Living & Working in the US: Work Visa & Green Card FAQ

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Legal Disclaimer - please note:

The information available on this website to the public does not constitute legal advice. The Germany-USA Career Center is not affiliated with the Law Offices of Suzanne Granja. The Law Offices of Suzanne Granja do not seek to represent anyone based solely on a visit to this web site. No information contained on this web site, associated sites, communications, email, or other sources or communications should be taken as legal advice or legal opinion for any individual case or situation. Immigration laws, regulations, and policies are subject to change, compliance with standards and procedures depends on the particular circumstances. Internet subscribers and online readers are advised to consult with an immigration attorney prior to taking action on their case.

Suzanne Granja, the author of this FAQ, is the principal of the Law Offices of Suzanne Granja in Orlando, Florida. She provides professional immigration legal services to employers regarding U.S. immigration laws.

The Law Offices of Suzanne Granja take pride in providing quality service by being responsive to our clients needs. Our immigration legal services include work visas, investor visas, labor certification under PERM, self-sponsored immigrant visa petitions in the categories of Extraordinary Ability Alien and National Interest Waiver and O & P visa petitions for Artists, Athletes and Entertainers.

In addition to our employer-based US immigration services, we also assist with family-based immigration matters including marriage visas, K-3 visas, K-1 fiance visas, adjustment of status including 245(i), consular processing, waivers of the three and ten year bars, I-751 waivers and citizenship applications.

Suzanne Granja
Law Offices of Suzanne Granja
1802 N. Alafaya Trail 
Orlando, FL 32826 

Phone: 407-624-4475
Fax:  (866) 305-7227

suzanne@americavisalaw.com

http://www.americavisalaw.com

Your Questions

Work Visa


Green Card

Q. I want to live and work in the U.S. permanently. How can I get a green card through a job?

Getting a green card through employment requires that you have an employer sponsor. It is a confusing and time consuming process. The process is actually a three step process involving both the Department of Labor and the US Citizenship and Immigration Service.

Stage One: Labor certification (DOL) or "PERM" process
If labor certification exempt go straight to Stage Two

* PERM is the new labor certification systems that is an online system
* Labor Certification is employer driven - must have employer sponsor
* Test of the Labor Market (insure U.S. workers are not displaced)
* Recruitment for U.S. Position (180 days)
* Professional (2 Sunday Ads and 3 additional types of recruitment)
* Non Professional

* Prevailing Wage - Determined by Department of Labor
* Strong anti-fraud measures including penalties
* Keep in mind that labor certification will define the preference category and the visa availability for green card processing
* Your priority date will be set when the PERM application is filed
* 45-60 days processing (sometimes faster & sometimes longer)

Stage Two: Immigrant Preference Petition (USCIS)
I-140 petition (based on labor certification or labor certification exempt category). Once the labor certification or PERM application is approved then you can file an I-140 petition with the USCIS.

There is a preference system that allocates visas depending on the job. So at the time you are preparing the PERM application you should keep in mind that you will have to fit within one of the preference categories.

The preference categories - Selecting a category

* First : Priority Workers: 28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.

* Second : Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability: 28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.

* Third : Skilled Workers, Professionals, and Other Workers: 28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to "Other Workers".

* Fourth : Certain Special Immigrants: 7.1% of the worldwide level.

* Fifth : Employment Creation: 7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of P.L. 102-395.

The reason this becomes important is that there is a quota or limit to the number of immigrant visas that are issued per year. As there are more people obtaining visas than are available a "backlog" is created. Visa availability information can be found on the US State Department Visa Bulletin which comes out every month. See http://travel.state.gov/visa/frvi/bulletin/bulletin_3143.html for updated information. Remember that "C" means current and that will allow you to go to the final stage. If not you have to wait until your priority date (set by the date your labor certification is filed or the I-140 if you are filing under a labor certification exempt category) becomes current.

Stage Three: Adjustment of Status (USCIS)
I-485 petition or Consular Processing (Department of State)
This stage governed by visa availability

You cannot get to this final stage until your priority date becomes current. In the meantime if you are in the U.S. you may have to request additional extensions of your temporary work visa until you reach your limit. With the H-1B visa you can extend your stay beyond 6 years under certain circumstances. The other visa categories do not give you this option. You may find that you run out of work visa time. You can still continue the green card processing but you may have to leave the U.S.
 

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Q. What are the labor certification exempt categories? Can I self-petition without an employer sponsor?

There are certain visa categories that will allow you to circumvent the labor certification process all together. Not all these categories require you to have an employer to sponsor you. If you can self-petition for the green card it gives you greater flexibility. However, not all people can qualify for these types of visas. These are listed below.

* Multinational Executives and Managers (1st preference). You must have an employer sponsor.

* Extraordinary Ability (1st preference). You can self-petition.

* Outstanding Researcher or Professor (1st preference). You must have an employer sponsor.

* National Interest Waiver (2nd preference). You can self-petition.

* Schedule A Group II (Exceptional Ability) (2nd preference but separate visa availability)

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Q. I want to live and work in the U.S. permanently. How can I get a green card as an investor?

If you have $1,000,000 (or under certain circumstances approximately $500,000 for an investment in a targeted employment area) to invest in a new commercial enterprise in the U.S. you can obtain conditional residence in the EB-5 category. This is the first step to a green card through an investment. You must be able to show the amount of investment and that you will employ 10 US citizen workers or green card holders full time to qualify for this time of visa. A commercial enterprise can include limited partnerships, holding companies and their wholly-owned subsidiaries, provided they are all for profit business operations. Once conditional residence is granted based on the investment you must petition to remove the conditional residence 90 days before the 2nd anniversary in order to obtain your green card.
 

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Work Visa

Q. I want to live and work in the U.S. Can I get a U.S. work visa?

Under the U.S. immigration laws there are different categories available for obtaining work authorization. The specific requirements depend on the type of position, the job duties and your qualifications. Most of the U.S. work related visas do require an employer sponsor so the first step generally requires that you obtain a job offer from a U.S. company. From there you will need to determine what type of visa to obtain.

Below are some of the work related visas that are available. Please remember that these are temporary work visas and are not the "green card."

H-1B Specialty Occupation/Professional Workers: The H-1B is the most commonly used work visa category. To qualify you must have at least a Bachelor's degree, or equivalent in education and experience, in a field that is related to the U.S. job you are offered. Positions that may qualify for H-1B visas include computer programmers, engineers, accountants, teachers and others. The H-1B allows you to remain in the U.S. a maximum of 6 years. In certain instances you can get extensions beyond the 6 years. One of the main problems with this visa is that there is a quota of 65,000 visas available per year. In recent years the H-1B cap has been reached quickly leaving this visa category unavailable for most of the year. Also, there is a wage requirement that is determined by the position and the geographic area where the job is located. With smaller companies this may be a deterrent. Another potential issue with smaller companies may be the USCIS filing fees that are quite high.

J-1 Exchange Visitors: The J-1 visa is available if you wish to come to the U.S. to give or receive training, or to participate in an approved exchange visitor program to teach, study, conduct research, consult or receive training. The sponsor must be a U.S. company, agency, non-profit institution, foundation or organization. This visa option is also available to U.S. companies to sponsor trainees for a maximum period of 18 months. Examples of J-1 training positions include the fields of business management, marketing, engineering, hospitality management, and others. If you get a J-1 visa you can be paid by the U.S. company. A deterrent for the applicant is that the J-1 trainee is expected to return to his or her home country at the end of the training period.

TN Professionals: Under the North American Free Trade Agreement (NAFTA), Canadian and Mexican professionals can obtain work visas to engage in professional activities in certain professions that are listed in NAFTA. Only those professions listed in NAFTA work. Generally, a degree is required (only three categories do not require one). The downside is that the period of stay is limited to one-year increments. Although the visa can be extended it is not a long term visa. Also, this category is limited to Mexican and Canadian nationals.

L-1 Intracompany Transferees: The L-1 visa category is frequently used by multinational companies to transfer key employees to work temporarily in the United States. If you have worked abroad for one year or longer (within the immediate past three years) in an executive, managerial, or specialized knowledge capacity for a company that is a parent, subsidiary or affiliate of a U.S. company you may be able to obtain this visa. The U.S. company will sponsor you for this type of visa. A degree is not required in most instances except under the Blanket L program. However, you must have that qualifying relationship between the U.S. company and the foreign company to be able to get this visa. The length of stay varies depending on if you are seeking the L-1A for managers or executives, if so then you can stay in the U.S. for a maximum of 7 years. If you are seeking the L-1B as a specialized knowledge professional then you may stay for a maximum of 5 years.

E-1 or E-2 Essential Worker: Under certain circumstances you may be able to obtain this work visa if your employer is in the U.S. under an E-1 or E-2 visa as a treaty trader or treaty investor. Essentially your prospective employer has started a U.S. company or is a U.S. company that wishes to employ you. You must either be an executive or a supervisor or you can also be a non-supervisory person who has special qualifications. It is similar to the L-1 category above but you do not have to have worked for a foreign company overseas. You must, however, be able to show the uniqueness of your specific skills if you will be applying as an essential worker.

O-1 Visas: If you are a person who "has extraordinary ability in the sciences, arts, education, business or athletics and you can show that you have sustained national or international acclaim you may be able to obtain this visa to work in the U.S. Individuals who are performers, directors, set designers, coaches, costume designers, make up artists,as well as scientists or researchers or those involved in sports or the arts may be able to obtain this type of visa. A U.S. employer must sponsor you but you can also have a U.S. agent who can file on your behalf in professions where you are traditionally self-employed. This visa category does not have a limited number of visas as the H-1B does.
 

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Q. How long does it take to get a work visa?

Processing times can vary depending on what visa category you are seeking. In April 2006 the U.S. Immigration and Naturalization Service (USCIS) started what is called a bi-specialization program. What this means is that they centralized the processing of immigration petitions depending on the category sought. So now no matter where the job will be located everyone must file their initial H-1B petitions, L-1 petitions and TN petitions at one of the Service Centers. The E visas and O visas are filed at the USCIS California Service Center. You can check the USCIS website at http://www.uscis.gov/portal/site/uscis for current processing time information. If you wish for a faster processing time you can pay an additional $1,000 filing fee and obtain a petition approval in 15 days.

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Q. I want to live and work in the U.S. but I do not have an employer sponsor. I would like to start up my own company. What kind of visa can I get?

In order to initially set up your business in the U.S. you may wish to obtain a B-1 business visitor visa or enter on the Visa Waiver program as a business visitor. This will allow you to either buy a business or start up your company by setting up a corporation or other legal entity, find a business location, set up a bank account, get a business license and get other paperwork in order.

B-1 Temporary Visitor for Business: Foreign nationals are permitted to enter the U.S. temporarily in B-1 status as a business visitor to conduct legitimate business activities on behalf of a foreign employer abroad or to conduct commercial transactions that are not employment. Permissible activities include: conducting business or contract negotiations, or other legitimate commercial or professional activities. A foreign residence is required. The validity period is limited to a maximum of one year. Generally it is advisable to get an invitation letter or for you to prepare a letter explaining the purpose of your visit and what you will be doing.

Visa Waiver Program: Individuals who wish to enter the U.S. for 90 days or less from a qualified country can enter the U.S. without a visa if they meet they visa waiver requirements. See
Travelers coming to the U.S. for tourism or business for 90 days or less from qualified countries may be eligible to visit the U.S. without a visa if they meet the visa waiver program requirements. See http://travel.state.gov/visa/temp/without/without_1990.html for the requirements. Remember you are required to leave after 90 days and you cannot extend this visa in the U.S. Generally it is advisable to get an invitation letter or for you to prepare a letter explaining the purpose of your visit and what you will be doing.

For the longer term you will have to obtain a different visa to be able to work and live in the U.S. There are two visa categories that will allow you to obtain a visa as an investor. These are temporary visas that have specific requirements and validity periods.

L-1 Intracompany Transferees: In order for an investor to qualify for an L-1, he or she must have been employed by a related company outside the U.S. for one of the three years preceding the application. Once the qualifying relationship and period is established the L-1 visa category can be used for a new investor or entrepreneur to open a "new office" in the U.S. You will need to provide detailed documentation to establish the legitimacy of the company. You will need to obtain a lease for office space to house your new business, provide photos of the physical premises and provide a detailed business plan showing the amount of investment and projected revenue for the company. A new office L-1 petition can be approved only for a maximum of one year. After that when you file an extension you must be able to show the ongoing need for a manager for the business. You will need to provide additional documents to show the ongoing business of the company in order to get an extension. You may stay in the U.S. in this category for a maximum of 7 years.

E-1 and E-2 Visas: The E visa categories are based upon a treaty between the U.S. and the country of which you are a national. At least 51% or more of the company must be owned by nationals of the treaty country. You are not required to maintain ties to your home country. Admissions are for two-years at a time and you can extend your stay for an indefinite period as long as you maintain your U.S. business.

The E-1 visa category is called "treaty trader." For the E-1 visa you must be able to show substantial trade (more than 50%) which is international between the U.S. and the country of which you are a national. Domestic trade is not counted in the calculation of "more than 50%." Items of trade can include goods, services, international banking, insurance monies, transportation, communications, data processing, advertising, accounting, design and engineering, management consulting, tourism, technology and some news-gathering activities. It also includes import and export. The amount of trade must be sufficient to insure a continuous flow of international trade.

The E-2 visa category is called "treaty investor." This visa category allows you to invest in a U.S. business without the need to have an ongoing foreign company. You must have invested in an enterprise or be actively in the process of investing. The funds must be "at risk." The capital must be subject to partial or total loss if the business fails. Uncommitted funds in a bank account are insufficient. Passive investments will not work. The amount of investment is governed by the "substantiality test." This is the amount normally considered sufficient to insure the investor's financial commitment and to establish a viable business. A detailed business plan is essential as well as documentation showing the invested funds are committed.

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