Immigration

How Do I Get a Temporary Visa?

US immigration laws allow persons born in foreign countries to enter the U.S. temporarily as tourists, to do business, to attend school, to be employed, and to engage in a variety of other activities.

Temporary visas are identified by a letter of the alphabet followed by a hyphen and a number. For example, several million people visit the U.S. each year as "B-2" tourists. Many thousands of "F-1" academic students and "M-1" vocational students attend schools and universities. Between 50,000 and 65,000 persons are granted temporary "H-1B" professional working visas annually.

Temporary visas are also known as "nonimmigrant" visas. They are issued by U.S. Embassies and Consulates located around the world. U.S. consular officers presume that you intend to stay permanently in the U.S. unless you can demonstrate through strong ties to your home country that you will not remain in the U.S. after the expiration of your authorized stay.

If your application is approved, the consular officer will affix a visa to your passport. The visa contains your photograph as well as other identifying information. Nonimmigrant visas expire after a certain period of time and may be valid for one or more entries into the U.S.

The issuance of a visa does not guarantee that you will be admitted into the U.S. The INS Immigration Inspector at the airport decides whether to admit you into the U.S. and for how long. If the Immigration Inspector denies you admission, you have the right to request a hearing before an Immigration Judge. The Judge has the authority to overrule the Immigration Inspector.

How Do I Qualify for a Temporary Work Visa?

There are a number of types of temporary visas which allow you to be employed in the U.S. What follows is a short list of some of the most common types of temporary work visas:

• Treaty traders (E-1) - If you are an owner or a key employee of a business which conducts a substantial volume of trade between the U.S. and your country of citizenship, you may be eligible for E-1 status.

  To qualify, your country must have an appropriate treaty with the U.S. Countries which have E-1 treaties with the U.S. include Argentina, Australia, Austria, Belgium, Bolivia, Brunei, Canada, China (Taiwan), Colombia, Costa Rica, Denmark, Estonia, Ethiopia, Finland, France, Germany, Greece, Honduras, Iran, Ireland, Israel, Italy, Japan, Korea, Latvia, Liberia, Luxembourg, Mexico, Netherlands, Norway, Oman, Pakistan, Philippines, Spain, Suriname, Sweden, Switzerland, Thailand, Togo, Turkey, United Kingdom and Yugoslavia.

• Treaty investors (E-2) - If you are an owner or a key employee of a company where a substantial amount of capital has been invested in the U.S. and jobs have been created for U.S. workers, you may be eligible for E-2 status.

  To qualify, your country must have an appropriate treaty with the U.S. Countries which have E-2 treaties with the U.S. include Argentina, Armenia, Australia, Austria, Bangladesh, Belgium, Bosnia-Herzegovina, Bulgaria, Cameroon, Canada, China (Taiwan), Colombia, the Congo, the Czech Republic, Ecuador, Ireland, Italy, Japan, Kazakhstan, Korea, Kyrgyzstan, Liberia, Luxembourg, Mexico, Morocco, Moldovia, Netherlands, Norway, Oman, Pakistan, Panama, Philippines, Poland, Romania, Senegal, Slovakia, Spain, Sri Lanka, Suriname, Sweden, Switzerland, Thailand, Togo, Tunisia, Turkey, United Kingdom, Yugoslavia and Zaire. A number of other E-2 treaties have been signed, but are awaiting ratification by either the U.S. or the other country involved.

• Specialty Occupations (H-1B) - Up to 65,000 professional employees may receive visas annually to work for U.S. employers. The employer must certify to the government that you will be employed in an occupation for which the minimum entry requirement is a university degree. In addition, the employer must pay you at the average or "prevailing" wage rate for persons in your occupation and geographic location. Usually, H-1B status will be granted in three-year increments, with a maximum duration of six years. H-1B employees include, but are not limited to, accountants, architects, computer programmers/systems analysts, dentists, engineers, financial analysts, medical technologists, occupational therapists, pharmacists, physical therapists, physicians, researchers, scientists and teachers.

• Exchange Visitors (J-1) - The U.S. Information Agency (USIA) permits a wide variety of organizations and universities to sponsor persons as exchange visitors. Some programs allow you to be employed while other programs are for students only. Programs which involve governmental funding, skills enumerated on the USIA's Exchange Visitors Skills List, or graduate medical training subject you to a two-year foreign residency requirement. This means that upon completion of your program, you are obligated to return to your home country for a minimum of two years. "The foreign residency requirement may be overcome by (1) obtaining a "no objection" letter from your native country (not available to those pursuing medical residencies or fellowships in the US), (2) showing that your spouse or children who are either US citizens or permanent residents will suffer "exceptional hardship" if you are required to return to your home country for two years, (3) demonstrating that you have a well-founded fear of persecution if you return to your home countr; or (4) sponsorship from certain interested governmental agencies. In each of these cases, approval from the USIA and/or the INS is required".

• Intracompany Transferees (L-1) - If you are an executive, manager or a person with specialized knowledge who is employed by a company abroad, you may transfer to the U.S. branch of the company (or to a parent, affiliate or subsidiary company in the U.S.) to assume a similar position. To qualify, you must have been employed in a similar position for the foreign-based company during one of the past three years before you entered the U.S. The maximum duration of L-1 status is seven years for executives and managers and five years for persons with specialized knowledge.

• Persons of Extraordinary Ability (O) - If you are a person of extraordinary ability in the arts, sciences, education, business or athletics, you may be granted an O-1 visa. If you are accompanying an O-1 visaholder in an artistic or athletic performance, you may qualify for an O-2 visa.

• Athletes and Entertainers (P) - If you are an athlete who has performed individually, or as part of a group or team, at an internationally- recognized level of performance, you may be issued a P-1 visa. P-1 visas are also available to entertainers who perform in a group which has attained international recognition. Artists and entertainers who enter the U.S. under a reciprocal exchange program may be granted P-2 visas while those entering in a culturally unique program may receive P-3 status.

• Religious Workers (R-1) - If you are coming to the U.S. as a minister or have a religious vocation or occupation, you may qualify for an R-1 visa. You must have been a member of the religious denomination for the previous two years and be coming to the U.S. to work for a bona fide nonprofit religious organization. The maximum duration for R-1 status is five years.

• Family members - In each of the above categories, your spouse and unmarried children under 21 years of age may accompany you to the U.S.. However, as a general rule, family members are not permitted to work in the U.S.

How Do I Obtain Permanent Residence (Green Card)?

As a Permanent Resident, you have the right to live and work in the U.S. for the rest of your life. You must pay taxes, contribute to social security, and register for the military draft if you are a male between the ages of 18 and 26. However, you may not vote or hold public office, and certain jobs are not open to you. You are restricted in the amount of time that you may spend outside of the U.S. and are limited as to which relatives you may sponsor for permanent residence. If you are convicted of a serious crime, or otherwise violate the immigration laws, you may be subject to expulsion from the U.S.

You may become a permanent resident by any of the following methods:

• Relatives in the United States - Most of the persons who become permanent residents each year are sponsored by close relatives who are U.S. citizens or permanent residents. U.S. citizens may petition for their spouses, parents, brothers and sisters, and sons and daughters (whether they are married or single, and whether they are minors or adults). Permanent residents may only petition for their spouses and their unmarried sons and daughters.

  Immediate Relatives (parents, spouses, and children of U.S. citizens - children being unmarried and under 21 years of age, and, in the case of a parent of a U.S. citizen, the petitioning son or daughter being at least 21 years of age, widows and widowers of U.S. citizens provided that the widow(er) was the spouse of the citizen for at least two years prior to the citizen's death and was not legally separated from the citizen at the time of his or her death) have first claim on "relative" visas, without regard to number limitations. The number of immediate relatives who are granted visas visas is subtracted from the total number of family - sponsored visas available. Regardless of how many immediate relatives are granted visas annually, at least 226, 000 visas will be available to persons in four Family Preference categories:

1st Preference - Unmarried sons and daughters of U.S. citizens (23,400 annually, plus any unused visas from the 4th Preference category, if any).

2nd Preference - Spouses and unmarried sons and daughters of lawful permanent residents (114,200 annually, plus the amount by which visas allocated to the family preference categories exceeds 226,000, plus unused visas from the 1st Preference category, if any).

3rd Preference - Married sons and daughters of U.S. citizens (23,400 annually, plus unused visas from the 1st and 2nd Preference categories, if any).

4th Preference - Brothers and sisters of U.S. citizens (65,000 annually, plus unused visas from the 1st, 2nd and 3rd Preference categories, if any).

• Marriage to a United States Citizen - If you marry a citizen in the US, you may submit an application for permanent residence to the INS office having jurisdiction over your residence. Typically, the INS will issue you a work card and a travel permit (also known as an "advance parole") while you wait to be interviewed. Depending on the INS office, waiting times for marriage interviews range from two months to over one year.

  The INS will determine if you are residing together by examining your identification, wedding photographs, tax returns, insurance policies and by questioning you and your spouse. If the INS has any doubts as to the bona fides of your marriage, they may question you and your spouse separately, and may conduct an investigation at your places of residence and employment.

  If your marriage occurs abroad, you must process the immigration paperwork at the U.S . Embassy or Consulate in your country. The procedure is roughly the same as in the U.S. except that the waiting time usually ranges from three to six months.

  If the marriage is less than two years old when you become a permanent resident, your green card will expire two years after you become a permanent resident. You and your spouse will be required to submit a joint petition to INS to remove this two-year condition within the 90-day period immediately preceding the expiration of your green card. If the marriage has terminated because of death or divorce, or if you are the victim of spousal abuse, you may apply to INS for a waiver of the joint petition requirement.

• Employment - Up to 140,000 persons are permitted to immigrate annually based upon their employment. Priority workers (persons of extraordinary ability in the arts, sciences, education, business or athletics, outstanding researchers and professors, and certain executives and managers of multinational companies) and persons of exceptional ability and holders of advanced degrees may immigrate if they are able to demonstrate to the Labor Department that there are no U.S. workers qualified and available to assume their jobs, or that their presence in the U.S. is in the "national interest". Professionals with bachelors degrees, skilled workers and a limited number of unskilled workers may immigrate if their employers can demonstrate the unavailability of qualified U.S. workers to the Labor Department. Finally, a small number of "special immigrants", primarily religious ministers and other religious workers, are permitted to immigrate through employment.

• Investment in the United States - Up to 10,000 investors and their families may immigrate to the U.S. annually. To qualify, you must invest a minimum of one million dollars ($500,000 if the investment is made in a rural or high- unemployment area) in a new commercial enterprise and employ a minimum of ten full-time U.S. workers.

• Asylum (Refugee status) - The U.S. accepts approximately 100,000 refugees and asylees annually. Refugees apply abroad to immigrate to the U.S. They must demonstrate that they have a "well-founded fear of persecution" in their home countries. Asylees are similar to refugees except that they are present in the U.S. when they request asylum.

• Visa Lottery - 55,000 people each year are chosen at random to immigrate from millions of applicants for the diversity visa lottery, with frequent changes in the rules regarding who can apply. This is because most persons who immigrate to the U.S. through relatives and employment are from Asia and Latin America. The aim of the visa lottery is to insure "diversity" in immigration. For example, persons born in "high-immigration" countries (Canada,Mexico, China (PRC and Taiwan), India, Philippines, Vietnam, South Korea, Poland, United Kingdom, Jamaica, El Salvador, Colombia and the Dominican Republic) are ineligible to apply for the visa lottery in certain years.

• Cancellation of Removal Proceedings - Even someone who is not legally present in the US, may under certain circumstances, be eligible for permanent residence: An alien in removal proceedings may apply for a green card from an Immigration Judge if he has been in th US for at least ten years before being placed under removal proceedings; is a person of good moral character; and can demonstrate that it would be an"extreme hardship" to his US citizen or permanent resident spouse, parent(s) or child(ren) if he were forced to leave the US. The Immigration Judge may grant permanent residence to such a person at his discretion, subject certain restrictions.

How Do I Avoid Deportation if I am In the United States Illegally?

If an Immigration Judge finds you to be illegally present in the United States, it does not necessarily follow that you will be deported. The laws provides you with many types of relief from deportation:

• Waiver - The immigration law enumerates various grounds by which an alien in the United States may be subject to deportation. A common ground of deportability provides that an alien may be subject to deportation if he was excludable when he entered the United States. There are many grounds of excludability found in the law.

  Eligibility for waivers of deportability and excludability depend upon your ability to show "extreme hardship" to certain close family members who are US citizens or permanent residents if you are forced to leave the US . For example, if you have resided in the US for seven years, at least five of which were as a permanent resident, you may be able to qualify for a waiver of many grounds of deportability and excludability. However, recent laws severely limit your ability to obtain such a waiver if you were convicted of any wide range of crimes.

• Cancellation of Removal - A deportable alien may apply for permanent residence from an Immigration Judge through Cancellation of Removal if he meets the following requirements:

• Continuously physical presence in the U.S. for at least ten years before being placed in removal proceedings (absence of less than 90 days, or 180 days in total do not affect the continuity of one's physical presence).
• Good moral character.
• No convictions of certain designated (criminal) offenses.
• Showing that removal would result in exceptional and extremely unusual hardship to his US citizen or permanent resident spouse, parent or child.

• Adjustment of Status to Permanent Residence - A deportable alien who is an "immediate relative" because he is the parent, spouse, widow or child of a US citizen may be eligible to apply to the Judge to adjust his status to that of a lawful permanent resident. Also qualified to apply for adjustment of status is any alien whose priority date for permanent residence is "current".

  Aliens who obtained conditional permanent residence based upon their marriage, or the marriage of their alien parent, to a US citizen or permanent resident may have their legal status terminated by the INS if they fail to meet certain requirements. However, once INS places them under deportation proceedings, they may renew their applications for permanent residence before an Immigration Judge. The same holds true for an alien who becomes a conditional permanent resident based on investment.

• Asylum - Those who have a well-founded fear of persecution if they return to their home country may apply for asylum if their fear is based on any of the following grounds:

• Political opinion
• Religious belief
• Nationality
• Race
• Membership in a particular social group

If a person is granted asylum, after one year he may apply for permanent resident status.

• Withholding of deportation - Similar to asylum, with the following two exceptions

• The alien is not permitted to apply for permanent residence, and
• The INS is only prohibited from deporting the alien to the country where he fears persecution, not to third countries which are willing to accept him.

• Legalization and Registry - Once an illegal alien has been found qualified for legalization or "amnesty" by the INS, the deportation hearing will typically be terminated since the alien will have attained the legal right to remain in the United States.

  Registry is another means of attaining lawful permanent residence in the United States. It is available to aliens who have resided continuously in the U.S. since prior to January 1, 1972, who are persons of good moral character, who are not deportable on certain aggravated grounds, and who are not ineligible for citizenship. Registry may be applied for affirmatively, not only as a defense to deportation.

• Voluntary Departure - If you are ineligible for all of the above forms of relief from deportation, you should still consider applying for voluntary departure. Departing voluntarily from the U.S. avoids both the stigma and the legal impediments to return to the U.S. imposed by deportation.

  Voluntary departure is available to aliens who are not deportable on aggravated grounds, who have the means to pay for their departure from the United States, who agree to depart within a period of time granted by the Immigration Judge, and who can establish good moral character during the previous five-year period.

All forms of relief from deportation, except withholding of deportation, may be granted at the discretion of an Immigration Judge. Final orders of an Immigration Judge may be appealed to the Board of Immigration Appeals, and from there to the appropriate U.S. Court of Appeals.

How Do I Become a United States Citizen?

You may become a citizen in one of three ways:

• Birth in the US - The 14th Amendment to the Constitution provides that anyone born in the US is a citizen of the US. Therefore, children born in the US are citizens whether their parents are citizens, permanent residents, temporary visaholders or illegal aliens. The only children born in the US to whom this rule does not apply are the children of foreign diplomats.

• Naturalization - In general, you must satisfy the five following requirements in order to become a citizen through naturalization:

• Residency - Most persons must first attain permanent residence before applying for naturalization. The primary exception to this rule are persons who served in the U.S. armed forces during a period of hostilities designated by the President.

  You must be a permanent resident for five years before becoming naturalized although the law permits you to apply for naturalization 90 days prior to completing the residency period.

  If you are married to a US. citizen, you may be eligible for naturalization within three years if you have been married to a US citizen for three years, your spouse has been a citizen for the entire three-year period, and you are living in "marital unity".

  If you are a member of the US armed forces, you may be eligible to naturalize without any specific period of residence if you are a permanent resident, you have served on active duty for a period of three years or more, and you are serving honorably, or were given an honorable discharge. If you have been discharged, you must apply for naturalization within six months to take advantage of this rule.

  If you are the spouse of a US citizen who is assigned to work abroad by the US government or by certain designated companies or organizations, residency rules may not apply to you.

  Departure from the US for a period of six months or more creates a rebuttable presumption that you have abandoned your residency. A departure for one year or more creates a conclusive presumption that you have abandoned your residency. Some people who obtain Re-Entry Permits in order to exit the US for more than one year may preserve their residency but may still break their residency for naturalization purposes unless they take further steps to preserve it.

• Physical Presence - You must demonstrate that you have been physically present in the US during at least half of the required period of residency . That is, you must actually reside in the US for two and one-half out of the five years immediately preceding your interview for naturalization, or one and one-half of the previous three years.

• Loyalty - You must renounce your allegiance to your home country and pledge loyalty to the US when you take the oath of allegiance to the US at your naturalization ceremony. Despite this renunciation, some countries continue to consider you as a citizen of your former country of citizenship. It is wise to check with the embassy of your country of citizenship prior to becoming a naturalized US citizen.

• Good Moral Character - You must submit a completed fingerprint chart to the government as part of your application for naturalization. The chart is forwarded to the FBI which notifies INS whether you have a criminal record. Applicants with serious criminal records and those who obtained their green cards through fraud may not be able to establish good moral character. Some may even be susceptible to deportation.

• English - You must be able to speak, read, write and understand simple words and phrases in the English language. Some elderly, longtime permanent residents and those with certain disabilities are exempt from the English requirement.

• History and Government - You are required to pass a short examination regarding the history and government of the US.

• Can you name the 13 original states?
• Who said, "Give me liberty or give me death"?
• What is the Bill of Rights?
• In what year was the Constitution written?
• Who wrote the Star-Spangled Banner?
• How many Supreme Court Justices are there? What are the three branches of the government?

• Obtaining citizenship through your parents - You may become a US citizen "by acquisition" at birth if one or both of your parents were US citizens at the time of your birth. If only one of your parents was a citizen at the time of your birth, that parent (or grandparent in some cases) has to have lived a specified period of time in the US prior to your birth in order to transmit citizenship to you.

You may also become a US citizen through your parents "by derivation" if you become a permanent resident and your parent(s) naturalize while you are below a certain age.

To obtain proof of citizenship, you may apply for a U.S. Passport or for a Certification of Citizenship or Naturalization at any time.

*Neither by accessing this site or by reviewing its contents has an attorney-client relationship been formed or established, and nothing contained in this site shall constitute the giving or rendering of legal advice or be construed as a legal opinion, or guarantee of a particular resolution of a legal problem. Information is provided as a public service, and is not intended to be a substitute for legal counsel. The information provided is general in nature and may not apply to your circumstances, particularly if you do not live in Missouri. You should not decide to take any action or refrain from action based upon this information only. Under no circumstances should you make legal decisions based upon the information provided on this web site. You should consult an attorney in person before making any important decision involving a legal matter.