Welcome to the Kapoor Law Group Immigration Resouce Center. Here you will find general information on immigration and nationality law, listings of various government processing times, and useful links. For specific information and advice concerning your immigration or citizenship issue, please contact us.
Welcome to The Kapoor Law Group vLog Series! Your leading resource for all things U.S. Immigration & Nationality Law.
This month's feature has managing partner, Romy Kapoor, discussing the H-1B process in the USA. For more information, please contact KLG for a consultation here.
Permanent Visa Overview
Permanent immigration is the ultimate goal of many people entering or planning to enter the United States. Lawful permanent residency offers individuals a multitude of benefits, including the freedom to live and work permanently in the U.S. Potential immigrants should be as informed about the laws as possible. That's why our firm is dedicated to providing you with a complete online database of immigration information. Immigrants to the United States are divided into two categories:
1. Individuals who may acquire permanent residency without numerical
limitation.
2. Individuals subject to a yearly limitation. There are three divisions of this
category: family-based; employment-based; and diversity immigrants. Please
use the links in the right column to broaden your knowledge on the different
paths to permanent residency in the United States.
One of the most widely used methods to obtain permanent resident status in the United States is through employment. There are five classifications for employment-based immigration. Please click on the category that best suits your situation.
EB-1 Priority workers
1. Individuals with extraordinary ability in the sciences, arts, education,
business or athletics.
2. Outstanding professors and researchers
3. Multinational managers and executives transferred to the U.S.
EB-2 Professionals with advanced degrees or persons with exceptional ability
1. Individuals with exceptional ability in the sciences, arts or business
2. Professionals with advanced degrees
EB-3 Skilled workers, professionals, and other workers
1. Professionals with bachelor's degree or foreign equivalent
2. Skilled workers with at least two years experience, training or
post-secondary education
3. Other workers with less than two years of training or experience.
EB-4 Special Immigrants
1. Religious workers
2. Persons seeking reacquisition of U.S. citizenship, or returning
residents who have been outside the U.S. for an extended period of
time.
EB-5 Immigrant Investors
Foreign investors who purchase or create a new US enterprise:
1. Invest or be actively in the process of investing US$1 million (may be as
little as US $500,000 for investment in a targeted employment area)
and
2. Create at least 10 new full-time positions for US citizen or immigrant
workers within 2 years
The EB-1 classification is available to individuals with extraordinary ability in the arts, sciences, education, business or athletics; to outstanding professors or researchers; and to multinational managers and executives transferred to the U.S.
Individuals with extraordinary ability may self-petition. All other EB-1 petitions should be filed by a sponsoring employer. An I-140 Immigrant Petition is filed on behalf of the foreign national with the Immigration's Service Center. Labor certification through the U.S. Department of Labor is not required for EB-1 petitions.
Aliens with extraordinary ability are defined by the immigration service as individuals with "extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation." Such stature may be shown through the submission of a one-time, major internationally recognized award such as a Nobel Prize, or by providing documentation of any three of the following:
1. Receipt of lesser recognized prizes or awards for excellence.
2. Membership in associations in the field which require outstanding
achievement of their members, as judged by recognized national or
international experts.
3. Published material about the person in professional or major trade
publications or other major media.
4. Participation as a judge of the work of others.
5. Evidence of original scientific, scholastic, artistic, athletic or business-
related contributions of major significance.
6. Authorship of scholarly articles in the field.
7. Artistic exhibitions or showcases.
8. Performance in a leading or cultural role for organizations or
establishments that have a distinguished reputation.
9. High salary or remuneration in relation to others in the field.
10. Commercial success in the performing arts.
Outstanding professors and researchers must demonstrate a recognition as being outstanding in the field. They must be be coming to the U.S. to accept a tenure (or tenure track) teaching position, or a comparable position at a university or institution of higher education to conduct research, or a comparable position to conduct research with certain types of private employers. Additionally, the foreign national should have had at least three years of teaching or research experience in the academic field. Finally, evidence of the individual's stature in the field should include at least two of the following:
1. Receipt of major prizes or awards for outstanding achievement.
2. Membership in an association which requires outstanding
achievement.
3. Published material in professional publications written by others about
the applicant’s work.
4. Evidence of the person’s participation as a judge of the work of others.
5. Evidence of original scientific research.
6. Authorship of scholarly books or articles in the field.
EB-1 multinational managers or executives are for those individuals who are being transferred to the U.S. by their foreign employer in order to continue to render services to the same employer or to a subsidiary or affiliate of the foreign employer. The foreign national must have been employed outside the U.S. as a manager or executive for at least one out of the past three years.
The EB-2 classification is open to individuals with exceptional ability in the sciences, arts or business, as well as professionals with advanced degrees.
The employer will file a Form I-140 Immigrant Petition with the immigration's Service Center. Labor certification from the U.S. Department of Labor is also required for most EB-2 petitions. However, certain individuals may request a waiver of the labor certification requirement if such a waiver would be in the national interest based on the type and significance of work the individual does.
For classification as an Advanced Degree Professional, the position must require a member of the professions holding an advanced degree as reflected in the job offer portion of the Labor Certification Application, and the individual must possess an advanced degree as shown by a master's degree or its equivalent. The immigration regulations find a Bachelor's degree plus five years of progressively responsible experience to be the equivalent of a Master's degree.
For classification under EB-2 as a Person of Exceptional Ability, it must be shown that the person possesses a degree of expertise in the field significantly above that ordinarily encountered. Specifically evidence of at least three of the following must be submitted:
1. Degree relating to area of exceptional ability;
2. Letter from current or former employer showing at least 10 years
experience;
3. License to practice profession;
4. Person has commanded a salary or remuneration demonstrating
exceptional ability;
5. Membership in professional association;
6. Recognition for achievements and significant contributions to the
industry or field by peers, governmental entities, or professional or
business organization.
Comparable evidence, including expert opinion letters, may be submitted if above categories are inapplicable.
The EB-3 classification includes individuals with at least two years experience, training or post-secondary education as skilled workers, professionals with bachelors' degrees, and other workers with lesser skills who can contribute abilities unavailable in the U.S.
The employer will file a Form I-140 Immigrant Petition with the immigration's Service Center. EB-3 petitions also require an approved Labor Certification Application from the U.S. Department of Labor.
For EB-3 classification as a Skilled Worker, it must be shown that the offered position requires (as reflected in the minimum requirements listed in the labor certification application), and the individual possesses, at least two years of experience, training, and/or post-secondary education.
EB-3 Professionals must show that the position requires, and the individual possesses, a minimum of a Bachelor's degree or the equivalent.
The Other Workers category are for those positions and individuals with less than two years of training and/or work experience.
The EB-4 classification is a broad one which includes religious workers, as well as persons seeking reacquisition of U.S. citizenship and returning residents who have been outside the U.S. for an extended period of time.
Immigrant Religious Workers
The basic requirements to qualify for an immigrant visa as a religious worker include:
The foreign national, for the immediate past two years, must have been a member of a religious denomination having a bona fide, nonprofit organization in the United States. And is now seeking to enter the U.S. to: 1) carry on his/her vocation as a minister; 2) work in a professional capacity in a religious vocation or occupation; or 3) work for the religous organization or a nonprofit affiliate in a religious vocation or occupation.
The employer will file a Form I-360 Immigration Petition with the immigration's Regional Service Center that has jurisdiction over the location of the proposed employment. Once approved the foreign national will file either an immigrant visa application with the U.S. Embassy/Consulate or an Application for Adjustment of Status to Permanent Resident if already lawfully in the U.S. as a nonimmigrant.
Family Based Immigration Overview
One method to obtaining lawful permanent resident status in the United States is through certain relatives who are either a citizen of the U.S. or a lawful permanent resident. It is important to note that Lawful Permanent Residence does not automatically grant U.S. citizenship. Also permanent residence can be considered abandoned if the individual spends an extended time outside the U.S., and permanent residents can be deported if subject to a specific ground of deportation such as the commission of a drug offense.
Immediate Relatives
There are two categories of unlimited family-based immigration:
1. Immediate Relatives of U.S. Citizens (IR): A parent, spouse, widow or
unmarried child under the age of 21 of a U.S. citizen.
2. Returning Residents (SB): Immigrants who previously lived inthe U.S. under
lawful permanent resident status. These individuals should be returning to
live in the U.S. after being abroad for more than one year.
Preference Relatives
There are four preference categories for limited family-based immigration:
1. First Preference -- Unmarried sons and daughters (children who are 21 years
or older) of U.S. citizens.
2. Second Preference -- (A) Spouses and unmarried children (under the age of
21 years) of lawful permanent residents of the U.S.; and (B) unmarried sons
and daughters (21+ year old children) of U.S. lawful permanent residents.
3. Third Preference -- Married sons and daughters of U.S. citizens.
4. Fourth Preference -- Brothers and Sisters of U.S. citizens.
The U.S. citizen or permanent resident relative will first submit an I-130 Immigrant Petition with the immigration's Regional Service Center with jurisdiction over the petitioner's residence. The petition packet must include proof of the petitioner's status as a U.S. citizen or permanent resident, along with proof of the claimed relationship to the beneficiary.
Upon approval of this petition, the file will be sent to the U.S. Department of State's National Visa Center, who will determine if an immigrant visa is currently available for the beneficiary based on the preference category and priority date assigned (date that the petition was received by the immigration service). When a number becomes available, the NVC will initiate the immigrant visa application process for the beneficiary through the appropriate U.S. Embassy or Consulate.
Certain immediate relatives who are already in the U.S. may apply for adjustment of their status to permanent residence concurrently with the filing of the immigrant petition.
K Visas
The K-1 Visa is for the fiancé(e) of a U.S. citizen who seeks to enter the U.S. for the sole purpose of marrying the U.S. citizen petitioner. Upon entry, the couple must marry within 90 days. The foreign national may then apply for adjustment of status to U.S. permanent resident. Minor children of the fiancé(e) may accompany him or her with a K-2 visa. Both K-1 and K-2 nonimmigrants are authorized to work in the U.S.
Process: The U.S. citizen files an I-129F petition with the U.S. Citizenship & Immigration Services with proof that they have a bona fide intention to marry within 90 days of the fiancé(e)’s entry; that there are no legal impediments to the marriage; and that the couple has previously met in person within two years of filing the petition. The criminal record, if any, of the USC petitioner must also be submitted where he or she was convicted of any of the following crimes:
Once the petition is approved by USCIS, it is valid for four months, and can be re-validated for 4-month periods. The approved petition is first sent to the U.S. Department of State’s National Visa Center in the U.S., and then on to the U.S. Embassy or Consulate where the foreign national is scheduled to appear for interview and issuance of the visa.
The K-3 Visa is for a foreign national who has a valid marriage to a U.S. citizen who has filed an I-130 immigrant petition with USCIS on the foreign national’s behalf, and the foreign national seeks to enter the U.S. to await the approval of the immigrant petition. The minor child/ren of the foreign national spouse may be issued a K-4 visa. K-3/K-4 nonimmigrants are admitted for two years initially (with one extension possible) and are eligible to apply for employment authorization. Once the I-130 is approved, the foreign national beneficiary may apply for adjustment of status with USCIS or for an immigrant visa with the U.S. Embassy/Consulate.
Process: The U.S. citizen files an I-129F petition with USCIS, along with proof that the I-130 has been filed with USCIS. The same criminal record documents mentioned above must also be submitted if applicable. Once approved, the petition is sent to the National Visa Center for processing of the criminal background check on the foreign national, and then to the U.S. Embassy/Consulate for processing of the K-3 visa. However, if the I-130 has already been approved and sent to the U.S. Embassy/Consulate, then the K-3 will not be issued and instead the immigrant visa will be processed there.
Diversity Lottery
The Diversity Lottery Program allocates up to 55,000 new immigrant visas each year for individuals from underrepresented or low admission nations. A nation is considered underrepresented if less than 50,000 people from that nation immigrated to the U.S. in the past five years.
To be eligible for the Diversity Lottery Program, the foreign national must have either a high school diploma or its equivalent, or two years of work experience within the last five years in a job which demands two years training or experience. The foreign national or his/her spouse must be a native of a nation eligible for the Diversity Lottery Program. In some instances elibility may be had if the applicant's parent was born in a country eligible to participate in the lottery. The Diversity Lottery Program randomly picks 110,000 visa candidates, although only approximatley 1/2 of those selected will actually get the immigrant visa. Individuals are chosen to receive the visa by chance, not by merit.
Each year, the Department of State publishes specific instructions on how to apply for the Diversity Visa, which may be found on their web site at http://dvlottery.state.gov . These instructions are typically made available in August, and the registration period usually begins in early October.
Do NOT retain the services of any organization that says they can improve your chances of being selected due to their connections or secret processing strategies. They are trying to steal your money. Applying under the lottery program is generally something you can do yourself. But if you want assistance, you should contact a qualified immigration attorney .
Ayslum and Refugee Status
Under U.S. law a refugee is defined as any person outside their country of nationality, or in the case of a person having no nationality, their last habitual residence, who is unable or unwilling to return to, and is unable or unwilling to avail themselves of the protection of that country because of persecution or a “well founded fear” of persecution on account of race, religion, nationality, membership in a particular social group or political opinion. Spouses and children of refugees are admitted as refugees even if they would not qualify as such on their own.
An asylee is a person who meets the definition of refugee, but who is either physically present in the U.S. or is at a land border or port of entry of the U.S. at the time they seek refuge.
A person who presents themselves at the border and requests asylum or expresses a fear of persecution if returned home is referred to an Asylum Officer who determines whether the person has a credible fear of persecution. If so, then the person is referred to an Immigration Judge to present their asylum claim.
A person may also file an affirmative application for asylum after entry to the U.S. with the Asylum Office. However, the application must be filed within one year of arrival in the U.S., unless there were changed circumstances or extraordinary circumstances. The Asylum Office may grant, deny or refer an applicant to a removal hearing before an Immigration Judge where the applicant can renew their asylum claim.
Finally, a person placed in removal proceedings may file, defensively, an application for asylum with the Immigration Judge.
EB Immigration Overview
EB-1 Priority Workers
EB-2 Advanced Degree Professionals/Exceptional Ability
EB-3 Professionals, Skilled Workers, and Other Workers
FB Immigration Overview
Overview
Employment Based
Immigration
Family Based
Ayslum and Refugee
Status
Temporary Visa Overview
The non-immigrant visa classifications cover a broad range of visas used to enter the United States temporarily for work, pleasure or study. Some visas are considered "dual intent" ones where you may also attempt to obtain U.S. permanent residence (a "green card") while under that classification. Most non-immigrant visas, however, require you to demonstrate a non-immigrant intent. Thus, you should be prepared to prove that you have a permanent residence in your home country that you have no intention of abandoning. The duration of time you may spend in the US can range from a few days to several years, depending on the visa category. In most situations, your spouse and unmarried children under the age of 21 may accompany you on a derivative visa.
F-1 Students
The wide variety of educational facilities in the United States offer great opportunities for students wishing to further their education and training. The intellectual stimulation and social experiences of studying in the US will be vital parts of a student's growth and development.
Foreign national students who want to study in the US usually apply for the F-1 visa. Although the J-1 and M-1 Visas (for vocational students) are sometimes used, most foreign students enter in F-1 status.
Your spouse and unmarried children under the age of 21 are allowed to join you in the US, under F-2 status. A prospective student's Form I-20A-B may be used to request an F-2 visa.
If your spouse and/or dependant children are joining you later, they will need to submit Form I-20A-B, endorsed from the school you are attending. F-2 visa holders cannot work while in the US.
Steps
You must first apply and be accepted to a USCIS approved school in the US.
If admitted, the school will issue you a USCIS Form I-20 A-B/ID (Certificate of Eligibility).
You must submit your visa application form, Form I-20A-B and other required documents at the US Consulate, Consular Office or US Embassy with jurisdiction over your place of permanent residence.
Forms
To apply for an F-1 Visa, you must supply the following documents:
1. A completed visa application Form DS-156. Separate applications for
each person are required.
2. One recent photograph 1.5 inches (37mm) square of each applicant,
with the entire face visible. The picture should be taken before a light
background and without head covering.
3. A passport, valid for travel to the United States for at least six months
longer than your intended visit.
4. A letter of admission from the school you plan to attend.
5. A signed Form I-20A-B.
6. Proof that you have the economic funds necessary to support yourself
while studying in the US.
7. Demonstration of nonimmigrant intent.
M-1 Vocational/Technical Students
The M-1 visa offers a great opportunity for students to train in a positive US environment and strengthen their technical and non-academic skills. The M-1 visa is offered to students who wish to pursue full-time study at an USCIS approved vocational or non-academic school in the United States.
These schools are usually community and junior colleges that offer vocational and technical training or vocational high schools. The schools must prove their international students program will reach certain educational objectives and will not be used to make students work.
Your spouse and unmarried children under the age of 21 are allowed to join you in the US, under M-2 status. A prospective student's Form I-20M-N may be used to request an M-2 visa.
If your spouse and/or dependant children are joining you later, they will need to submit Form I-20M-N, endorsed from the school you are attending. M-2 visa holders can not work while in the US.
You must first apply and be accepted to an USCIS approved school in the US.
If admitted, the school will issue you an USCIS Form I-20 M-N/ID (Certificate of Eligibility).
You must submit your visa application form, Form I-20M-N and other required documents at the US Consulate, Consular Office or US Embassy with jurisdiction over your place of permanent residence.
To apply for an M-1 Visa, you must supply the following documents:
2. One recent photograph 1.5 inches (37mm) square, with the entire face
visible. The picture should be taken before a light background and
without head covering.
5. A signed Form I-20M-N.
6. Proof that you have the economic funds to support yourself while
studying in the US.
H-1B Professional Workers
The laws regarding the H-1B visa are in constant flux and applicants seriously considering this category as a means of working in the US on a temporary basis should stay informed and updated as much as possible. Because an applican'ts circumstances and the circumstances of his dependent family members may require special attention, the following information is not tailored to any one individual but provides general information about this category.
The H-1B visa allows foreign workers to enter the US and work in a variety of fields ranging from architecture and engineering to health and medicine. The H-1B visa offers a wide range of employment possibilities and is a logical first step toward permanent immigration.
In order to qualify for H-1B classification, the applicant must have at least a US bachelors degree or its equivalent AND the job sought must require at least a bachelors degree or its equivalent. Because this is not a self-petitioning category, the applicant must have a sponsoring employer in the US.
The spouse and unmarried children below the age of 21 are allowed to accompany or join the H-1B worker as H-4 dependents. However, they cannot work unless they qualify for a work visa. H-4 dependents can enroll and attend schools in the US without obtaining a student visa.
Because the H-1B visa requires a US sponsor, the applicant must seek a US employer who is willing to hire the applicant temporarily, pay the applicant the prevailing wage for the offered position and file the petition and supporting documents with Immigration.
The petition process begins with the sponsoring employer filing a Labor Condition Application (LCA) with the Department of Labor. Upon obtaining an approved LCA the employer files the petition with Immigration. The petition must be filed with documentation that shows the job is a professional or specialty occupation and that the H-1B applicant is qualified for the position.
The sponsoring employer must file Form I-129 (Petition for Non-immigrant worker) and H supplement with the Immigration office having jurisdiction over the place of employment. The filing fee for an H-1B petition is currently $190. There is also a $500 anti-fraud fee, as well as a training fee that must be paid by the employer and is either $1,500 (company has 26 or more employees) or $750 (less than 26 employees). All employers must complete and file Form I-129DC with the Form I-129 petition.
If either the employer or the foreign national wishes to expedite the H-1B petition so an initial determination is made within 15 days of the filing, premium processing may be requested for an additional fee of $1,000. The request is made by completing Form I-907.
After approval, Immigration will send Form I-797 (Notice of Action) to the employer. The employer then notifies the applicant and sends all the required documents to the applicant who can then apply for his H-1B visa at the US consulate in his home country if necessary.
Documents
Both the applicant and the employer are required to submit documents for the H-1B visa.
In general, the applicant is required to submit the following documents when applying for an H-1B visa abroad:
1. A completed visa application (Form DS 156) with one recent photograph,
1.5 inches square (37mm x 37mm), of each applicant, with the entire
face visible. The picture should be taken before a light background and
2. A passport valid for travel to the United States for at least six months
3. Form I-797 (Notice of Action)
4. Copy of the approved Labor Condition Application (LCA)
5. Copy of the filed and approved I-129H petition and supporting
documentation which should include:
* the applicants academic record,
* education evaluation verifying that the applicants foreign academic
record is equivalent to a US bachelors degree,
* resume,
* recommendation letters from previous employers (if required),
* proof of any membership in relevant trade or professional
organizations, and
* a letter from your employer detailing the job and its requirements.
6. Current or updated letter from the employer confirming its intention to
hire the applicant according the terms and conditions on its approved
petition.
