United States Imigration Law Essay

US immigration law is arguably the most complex in the World with fifty-three different types of non-immigrant visas and a number of ways of gaining permanent residence (the “Green Card”). For many people it is a difficult and lengthy process gaining a “Green Card” on an initial basis. It is frequently far better to apply for one of the non-immigrant visas and then apply for an adjustment of status to “lawful permanent residence”.

I do not propose to cover every conceivable type of visa available but to try and cover the more common types.

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The H Non-Immigrant Visas
There is the H-1B visa for a “specialty occupation” as a “specialist knowledge worker”. This is normally for someone who is a graduate or graduate equivalent and allows entry into the US for up to six years to work for a company in the US. The question of “graduate equivalent” is much misunderstood as there are many non-graduates with a properly documented case who may be able enter the US on this basis.

It is an indication of the demand for professionally trained nurses in the US that there is even a particular visa, the H-1A to cover this. The general requirements are that you should have a “license” or equivalent to practise and are fully qualified to engage in your intended employment.

The H-2B visa allows entry for both skilled or unskilled works. The main requirement is that one needs to adhere to what is called “labor certification” to show that there are no unemployed but qualified American citizens or permanent residents who can fill the vacancy. It is not normally permitted to apply for permanent residence after entry on this particular visa.

The H-3 visa is for training that should be of use outside the US. If possible the training should be of a type that will utilise your present experience and qualifications and/or future proposed employment. It would also be useful to show that there is some form of benefit to the US employer. There is also the H-2A for agricultural workers.

The E Non-Immigrant Visas
The E-1 Treaty Trader visa is for someone who will be an employee of a business where there is “substantial trade” between the UK and the US. The E-2 Treaty Investor visa is for someone who is an employee of a business where there has been substantial investment from a UK business or businessman. These are the only non-immigrant visas that allow for extensions indefinitely (obviously not the same as a “Green Card”).

The L-1 Non-Immigrant Visa
If your employer or a company in the US have an “affiliate” or “subsidiary” in either country there is the L-1 Intra-Company Transferee visa. The main requirement is that you should be a manager or executive or an employee with specialised knowledge. This allows entry for between five and seven years depending on the type of employment.

The J-1 Non-Immigrant Visa
The aim of this programme is to foster international relations by bringing exchange visitors into the US to acquire skills that can be utilised in their home country. These programmes need to be designated by the United States Information Agency. If you wish to work for a short period of time, the easiest method may be on a J-1 exchange visitor visa. However if you wish to apply for a “more permanent” non-immigrant visa at a later date or permanent residence, depending on the scheme, there may be problems.

Other Non-Immigrant Visas
I: Representative of foreign information media
M-1: Vocational or other recognised non-academic student
O-1: Aliens with extraordinary ability in sciences, arts, education, business or athletics
P-1 to P-3: Athletes or entertainers
Q-1: International Cultural Exchange Programme
R-1: Religious Occupation
The L-1 Non-Immigrant Visa
This is normally used for an employee as an “Intra Company Transferee”, however under certain circumstances owners, stockholders, or partners in an organisation will be able to take advantage of this. At the same time such an application is somewhat more complex.

The E Non-Immigrant Visas
The E-1 visa can be utilised by UK nationals and certain other nationals for a business where you will be engaging in substantial trade with the UK; this normally means at least fifty percent of the trade should be between the US and the UK (or a country that has the relevant international trade agreement with the US). The investment level may be very small indeed and may only be a few tens of thousands of US dollars or less.

The E-2 visa has the same requirements as the E-1 with respect to nationality but is concerned with a “substantial investment” being made in the US. This is likely to be in the region of at least US$50,000 and it is preferable that there is job creation for US nationals or permanent residents.

These are the only non-immigrant visas that allow for extensions indefinitely.

Nothing is so simple but can be so complex as a visitor visa application. There are two types of visas the B-1 visitor for Business and B-2 visitor for pleasure. The B-1 visa can be utilised for business visitors going to the US in connection with their overseas employment or business. The main requirement is that you are not paid from a US source.

The B-2 visitor visa is for tourists or for health reasons or short term study and certain other short-term activities. There are no circumstances under which a B-2 visitor can be employed.

A period of up to six months is normally granted on entry with the possibility of extensions if required.

The F-1 Non-Immigrant Visa
This is available for foreign students coming for a full-time course of study. The main requirements are that you are accepted by an educational institution and availability of funds to cover the costs of education. It is permitted that you can engage in on-campus employment as a student and possibly off-campus after the first year.

You may apply simply on the basis of immigration to the US that are popularly known as the “Green Card”. This is a longer process and the requirements are normally more stringent than the above non-immigrant visas.

The general requirement is “labor certification” where one shows that there are no US workers who can fill the vacancy. Also that this will not adversely affect the wages and working conditions of workers in the US.

There are certain types of employment that do not require full labor certification.

Physical Therapists
The requirement is normally a letter from the State Physical Therapy Licensing Official stating that you meet all the qualifications to take the licensing exams are required.

Professional Nurses
The requirement is either that you have passed the Commission on Graduates of Foreign Nursing Schools (CG FNS) examination or have a license to practise in the particular State.

Aliens of Exceptional Ability in Sciences Or Arts
This is for someone who has recognised outstanding performance well above the standard for professional competence in a given occupation. It is particularly important that the documentation is prepared carefully in such applications.

Other Occupations
Preference is also given to certain multinational executives and managers, aliens who are members of the professions holding advanced degrees, skilled workers, Professionals and Other workers and certain special immigrants. Depending on your particular case, it may still be appropriate to apply for permanent residence immediately.

The general requirement is an investment of one million dollars, creation of ten new jobs and will benefit the US Economy. In rural areas with a high unemployment rate the investment level can be half a million US dollars.

The US immigration system permits entry of fiance/es, spouses, dependent children of US citizens or permanent residents. An application on the basis of marriage can be complex, especially in cases where the marriage is quite recent.

The K-1 Non-Immigrant Visa
There is the K-1 non-immigrant visa for fiance/es, which is similar in complexity to a marriage application. This visa is somewhat unusual in that the amount of documentation and details required are at about the same level as for a petition for “conditional permanent residence” or “permanent residence” based on marriage. It is normally expected that you will marry within 90 days of arrival to the US. Also, you should have met your future spouse within the last two years. After you are married, you may then apply for “conditional permanent residence” in the US.

Permanent Residence through Spouse
If you marry before entry to the US, depending on the circumstances you may apply for “conditional permanent residence” which is granted for two years or “permanent residence”. If the marriage was entered into less than two years ago you may only apply for “conditional permanent residence”; this category was created by the Immigration Marriage Fraud Amendments of 1986. If you are granted “conditional permanent residence”, an application for removal of this condition must be filed during the ninety days prior to the end of the two years.

Other Relatives
Also included are unmarried children of a US citizen or permanent resident over 21 years of age. As long as the US citizen is over 21, they can petition for their parents to enter the US. Lower priority is given to married sons and daughters of US citizens or brothers and sisters of US citizens and the visa processing times can be unbelievably long.


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