Immigrant versus Nonimmigrant visas

• Most people first come to the U.S. on a temporary visa (non immigrant) and then change to permanent residence status (green card).
• Immigrant visas must be obtained on the basis of a job offer, family relationship or special skills. Nonimmigrant visas or visas of a temporary duration permit people to enter the U.S. to travel, conduct business or work in specified jobs. There are over 30 types of non immigrant visas. We describe the commonly used visa categories.
• Non immigrant visa processing generally takes 3 - 4 months. Immigrant visa processing, in most cases, takes one year or more to complete.
• Spouses and children under 21 years of age are included in all visa petitions. Spouses and children may not work in the U.S. unless they apply for a working visa themselves. Spouses and children may attend school in the U.S.

• Many countries, including Japan and most European countries do not need a visa to come to the US for business or travel for 90 days or less. B-1 visa holders may not work in the U.S.
• If you want to work you either need a green card or a non immigrant visa that permits you to work, such as L-1 intracompany transferee, H-1 aliens of distinguished merit and ability, or E 1/2.

• The L-1 visa allows the transfer of managers, executives or specialized knowledge employees within an international organization. The transferred employee must have worked for the foreign company for one of the three years prior to filing the visa petition.
• The foreign company and the U.S. company must have at least 50% common ownership.

  The L-1 is usually the best visa for start up businesses.

• L-1 petitions may be extended for up to seven (7) years.
• L-1 visa holders may apply for permanent residence while in L-1 status. L-1 visa holders are usually exempt from labor certification. This eliminates a lengthy procedure and gives L-1 visa holders an advantage in obtaining a green card.

• H-1B visas permit employers to hire professionals such as engineers, accountants, scientists, etc., on a temporary basis.
• Companies owned by foreign interests, or US branch offices of foreign companies, may apply for H-1 status on behalf of foreign employees.

  H-1B visas are valid for a maximum of six years

• In almost all cases the applicant must have a University Degree. INS usually requires a relationship between the proposed job and the alien's university course of study.
• The applicant must have a job offer from a sponsoring employer before they can apply for the visa, if not, you may wish to use our job search service.
• The H-1B worker's salary must be equal to the prevailing wage as established by the Department of Labor. The employer must agree to pay the prevailing wage.
• The H-1B worker must have required licenses to work in the U.S. Many states license engineers, architects, doctors, accountants and lawyers. Unlicensed professionals may obtain H-1B status if the state laws do not require professional licensure to practice one's profession. Many states permit unlicensed professionals to practice under the supervision of other licensed professionals.

• The E visa permits managers and executives from the treaty country, there are 30 or so countries with qualifying treaties, to come to the U.S. to manage substantial trade between the U.S. and the treaty country (E-1), or substantial investment from the treaty country to the U.S. (E-2). The U.S. enterprise must be controlled by treaty country nationals or companies.
• E visas may be used by companies or individual businessmen. This visa is designed for large scale business, not small businesses with few employees. The E visa is generally not appropriate for start up companies.
• This visa is very convenient in that it can be extended indefinitely. Many people, for tax reasons, use E visas instead of green cards.

• The O visa is designed for artists, athletes, entertainers, and famous businessmen. There are no educational requirements. INS reviews the applicants resume, letters of recommendation and other evidence of accomplishment. The O visa can be used instead of the H-1B visa when the applicant has no university degree but is a person of considerable accomplishment.

• Students in an academic courses of study use F-1 visas. Students attending vocational schools use M-1 visas. F-1 visas can only attend grade 6-12 public schools for one year. They must either get a green card or change to public school after the one year. There is no restriction on university study.
• Issuance of student visas is discretionary. Student visas are often refused in situations where it seems that the applicant is attending school as an excuse to stay in the U.S.
• Legitimate students have little trouble obtaining F-1 status.

• All green card applicants seek Labor Certification prior to applying for permanent resident visas, except the first preference category set forth below.
• Labor Certification requires a testing of the United States job market via advertising to determine whether there are U.S. workers able and qualified to take the job at a reasonable wage. After obtaining Labor Certification, one may petition INS for a permanent visa. The Labor Certification process generally requires a minimum of one year because the job must be advertised and all applicants interviewed to fairly test the job market.
• Once you obtain green card approval from INS you may interview with a Consulate or by filing for Adjustment of Status through INS. This process verifies the applicants financial, health and criminal records.

1. Aliens with Extraordinary Ability, Outstanding Professors and Researchers, and Multinational Executives and Managers

   People with outstanding credentials or people who have skills in the U.S. national interests, and E and L visa international managers and executives.

2. Professionals with Advanced Degrees and with Exceptional Abilities

   Usually university professors

3. Skilled Workers, Professionals, Other Workers

   Persons with BA degrees or less and no US workers are willing or able to take the job

4. Certain Special Immigrants (Ministers/Religious Workers)

   Ministers, monks, preachers, people working for religious organizations

5. Employment-Creation Immigrants

   Immigrant investors may invest individually, or through a fund. The minimum investment is $500,000. Investors must hire 10 employees or invest in a Regional Center. If you have the money, Fifth Preference is the easiest way of obtaining green cards.

   Unlike the First Preference you do not have to prove you have extraordinary abilities or buy a paper company to qualify as a multinational executive or manager. You do not have to prove you are a professional with advanced degree as required for Second Preference applicants, or prove that you are a skilled worker under the Third Preference. Most important, you need not obtain a Labor Certificate which requires that you must have an employer first. As an investor, you are the employer and you will create employment with the funds you invest. The only proof you must provide is that the funds you invest are from a lawful source.

• Immediate Relative:

  Spouse, Children under 21 years of age, and Parents of Citizens.

• First Preference:

  Unmarried children of U.S. citizens. "Children" includes step children.

• Second Preference:

  Spouses and unmarried children of U.S. Permanent Residents.

• Third Preference:

  Married Children of Citizens.

• Fourth Preference:

  Brothers and Sisters of Adult Citizens.

All immigrant visas are subject to a complicated quota system. Generally each country receives a maximum of 25,620 visas per year.

The applicant will be subject to the country limit of his or her country of birth. A visa must be available in order to apply for adjustment. Nationals of China, India, and Mexico, for example, often must wait for a visa to become available. We will advise you at your last known address when your relative may file for adjustment.

1. Filing petitions for approval in your preference category. Response from INS in approximately 90-120 days.
2. Assuming approval, when the visa becomes available, if in the United States, apply to INS for adjustment of status to permanent residence or apply for interview at the Consul Post nearest your foreign residence. Allow 8-10 months for the entire process.
3. A green card follows approximately six months.
4. While in the United States, the alien must remain in legal immigration status, while waiting for the visa to become available.
5. Unauthorized employment or staying in the US with an expired visa, bars adjustment of status to permanent residence in the US.

To maintain your green card you must establish a permanent residence in the U.S. If you leave the U.S. for one year and return, depending upon the facts of your case, INS may revoke your green card. INS airport inspectors often question green card holders about their ties to the U.S. If the inspector believes you have abondoned U.S. residency he may take your green card pending a hearing before an administrative law judge.

To obtain a reentry permit you must file form I-131 with photographs, proof that you have a green card and a statement describing your reasons for departing the U.S. for a long period of time. Acceptable reasons include family illness, transfer to a job in a foreign position, business reasons. Reentry permits are valid for two years.