US Visas and Consular Processing

WE CAN GET YOUR VISA TO COME TO THE UNITED STATES!

US Visas and Consular Processing

US Visas and Consular Processing

One common misunderstanding is “what is a visa” ? The problem lies in the fact that an immigrant visa (a.k.a “green card”), a visa to enter the U.S. and a “visa” stamped in one’s passport are three completely different things. A visa is one’s passport (now a biometric card) allows a foreign national to apply for entry into the United States at a port-of entry (airport, designated border crossing etc…). Most commonly, a person interviews at a consulate, he/she is issued a “visa” which really is nothing more than a “pass” to board a flight, or to appear at a border port-of-entry to ask for a temporary visitor visa. Upon successful application for a “visa” to enter the U.S., that person is given an I-94 card, which is really the visa. That card will state the amount of time the person is authorized to remain in the United States.Visas are broken into to groups: Immigrant Visas, and Non-Immigrant Visas. The main difference between the two groups is that with an immigrant visa, the person intends to remain in the United States to live, work, and remain indefinitely. A non-immigrant visa is for persons wishing to come to the U.S. for a finite time, then return home.

Consular Processing

Consular Processing

U.S. Consulates process immigrant visas and non-immigrant visas. All foreign nationals seeking a temporary visa, unless from a visa-waiver country, are required to apply for their visa prior to seeking admission into the United States. The term “consular processing” refers to the process of seeking residency (or a “green card”) from outside of the U.S. Thus, one enters the United States as a fully adjusted permanent resident. For spouses of U.S. citizens, this is probably the quickest way to obtain residency.For spouses of U.S. Citizens or legal permanent residents who marry a foreign national who entered the U.S. without inspection (“E.W.I.”), this is the only way to obtain residency (if the spouse is not in removal proceedings), since a waiver of inadmissibility would have to be adjudicated at a consulate. Beginning March 4, 2013, provisional waivers of unlawful presence began enabling certain applicants to apply for the waiver without leaving the United States. I emphasize this because we deal with this issue quite often.

Many U.S. citizens marry someone who has entered illegally and now want to “get the papers” for their spouse. Unfortunately, many people mistakenly believe that marriage to a U.S. citizen confers either automatic citizenship or a right to a “green card”. The issue becomes even more complicated if the spouse has been previously deported. In the case of a single entry without inspection, the spouse will be unable to obtain a “green card” without what is known as a “waiver”. The consulate will be balancing the hardship to the U.S. citizen and family against the undesirability of allowing the (law-breaking) foreign spouse. Only an experienced immigration attorney ought to handle a waiver case.

There is a high success rate at certain consulates for those seeking these waivers, which is good news. No matter what: DO NOT FILE ANYTHING without first seeking the advice of an immigration attorney with experience with inadmissibility waivers. In the case of someone previously deported, there are certain bars of admissibility which may not be waived for 10 years. It may not be advisable to leave the country for this reason. Additionally, there might be a chance to adjust status to permanent resident from within the U.S., depending upon which federal circuit the family resides in. Again, an immigration lawyer is needed to sort all of this out. In addition to the “permanent bar”, there is a federal criminal re-entry statute which could cause a spouse of a USC to end up in a federal prison before his/her deportation from the United States.


Non-Immigrant Visas

This is the most commonly issued visa category. The purpose of entering the U.S. is for tourism, recreation, or to make social visits of friends and relatives. However, coming to “visit” one’s spouse or paramour is a common reason for denial, since such a visit is probably not “temporary”. The applicant needs to prove that his/her visit is not permanent, that he/she has a reason to return. This office frequently prepares clients for consular application of the B-2 visa. There are certain things consular officers really look for in determining one’s intent to return. There is a presumption that a foreign national intends to NOT return when applying for the B-2, and it is the applicant’s burden to overcome the presumption. Being young, single or with little or no significant connection (or financial resources) to your home country presents a difficult case. It is highly likely that without a convincing application with supporting documentation this person would not easily obtain a visitor’s visa.
The K-Visas, spousal and fiancé visas are a hybrid: the person plans to come to the U.S. to apply to remain permanently as an LPR. With the K-1 Visa, a fiancé of a USC enters as a non-immigrant and has 90 days to marry. With the K-3 Spousal Visa, the spouse of a U.S. Citizen may enter the U.S. as a non-immigrant and have a set period of time to apply for residency. Additionally, the V Visa, allows certain alien spouses and children of LPRs to live and work in the U.S. while processing an immigrant visa or adjusting status to LPR. The I-130 Petition for Relative must be have been filed no later than December 21, 2000 to qualify. The problem with these categories, is that the true intention is not non-immigrant, that is, the person is entering fully intending to remain here, live and work etc… What if the spouse, K-3 needs a state driver’s license? Try explaining that to your local DMV! Chances are, your spouse will not be allowed to live here with the same benefits as a person with an immigrant visa under state law. Some people might opt for consular processing , which will grant residency in less time. There are other issues involving income requirements that might counsel for one category over the other. Only an immigration attorney with knowledge in these areas may advise you as to which category might work best in your situation.
The K-Visas, spousal and fiancé visas are a hybrid: the person plans to come to the U.S. to apply to remain permanently as an LPR. With the K-1 Visa, a fiancé of a USC enters as a non-immigrant and has 90 days to marry. With the K-3 Spousal Visa, the spouse of a U.S. Citizen may enter the U.S. as a non-immigrant and have a set period of time to apply for residency. Additionally, the V Visa, allows certain alien spouses and children of LPRs to live and work in the U.S. while processing an immigrant visa or adjusting status to LPR. The I-130 Petition for Relative must be have been filed no later than December 21, 2000 to qualify. The problem with these categories, is that the true intention is not non-immigrant, that is, the person is entering fully intending to remain here, live and work etc… What if the spouse, K-3 needs a state driver’s license? Try explaining that to your local DMV! Chances are, your spouse will not be allowed to live here with the same benefits as a person with an immigrant visa under state law. Some people might opt for consular processing , which will grant residency in less time. There are other issues involving income requirements that might counsel for one category over the other. Only an immigration attorney with knowledge in these areas may advise you as to which category might work best in your situation.
Under the LIFE Act, Section 245(i) of the Act allows certain persons who have an immigrant visa immediately available but who entered without inspection or violated their immigration status and who would also be ineligible to adjust status in the U.S. to apply if they pay a $1,000 penalty. This would avoid having to consular process. Generally, to qualify under 245(i), the family-based petition or labor certification would have had to have been filed prior to April 20, 2001, not be frivolous and approvable when filed. The applicant would also have to show s/he was physically present in the United States since December 21, 2000.

The Exchange Categories: The J & Q Visas

The J-1 exchange visitor visa is available to foreign nations who are bona fide students, scholars, trainees, professors, teachers, research assistants, specialists or leaders in a field of specialized knowledge, or others similarly-situated who are coming to the U.S. to participate in a program, designated by the U.S. Information Agency for the purposes of teaching, studying, consulting, doing research, receiving training, who meet other requirements under Section 212(j). With this category, spouses and minor children may accompany or follow to join the holder of the visa. There are many variations regarding ability to work, length of authorized stay, and categories/qualifications. The J-1 includes, camp counselors, au pairs, international visitors-participating in professional tours, conferences, meetings etc…, and flight trainees inter alia. This category is subject to SEVIS (Student and Exchange Information Systems) tracking requirements. Although medical graduates qualify for this category, international medical graduates seeking clinical training might obtain a greater benefit with the H-1B Visa. There are additional requirements regarding change of status between J-1 to other categories. Your attorney will advise you regarding change of status issues.
The Q Non-Immigrant Cultural Exchange Visa is established through the USCIS (unlike the J Visa which is handled through the Department of State, Bureau of Consular Affairs) to promote international cultural exchange. The visa is granted for 15 months and is intended to promote public exchange of culture, history and customs from the applicant’s home country.
The F Visa is available to persons who pursue academic or language studies in the United States. Prospective F-1 non-immigrant visa holders must first apply at an approved educational institution and receive Form I-20. Once the I-20 is granted, the applicant would then apply at a U.S. Consulate for the visa which is granted “duration of status”, or granted while registered and pursuing the stated program of study. Other than on-campus employment under 20 hours, work authorization is not granted. However, periods of occupational practical and CPT training are available.
The M Visa is a non-immigrant visa available to students enrolled in vocational and technical courses of study. Unlike the F Visa, M status is granted for a fixed period of time (usually one year) and is granted at the U.S. Consulates after an I-20 is obtained directly from participating schools. Optional Practical Training (OPT) is granted one month for every four months of study.
U non-immigrant status is granted for four years (adjustment of status possible after three years of U status) to victims of certain crimes and certain family members. U status is available to applicants who have obtained certification from law enforcement, prosecutor or a judge that the applicant has been or is likely to be helpful in the detection, investigation or the prosecution of certain criminal activity. Generally, most grounds of inadmissiblity are waived concurrent with the filing of a U Visa and form I-192 and current immigration status does not usually affect the likelihood of success. Certain family members may follow to join principal applicants.
S non-immigrant visas may lead to permanent residency if the applicant has material information and substantially contributes to the successful investigation and/or prosecution of criminal or terrorist activity. The applicant’s presence in the U.S. must be necessary to the investigation and/or prosecution of the criminal activity which would also place the applicant at risk of danger for sharing the information.
The T non-immigrant visa is granted for four years to victims of extreme forms of human trafficking who have assisted law enforcement. Human trafficking can include coercive forcing of persons to engage in prostitution, debt bondage, peonage and slavery.

TEMPORARY WORKER VISAS

The H-1B visa is a non-immigrant visa granted for three years, renewable for up to six years for workers employed in specialty occupations requiring a BA degree in the occupation or equivalent experience, except in the case of fashion models or certain artists/musicians of distinguished merit or ability. There are yearly numerical caps which impose a barrier to applicants of the H-1B visa. The H-2A non-immigrant worker visa is available for 364 days to temporary workers in the seasonal or temporary agriculture industries. The employer must provide temporary labor certification that no U.S. workers are available, willing or able to accept the employment and that employment of foreign workers will not adversely affect the U.S. labor force. The H-2A is highly regulated and includes strict rules requiring employer to provide housing, food and transportation to the carrier of the H-2A visa. The H-2B visa is a viable option for businesses involved in: the green industry, (such as landscaping), golf courses, amusement parks, resorts, businesses involved in summer tourism and recreation. If your business has a seasonal need, we can help. To qualify for H-2B visas, both the job itself and the petitioning employer’s need for the specific worker must be temporary. Furthermore, the employment of the foreign applicant must not displace willing U.S. workers who would be capable of performing the same job. The employer’s need must be either a one-time, seasonal, peak load or intermittent need. There are many variations regarding ability to work, length of authorized stay, and categories/qualifications. The J-1 includes, camp counselors, au pairs, international visitors-participating in professional tours, conferences, meetings etc…, and flight trainees inter alia. This category is subject to SEVIS (Student and Exchange Information Systems) tracking requirements. Although medical graduates qualify for this category, international medical graduates seeking clinical training might obtain a greater benefit with the H-1B Visa. There are additional requirements regarding change of status between J-1 to other categories. Your attorney will advise you regarding change of status issues.
The L-1 Non-immigrant visa is available to employees (and their families) of companies that have offices abroad and in the U.S., or who are abroad and seek to start-up a company in the U.S. The employees must have worked at least one year at the foreign affiliate within the previous three years to apply. The relationship the U.S. and foreign companies must be parent-subsidiary, branch-headquarter, sister affiliate with common U.S. owner or be a U.S. start-up. Two classes of the visa exist: L-1A executive or manager and L-1B workers with specialized knowledge. The L-1A visa is available for up to seven years and the L-1B is available for up to five years. The L visa does provide for a path to permanent residency.
R non-immigrant visas grant up to five years of status to temporary religious workers who seek to enter the U.S. to work as ministers or in religious vocations/occupations for non-profit U.S. religious organizations. The applicant must show membership in the organization for at least two years prior to being admitted in R-1 status.

ENTERTAINERS: O & P VISA

O non-immigrant visas are available for three years with unlimited one year extension to applicants who can prove they posses extraordinary ability in the sciences, arts, education, business or athletics or who have a demonstrated record of extraordinary achievement in the motion picture or television industries and can show national or international acclaim.
P non-immigrant visas benefit temporary employees in the arts, entertainment, sports fields with international acclaim or who are part of an organized reciprocal exchange or culturally-unique program

INVESTOR VISAS /TREATY TRADERS: The E Visas

Treat Trader E-1non-immigrant visas are granted to applicants who carry on substantial trade principally between the U.S. and treaty country in the services, technology industries. E-2 Treaty Investor non-immigrant visas are granted in two-year renewable increments to applicants of certain countries and their derivative spouses and children. Work authorization is granted to both the principal applicant and her derivatives. Investment in the U.S. must be “substantial”. E-3 non-immigrant work visas for Australians are valid for two years and are renewable indefinitely and are not subject to the onerous H-1B caps. The employer must file a labor certification application, the same as per H-1B, but will indicate “E-3″ on the forms.
The C Visa is a transit visa available for crewmen, foreign representatives and NATO/G-4 families (C,D,N) for immediate transit through the United States. The visa covers those without any visas (TWOV) as well as international-to-international passengers moving through the same airport to make an international connection.
I Visas are available to representatives of the foreign media fir holders of certain press credentials (if offered by the home country, free lance workers with valid contracts, tourist bureau representatives, where the U.S. and the home country have reciprocal agreements.
The “visa lottery” is available to applicants of certain countries who are under-represented by per-capita quotas. Applicants under VWP are allowed to enter the United States without the necessity of applying for a visitor’s visa

IMMIGRANT VISAS

are for foreign nationals who wish to remain in the U.S. permanently or indefinitely in either the employer-based or family-based category
EB-1 Visas grant permanent residency to priority workers of “extraordinary ability” in the sciences, arts, education, business or athletics by meet 3/10 published criteria. Outstanding professors/researchers and certain executives/managers of foreign companies who are transferred to the U.S. also fit the EB-1 preference category.
EB-2 Visas are preference visas available to members of the professions holding advanced degrees (or equivalency) who are of exceptional ability in the sciences, arts or business that will substantially benefit the national economy, culture or education in the U.S. An employer must file a labor certification application (or a national interest waiver must be obtained), provide a job offer to the applicant and file an I-140 petition. The applicant must have an advanced degree, BA/BS degree or equivalent in the field.
EB-3 Visas are preference visas available to skilled workers (2 years experience), professionals (with BA degree), and other workers (unskilled and not seeking seasonal or temporary positions with the employer). The sposoring employer must file a labor certification and offer a permanent full-time position. The wait times for this category to become current are notoriously long.

Employment-based

EB-4 Visas are granted to certain special immigrants such as religious workers, broacasters, Iraqi interpreters, Iraqi’s who assisted the U.S., international organization workers, physicians, armed forces members, Panama Canal Zone wemplyees, retired NATO-6 employees or spouses and children of deceased NATO-6 employees, special immigrant juveniles (court dependents).
EB-5 Visas are granted to applicants who have invested $1,000 or $500,000 (Targeted Employment Area) for a conditional permanent residence period of two years. Within 90 days of the expiration of the 2 years, the applicant must file a petition to remove the conditions by showing that full investment has been made and that the business maintains 10 U.S. Citizen workers. Once the conditions are removed, the holder becomes a full legal permanent resident. The beneficiary of EB-5 may bring derivative spouses and children to the U.S who are also authorized to work.

Family-sponsored preferences

Unmarried sons or daughters of U.S. Citizens
Spouses or unmarried children of Legal Permanent Residents
Unmarried sons and daughters of U.S. Citizens
Siblings of U.S. Citizens

Refugee-based

A refugee is a person outside her country who because of a a “well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group or political opinion” who is unable or unwilling to return to that country and who cannot seek protection from the country of nationality. Refugees are granted status prior to entering the U.S., however asylees seek asylum within one year of arrival into the U.S. Others may seek benefits under The Convention Against Torture, INA With Holding of removal after one-year in the United States has passed-even before the immigration judge in removal proceedings. Asylees and refugees may apply for permanent residency after one-year of status, while benefits under the CAT/deferral or withholding applicant only obtain work authorization and may not seek adjustment of status.