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The Indian Merchants' Chamber and Cyrus Nallaseth's US immigration consultancy firm organised a seminar in Mumbai recently on the rules governing issuance of visas to foreigners by the United States.
Cyrus Nallaseth, president of the US Immigration Lawyer's Association, while speaking about immigration to the US enumerated the types of visas and the procedure behind obtaining them.
He also held forth on the various problems immigrants face while applying for visas, and explained how to go about dealing with the consular officers, what kind of documentation is required, and the circumstances under which non-immigrant visas are denied.
Types of non-immigrant visas
How to obtain a temporary visa to enter the US
The Immigration law allows persons born in foreign countries to enter the US temporarily as tourists, for business, to attend school, to be employed and or for some other reasons and activities.
Temporary visas are identified and issued as a letter of the alphabet along with a hyphen and a number.
For example, millions of people visit the US each year as B-2 tourists. Then students get F-1 visas. There are also a fixed number of persons who are granted temporary H-1B professional working visas annually.
These temporary visas are also known as non-immigrant visas and are issued by US embassies and consulates around the world.
There is a presumption by these US Consular officers that visitors intend to stay permanently in the US unless they (the visitors) can prove through strong personal, professional and other evidence that they will not remain in the US after the expiration of the authorized stay.
If a person's application is approved he or she will be issued a visa, which contains the person's photograph and other identifying information and which will be affixed to the passport.
Non-immigrant visas expire after a certain period of time and may be valid for one (single entry visa) or more entries (multiple entry visa) into the US.
The issuance of a visa does not, however, automatically guarantee that the person will be admitted into the US. The INS immigration inspector at the airport makes the final determination whether to admit the person into the US and for how long.
If he denies admission, the person has the right to request a hearing before an immigration judge who has the authority to overrule the immigration inspector.
Different categories of temporary work visas
There are a number of temporary visas which allow a person to work or be employed in the US. The most common of the temporary work visas are:
Treaty traders (E-1)
Owners and key employees of businesses, which conduct a substantial volume of trade between the US and the country of citizenship, may be eligible for E-1 status as treaty traders.
To qualify, the person's country of citizenship must have an appropriate treaty with America.
Countries which have E-1 treaties with the US include Argentina, Australia, Austria, Belgium, Bolivia, Brunei, Canada, China (Taiwan), Colombia, Costa Rica, Denmark, Estonia, Ethiopia, Finland, France, Georgia, Germany, Greece, Honduras, Iran*, Ireland, Israel, Italy, Jamaica, Japan, Korea, Latvia, Liberia, Luxembourg, Mexico, Netherlands, Norway, Oman, Pakistan, Paraguay, Philippines, Spain, Sri Lanka, Suriname, Sweden, Switzerland, Thailand, Togo, Turkey, the United Kingdom and Yugoslavia (valid also for Bosnia-Herzegovina, Croatia, Macedonia, and Slovenia).
Treaty investors (E-2)
Owners or key employees of a company that has invested a substantial amount of capital in the US and because of which jobs have been created for US workers, may be eligible for E-2 status as treaty investors.
To qualify the person's country of citizenship must have an appropriate treaty with the US.
Countries which have E-2 treaties with the US include Argentina, Armenia, Australia, Austria, Bangladesh, Belgium, Bulgaria, Cameroon, Canada, China (Taiwan), Colombia, Republic of Congo, Democratic Republic of Congo, Costa Rica, Czech Republic, Ecuador, Egypt, Estonia, Ethiopia, Finland, France, Georgia, Germany, Grenada, Honduras, Iran*, Ireland, Italy, Jamaica, Japan, Kazakhstan, Korea, Kyrgyzstan, Liberia, Luxembourg, Mexico, Moldova, Mongolia, Morocco, Netherlands, Norway, Oman, Pakistan, Panama, Paraguay, Philippines, Poland, Romania, Senegal, Slovak Republic, Spain, Sri Lanka, Suriname, Sweden, Switzerland, Thailand, Togo, Trinidad and Tobago, Tunisia, Turkey, Ukraine, UK, and Yugoslavia (valid also for Bosnia-Herzegovina, Croatia, Macedonia and Slovenia).
(* Treaty with Iran inoperative as long as the Executive Order remains in place preventing trade with Iran.) The list of treaty countries changes often as new treaties are signed and ratified by both the US and the other country.
Specialty occupations (H1B)
Up to 195,000 professional employees may receive H1B visas annually to work for US employers. This number will be valid for fiscal years 2001, 2002 and 2003. After that, the number will revert to 65,000 per year. Usually, H1B status will be granted in three-year increments, with a maximum duration of six years.
The six-year clock is paused if the person leaves the US for one year. At the end of six years, the person must leave the US for a period of at least a year before being eligible to apply again.
H-1B employees include, but are not limited to, accountants, architects, computer programmers/systems analysts, dentists, dieticians, engineers, financial analysts, graphic designers, industrial designers, journalists, medical technologists, occupational therapists, physical therapists, pharmacists, physicians, researchers, scientists and teachers.
The basic requirement includes a job offer from a US employer, with the prospective employee possessing a minimum of a bachelor's degree or its equivalent. The employer must also certify that you will be employed in an occupation for which the minimum qualification required is a university degree. In addition the employer must pay a salary commensurate with the prevailing wage rate for persons in that occupation and geographic location.
Exchange visitors (J-1)
The US Information Agency permits a wide variety of organisations, universities and other educational institutions to sponsor persons as exchange visitors on the J-1 visa.
Some programmes allow you to be employed, while others are for students only.
Persons with skills listed on the Exchange Visitors Skills list, programmes that involve government funding or graduate medical training must comply with a two-year home residency requirement.
This means that upon completion of your program, you must return to your home country for a minimum of two years.
This requirement, however, may be overcome by 1) obtaining a no objection letter from your home country, (not for those doing a medical residency or fellowship in the US; 2) showing that exceptional hardship' will be suffered by your spouse or children who are either permanent residents or US citizens; 3) that there is a well founded fear of persecution in your home country or 4) sponsorship by certain interested government agencies.
In each case approval from the INS and/or the USIA is required.
Intra-company transferees (L-1)
Executives, managers, or persons with specialised knowledge employed in a company abroad, may transfer to the branch, affiliate, subsidiary or to the parent company in the US to assume a similar position.
To qualify, the individual must have been employed in one of the above capacities, for the foreign-based company during one of the past three years before entering the US.
The maximum duration of status on an L-1 visa is seven years for executives and managers and five years for persons with specialised knowledge.
Persons of extraordinary ability (O)
If you are a person of extraordinary ability in the arts, sciences, education, business or sports you may be granted an O-1 visa. If you are accompanying an O-1 visa holder in an artistic or sporting performance, you may qualify for an O-2 visa.
Athletes and entertainers (P)
An athlete who performs individually or as part of a team, at an international level of performance and also entertainers who perform in a group that has attained international recognition may be issued P-1 visas.
A P-2 visa is issued to artists and entertainers under a reciprocal exchange program and a P-3 visa is issued for those entering in a culturally unique program.
Religious workers (R-1)
Those coming to the US as ministers or having a religious vocation or occupation may qualify for an R-1 visa provided they have been members of the religious denomination for the previous two years and are coming to the US to work for a non profit bona fide religious organization.
The maximum duration of for an R-1 status is five years.
Family members of the aforementioned categories: In each of these categories the spouse and unmarried children under 21 years of age will be given accompanying visas.
However, as a general rule they will not be permitted to work in the US.
How can you obtain a green card
A Green card, also known as a Permanent Resident Card or Alien Registration Receipt Card or Form I-551, is a plastic card which evidences lawful permanent residence and connotes immigrant status.
It authorises the person named on the card to live and work in the US indefinitely or permanently.
However, it is not evidence of US citizenship. Alien registration cards used to be green, hence the term 'green card', which has now become part of immigration jargon. Nowadays, the card is pinkish white, and contains information that includes your photo, fingerprint and signature, file or case number, magnetic strips and other security features.
A person who has been granted lawful permanent residence (LPR) status, but who has not yet received the plastic card, may have or be entitled to a temporary stamp in his/her passport stating 'temporary evidence of lawful permanent residence.'
You may become a permanent resident and obtain a green card by any of the following methods:
Difference between Lawful Permanent Resident and a US Citizen
A lawful permanent resident is an immigrant who is in or coming to the US to live permanently. An LPR may continue to hold the citizenship of his/her country of origin.
After a period of time (a minimum of 5 years), an LPR can apply for US citizenship.
An LPR can lose permanent residence if during this period he or she fails to keep the US as the primary place of residence.
Both LPRs as well as US citizens can work and live anywhere in the US; must serve in the US military if asked or drafted; can own real and personal property in the US and must file US tax returns.
However, only a US citizen has the right to vote (an LPR may not) and only a US citizen may hold public office (an LPR usually may not).
Some jobs requiring security clearances and some government jobs also require US citizenship.
An LPR can lose this status by committing certain crimes, abandoning residence in the US, receiving certain kinds of welfare, and committing some other deportable or excludable acts.
A US Citizen cannot lose his or her citizenship.
Difference between visa and I-94
A visa is like a permit allowing a person from one country to travel to another country. The visa is issued by a consulate or embassy of the host country where you plan to visit.
The visa is stamped on the passport and allows the person to enter the country that he/she wishes to visit.
Presentation of a valid passport and visa to a border officer (at a land, sea or airport) is much like knocking on someone's door and asking for permission to enter.
So, for example, if you are from India and would like to visit the US as a non-immigrant, you will need to go to a US consulate in India and obtain a visa.
If approved, the visa will be stamped on your Indian passport. You may then present yourself, along with both the visa and passport to the border agent at your port of entry into the US.
Visas for travel to the US are not obtained from within the US, except within a very limited circumstance called visa revalidation. You must obtain a visa at one of the many US consulates or embassies located in your home country.
The issuance of a visa does not, however, automatically guarantee that you will be admitted into the US.
The immigration officer at the port of entry of the US, will inspect you to determine if you indeed do qualify for the visa and plan to carry on the activity for which the visa is authorized.
You will then be issued a form I-94 or arrival card which will be stapled into your passport. The I-94 will be stamped with your entry date and the expiration date for that particular visa type valid for that particular entry.
It must be clearly understood that the dates on the I-94 govern that particular entry. The card is also very important proof of lawful status, and for keeping track of all legal entries.
Note that date of expiry written on the I-94 may be much earlier than the expiration date stamped on the visa.
This is common for tourists who may have obtained a10 year multiple entry visa. For a tourist, the maximum time allowed for each entry is six months only.
Although extensions are permissible, the date written by the immigration officer on the I-94 date and any amendments thereafter control the amount of permissible stay and status type.
Visa dates and I-94 expiration dates could also differ for other reasons, usually having to do with reciprocity agreements that may exist between the US and other countries.
Again, the I-94 date would control the length of stay for that particular entry. So remember to always look at the I-94 to determine your correct date of departure from the US or file for a timely extension of stay or change of status.
Procedure for obtaining permanent residence through relatives
Family-based immigrants are admitted to the US either as immediate relatives of US citizens or through the family preference system.
'Immediate relatives' of US citizens include parents, spouses, and unmarried children under the age of 21, and remain exempt from the numerical limitations and have the first claim on this category of family sponsored visas.
However, the number of immediate relatives who obtain visas are subtracted from the total number of family sponsored visas available.
The definition of immediate relative has been expanded under the 1990 law to include widows and widowers of US citizens, provided 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/her death.
Such spouse must file a permanent residence petition within two years of the citizen's death and before remarriage.
There are four categories in the family preference system under which you could obtain permanent residency through relatives. They are:
Under the 1990 Immigration Act, the number of visas allocated to family sponsored immigrants, including immediate relatives, now stands at 480,000 visas per year.
However, the number of immediate relatives who obtain visas are subtracted from the total number of family sponsored visas available.
If there are any unused visas from the employment based categories, they may be used in the family preference categories.
The formula is as follows:
Total number of family sponsored visas minus the number of immediate relatives who immigrated during the previous year equals the number of visas available to the above four categories.
However the law also states that notwithstanding the number of immediate relatives who immigrated to the US in a single year a floor of at least 226,000 visas will remain available to the four family preference categories.
Most of the increase in the number of family preference visas was allocated to individuals falling under the second preference category.
However there is still a huge worldwide backlog for all the above categories.
Obtaining permanent residency through employment
The law allocates 140,000 immigrant visas to employment-sponsored immigrants and their families. These are distributed amongst the following categories:
The first employment-based preference (EB-1) or priority workers consists of:
The second employment-based preference (EB-2) consists of:
Exceptional ability has been held to mean expertise significantly above that ordinarily encountered and the possession of a degree or license does not by itself constitute exceptional ability.
Unlike priority workers under this category, the person must have a job offer from a US company and such employer must obtain a labour certification, unless these requirements are waived by the INS on grounds of national interest.
The third employment based preference (EB-3) includes:
All the above may only immigrate to the US after their employers obtain a labor certification for their jobs.
The fourth and fifth employment-based preferences include:
National Interest Waiver
The employment-based second preference category involves members of the professions who hold advanced degrees and individuals of exceptional ability in the arts, sciences or business.
Although this category generally requires an employer and labor certification, the attorney general may waive this requirement if the work by the foreign national is in the national interest.
To qualify for a such a waiver, the individual's work must benefit the US in the national interest. Since the term national interest has not been defined in the statute, certain factors are taken into account in determining national interest.
These factors include improvement of, the US economy, wages and working conditions for US workers, education, health care, the environment and housing.
An interested government agency request is an added factor, which is given considerable weight by the INS.
The approvals in this category have become more difficult to obtain since August 1998, due to a case known as the New York State Department of Transportation case.
INS is scrutinising these petitions more carefully and in many instances is applying a higher standard similar to the extraordinary ability standard.
How to obtain permanent residency through investment
Nallaseth said that in order to qualify as an immigrant investor, the individual must invest at least $1 million in a new commercial enterprise, which employs at least ten US citizens on a full-time basis (exclusive of the individual, spouse, and children).
If the investment is made either in a rural area or an area experiencing high unemployment, the minimum investment may be reduced to $500,000, but the latter option has a restricted quota of 3,000 investor visas for what are termed targeted investment areas.
Due to the limited number of people applying under this category, the INS has issued regulations allowing more subjective and less literal readings of the law in these cases.
However, because of fraud issues, there is a two-year conditional status accorded to such investors, similar to the conditional status of spouses of US citizens.
The condition is removed if at the end of two years the investor remains in full compliance with the law.
Unlike the temporary treaty investor visa (E-2), which is available only to citizens from those countries which have investment treaties with the US, the immigrant investor (EB-5) can come from any country.
State Department Visa Bulletin
Most family and employment based immigration is numerically limited, with each category and country having its own set quota.
Because the demand for green cards far exceeds the supply, the State department issues a monthly visa bulletin, which allows you to determine how long it will take you to obtain your permanent residency, depending upon the visa category and your country of birth.
It is important to keep track of the movement to determine how long the backlog will be before your turn will arise.
He said becoming a permanent residence by marriage to a US citizen is one of the fastest and easiest methods of obtaining permanent residence.
Unfortunately because of a high incidence of sham marriages, if the government determines that a marriage is not bona fide both criminal and civil proceedings may be imposed.
If the US citizen resides in the US:
An application to the INS office having jurisdiction over your residence is the first step. The papers filed can include applications for employment authorisation and a travel permit.
The INS issues the employment authorisation and temporary travel permit early in the process, while you wait to be interviewed (also known as advance parole).
You will be scheduled for an interview, which may take place between two months to a year after filing the application, depending on the INS office.
The INS will examine your identification, wedding photographs and documents (such as marriage certificate, tax returns and insurance documents) and interview you to establish the legitimacy of the marriage.
If unconvinced, they may conduct separate interviews and investigate at your places of work and residence.
If the US citizen resides abroad and the marriage takes place abroad:
The immigration paperwork is generally processed at the appropriate US consulate. At some locations, it is possible to file all the paperwork directly at the consulate. In other cases it is necessary to first submit a form to the INS.
After that form is approved, the remaining processing, including the interview, takes place at the consulate. The procedure is similar but the waiting time may be less.
Conditional Green Card:
If your marriage is less than two years old when permanent residency is granted, the green card will expire in two years.
Your spouse and you will be required to submit a joint petition to remove the two-year condition within the 90-day period immediately preceding the green card expiration.
If your marriage has been terminated due to death or divorce, or if you are a victim of spousal abuse, then you may apply to the INS for a waiver of the joint petition requirement.
Visa Lottery System
Every year the State Department sponsors a diversity visa lottery. The purpose is to encourage immigration from persons born in parts of the world that do not at present have many immigrants in the US.
The rules permit only one entry to be submitted per applicant. And entries are selected at random by the computer, subject to certain numerical restrictions.
The visas will be apportioned among six geographic areas - Africa, Asia, Europe, North America, Oceania and South America. More visas will go to those regions that have lower immigration numbers.
With limited exceptions citizens of the following countries are not eligible for the DV-99 Visa Lottery: China, Taiwan, India, Philippines, Vietnam, South Korea, Poland, Canada, U.K. and it's dependent territories (except N. Ireland) Mexico, Jamaica, El Salvador, Columbia, Dominican Republic.
Certification process for green cards
The process is for persons immigrating under the following employment-based categories:
In the employment-based preference categories, the law requires that employers obtain labour certification from the US Department of Labor.
Such certification is valid only when, at the time of filing the application, the employer provides notice of filing to:
Any person has the right to submit to the department of labor documentary evidence bearing on or challenging the statements made in the application for labor certification on file with the department of labor.
This evidence may take the form of information on available workers, wages and working conditions, and any information on the employer's failure to meet the terms and conditions pertaining to the employment of alien workers and co-workers.
How to obtain US citizenship
You may become a citizen of the United States of America by:
Citizenship by birth
Citizenship by birth is guaranteed by the 14th Amendment to the Constitution, which provides that anyone born in the US and subject to US jurisdiction' is a citizen of the US.
Therefore, whether the parents are US citizens, permanent residents, temporary visa holders or illegal aliens, children born in the US will be citizens.
The only children born in the US who are not subject to US jurisdiction are the children of foreign diplomats.
Citizenship through parents
Citizenship may be acquired at birth if one or both of your parents were US citizens at the time of your birth.
If only one parent was a citizen at the time of your birth, that parent must have lived a specified time in the US prior to your birth in order to be able to transmit the citizenship to you.
You may also become a US citizen derivatively through your parents if your parent(s) naturalize while you are below a certain age and if you are a permanent resident.
Citizenship by naturalization
To become a citizen by naturalization the following five requirements should be satisfied:
Residency/physical presence: Most persons must first attain permanent residence and must be permanent residents for five years before applying for naturalization (though the law permits you to apply 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 meet certain conditions.
A departure from the US for six months creates a refutable presumption that you have abandoned your residency and a departure of one year creates a conclusive presumption.
Physical presence: You must prove that you have been physically present in the US for at least half of the period of residency, i.e. two-and-a-half out of the five years immediately preceding your interview for naturalization, or one and a half of the previous three years.
Loyalty: You must be willing to renounce your home country and pledge loyalty to the US when you take the oath of allegiance at your naturalization ceremony.
Good moral character: It is necessary to submit a fingerprint chart to the government and this chart is forwarded to the Federal Bureau of Investigation to check whether you have a criminal record.
Any fraud or serious criminal record may not allow you to prove your good moral character.
English: You must be able to read, write, speak and understand simple English. Some elderly, long time residents and those with disabilities may be exempt from this requirement.
History and government: You will be required to pass a short examination on the history and government of the US.
What you could be asked
A few examples of what you may be asked are: In what year was the Constitution written? What is the Bill of Rights? How many Supreme Court Justices are there? Who wrote the Star-Spangled Banner?
Proposed changes in rules for tourists, students
The Immigration and Naturalization Service is considering reducing the time of stay allotted to a tourist in the United States.
Usually a tourist entering the US on a B1/B2 visa is granted a six-month stay. In view of the increased tightening up measures after the incident of September 11, there is a proposal to reduce this period to 'a period of time that is fair and reasonable for the completion of the purpose of the visit.'
If the time required to accomplish the purpose of the visit cannot be determined, then a 30-day period of admission will be granted.
An extension of stay may be granted at the discretion of the immigration officer, if the person can show adequate reasons, such as prolonged medical treatment or problems in completing a business matter.
The INS is also proposing to make it more difficult for a visitor to switch to a student visa. At present, if a visitor enrolls in a course of study, he/she may apply to the INS for a change in visa status from B to F.
He/she can then start his/her coursework while waiting for the application to be processed. However, it is now proposed, that foreigners wishing to study in the United States must first obtain an approval to their application for change of status from the INS before beginning their classes.
The INS has said that they would try and speed up these applications and issue them within 30 days. This will come into effect immediately upon publication in the Federal Register.
Prohibiting change from B1/B2 status to F1/M1 status
This is an interim rule and is effective from the date of publication in the Federal Register, i.e. April 12, 2002. Written comments have been invited and must be submitted on or before June 11, 2002.
This rule does not apply to other non-immigrants in H-1B, H-4, F-2 etc or even those in B1/B2 who have been admitted to the United States before April 12, 2002.
The new ruling makes it more difficult for a visitor to switch to a student visa. At present, if a visitor enrolls in a course of study, he/she may apply to the INS for a change in visa status from B to F.
He/she can then start his/her coursework while waiting for the application to be processed. However, it is now proposed, that foreigners wishing to study in the United States must first obtain an approval to their application for change of status from the INS before beginning their classes.
The INS has said that they would try and speed up these applications and issue them within 30 days.
However, there are students who wish to visit schools/universities before making a decision on whether to study in the US or not.
In this case, a person entering the US on a B1/B2, must mention to the immigration officer at the port of entry, that he/she has an intention to visit schools in the US and may decide to become a student here.
In that case, the immigration officer will make a note on his/her Form I-94 (arrival/departure record) that he/she is a prospective student. Persons who follow this system, will be allowed to change their status from visitor to that of student.
Restriction of stay for visitors (family/business)
Till now, an alien entering the US on a B1/B2 visitor's visa was usually granted permission to stay up to a period of six months. In the light of tightening of security after the events of September 11, INS has announced that visitors will be granted 'a period of time that is fair and reasonable for the completion of the purpose of the visit.'
If no specific period can be determined, the INS will grant admission for a stay of 30 days.
This rule, however, is not effective immediately, and written comments must be submitted on or before May 13, 2002.
According to the present rule, a B-2 visitor is granted an initial permission of stay for six months, which he/she may extend for another six months, allowing a for a stay of a maximum total of one year.
The new rule proposes to reduce this maximum period to six months.
The INS, however, does recognise that some B visitors do require to stay more than one month. If a visitor wishes to stay more than one month, he/she must be able to convince the immigration officer that he/she has a genuine reason.
Under the proposed new rule, a B visitor may apply for an extension up to a maximum period of six months if he/she is: