Frequently Asked Questions

Overstay means staying in the U.S. beyond the date indicated on your I-94 or the stamp in your passport or the corresponding Duration of Status (D/S) – even for one day. Overstay is one of the acts that causes you to be “out of status.” It is a violation of U.S. immigration laws and it results in your visa being automatically voided. In this situation, you are required to reapply for a new non-immigrant visa but it may even cause you to be ineligible for a visa in the future for return travel to the U.S. – depending on how long you were out of status.

Individuals who have the endorsement of D/S, but who are no longer performing the same function in the U.S. that they were originally admitted to perform (i.e. no longer working for the same employer or no longer attending the same school) can only overstay if the DHS or an immigration judge makes a specific finding of status violation.
A visa is a document or actually a sticker inside your passport that allows you to enter the US from a foreign country, much like a ticket to a movie theater. You must apply and obtain that visa (ticket) at the US consulate/embassy (box office) in your home country before coming to the US (entering the theater).

A visa is only used to enter the US, but doesn’t say anything about how long you can stay. To stay in the US, you must have legal status.
After you have entered the US using your visa, you must maintain legal status. Legal status allows you to legally stay in the US until the expiration date stamped in your passport or on your I-94 form, the white piece of paper commonly stapled in your passport. Earlier this year, CBP (Customs and Border Patrol) digitized the I-94 process and one does not get a paper anymore. However, the date in the passport still dictates how long you can stay. When this date is up, so is your legal status.

Please note, your visa may have a way longer expiration date than the stamp in the passport. This only means that you can leave and enter the US with the same visa up until the visa expiration date.
Unlawful presence is the presence in the U.S. after the expiration of the period of stay authorized by an Immigration Inspector/Customs Officer, or any presence without being inspected by an Officer and admitted or paroled. The authorized period of stay is normally either noted on the I-94 or the stamp in your passport.

Persons who remain in the U.S. beyond their authorized stay are not able to extend their stay in the US or change their status to another non-immigrant status. In most cases they are also barred from adjusting their status from that of a non-immigrant to that of an immigrant.

Persons who remain in the U.S. beyond their authorized stay for more than 180 days, and then leave the US, are barred from reentering the U.S. for three years from their date of departure.

Persons who remain in the U.S. beyond their authorized stay for more than one year, are barred from reentering the US for ten years from their date of departure.

Persons who commit fraud or material misrepresentation are barred from the U.S. permanently.
The United States requires citizens from certain countries such as India or China to obtain a B-2 visa before entering as a visitor. Citizens of other countries under the Visa Waiver Program, such as UK, Spain, Japan, Italy or France, do not need a visitor visa.
It is a permit that allows an foreign national to apply for U.S. admission at its borders and is indicated by a stamp on the foreign national's passport.
If you wish to visit the United States temporarily or be granted entry for a very specific period of time, you will need a non-immigrant visa. Some of the most common types of non-immigrant visas are a student visa (should you be looking to further your education and skills), business investor visas (if you are planning on coming to the U.S. to invest in a business), or a travel visa (if you wish to do some traveling in the U.S.).
Depending on your current immigration status or situation, there are a number of visas available to foreign nationals wishing to permanently immigrate to the United States. There is a fiancée visa (if you are a foreign national engaged to a U.S. citizen), family visas (if you have or are the relative of a U.S. citizen and wish to immigrate to the U.S.), a work visa (if you have unique skills or requirements which make you a hot commodity in a particular field or industry), and more.
Changing immigration status while in the United States, can be difficult and what you will be required to do, varies. This question is best answered after consulting with an experienced immigration attorney. Our attorneys will take the time to review your status and case, analyze the situation at hand, and help you find the best course of action to accomplish your goals.
To determine if your U.S. visa is valid, you need to check your passport for your visa's expiration date and the number of permitted entries. If the expiration date has passed, your visa is not valid. However, if the date is within the expiration date and you have not used all the available entries, your visa is valid.
Valid U.S. status means that you are authorized by the USCIS (formerly known as the INS) to remain within the U.S. for the authorized period of time.
A visa is the authorization by the U.S. government to allow a foreign national to enter the United States for a specific duration and for a specific purpose. For example, a B-2 visa would allow someone to enter the United States for a two-week vacation, whereas an H-1B visa would allow someone to work for a specific employer for up to three years. In contrast, a green card is an approval by the U.S. government to allow a foreign national to permanently live and reside in the United States. This would permit him/her to live, work or study freely without any restrictions.
As a legal permanent resident, you are granted the privilege of living and working permanently in the United States.
It depends on how long it takes to gather all the necessary supporting evidence, including letters of recommendation. After you have provided all the required documentation, it usually takes us about one week to complete the petition and prepare it for filing.
No, no attorney can promise that your case will result in a successful outcome. However, we can promise you that we will take on your case as if it were our own, giving it the highest priority, and offering you a first-rate product.
Our attorneys handle our clients' cases individually by preparing petition letters, contacting clients, and following up on pending cases. Our law clerks' main objective is to help attorneys prepare clients' packages.
USCIS stands for U.S. Citizenship and Immigration Services. It is an agency of the U.S. government under the Department of Homeland Security. USCIS is principally responsible for matters dealing with foreign nationals in the United States. This includes jurisdiction over petitions for non-immigrant status and immigration status. Prior to March of 2003, the USCIS was called the Immigration and Naturalization Service (INS).
Premium processing is an expedited service that allows you to obtain a decision on your H-1B petition within 15 calendar days of receipt by USCIS. The service costs $1,225 and this fee cannot be waived. The premium processing fee must be submitted in a separate check or money order (do not include both fees in one check).
Premium processing is available to those employers who file a Form I-129 to classify a beneficiary under one of the following categories: E-1, E-2, H-1B, H-2A, H-2B, H-3, L-1, O-1, O-2, P-1, P-2, P-3, TN, R, and Q-1.
The primary advantage of premium processing is that you will receive a decision within 15 calendar days of the receipt of your application by USCIS. The primary disadvantage of premium processing is the steep $1,225 fee. However, if USCIS does not process your application within 15 calendar days, the agency will refund the fee and still continue to expedite adjudication of your application.
You need to file an immigration petition and request that the USCIS notify a U.S. Consulate in the country where the child lives. Once the immigration petition is approved, the National Visa Center of the U.S. State Department sends "Packet 3" to you. After the necessary forms are completed, your daughter has to go to the U.S. Consulate overseas to apply for an immigrant visa. If approved, she becomes a U.S. permanent resident on the day that she enters the United States on an immigrant visa.
Yes, you may. You need to file an immigration petition and request that the USCIS notify a U.S. Consulate in the country where the child lives. Once the immigration petition is approved and an immigrant visa is available, the National Visa Center of the U.S. State Department sends "Packet 3" to you. After the necessary forms are completed, this child can go to the U.S. Consulate to apply for an immigrant visa. On the day that he enters the United States on an immigrant visa, he becomes a U.S. permanent resident.
Yes, if the child is now under the age of 18. You may file a Form N-643 (Request for Certificate of Citizenship on Behalf of Adopted Child) on behalf of the child. If the child is over 18, he has to apply for naturalization on his own behalf.
No. Orphan adoptions by U.S. citizens are exempt from the two-year residence and legal custody requirement for immigration. However, such adoptions must be considered full and final for U.S. immigration purposes.
A married U.S. citizen and his or her spouse (no special age required) may file a petition for the adoption of an orphan. The spouse does not need to be a U.S. citizen; however, the spouse must legally live in the United States. Also, an unmarried U.S. citizen at the age of at least 25 may file an orphan petition.
Yes. To bring the adopted orphan into the U.S. quickly, the eligible U.S. citizen may apply for advance processing (form I-600A) before he actually finds an orphan to adopt.
Because of the Child Citizenship Act, your child will automatically receive U.S. citizenship based on the date of her entry into the U.S. You will not need to submit any additional fees or paperwork. The USCIS will automatically send your child a Certificate of Citizenship once the review and approve the child’s IR-3 packet.
Because of the Child Citizenship Act, adopted orphans are eligible for automatic citizenship. The steps to receiving citizenship are different for orphans who receive IR-3 Visas and those who receive IR-4 Visas. However, in both situations the orphan must be fully adopted under U.S. immigration standards before his/her 18th birthday.

For orphans issued an IR-3 visa: Adopted orphans under the age of 18 who are admitted with valid IR-3 visas automatically receive US Citizenship based on the date of entry into the US. The USCIS will review IR-3 packets and automatically send Certificates of Citizenship to approved orphans parents. No additional fees or paperwork are required.

For orphans issued an IR-4 visa: Adopted orphans who receive admission based on a valid IR-4 visa will become legal permanent residents and receive a green card upon entry to the US. The orphan will receive automatic citizenship once a full and final adoption is completed in the US. In order to receive automatic citizenship, the adoption must occur before the child has reached 18 years of age. Proof of citizenship may be attained by filing the N-600 form and necessary fees with a USCIS office.
A Convention country, also called a “Hague Country,” is a country that is a party to the Hague Convention on Intercountry Adoption and where the convention has entered into force. A list of Hague countries can be found on the Department of State website.
Adjustment of status (AOS) refers to the process by which an foreign national present in the United States files a petition with U.S. Citizenship and Immigration Services (USCIS) to adjust his or her status from nonimmigrant to immigrant, i.e. permanent resident status, to obtain a green card.
An immigration petition asks for a determination as to whether a foreign national applicant qualifies as an immigrant under a particular category and immigrant preference. For most classes of immigrants, the immigrant preference is important, since a limited number of foreign nationals are allowed to become permanent residents under each category every year. An adjustment of status application, on the other hand, requests a change in a foreign national applicant’s status to that of an immigrant (i.e. permanent resident), and cannot be filed unless an immigrant visa is available. The two petitions are related in that an adjustment of status application is based on an approved immigration petition.
If you like to become a permanent resident of the United States, then you will need to request an adjustment of status. While your approved immigration petition served to make the determination that you qualify as an immigrant under a particular category and preference, it is an approved adjustment of status petition that ultimately designates you as a permanent resident.
Yes, provided that a visa number is available at the time of filing. Concurrent filing is typically associated with EB-1 and EB-2 beneficiaries.
You should inform USCIS of your new address upon each move to ensure you receive all USCIS materials. (Informing USCIS of any and all address changes is actually required by law.) If you have retained a lawyer to handle your case, your attorney will receive USCIS materials for you, or otherwise be notified when USCIS mails you something. Having an attorney take care of important mail is one of the many reasons AOS applicants hire a lawyer for their adjustment cases.
Yes, because your case will be processed at one of the USCIS service centers, which accept personal checks.
It depends on whether your adjustment application is employment-based or family-based, as well as your immigration category. For an employment-based case, your adjustment petition will be adjudicated by a USCIS officer at a service center that handles applications from the state in which you currently live. Employment-based adjustments can take anywhere from six months to two years (or more) to be approved. For a family-based case, your adjustment petition will be adjudicated by a USCIS officer at a local office with jurisdiction over your place of residence. Family-based adjustments can take from six months to three or four years to be approved by some USCIS offices.
Unfortunately, it is not unusual for a family-based AOS application to take this long to be adjudicated. However, you can still make a status inquiry by visiting your local USCIS office, or by contacting USCIS by phone or mail. USCIS’s contact information is listed on the bottom left-hand corner of your receipt notice.
You can call or write to USCIS for a status inquiry. USCIS’s contact information is listed on the bottom left-hand corner of your receipt notice.
You are able to file an appeal or ask the adjudicating officer to reconsider the decision, provided that you believe the denial was not justified.
Yes, but only if you are in a nonimmigrant status that allows employment or otherwise if you have received an employment authorization document (EAD), which is more often referred to as a work permit. One of the benefits of being eligible to apply for an adjustment of status is that AOS applicants can apply for an EAD at the same time they file their I-485s, or alternatively at any point during an AOS petition’s pendency. Once their EADs are approved, individuals with pending adjustment applications are able to work for as long as their adjustments remain pending.
Yes, but generally only if you have received advance parole, which is commonly referred to as a travel document. One of the benefits of being eligible to apply for an adjustment of status is that AOS applicants can apply for advance parole at the same time they file their I-485s, or alternatively at any point during an AOS petition’s pendency. Once their travel documents are approved, individuals with pending adjustment applications are able to travel to and from the U.S. for as long as their adjustments remain pending. Note that leaving the country while your I-485 petition is pending can result in USCIS determining that you have abandoned your AOS application (unless you currently have a status like H status or L status).
For an EAD, it can take around four to six months to receive a decision.
Some AOS applications require an affidavit of support. In this affidavit, the sponsor of an AOS petition promises to provide financial support to the foreign national beneficiary if and when said the foreign national is unable to support himself. It demonstrates that the foreign national will not become a financial burden or public charge to the U.S. government once he/she becomes a permanent resident.
It depends on whether your underlying petition is employment-based or family-based. For an employment-based adjustment, the person who signs an I-864, if required, does not have to be a U.S. citizen or permanent resident. However, for a family-based adjustment, the person who signs an I-864 must be a U.S. citizen or permanent resident.
No. If the money you have is sufficient to support yourself, no affidavit of support is needed for employment-based AOS petitions.
Yes. The person who filed the immigration petition must sign an affidavit of support. If your relative’s income is insufficient, you can get a co-sponsor to sign the I-864 as well.
Yes. The person who filed the Form I-130 on your behalf must sign an affidavit of support to sponsor you, no matter how much money you have.
The figure varies each year, and is based on federal poverty guidelines. The U.S. Department of Health and Human Services (DHS) publishes federal poverty guidelines online.
This alone will probably not prevent you from getting a green card, but it might be a factor. When adjudicating adjustment of status applications, USCIS considers whether or not an foreign national is or will be a “public charge.” This term refers to a person who is primarily dependent on the government for subsistence.
Whether or not prior arrests will affect your application depends on whether or not you were convicted of the associated crime. Unfortunately, having a conviction for the DWI on your record may bar you from adjustment. Please contact us to help you fight a potential denial.
Typically, a derivative beneficiary is an immediate family member—i.e. spouses and unmarried children younger than 21 years old—of the principal beneficiary of an approved immigration petition. A derivative beneficiary may apply for an immigrant visa or adjust status if the principal beneficiary is eligible to apply or adjust.
If you are eligible for the benefits of Section 245(i) of the Immigration and Nationality Act(INA), you may be able to adjust your status. Without qualifying under 245(i), however, you would not be eligible for an AOS.
No. You can file theI-130 and I-485 petitions simultaneously. A foreign national who is the immediate relative of a U.S. citizen is permitted to file an AOS concurrently with the petition filed by the U.S. citizen on the foreign national relative’s behalf.
No. Only foreign nationals who are physically in the U.S. can adjust their status. Because she resides outside of the U.S., your wife must go through consular processing.
No. Adjusting status is an option for foreign nationals who are physically in the U.S. Foreign nationals residing abroad, including your wife, must go through consular processing for their immigrant visas at a U.S. embassy or consulate in their home countries or countries of foreign residence. If your wife were to enter the U.S. with some valid nonimmigrant visa, however, then she could potentially apply for an adjustment in the U.S. after a visa number becomes available.
If you have not obtained a permanent green card or a conditional green card before the divorce is finalized, your AOS application will be denied.
Yes, provided that your marriage was not a “sham” marriage.
If an immigrant visa is available to you (depending on what category you are in and your priority date) and you currently reside in the U.S., you may apply immediately. Otherwise, you will have to wait until a visa number becomes available.
You might want to consider extending your H-1B in light of one possible outcome: your adjustment application is denied. Even though your I-140 and EAD were approved, you will no longer have legal status in the United States without either a pending I-485 or an extended H-1B. As a result, you would not be able to stay and work in the country.
An employment-based immigrant is not required to work for the petitioning employer until the employee obtains his permanent resident status. Once an employee beneficiary obtains a green card, she is required to work for a “reasonable” period of time for her petitioning employer. There is an exception of sorts to the above for foreign nationals in H-1B status: if their current employer is different from the one sponsoring their green card, then H-1B holders should begin working for the green card-sponsoring employer no earlier than 180 days after they file their AOS applications. As such, H-1B holders can work for different employers before obtaining permanent resident status without jeopardizing their green cards.
Advance Parole allows you to re-enter the United States after traveling abroad without an immigrant visa or non-immigrant visa. You must be approved for Advance Parole before leaving the United States. If you have not obtained Advance Parole prior to traveling abroad, you will not be permitted to re-enter the United States upon your return unless you have a valid visa.
No, you need not apply. As an H-1B holder, as long as you maintain valid H-1B status before you leave the US, you may try to apply for an H-1B visa to re-enter the U.S. after your travels abroad. When you come back to work for your H-1B sponsoring employer, your I-485 is preserved. If you come back to the US with an Advanced Parole, you are considered to be in parolee status; however, you do not need an EAD to work for your H-1 sponsoring employer. Furthermore you can still apply for an extension of H-1B status or transfer H-1B status to bring you back into H-1B status from parolee status.
To safeguard that you can go back to the U.S., we recommend that you apply for Advance Parole and get it before you travel abroad. You should bring your Advance Parole with you, but always try to apply for your H-1B visa first. If your H-1B visa application is denied, your Advance Parole will serve as a back-up.
If you resume your employment with the same employer for whom you had previously been authorized to work as an H-1 non-immigrant, and do not use your EAD, you are in parolee status. Furthermore you can still apply for an extension of H-1B status or transfer H-1B status to bring you back into H-1B status from parolee status. However, if after being paroled (by using an Advanced Parole document), you work for your current employer with your EAD or change employers with your EAD, you will no longer have a valid H-1B non-immigrant status, even though you can still lawfully stay in the U.S. during the I-485 pending period.
No. If you resume your employment with the same employer for whom you had previously been authorized to work as an L-1 non-immigrant, and do not use your EAD, you will be in parolee status. You can still apply for an extension of L-1 status and this will bring you back to valid L-1 status. However, if after being paroled in, you change employers or work for your current employer with your EAD, you will no longer be able to bring you back to a L-1 status, even though you can still lawfully stay in the U.S. during the I-485 pending period.
No, similar to a visa to the U.S., Advance Parole, does not guarantee admission into the United States. Foreign nationals who have obtained Advance Parole are still subject to the inspection process at the port of entry.
Yes, due to changes to U.S. immigration law, travel outside of the United States may have severe consequences for certain foreign nationals who are in the process of adjusting their status or changing their non-immigrant status. Such foreign nationals may be found inadmissible to the United States upon return and/or their applications for adjustment or change of status may be denied.
It usually takes about four to six months to process an Advance Parole application.
The advance parole document is valid for up to one year and during that period, an foreign national may make multiple entries into the United States. Also, an advance parole document may be renewed, so long as the renewal application is filed at least 120 days before the previously issued advance parole expires.
An Advanced Parole Approval is issued to an foreign national who does not have permanent resident status. A Re-entry Permit is issued to a permanent resident of the U.S. The two documents are dissimilar in physical appearance: an Advanced Parole Approval is a single piece of paper bearing the foreign national's photo, whereas a Re-entry Permit looks like a passport. An Advanced Parole Approval functions like a visa to the U.S., while a Re-entry Permit functions like a passport. In another words, an foreign national with an Advanced Parole Approval still needs a foreign passport to enter into the U.S., while a permanent resident with a Re-entry Permit does not need a foreign passport to enter the U.S. Another difference is the duration: Advanced Parole is valid for one year, whereas a Re-entry Permit is valid for two years.
The only limit to the amount of time is the one-year expiration date on the AP. The year period begins from the date the AP is issued. You cannot use the AP after it expires.
Asylum is a means for acquiring legal status and several immigration benefits on the basis of one’s fear of persecution in his/her home country. Apart from the right to remain in the United States, a person granted asylum (an asylee) may also work in the U.S., bring family members to the United States from his home country, and eventually apply for permanent residency. On the other hand, Withholding of Removal is merely a means of not being removed to a country where there is a likelihood that one would be persecuted. A foreign national granted Withholding of Removal is technically not in any legal status in the United States. The only other benefit of Withholding of Removal is that the foreign national may work in the United States as long as he is protected from removal. In certain circumstances a person may be denied Asylum yet granted Withholding of Removal, such as discretionary denial of asylum that does not apply to Withholding of Removal and certain bars to asylum that do not apply to Withholding of Removal.
You need to prove that you have a well-founded fear of persecution on the basis of race, religion, nationality, political opinion and/or membership in a particular social group in your home country. A well-founded fear means that a reasonable person in your circumstances would fear persecution in the particular country. You do not need to prove that you are likely to be persecuted.
You need to prove that it is more likely than not that you will be persecuted on the basis of race, religion, nationality, political opinion and/or membership in a particular social group in your home country.
Lawful permanent residence status entitles a person to live and work lawfully within the U.S.. However, a lawful permanent resident cannot vote in U.S. elections, cannot be absent from the U.S. for an extended period of time, and may not establish a residence outside the U.S.. In addition, a lawful permanent resident’s status may be taken away if the person commits certain criminal acts. Conversely, U.S. citizenship entitles a person to vote, to travel for extended periods of time away from the U.S. and establish residency in another country without giving up one’s status as a U.S. citizen. In fact, absent some expressed and unequivocal desire on the part of the citizen to renounce his or her U.S. citizenship, a U.S. citizen will remain so for his or her life.
Citizenship is granted by birth, either from being born on U.S. soil or by being born abroad to parents who are U.S. citizens. Naturalization is nationality acquired after birth. A naturalized citizen is entitled to all the rights and privileges of a natural born citizen. In fact, the Fourteenth Amendment to the U.S. Constitution states that all persons born or naturalized in the United States are citizens of the United States and the state where they reside.
No. A permanent resident is not required to become a citizen and may reside in the United States indefinitely as a permanent resident. Although a permanent resident is permitted to reside in the U.S. without ever becoming a citizen, a permanent resident may want to obtain citizenship in order to secure benefits it entails. A citizen can vote in national and local elections, but a permanent resident cannot vote in U.S. elections. As a U.S. citizen, one can exit and enter the U.S. without any regard to time spent outside of the U.S. permanent residents must be careful not to abandon their status by leaving the U.S. for an extended period of time, on the other hand. Finally, a U.S. citizen can petition for the admission of foreign national relatives to the U.S. that cannot be petitioned by a permanent resident.
No. You must be a U.S. citizen to vote in U.S. elections.
If you are married to a U.S. citizen, you must physically reside in the U.S. at least eighteen accumulative months prior to applying for naturalization. If you are not married to a U.S. citizen, then you must physically reside in the U.S. at least thirty accumulative months prior to applying for naturalization.
No. You can file the naturalization application up to three months prior to the time you will meet the residency requirements.
It depends on the length of your absences. Absences of six months or more generally break the continuity of residence required for naturalization. You may rebut the presumption that a break of the continuity of residence has occurred if the absence was more than 6 months but less than one year.In other words, if you leave the U.S. for more than six months, you are not considered to be residing in the U.S. on a continuous basis for the amount of time after six months you spend abroad. Steps can be taken to avoid breaking continuity in some circumstances in which a person spends more than six months abroad. There is also a physical presence requirement of eighteen or thirty months, depending on if you are married to a U.S. citizen.
Due to the fact that you left the U.S. for more than six months, you failed to meet the continuous residence requirement. However, as your absence was less than a year, you may be able to overcome the presumption of the discontinuity of residency if you have a reasonable explanation for your extended absence.
You have to be a permanent resident for three years prior to obtaining citizenship through naturalization if you are married to a U.S. citizen.
No. You are required to be physically present in the U.S for at least one half of the time you are required to have residence. For those married to U.S. citizens, you must be physically present for eighteen months. For those not married to U.S. citizens, this requirement is thirty months.
The applicant is given a multiple-choice test that examines the applicant's knowledge of the fundamentals of U.S. government and history. The test questions are picked randomly from 100 questions.
Yes. Those who have a disability impairing their ability to satisfy this requirement are exempt. Those who are exempt for the English proficiency requirement can be given an exam in modified form and in the language of their choice.
vThe eligibility for naturalization depends on the type of conviction, the sentence received, the restitution amount and any prior convictions. Please contact us for an evaluation of your eligibility.
Yes. You should always be honest regarding all arrests, convictions (even if they have been expunged), and crimes you have committed for which you were not arrested or convicted. Even if you have committed a minor crime, USCIS may deny your application if you do not tell the immigration officer about the incident.
Not necessarily. Foreign national spouses of citizens who are assigned abroad by their U.S. employer can be exempt from the continuous residence and physical presence requirements. Instead, the foreign national must only be a permanent resident, physically present in the U.S. at the time of naturalization, affirm his/her intention to reside in the U.S. upon completion of the citizen spouse's overseas assignment, and in most cases, affirm his/her intention to reside with the citizen spouse abroad upon completion of the naturalization process. If these conditions are met, the foreign national can apply for citizenship right after he/she obtains his/her green card and does not have to wait the regular waiting time of three or five years after the issuance of permanent resident status.
If you have a U.S. citizen parent, you may be a citizen at birth and do not have to undergo naturalization. If you do not meet the criteria but are under eighteen and meet other qualifications, then your citizen parent can apply for your naturalization through a process called expedited naturalization. It is expedited because there are no residency requirements.
No. Minor children who are permanent residents can be naturalized derivatively with their parents and do not need to file a separate application.
Yes. If a foreign national served in the U.S. military for at least three years and is a lawful permanent resident, then he is excused from the regular residence requirements so long as an application for naturalization is filed while the applicant is still serving or within six months of an honorable discharge.
If a permanent resident is absent from the U.S. for more than six months, there is a break in continuity of residence in the U.S. If a foreign national plans to be absent from the U.S. for more than one year, steps can be taken to preserve continuity of residence if the foreign national qualifies.
At this interview, the naturalization exams for English proficiency and knowledge of U.S. history are administered. An examining officer determines whether the applicant satisfies all naturalization requirements and usually makes a decision on the interview date. If the decision is favorable, then the foreign national is scheduled for a swearing in date.
It is very important not to miss your interview. If you have to miss your interview, you should notify the office where your interview is scheduled by mail as soon as possible. In your letter, you should ask to have your interview rescheduled. Rescheduling an interview may add several months to the naturalization process, so try not to change your original interview date. If you miss your scheduled interview without giving notification, USCIS will "administratively close" your case. Unless you contact USCIS to schedule a new interview within 1 year after USCIS closes your case, USCIS will deny your application. USCIS will not notify you if it closes your case because you missed your interview.
No. A permanent resident is not required to become a citizen and may reside in the United States indefinitely as a permanent resident. Although a permanent resident is permitted to reside in the U.S. without ever becoming a citizen, a permanent resident may want to obtain citizenship in order to secure benefits it entails. A citizen can vote in national and local elections, but a permanent resident cannot vote in U.S. elections. As a U.S. citizen, one can exit and enter the U.S. without any regard to time spent outside of the U.S. permanent residents must be careful not to abandon their status by leaving the U.S. for an extended period of time, on the other hand. Finally, a U.S. citizen can petition for the admission of foreign national relatives to the U.S. that cannot be petitioned by a permanent resident.
No. You must be a U.S. citizen to vote in U.S. elections.
The naturalization applicant professes his or her allegiance to the U.S. and the Constitution, and after the foreign national is sworn in, he obtains a Certificate of Naturalization.
If your address changes, you should inform USCIS and fill out the AR-11 form through USCIS’s online address change system. It is important to make sure USCIS has your latest address. If USCIS does not have a current address for you, you may not receive important letters sent from USCIS. For example, USCIS may not be able to notify you of your interview date and time. It also may not be able to tell you if you need to send additional documents or bring additional documents to your interview. However, if you have an attorney to represent you in your naturalization, the USCIS will send all correspondences to your attorney. This insures that you will never miss a correspondence from the USCIS.
You become a citizen as soon as you take the Oath of Allegiance to the United States. This usually takes place at a U.S. federal district court. It sometimes occurs at the USCIS (formerly INS) local office. In some states, you can choose to take the Oath the same day as your interview. If that option is not available or if you prefer a ceremony at a later date, USCIS will notify you of the ceremony date with a "Notice of Naturalization Oath Ceremony" (Form N-445).
If you cannot go to the oath ceremony, you should return the "Notice of Naturalization Oath Ceremony" (Form N-445) that was sent to you. You should send the N-445 back to your local office including a letter explaining why you cannot go to the ceremony. Make a copy of the notice and your letter before you send them back. Your local office will reschedule your oath ceremony and send you a new "Notice of Naturalization Oath Ceremony" (Form N-445) to tell you when your ceremony will be.
The time it takes to be naturalized varies from one local office to another. Recently, in many places, it took over 2 years to process an application. USCIS where you live is currently modernizing and improving the naturalization process.
In many cases, you may reapply. If you reapply, you will need to complete and resubmit a new N-400 and pay the fee again. You will also need to have your fingerprints and photographs taken again. If your application is denied, the denial letter should indicate the date you may reapply for citizenship. If you are denied because you failed the English or civics test, you may reapply for naturalization as soon as you want. You should reapply whenever you believe you have learned enough English or civics to pass the relevant test.
You may get a new Certificate of Naturalization by submitting an "Application for Replacement Naturalization/Citizenship Document" (Form N-565) to the USCIS. Submit this form with the fee to your local USCIS office. It may take up to 1 year for you to receive a new certificate. You may use your passport as evidence of citizenship while you wait for a replacement certificate.
Naturalization applicants usually must answer questions from the 100 standard questions to test applicants for naturalization.
This is the process by which the beneficiary of an immigration petition applies for an immigrant visa with the National Visa Center (NVC) and a U.S. embassy or consulate.
Consular processing will commence only after the underlying immigration petition is approved by U.S. Citizenship and Immigration Services (USCIS), and not until a visa number becomes available.
Foreign nationals residing outside the U.S. must undergo consular processing. For foreign nationals living in the U.S. under some status, two options are available: apply for an adjustment of status (AOS) or, for strategic reasons including convenience, undergo consular processing in their home country or foreign country of residence.
The time frame for consular processing is quicker than that for an AOS petition. From the date an immigrant visa becomes available, applicants complete the process between five and 13 months, on average.
Consular processing takes place in your country of permanent residence or home country.
No. Benefits like work permits and advance parole are only available to AOS applicants. Foreign nationals applying for immigrant visas through consular processing cannot enjoy such benefits.
To be able to apply for an adjustment of status, a foreign national must be in the U.S. Accordingly, the foreign national in question would not be eligible to adjust status. The only option available to her is consular processing.
The primary advantage of consular processing is the relative speed with which an immigrant visa, once a visa number becomes available, is issued. On average, processing time is between five and 13 months. Other benefits include lower application fees and the comfort of being “home.”
There are crucial distinctions in terms of processing times, locations where each process occurs, application fees, application components, and benefits that can be enjoyed by applicants while their applications pending.
Employment Authorization Document (EAD) is a document that authorizes a foreign national to work in the U.S. for a period of time, usually one year. It is also called a work permit.
It usually takes six months to process an EAD application.
To check the status of your application, please contact the USCIS office that received your application. You should be prepared to provide the USCIS staff with specific information about your application.
The EAD or work permit is usually valid for one year. After that one must apply for a renewal EAD. It is recommended that you apply six months before the date your current EAD is scheduled to expire.
You can get a Replacement EAD, which will replace the EAD that got lost or destroyed.
According to SEVIS rules, you must submit your application for the EAD prior to the completion of all course requirements for your degree OR prior to the completion of your course of study. Different schools may have different rules regarding this matter; please consult the international student office at your school.
If you don't use the EAD to work, you might be able to keep your F-1 status. If you use the EAD, you are no longer in F status. Rather, you would be in I-485 pending status, which means if your I-485 application is denied before the completion of your study, you can no longer stay in the U.S. to finish the program.
No, you need not. As an H-1B holder, as long as you maintain a valid H-1B status, you may work for your H-1B sponsoring employer.
As an H-1B holder, you can work for your H-1B sponsoring employer in your H-1B status. Once you use EAD to work for your current employer or any other employer, you will no longer be in your H-1B status. Rather, you will be in I-485 pending status, which means if your I-485 application is denied, you can no longer stay in the U.S. as an H-1B holder, and will have to leave the country.
You can resume working for your current H-1B employer without using your EAD. If you do this, you will be able to preserve your H-1B status; your employer may apply for an extension of your H-1B if necessary. However, if you use your EAD to work for your H-1B sponsoring employer or for any other employers, you will essentially be giving up your H-1B status and be in I-485 pending status.
SEVIS stands for Student and Exchange Visitors Information System. SEVIS governs the retention and reporting of information regarding F, J, and M nonimmigrants.
DSO stands for Designated School Official. A DSO is responsible for reporting and updating information to the USCIS about the F-1 student’s situation. The DSO also makes important determinations regarding the F-1 student, such as whether the student should have a reduced course load or should take part in practical training.
A student may attend public secondary school, but not for more than 12 months and the student must reimburse the school board for the full cost of the education. Hence U.S. public high schools are prohibited from issuing a SEVIS Form I-20 to foreign national students. However, you may attend a private high school if this school is an approved academic institution and can issue a SEVIS I-20 to you.
No, you may not apply for an F-1 visa. Instead, you must apply for an M-1 visa.
If this university is an approved academic institution and can issue a SEVIS Form I-20, you may apply for an F-1 visa with the US consulate that has jurisdiction over your residence.
You first must be admitted by that university. You also have to prove that you at least have sufficient financial resources to cover the first academic year’s tuition, living expenses, and other miscellaneous expenses, such as books and transportation. Usually the brochure of the university will tell you the minimum expenses. If you satisfy these two criteria, you may get the SEVIS Form I-20 from the DSO of this university.
No. You must be enrolled in a full course load in normal academic semesters, except due to special circumstances, such as academic difficulties, illness, and/or medical conditions. It should also be noted that during the summer semesters, you are allowed to be enrolled in a part-time study or not enrolled at all.
Yes, you may, if the school hosting the English training program is an approved school and can issue a SEVIS Form I-20 to you.
In contrast to most other non-immigrants who receive a specific period of time to remain in the U.S., an foreign national student who obtains F-1 status is allowed to remain in the U.S. for the duration of status. Duration of status signifies that the foreign national is considered to be in valid status while enrolled in his/her academic program, plus any periods of authorized practical training and the 60 days grace period, which is afforded to an F-1 holder to provide an opportunity to depart from the U.S. However, for high school studies at a public school, an foreign national student may only study for one year as an F-1 student.
Yes. You must notify the USCIS by providing a notice of a change of address (Form AR-11) within 10 days to the Designated School Official (DSO).
Yes, you are allowed to work on campus, but the on-campus employment cannot displace US residents. Also, you are limited to 20 hours of work per a week.
On-campus employment must either be performed on the school's premises, or at an off-campus location that is educationally affiliated with the school. Not every business physically located on campus will be qualified. Working for on-campus commercial firms providing services for students on campus can be regarded as on-campus employment. Such examples are the school bookstore or cafeteria.
On-campus employment pursuant to the terms of a scholarship, fellowship, or assistantship is deemed to be part of the academic program of a student otherwise taking a full course of study. Thus a student may work as a Resident Assistant or Teacher’s Assistant well before the start of the school year, as long as the DSO certifies the date on which this on-campus employment begins as the start date noted on the SEVIS I-20 Form. By contrast, other kinds of non-academic on-campus employment, such as working for a bookstore, will be treated in a different way. In this scenario, a new F-1 student may not begin on-campus employment more than 30 days prior to the actual start of classes.
In order to work during the summer vacation period, you must apply for curricular practical training (CPT).
Curricular practical training is an alternative to work/study, internship, cooperative education, and any other type of required internship or practicum that is offered by sponsoring employers through cooperative agreements with the school. A CPT allows an F-1 student to work for an employer on a full time or part time basis. A CPT does not need an approval from the USCIS and the school that the F-1 student attends may approve a CPT.
An F-1 student who has been lawfully enrolled on a full-time basis at an approved college, university, conservatory, or seminary for at least one academic year is eligible to apply to participate in a practical training program.
No. F-1 Students who have received one year or more of full time curricular practical training are ineligible for post-completion academic training.
To work after the completion of the full-time course work, the student must apply for optional practical training (OPT).
The OPT is an authorization of temporary employment for F-1 students. The evidence of OPT is usually the Employment Authorization Document (EAD).
Yes, you have 60 days to legally stay in the US and prepare the necessary items to depart from the U.S. During this time, the student may also apply for a transfer to another institution, a change of status, or an adjustment of status.
You may apply for employment authorization before the end of the first academic year and up to 90 days prior to the completion of studies.
Yes, if the employment is employment at will. Employment at will is the nature of employment in most cases.
Yes, you can seek another job. In the OPT period, you may work for any employer in the US. However, your job must be directly related to your major. Moreover, you have to report your changes to the DSO.
Yes, an OPT is not the prerequisite for an H-1B. If you satisfy the requirements for H-1B, you may receive an H-1B status.
Yes, you are legally staying in the US, but you cannot legally work in the US after the OPT expires until your H-1B petition is approved.
No, foreign nationals who come to the U.S. as an F-2 beneficiary are generally not allowed to legally work in the US without prior USCIS authorization.
You may not engage academic studies, full time or part time at a U.S. institution of higher education. However, you may engage in study that is vocational or recreational in nature.
To be eligible to become a full-time student, you must first file for and be approved for a change of non-immigrant classification to F-1, J-1, or M-1 status.
The F-2 child may only engage in full time study if the study is in an elementary or secondary school (kindergarten through twelfth grade).
You must be enrolled in an academic program as full time study. Enrollment in an elementary school, academic high school, university or college, conservatory, seminary, or language training program will qualify as enrollment in an academic program. After January 1, 2003, any new F-1 student must report to the school listed on Form I-20 (Certificate of Eligibility) or SEVIS Form I-20 within 30 days of the registration date. As for current F-1 students, they must report any reportable action through SEVIS (such as transfer, extension of status, practical training, or employment authorization).
You may submit an application for extension to the DSO up to 30 days prior to the completion date. It is important to file the application in a timely manner; otherwise the DSO may not grant the extension if you file application after the completion date.
There are various circumstances which will be taken into account if there is a delay in the student’s submission of an extension of status application. These compelling academic or medical reasons include: a change of major/research topic, unexpected research problems, or documented illnesses. However delays caused by a student being placed on academic probation or being suspended from the institution are not acceptable reasons for program extensions.
Yes, you may apply for Optional Practical Training during the 60-day grace period after the completion of your studies. However, it is important that the application for OPT be submitted before the end of the grace period.
Yes, you may apply to change your B-1 status to F-1 status if you receive a SEVIS I-20 form from a school in the United States. However, you need to reveal your intent to study in the United States to the Consular Officer and Immigration Officer when you obtain your B-1 visa and make your entry to the US. Moreover, you cannot enroll in a course of study or take other actions inconsistent with B-1 status unless and until the USCIS has approved your request of change to an F-1 status.
Yes, after you get a SEVIS Form I-20 from a school, you may apply for change your status from H-1 to F-1.
No, you cannot change to F-1 status. You became out of status when your B-1 status expired.
If you get a SEVIS Form I-20 from a school, you may apply to change your status from B-2 status to F-1 status. However, the USCIS will not grant the change of status if they believe you came to U.S. with the intention to study at the time you applied for the B-2 visa. If you are admitted as, or change your status to a B-1 nonimmigrant or extended your B-1 status, you cannot enroll in a course of study or take other actions inconsistent with B-1 status unless and until the USCIS has approved your request of change to an F-1 status.
If you are subject to the two-year home country residence restriction, you may not change status to F-1 in the US. However, you may apply for an F-1 visa through a third country visa.
Family based immigration is becoming a U.S. permanent resident through certain family relations. Normally, a U.S. citizen (USC) or legal permanent resident (LPR) would file an immigration petition with the United States Citizenship and Immigrations Services (USCIS). This USC or LPR is called the “Sponsor.” The foreign national relative for whom the immigration petition is filed is called the “Beneficiary.”
A USC or LPR can be the Sponsor of a family based immigration petition. However, the Sponsor has to meet some requirements and legal obligations. The Sponsor has to execute a legally binding affidavit of support for the Beneficiary, in which the Sponsor guarantees to maintain the standard of living of the intending immigrant at a level not lower than 125% of the national poverty level. This obligation continues until the Beneficiary has become a U.S. citizen or has worked in the United States for 40 qualifying quarters.
No, you cannot. As a lawful permanent resident, you are not eligible to petition to bring your parents to live and work permanently in the United States.
A. First of all, "immediate relatives" of a USC, including parents, spouses, widows, and children of a USC (children who are unmarried and under 21 years of age, and, in the case of a parent of a USC, the petitioning son or daughter being at least 21 years of age) can immigrate to the United States without being subject to any numerical restrictions. They can apply for the permanent resident status without any waiting time. The rest of the Beneficiaries are divided into several groups called Preferences. Each Preference is given a numerical quota per year to limit the number of immigrants admitted into the United States.

The four Preferences are as follows: 1st Preference: applies to unmarried sons and daughters of U.S. citizens 2nd Preference: applies to spouses and unmarried sons and daughters of lawful permanent residents 3rd Preference: applies to married sons and daughters of U.S. citizens 4th Preference: siblings of U.S. citizens
A. Depending on the relationship between the Sponsor and the Beneficiary, these are the typical documents required: certificate of naturalization, birth certificate, marriage license, adoption paper, and/or a divorce decree. In most cases, the Sponsor needs to provide employment verification and W-2 forms for recent years. Other information required of the Beneficiary includes the passport, visa, I-94, photos, and medical examination report.
A. A Conditional Green Card is issued to the Beneficiary if the Beneficiary is the spouse of the U.S. citizen Sponsor and the marriage occurred less than two years before the Beneficiary is admitted as a U.S. permanent resident. Both spouses need to jointly petition to remove the condition within 90 days before the second anniversary of the Beneficiary's admission as a permanent resident. Failure to do so will result in the termination of the Beneficiary's conditional permanent residence.
Yes, but you need a co-sponsor for the financial supports or you may provide evidence of assets that are readily available and, combining with your total household income, fulfill the income eligibility requirement. Your wife’s income may also be included as your household income if she has been living with you for the last 6 months.
No. But your wife’s income can be included as your household income if she has been living with you for the last 6 months. Household income includes those living with the sponsor for the last 6 month if they are related to the sponsor by birth, marriage, or adoption, and persons listed as dependents on tax return.
Basically to be a co-sponsor, a person must be a U.S. citizen or permanent resident, 18 years of age or older, and must fulfill the domicile requirement, the affidavit requirement, and the income requirement.
Domicile is a person’s principle or actual dwelling place. The U.S. immigration law requires that a co-sponsor must domicile in the U.S., i.e. must have a principle or actual dwelling place in the U.S.
The co-sponsor must have an income 125% above the federal poverty lines.
No. Unlike a sponsor, a co-sponsor is not allowed to combine his/her assets to meet the 125% guideline.
Yes. Under the U.S. immigration law, an affidavit of support is legally enforceable and may be enforced by the sponsored person, the state or federal government or any agency providing a means-tested public benefit.
A fiancé(e) visa is a special visa, K-1, issued to an foreign national who seeks to enter the United States to marry a U.S. citizen. First of all, the U.S. citizen Sponsor has to file a petition with the USCIS. Once approved, the foreign national fiancé will apply for a K-1 visa at a U.S. Consulate overseas. On a K-1 visa, the foreign national has to marry the U.S. citizen Sponsor within 90 days after the foreign national enters the United States.
Yes, in order to maintain legal status, you must be married to the U.S. citizen fiancé who petitioned for you no later than 90 days after your arrival.
Visa waiver entrants are not eligible to apply for an adjustment of status unless their AOS applications are based on an immediate-relative petition by a U.S. citizen filed within the 90-day authorized period.
Yes, but only if you are not subject to the two-year foreign residence requirement. If you are subject to this requirement, you will be able to adjust your status only after you meet the requirement or the requirement has been waived.
You will remain in H-1B status for as long as your H-1B is valid. When your H-1B expires and you did not extend it, you will automatically convert to I-485 pending status.
It is always best to maintain a separate legal status while an AOS petition is pending. In case the adjustment petition is denied. If your AOS were denied and you still had valid H-1B status, you would revert to H-1B status. Without a fallback option, however, you would not have legal status.
If you returned to the U.S. using your advance parole instead of an H-1B visa, you would lose your H-1B status.
Yes. Employment authorization documents (EADs), or work permits, allow you to work for any employer. Note that if you use your EAD to work, however, you will lose your H-1B status.
It will have no effect upon the status of your case. EB-1(a) petitions are self-petitions and do not require a job offer and an employer’s sponsorship. Therefore, you may change your employment and it will have no effect on your case as long as you stay within your field of expertise.
Yes. Some of our clients file two I-140 petitions simultaneously. Some clients file three I-140 petitions at the same time. There is nothing stated in the law that prohibits multiple filings. Multiple filings increase your chances of approval.
A letter of recommendation is a letter written by an expert in the foreign national's field or some otherwise authoritative person in an allied or supporting field. The letter discusses the abilities and accomplishments of the foreign national seeking an EB-1(a). Letters of recommendation are an important part of an EB-1(a) petition.
Recommendation letters should be written by experts or scholars in your field. Usually, our clients ask their former professors, supervisors, co-workers and individuals that they have met at meetings/conferences. Asking one or two people who are less familiar with the foreign national is also recommended, since they are more objective and independent. Anyone that knows your work directly or indirectly and has expertise in the field may write a Letter of Recommendation for you.
Yes, we provide our clients with a sample recommendation letters relevant to foreign national’s particular field.
Recommendation Letters provide the primary supporting evidence for your petition. For instance, they should include the writers' qualifications for their opinion, and your achievements, awards, publishing record, society memberships, etc. Moreover, the letters should tie your situation to the EB-1(a) criteria.
It depends on how long it takes you to gather the recommendation letters and the supporting documents. Usually, it takes a couple of months for you to get everything ready. Once all the documents are in our hands, we will file your case usually within one week of receipt.
It depends. The quickest approval that we have experienced has been 1 day. Generally, USCIS EB-1(a) processing takes six months to one year. Since Nov. 13, 2006, the Premium Processing (PC) service is available, which takes 15 days.
Yes. There is no specific requirement that you need to have published articles in order to apply or obtain approval of an EB-1(a) petition. Having published meets one of the ten criteria for an EB-1(a). However, for scientists, researchers, engineers and other professionals, the requirement of publications is fundamental and easy to satisfy. Conversely, one does not have any publications, one’s EB-1(a) case may be very challenging.
Yes, EB-1(a) does not require a job offer or an employer’s sponsorship.
The EB-1 category currently has immigrant visa numbers immediately available, so you may apply as soon as your petition is approved.. You may apply for adjustment of status after your EB-1(a) approval, or apply for EB-1(a) and Adjustment of Status concurrently.
No. Any foreign national, living either within the U.S. or in a foreign country, may apply for an EB-1 petition, provided, or course, that she meets the relevant requirements.
Yes. Artists and musicians may apply for an EB-1. Our firm has successfully represented many actors, directors, musicians, painters, singers, dancers and other artists.
Yes. They may be filed independently since they are not related. The Labor Certification process is done by the U.S. Department of Labor, whereas the USCIS handles EB-1 petitions. If your Labor Certification is ultimately denied, then you still have a chance of getting an EB-1 approved.
Yes, assuming you would otherwise qualify for an EB-1(a). The standards for an EB-1(a) petition and a Labor Certification are very different. A Labor Certification is based on a lack of available U.S. workers with minimum qualifications for the particular job. By contrast, an EB-1(a) is based on proving that the foreign national possesses "Extraordinary Ability".
Sometimes the USCIS is not convinced that the foreign national petitioning under an EB-1(a) category has adequately proven that she qualifies for the EB-1(a) category. In such cases they will typically make a "Request for Additional Evidence. We always strive to present a strong EB-1(a) case so that it will be approved without a request for additional evidence. Nevertheless, there is no way to predict how a particular USCIS officer reviewing a particular case will respond; sometimes even a very strong case will receive a "Request for Additional Evidence". Even in such situations, our cases are usually approved after we prepare and submit the additional evidence.
We recommend that you consult with our firm for a free consultation. Please kindly e-mail your resume and questions to info@fuessel-law.com.
We have about a 95% success rate for EB-1(a) applications.
No, we cannot promise that your case will result in a successful outcome. However, we can promise you that we will take your case as our own, give it the highest priority, and produce a first-rate product and the highest quality service.
Yes, you need to continue working in the field specified in the filed EB-1(a). If you venture into another area, the USCIS may deny your Adjustment of Status (I-485) or even revoke permanent residency after an Adjustment of Status (I-485) is granted.
The similarities are: 1) neither of them needs Labor Certification; 2) neither of them need an employer’s sponsorship or a job offer.
The similarities are: Neither of them need an employer’s sponsorship or a job offer. The differences are: 1) EB-1(a) is in the employment-based first preference category while NIW is in the employment-based second category. Because of the difference, immigrant visa numbers are available for all EB-1(a) foreign nationals from any country of birth, while there are visa backlogs for NIW foreign nationals who were born in India and China. 2) EB-1(a) requires a higher standard of achievement, while NIW has a more flexible and fluid standard. In addition, 3) the NIW doesn’t have premium processing service.
An H-1B is a nonimmigrant visa or status allowing skilled professionals in specialty occupations to work in the U.S. on a temporary basis. The employer in the H-1B application process is the petitioner, while the foreign national is the beneficiary. The foreign national must usually possess at least a bachelor's degree or an acceptable foreign alternative, although sufficient work experience may serve as a substitute for education requirements. H-1B status is usually given to engineers, professors, researchers, software programmers, and other foreign professionals. Foreign nationals are typically permitted to work for a total of six consecutive years in the U.S. in H-1B status.
DOL stands for the U.S. Department of Labor (DOL), which deals with the prevailing wage and Labor Condition Application (LCA) aspects of an H-1B petition.
A status is a nonimmigrant status issued by USCIS. An A visa is a nonimmigrant visa issued by a U.S. embassy or consulate abroad. Legal status allows you to stay legally in the U.S., while a visa allows you to travel to the U.S. legally and seek admittance. Once you enter the U.S. using an A visa’ you will be in status for a certain duration. In short, status allows you to stay in the country, while a visa allows you to enter the country.
You may apply for an H-1B visa six months before starting the H-1B job, but no earlier than six months. However, due to the H-1B cap, there is a huge rush to submit applications as soon as possible when the filing period begins (usually April 1). For instance, the H-1B cap for fiscal year 2018 was reached five days after the filing period began.
Generally, when an H-1B foreign national has stayed in the U.S. cumulatively for six years, that foreign national is prohibited from further extending his or her H-1B status. Instead, the foreign national is required to change to a different status or leave the United States. An foreign national must stay outside the U.S. for one year before reentering as an H-1B status holder. However, there are some exceptions that allow an H-1B holder to extend H-1B status beyond the six year limit (such as during the green card application process).
LCA stands for Labor Condition Application, which is part of the H-1B nonimmigrant visa application process. An LCA is filed with DOL and contains a series of attestations including, among others, an agreement to pay H-1B employees at least the prevailing wage for the position in question. In most cases, an LCA may be filed online and approval will be received not long thereafter.

PERM stands for “Program Electronic Review Management,” and it is part of the permanent residency application process. PERM is the system used in labor certification applications. The system was developed by DOL to streamline the filing and processing of labor certifications for foreign workers, and went into effect on March 28, 2005. All labor certifications filed after this date are required to be filed in accordance with PERM regulations. In brief, the PERM process requires the petitioning employer to conduct a series of recruitment activities to test the job market before filing the application. If no qualified and willing U.S. workers, including U.S. citizens and permanent residents, are found during recruitment, then the employer can submit a PERM application. When filing, the employer or its attorney must submit ETA Form 9089 either online or by mail. The main distinctions between PERM and the previous labor certification process is that, under PERM, labor certification applications can be submitted online; most cases are adjudicated within a three-month timeframe; recruitment requirements are standardized (and more expansive); and no supporting documentation is required at the time of filing (however, if the PERM application is selected for an audit or review, then such documentation must be filed).

Please note, that the regulatory standards for applying for an LCA are much lower than those governing PERM labor certifications.
Because electronic filing is available, a certified LCA can typically obtained within seven business days of the date we submit an employer’s ETA Form 9035.
Yes, since H-1B-sponsoring employers are required to pay either the prevailing wage or the actual wage paid to similarly situated workers, whichever is greater.
The major employee requirements for H-1B workers are listed below:
  • Specialty occupation: A specialty occupation requires theoretical and practical application of a body of specialized knowledge. Examples of specialty occupations include, but are not limited to: engineers, nurses, professors, researchers, computer programmers, and other professionals.
  • Educational requirements: The position usually requires that the foreign national possess at least a bachelor's degree or its equivalent. If the applicant was awarded his or her degree from an institution not located in the U.S., that degree will have to be evaluated to determine if it is comparable to a U.S. awarded degree. If the foreign national possesses a U.S. degree or its equivalent, no prior employment experience is required.
  • Work experience: If an foreign national does not meet the educational requirements, degree-equivalent experience or training may be substituted. In general, USCIS considers three years of professional experience to be the equivalent of one year of college education.
  • Licensure : If a license is required under state law to practice a specific specialty occupation, the foreign national worker must hold the appropriate license.
H-1B educational requirements specify that the foreign national must possess at least a bachelor's degree or its equivalent. If the applicant was awarded a degree from an institution outside of the U.S., that degree must be evaluated to determine if it is comparable to a U.S. degree. If the foreign national possesses a U.S. degree or its equivalent, no prior employment experience is required. However, professional work experience can be substituted for education: USCIS generally considers three years of professional work experience as the equivalent of one year of college-level education. Using this formula, for example, a foreign national worker lacking a bachelor’s degree would need to have 12 years of relevant work experience to meet the minimum education requirements.
The H-1B “cap” refers to the annual numerical limitation set by Congress on the number of workers authorized to be admitted on H-1B visas (or authorized to change to H-1B status if already in the U.S.). You are subject to the cap if you are applying for a new H-1B visa or if you are petitioning to change your status to H-1B status from another nonimmigrant status (such as F-1, L-1, J-1, etc.). There are actually two H-1B caps: one for applicants with bachelor’s degrees (known as the “regular cap”) and one for applicants with a master’s degree or higher (known as the “master’s cap”). Congress has authorized an annual maximum of 65,000 visas available in the regular cap, and 20,000 visas available in the master’s cap. Among the 65,000 regular cap spaces, a maximum of 6,800 visas is reserved for foreign workers subject to the U.S.-Chile and U.S.-Singapore Free Trade Agreements.
No, exceptions exist. The following H-1B petitions are not subject to the yearly numerical limitations set by Congress:
  • Petitions for H-1B status extensions
  • H-1B petitions sponsored by institutions of higher education (or a related or affiliated nonprofit entity), governmental research organizations, or nonprofit research organizations
  • H-1B petitions for concurrent employment where the foreign national worker is presently in H-1B status that was subject to the H-1B quota
  • H-1B petitions to change employers where the current H-1B holder was subject to the H-1B quota
  • Those who have had H-1B status in the past six years who were subject to the H-1B quota
  • Those seeking H-4 dependent status (i.e. a spouse or children of an H-1B visa holder)
Yes, you can apply for multiple H-1Bs. You are allowed to work for more than one U.S. employer, but must have an I-129 (Petition for Nonimmigrant Worker) filed by each petitioning company. Also, note that as long as you are in H-1B status and have been counted against the H-1B quota in the past six years, your petition to work for another employer concurrently is not subject to the cap.
Yes a U.S. employer may petition for a part-time H-1B job on your behalf. As long as your work hours are at least 50 percent of the normal full-time hours in your industry, and provided you satisfy all other requirements for an H-1B, you can also obtain part-time H-1B status. Alternatively, if you already have H-1B status, you can apply for a concurrent H-1B for another part-time job. In this situation, there is no set number of hours that you must work for each employer. You should ask the new prospective employer to apply for a part-time H-1B visa on your behalf. You are permitted to keep two or more concurrent H-1Bs.
If you would like to change jobs, your new prospective employer must file a new H-1B application and pay all the applicable fees. The procedure is similar to that of the initial H-1B petition filed by your current employer. It generally takes between two and three months to obtain approval of an H-1B petition submitted by a new employer. However, you may begin working for your new employer as soon as the new H-1B petition is filed with USCIS, provided you are not subject to the H-1B quota.
A U.S. employer is permitted to replace H-1B workers with qualified U.S. workers. The H-1B employee has no claim like discrimination since U.S. employers have the statutory right, but not the obligation, to give job preference to U.S. workers over H-1B workers. However, when an H-1B employee is hired, he or she cannot be treated differently from similarly situated U.S. workers.
No. Your H-1B status is tied to your employment. Thus, after your employment is terminated, you are no longer in valid H-1B status, even though your I-94 may still be valid until a later date.
Strictly speaking, no. USCIS has made it clear that there is no such 10-day grace period. H-1B status holders are officially out of valid status at the time their employment is terminated. However, as of January 2017, a new regulation makes available a grace period of up to 60 days for certain nonimmigrants, including H-1B holders, who have fallen out of status. Such a loss of status could stem from the end of authorized employment or even from the sudden loss of an H-1B worker’s job. Note that USCIS has the authority to approve or deny the grace period, and is empowered to stipulate how many days a certain out-of-status H-1B holder can enjoy during an approved grace period.
If you remain in the U.S. after being laid off, any future applications for adjustment of status may be denied for this reason. The longer you stay, the lower your chances of successfully changing to any other status in the future.
Yes, H-1B employees may take long unpaid leave without affecting their status. Keep in mind that if leave is taken, you will not be paid. Furthermore, employers may terminate employment at any time for any reason, and if your employment is terminated, you will lose H-1B status immediately.
Yes, you will be considered to be out of status if your employer asks you to take unpaid leave. Moreover, the employer is in effect “benching” you, which is a violation of immigration law.
You may need to change to another nonimmigrant status (such as an F-1, F-2, or H-4) as soon as possible. As long as you file your change of status application in time, you will be allowed to remain in the U.S. while your case is pending.
If you have never been in H-1B status before and you do not have another permit to work (such as OPTor EAD), you cannot work until after the H-1B is approved. If you are the beneficiary of an H-1B transfer petition and there is no H-1B quota issue, you may legally work for the new employer as soon as the new H-1B petition is filed with USCIS.
H-1B workers are permitted to have dual intent, which means that they can intend to come to the U.S. by way of either nonimmigrant or immigrant pathways. Accordingly, filing an immigrant petition, i.e. either an I-130 or an I-140, won’t affect the status of an H-1B application.
You might want to consider extending or maintaining your H-1B status because if you don’t and your I-485 adjustment is denied, you will be immediately out of status.
No. You can come back to the U.S. with an H-1B visa while your I-485 is still pending. Nevertheless, we suggest you apply for advance parole before you leave the U.S. This way, if for some reason you can’t obtain an H-1B visa overseas, you will still be able to return to the country with advance parole. It is important to note that when you use an H-1B visa to return to the U.S., you must continue working for the H-1B sponsoring employer to keep your I-485 case pending.
You are in parolee status, which means you can still work for your former H-1B sponsoring employer without an EAD card. To get back into H-1B status, you can file for an H-1B extension or change of employer. This act will end your parolee status and return you to H-1B status.
An H-1B holder currently in valid status is allowed to go to school, either part-time or full-time, without an F-1. However, while the H-1B employee is attending school, she must continue to work for her H-1B sponsoring employer. The H-1B employee will not be able to receive a teaching assistantship or compensation from her school, as that would require a change of status from H-1B to F-1. If the H-1B employee does not continue to work for her employer, she will lose H-1B status and must apply for a different status, like F-1.
Yes, a foreign national can own a company in the U.S. There’s no requirement that a business owner be a U.S. citizen or legal permanent resident. However, whether an foreign national may work for her own company is another matter. After all, you need authorization from USCIS to work for any company, including your own.

Your own company may, in some limited situations, apply for H-1B status for you. USCIS will want to see evidence that the new company is able to pay you, as the H-1B worker, at least the prevailing wage, as well as the company’s business plans, business lease, and other documents proving that it is in fact a real company. The company must also demonstrate that there’s a real business need to hire an H-1B worker. Lastly, the employer must have the power to hire, pay, supervise, and fire employees, including you, the foreign national-owner.

Consider these hypothetical case studies.
Yes, an F-1 student can start and own a company in the United States. Theoretically speaking, the bona fide company may sponsor the F-1 student as an H-1B employee. Of course, USCIS will require proof that the new company is able to pay the H-1B holder at least the prevailing wage, and also that there is a real business need to hire this specific H-1B employee. Usually, these two factors are extremely difficult hurdles to overcome for an average F-1 student.
A National Interest Waiver (NIW) petition is part of the employment-based, second-preferenceimmigration category that requests that the otherwise necessary U.S. job offer and labor certificationrequirements be waived for the sake of the "national interest."
Since this is an employment-based, second-preference (EB-2) petition, the beneficiary of an NIW must first qualify as either an "Advanced Degree Professional" or an "Foreign national of Exceptional Ability."
The term "Advanced Degree Professional" means that the beneficiary either has an advanced degree (M.A., M.S., M.E., M.D., or Ph.D.) or its foreign equivalent, and is working in an area that requires at least a bachelor's degree or is traditionally regarded as a profession requiring a high level of postsecondary education, such as a lawyer, doctor, architect, engineer, or professor. In some cases, a bachelor's degree plus five years or progressive experience in a professional occupation may satisfy the requirement of an "advanced degree.” Please keep in mind that applicants holding an advanced degree from a U.S. university or foreign equivalent do not need to additionally prove that they qualify as an "Foreign national of Exceptional Ability."
According to USCIS regulations, this designation refers to an foreign national who demonstrates exceptional ability in the sciences, arts, or business, satisfying at least three of the following conditions:
  • An official academic record showing a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability
  • Evidence in the form of letter(s) from current or former employer(s) showing at least ten years of full-time professional experience
  • A license to practice the profession or certification for a particular profession or occupation
  • Evidence that the foreign national has commanded a salary or other remuneration for services reserved for those with exceptional ability
  • Evidence of membership in professional associations
  • Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.
No, an foreign national applicant needs only to satisfy either the "Advanced Degree Professional" or the "Exceptional Ability" requirement. Proof of both is unnecessary. Please note that qualifying as either one fulfills the minimum requirement for the EB-2 category and that fulfilling either requirement, or even both, does not automatically guarantee a successful NIW case.
There is no minimum number of publications required. USCIS decides each petition on a case-by-case basis.
No. USCIS explicitly modified the NIW rules set forth in NYSDOT in order to avoid confusion about the need to submit evidence related to the labor market. Its new Dhanasar decision avoids such language, as the NIW is specifically intended to waive the labor certification process required for the EB-2 visa.
If you qualify for an employment-based, first-preference petition, you would not need a labor certification. Further, within this first-preference category, if you qualify as an Foreign national of Extraordinary Ability, you additionally would not need a job offer.
No, n foreign national may reside either in the U.S. or abroad. That said, your NIW claim will be more difficult to establish if you apply while living outside the U.S.
Yes. Artists and musicians can apply for an NIW.
Yes. There is no specific requirement of having published articles in order to apply for an NIW or get one approved. However, having published articles could make an NIW petition stronger.
Yes. There is no specific requirement that you need to have awards in order to apply for an NIW or get one approved. However, having awards could make an NIW petition stronger.
Yes. You are not bound by only one immigrant petition (Form I-140). You are allowed to petition under more than one category simultaneously. This increases your odds of getting an approval, since it is impossible to predict whether USCIS will approve any given case.
Yes. You may want to additionally apply for an NIW to improve your chances of getting a petition approved. It is impossible to predict whether USCIS will approve any given case. If the other case is eventually denied, you may still get your NIW petition approved. In addition, some types of petitions require an employer sponsor, and anyone approved under such a petition would be required to work for that employer for at least some time after the associated petition is approved. An NIW requires no employer sponsor, so an foreign national approved for an NIW is not bound to any particular job.
No, they are unrelated. One will not affect the other, either positively or negatively.
You should always keep in mind that filing both an NIW and an EB-1A petition concurrently is an option. However, each petition is different. While overall approval rates for EB-1A petitions tend to be lower, if your case is clearly strong enough to go that route, your chances of success are higher by applying for EB-1A. However, if your case is not as distinguished as successful EB-1A cases should be, an NIW petition would be a more realistic approach.
Yes. U.S. Department of Labor (DOL) handles applications for labor certification, whereas USCIS, which is a part of U.S. Department of Homeland Security (DHS), handles NIW petitions. If your labor certification is ultimately denied, then you still have a chance of getting an NIW application approved. Either way, you would need to petition for an adjustment of status or apply for an immigrant visa. Note that, with respect to a labor certification, you are required to petition under the employer who sought the labor certification, and you would be required to work for that employer for at least some time after your immigrant petition (Form I-140) is approved. With an NIW, you are not bound to any particular employer.
Yes, assuming you would qualify for an NIW. The standards for NIWs and labor certifications are very different. A labor certification is based on a lack of available U.S. workers with minimum qualifications for a particular job. In contrast, an NIW is based on the applicant’s proving that he or she will be more productive and better able to serve national interests than would U.S. workers with minimum qualifications. In other words, there could be a multitude of U.S. workers with minimum qualifications available for a particular job, but the foreign national worker is much better at said job than those with minimum qualifications are. In such a situation, a labor certification would likely be denied, while an NIW has a better chance at ultimately being approved.
Yes. However, you will need to obtain either a J-1 waiver or satisfy the residency requirement before you can adjust your status to permanent resident or acquire an immigrant visa.
No, provided that also you are the petitioner in the NIW petition.
Yes, you are required to continue to work in the field indicated in your NIW petition, since you argued that doing so would be beneficial to U.S. national interests. If you venture into another area, USCIS may deny your application to adjust status (Form I-485) or subsequently revoke your permanent residency.
While there are many similarities between an foreign national who qualifies for an NIW petition and one who would be eligible for an EB-1A or EB-1B petition, the requirements to qualify under each category are considerably distinct. In an NIW petition, foreign nationals must first show that they are highly qualified in their fields, i.e. "Advanced Degree Professional" or "Foreign national of Exceptional Ability.” Applicants also need to demonstrate that they have the capacity to contribute to the national interests of the U.S. to a greater degree than could other highly qualified individuals in the field. Thus, waiving the standard job offer and labor certification requirements would be warranted. In contrast, a person who qualifies under the EB-1 category must show that he or she is an outstanding individual in, and often at the top of, his or her field. According to U.S. immigration law, a top or outstanding individual is not required to obtain labor certification in order to earn employment-based permanent residency.
If you decide to retain us to complete and file your petition, you’ll first need to review a copy of our contract, sign it, and then send it to us, along with the initial attorney's fee. Once we receive the signed, completed contract and payment, we will begin work on your case.
The processing time for any given case can vary considerably.
While our firm is headquartered in Los Angeles. But regardless of where our physical offices are, because immigration law is federal, we are still able to handle cases anywhere in the U.S. and even abroad, which we do by using the latest technology.
No, it isn’t necessary to meet with us face to face, though we enjoy seeing our clients in person. It is seamless to communicate with us via fax, telephone, mail, e-mail, and courier (Fed-Ex, UPS, etc.).
You can always e-mail your resume to info@fuessel-law.com. We will thereafter evaluate your case. Visa and GC processes are complex and, at times, a bit convoluted. We recommend that you seek the assistance of experienced immigration attorneys. Over the past two decades, we have successfully represented thousands of clients in their immigration needs. If you would like to contact us, please call us. You can also send us an e-mail at info@fuessel-law.com.
To determine if you are subject to the two-year Foreign Residency Requirement, check your J visa. If you are required to fulfill the two-year Foreign Residency Requirement the box next to the phrase “subject to the two-year rule” will be checked off. However, if this box is not checked off it does not mean that you are not subject to the rule. Other factors and conditions may apply. We recommend that you seek the advice of an experience immigration attorney to determine if you are subject to the foreign residency requirement. Fuessel Law can provide a preliminary evaluation and determine whether you are subject to the two-year rule ($500 service fee). If interested, please email a copy of your visa and your most recent I-20.
If a J-1 holder is unsure whether he/she has to fulfill the two year foreign residency requirement, they can request an advisory opinion from the Waiver Review Division.
Yes. You may obtain a non-immigrant visa (O, E or F visa) from a U. S. Consulate located in a foreign country. But you may not obtain an H or L visa until you have received either a J-1 Waiver or until you have completed the two-year foreign residency requirement.
Generally, you cannot petition for an Adjustment of Status if you have not yet met the Foreign Residency Requirement. Once you obtain a J-1 waiver, however, you may petition for an Adjustment of Status.

You may also petition for an Adjustment of Status after you complete the two-year Foreign Residency Requirement. You may petition for a permanent resident visa once you begin to live in your home country, but the visa cannot be granted until the Foreign Residency Requirement is completed.
Yes. People who have entered or stayed in the U.S. as J-2 dependents are under the same restrictions as their respective J-1 holder. They are similarly relieved of the restriction if the J-1 holder obtains a J-1 waiver. But if main J-1 obtains a J-1 waiver, J-2 will no longer be subject to this the two-year foreign residence requirement either.
No. The two-year foreign residency requirement must be fulfilled in the country you were residing in at the time you received your J-1 status.
Our attorneys handle their clients' cases individually by preparing petition letters, contacting clients, and following up on pending cases. Our clerks' main objective is to help attorneys prepare clients' packages.
A J-1 Visa is issued to an Exchange Visitor who is participating in an established J Exchange program pre-approved by the State Department. Exchange Visitors onJ-1 visas include secondary school and college students, business trainees, trainees in flight aviation programs, primary and secondary school teachers, college professors, research scholars, medical residents or interns receiving medical training in the U.S., certain specialists, international visitors, and government visitors.
This rule requires some J visa holders to reside in their home country for at least two years before they may obtain an H, L or other immigrant visa to enter the U.S. or adjust their status within the U.S.
A J-2 visa is issued to a child (under age 21) or spouse of a J-1 principal. Once the minor child reaches their 21st birthday, they no longer qualify for a J-2 visa or J-2 status. Also, if the J-2 spouse divorces the J-1 status holder, they no longer qualify for J-2 status. J-2 status holders may study and work while in the United States.
The J program's duration depends on the program category and the J program sponsor. The J program sponsor has full discretion to extend the period within the maximum program's duration period.
Yes, you still have 30 days grace period to legally stay in the US.
Yes. Before you are allowed to apply for a J-1 visa, you are required to have a program sponsor and be accepted into an Exchange Visitor Program.
In addition to having a program sponsor, you must show the consular officer that you plan to stay in the U.S. for only a limited period of time, have enough funds to cover all expenses in the U.S., and that there are significant, binding social and economic ties to the applicant’s country of residence.
The processing time for a J-1 Visa varies from country to country.
Yes. Applicants between the ages of 14 and 79 are required to complete an interview at the consular embassy section. Applicants 13 and younger or 80 and older do not require interviews, unless required by the embassy or consulate.
The valid period of your J-1/J-2 visa varies from the maximum duration of stay for your J program which defines maximum amount of time you may stay participating under your particular J program.
A J-1 holder is allowed to work for the J-1 program sponsor. A J-1 holder may not work for another employer without special authorization.
Educational Institutions, Private Companies, Research Institutions and Governmental Agencies are all examples of organizations that may qualify as J-1 program sponsors, BUT, the entity needs to be pre-approved by the Department of State.
Yes. A J-2 visa holder is permitted to work only after they file Form I-765 Application for Employment Authorization with the USCIS. After approval of this application, the J-2 visa holder is permitted to work.
Yes, a J-2 visa holder can study in the U.S. without changing to F-1 status.
A foreign exchange visitor can apply for a waiver based on one five statutory bases:
  • “No objection” statement from visitor’s home country
  • Request from an Interested U.S. Government Agency (IGA Waiver)
  • Claim of persecution in home country if visitor returns
  • Claim of exceptional hardship to a U.S. citizen or permanent resident spouse or child if visitor returns to home country
  • Request from a designated State Health Agency
The length of the no objection process depends on your particular home country. Some countries process the letter quickly and provide you with a response in a few months, other require up to six (6) months for a no objection determination. According to the State Department’s website, the processing time for a no objection waiver is 6-8 weeks, once ALL documents have been submitted to the State Department.
Yes. J-2 holders are subject to the same residency requirements as their principals.
Yes. If the J-1 principal is successful in having his/her two-year foreign residency requirement waiver, then your two-year residency requirement will also be waived.
According to USCIS regulations, this designation refers to an foreign national who demonstrates exceptional ability in the sciences, arts, or business, satisfying at least three of the following conditions:
  • An official academic record showing a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability
  • Evidence in the form of letter(s) from current or former employer(s) showing at least ten years of full-time professional experience
  • A license to practice the profession or certification for a particular profession or occupation
  • Evidence that the foreign national has commanded a salary or other remuneration for services reserved for those with exceptional ability
  • Evidence of membership in professional associations
  • Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.
In most situations, a J-2 Holder is not allowed to file an independent Waiver petition. If a J-2 holder obtains a divorce from the J-1 principal or if the J-1 principal passes away, an independent waiver petition may be possible. We recommend that you seek the advice of an experienced immigration attorney.
Yes. J-2 holders are subject to the same residency requirements as their principals.
Yes. If the J-1 principal is successful in having his/her two-year foreign residency requirement waiver, then your two-year residency requirement will also be waived.
In most situations, a J-2 Holder is not allowed to file an independent Waiver petition. If a J-2 holder obtains a divorce from the J-1 principal or if the J-1 principal passes away, an independent waiver petition may be possible. We recommend that you seek the advice of an experienced immigration attorney.
A visa is a permit that gives you permission to apply for admission to the U.S. at its borders. Valid U.S. status gives you permission to remain within the U.S. Generally, a foreign national cannot obtain valid U.S. status without first obtaining a visa. However, you may have a valid U.S. visa but be out of status. Conversely, you may have an expired visa and still have valid U.S. status.
You need to obtain a visa at a U.S. Consulate. You will not be allowed to return to the U.S. without a valid visa.
Yes, applying to a U.S. Consulate does not guarantee that you will obtain a visa. A U.S. Consulate has the authority to approve or deny your visa application for any reason.
Yes. To obtain a Third Country Visa from a U.S. Consulate located in Canada, you may be required to obtain a Canadian visa to enter Canada. However, you don't need to apply for a Mexican visa to enter Mexico if you travel within thirty (30) miles from the U.S. border since there are U.S. Consulates located within thirty (30) miles of the U.S. border. Currently, an entry permit is required to enter Mexico, but that is easier to obtain than a visa.
Yes. An appointment is required in order to meet with a U.S. Consul and have a Third Country Visa interview.
If approved, you are given the visa on the same day as the visa interview. At the U.S. Consulate in Juarez, Mexico a visa is typically given to the applicant within two (2) hours after the visa application is approved.
Yes. Upon admittance into the U.S. (at the U.S. Inspection Station located at the border), USCIS will indicate on your visa that you have used an entry.
The TN category is special category created under NAFTA (North American Free Trade Agreement) for qualifying professionals who are nationals of Canada or Mexico. Foreign nationals qualified to enter the U.S. under this category may work for a company located in the U.S. for a temporary period. Moreover, they may also work for a Canadian or Mexican company in the U.S. when those companies are engaged in projects with U.S. based companies.
The initial time limit for a TN professional to work in the U.S. is three years. However, this period may be renewed for three years’ interval indefinitely.
A foreign national must possess the necessary credentials to be considered a qualifying professional under this category. Generally, a Bachelor's degree or higher is usually required to be considered a professional in the TN category. Furthermore, the foreign national must intend to depart the U.S. upon completion of his authorized status. As a result, if the foreign national applies for permanent residence (Form I-485) while he is in TN status, he will have difficulty in obtaining renewal of his TN status. However, a pending or approved I-140 employment based immigrant petition or I-130 family based immigrant petition does NOT impute immigrant intent, and therefore does not affect a TN foreign national’s ability to be admitted into the US as a TN foreign national or to extend TN status. Mexican nationals are required to have TN-2 visas before they may be admitted to the U.S. in this status, whereas Canadian nationals need only apply with the USCIS at the border and bypass the visa requirement.
A foreign exchange visitor can apply for a waiver based on one five statutory bases:
  • “No objection” statement from visitor’s home country
  • Request from an Interested U.S. Government Agency (IGA Waiver)
  • Claim of persecution in home country if visitor returns
  • Claim of exceptional hardship to a U.S. citizen or permanent resident spouse or child if visitor returns to home country
  • Request from a designated State Health Agency
To be qualified as a TN-1, a Canadian professional should meet the following qualification:
  • The applicant must be a Canadian citizen.
  • The applicant must intend to engage in employment in an approved profession and have an offer of employment. For a list of professions listed for this class, please click here.
  • The applicant must possess the necessary credentials to be considered a professional in the approved profession the applicant is applying under. A bachelor's degree or higher is usually required for all approved professions on the list. If the profession requires licensing, then the applicant must possess the requisite license.
  • The applicant must intend to stay in the U.S. for a temporary period. An applicant can be denied TN status because he has a pending immigration petition.
As nationals of Canada, foreign nationals who qualify for TN-1 status are not required to obtain a visa. Therefore, they may apply directly to the USCIS for TN-1 status at the border. The applicant simply presents his evidence to the USCIS at the border and an interviewing officer reviews the evidence and makes a determination of the applicant's qualifications for TN-1 status based on his review of the submitted material. If approved, the applicant is given an I-94 and proceeds to enter the U.S.
The Benefits of TN-1 status for Canadian nationals are as follows:
  • Permission to work in the United States: TN-1 status allows professional workers to enter the United States and work in a professional capacity.
  • Indefinite Renewal: Unlike H-1B status, which usually has a maximum limitation of six years, an foreign national can maintain TN-1 status indefinitely. TN-1 status is granted initially for a period of three years, depending on the employer’s need, and can be renewed for an additional three years after that. There is no limitation on how many times TN-1 status may be renewed.
  • Rapid Processing Time: Unlike other nonimmigrant categories, an application for TN-1 status may be made at the border with a decision being rendered on the day the application is made. There is no long wait for processing after submitting the non-immigrant petition to the USCIS in the U.S. by mail, as is the case with an H-1B petition or even a TN-2 petition.
  • Special TD Status Afforded to Dependents: Dependents of the TN-1 petitioner may apply for a special TD status and accompany the principal petitioner for the duration of his or her stay in the United States.
  • No Need for a Visa/I-129 Application: TN-1 petitioners can come to the U.S. to work in their profession without having to go through consular processing to obtain a visa or apply for Change of Status through the USCIS.
  • No Quota: Unlike H-1B applicants, TN applicants are not subject to an annual quota.
The Benefits of TN-2 status for Mexican nationals are as follow:
  • Permission to Work in the United States: TN-2 status allows professional workers to enter the United States and work in a professional capacity.
  • Indefinite Renewal: Unlike H-1B status, which usually has a limitation of six years, an foreign national can maintain TN-2 status indefinitely. TN-2 status is granted for a period of up to three years depending on the employer’s needs and can be renewed for an additional three years thereafter. There is no limitation on how many times TN-2 status can be renewed.
  • Special TD Status Afforded to Dependents: Dependents of the TN-2 petitioner may apply for a special TD status and accompany the principal petitioner for the duration of his or her stay in the U.S.
  • Low Application Fee: The TN-2 applicant pays a $110 application fee as opposed to upwards of $1,110 in application fees for H-1B status.
  • No Quota: Unlike H-1B applicants, TN-2 applicants are not subject to an annual quota.
You may file an I-129 form to change your current status to TN-1. However, if you and your TN dependents enter the U.S. under the Visa Waiver Pilot Program (VWPP), you and your TN dependents cannot change your status in the U.S. All documents required to obtain TN-1 status must be submitted to the USCIS with the form. However, you can avoid the application fee by going back to Canada and applying for TN-1 status at the border where you would only have to pay a $50 filing fee. In this instance, you need not fill out an I-129, but would simply present the necessary documents to the interviewing officer.
There are five categories of employment based immigration:
  • First Preference (EB-1 priority workers): foreign nationals with extraordinary ability, outstanding professors and researchers, and certain multinational executives and managers.
  • Second Preference (EB-2 workers with advanced degrees or exceptional ability): foreign nationals who are members of the professions holding advanced degrees or their equivalent and foreign nationals who, because of their exceptional ability in the sciences, arts, or business, will substantially benefit the national economic, cultural, or educational interests or welfare of the United States.
  • Third Preference (EB-3 professionals, skilled workers, and other workers): foreign nationals with at least two years of experience as skilled workers, professionals with a baccalaureate degree, and others with less than two years’ experience, such as an unskilled worker who can perform labor for which qualified workers are not available in the United States.
  • Fourth Preference (EB-4 special workers such as those in a religious occupation or vocation): foreign nationals who, for at least two years before applying for admission to the United States, have been a member of a religious denomination that has a non-profit religious organization in the United States, and who will be working in a religious vocation or occupation at the request of the religious organization.
  • Fifth Preference (EB-5 Employment Creation) Entrepreneurs engaging in a new commercial enterprise in the United States.
The immediate relatives of U.S. citizens include parents, spouses and unmarried children under the age of 21. Those relatives do not have to wait for an immigrant visa number to become available once the visa petition filed for them is approved. An immigrant visa number will be immediately available for immediate relatives of U.S. citizens.
These relatives fall into one of the following four preferences:
  • First Preference: Unmarried, adult sons and daughters of U.S. citizens. Adult means 21 years of age or older.
  • Second Preference: Spouses of lawful permanent residents, their unmarried children (under twenty-one), and the unmarried sons and daughters of lawful permanent residents.
  • Third Preference: Married sons and daughters of U.S. citizens.
  • Fourth Preference: Brothers and sisters of adult U.S. citizens.
Permanent residency, obtained through a green card, allows a foreign national to live in work in the United States on a potentially indefinite basis. When a green card is first issued it is often a temporary green card and is valid for two years. After the first two years, providing you have not been convicted of any criminal activity and have maintained your eligibility status, you can apply for a permanent residence visa which is valid for ten years.
Once an individual has been granted a green card, and if they wish to obtain U.S. citizenship through the naturalization process, there are certain requirements which must be met. You must have been physical present in the U.S., as a green card holder, for at least 50% of the time. You must not be away from the U.S. for any more than one year, and ideally less than six months prior to your citizenship application. You must not have committed a serious crime of moral turpitude. You must be able to write and speak English and more. Consult with one of our attorneys in order to get a complete list of the qualifications and requirements.
Factors used in determining a prevailing wage include:
  • Job title
  • Job description
  • Educational and work experience required
  • Job location
  • Type of employer (i.e. academic, government, or private)
Let’s consider the process of determining a prevailing wage through three examples.