee visa (K) is a non-immigrant visa. It is not a green card visa. A Non-immigrant visa does not have a preference category or a cut-off date since there is no limit to the number of K visas that can be issued. The Petitioner may be interviewed by the BCIS in the US then the K visa beneficiary is interviewed by the consul to see if he/she intends to marry the petitioner. The beneficiary also has to take the immigrant medical exam since they are expected to marry within 90 days of entry and then apply for a green card. It typically takes 6 to 8 months for a “K” visa to be issued.
A “K3”: visa allows the spouse of a US citizen to come to the US to wait for processing to be completed.
Q. I am Italian citizen living in Brazil. I would like to know if it is difficult for an Italian to get a green card.
A. The US Immigration Laws are supposed to be neutral as regards to particular countries unless specifically provided in the law. The annual quota is the same for all countries. Some special rules apply to Canada and Mexico because of their location. If a person qualifies, it should make no difference what country he/she is from. Actually, some countries have high fraud rates (false cases) or have a poor record of obeying US immigration rules. The consuls in these countries may ask more questions and may refuse a higher percentage of visitor and other visas. Italy is not considered a high fraud rate country.
Q. My fiancee was coming to the US to visit me. At the border ( Juarez ) her visa was canceled. Is there a way to get her visa back? She was born in Mexico and the border inspector believed she was coming to marry me. Can the consul expedite a K-1 (fiancee) visa for her? If we get married in Mexico, will it be easier to bring her back with me? Do we really have to send all those forms to the BCIS? If she comes with me without proper papers can we get in trouble and possibly have her deported?
A. If the border agent believes a person is intending to stay here, they will not let them in until they have a green card. If a border or airport inspector believes that a marriage is planned, the person can be sent back immediately and barred from re-entry for 5 years.
A fiancee visa takes about 6 months to get approved. If she marries you in Mexico, she must stay in Mexico until her green card visa is ready, about 4 to 6 months. Illegal entry can lead to deportation. If a US citizen helps a person enter illegally, the citizen can be charged with criminal violations. Consuls rarely expedite anything.
Q. I met someone from England. He is coming to the US next month and we plan to marry in a few months. Can he come to the US as a visitor then stay and get a fiancee visa here?
A. A fiancee “K” visa can be issued only when the fiancee is outside the US.
Q. I am trying to find a lost friend in Taiwan. He is a US citizen by naturalization. Three years ago, he went to Taiwan. Can I get a copy of his immigration record so I can find his address or phone numbers?
A. BCIS records are not public. You can try any of several telephone white pages or phone directories on the internet.
3. Diversity Lottery, DV
Q. Do you have information about when the people who applied for a Diversity Visa will be notified?
A. Usually by five or six months after the DV application period ends, all notices have been sent. If a person has not received a notice by that time, they were not selected.
Q. When can I apply for the Diversity Visa lottery?
A. The DV lottery registration information is released in August. The registration period is usually in October.
Q. Do you think there will be a DV (Diversity) lottery next year?
A. The Diversity program is permanent. There will be lottery each year until changed or eliminated by Congress.