Immigration Blog

US Immigration Basics for South Africans | Part 1 (Intro)

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Whether you plan to come to the United States for a short visit or a permanent stay, your first step is to apply for a visa.

Many people think they can show up at a U.S. embassy or border post, describe why they'd make a good addition to U.S. society, and be welcomed in.  Unfortunately, this is the exact opposite of how the U.S. immigration system works.

Instead, people who want to come to the U.S., whether temporarily or permanently, must determine whether they fit into certain eligibility categories for either "permanent residence" (a green card or immigrant visa) or for a temporary stay ("nonimmigrant visa").  Whether applying for an immigrant or nonimmigrant visa will depend on how quickly you want to come to the United States and what type of visa your U.S. sponsor will apply for.  In certain instances, you can get a visa approval in 15 days or less if you pay an additional premium processing fee of $1,000.00 to the U.S. Government.

Once you have decided on which visa to apply for your sponsor will submit an application -- in fact, often a series of applications -- to one or more of the U.S. agencies responsible for carrying out the immigration laws. These include U.S. Citizenship and Immigration Services (USCIS), which has offices across the United States, and the U.S. Department of State (DOS), which manages consulates and embassies around the world.

What is Permanent Residence (a Green Card)?
If you want to be able to make your permanent home in the United States, you'll need what is called "permanent residence," or a "green card." Green card holders can live and work in the U.S. and travel in and out, with some restrictions (they should not be outside the U.S. for more than 180 days at a time,  they can't vote, and can be deported if they abuse their status). 

In order to obtain a Green Card you will need a sponsor to file an application on your behalf.  The sponsor may either be a U.S. employer or family member.  Family members of U.S. citizens make up the largest number of green cards issued each year. Others are issued to investors and workers who have been petitioned by U.S. employers or have special skills. Still other categories have a humanitarian basis, such as refugee or political asylum status (which can lead to a green card), for people who are fleeing persecution.  The time it takes to get a green card can range from 8 months to several years depending on who your sponsor is.  For example; a green card application for the parent, spouse or child of a U.S. citizen usually takes less than a year but the application for a sibling of a U.S. citizen can take more than ten years.  Permanent residents are eligible to apply for U.S. citizenship after 5 years of maintaining permanent residency status (it is 3 years if your permanent residency is based on marriage to a U.S. citizen).

Next up....Nonimmigrant Visas

Visa Bulletin for September 2010 | Immigration

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A. STATUTORY NUMBERS

1.  This bulletin summarizes the availability of immigrant numbers during September. Consular officers are required to report to the Department of State documentarily qualified applicants for numerically limited visas; the Bureau of Citizenship and Immigration Services in the Department of Homeland Security reports applicants for adjustment of status.  Allocations were made, to the extent possible under the numerical limitations, for the demand received by August 9th in the chronological order of the reported priority dates. If the demand could not be satisfied within the statutory or regulatory limits, the category or foreign state in which demand was excessive was deemed oversubscribed.  The cut-off date for an oversubscribed category is the priority date of the first applicant who could not be reached within the numerical limits.

Only applicants who have a priority date earlier than the cut-off date may be allotted a number.  Immediately that it becomes necessary during the monthly allocation process to retrogress a cut-off date, supplemental requests for numbers will be honored only if the priority date falls within the new cut-off date which has been announced in this bulletin.

2. The fiscal year 2010 limit for family-sponsored preference immigrants determined in accordance with Section 201 of the Immigration and Nationality  Act (INA) is 226,000.  The fiscal year 2010 limit for employment-based preference immigrants calculated under INA 201 is 150,657.  Section 202 prescribes that  the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 26,366 for  FY-2010.  The dependent area limit is set at 2%, or 7,533.

3.  Section 203 of the INA prescribes preference classes for allotment of immigrant visas as follows:

FAMILY-SPONSORED PREFERENCES

First:   Unmarried Sons and Daughters of Citizens:  23,400 plus any numbers not required for fourth preference.

Second:  Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents:  114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, and any unused first preference numbers:

A.  Spouses and Children:  77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;

B.  Unmarried Sons and Daughters (21 years of age or older):  23% of the overall second preference limitation.

Third:   Married Sons and Daughters of Citizens:  23,400, plus any numbers not required by first and second preferences.

Fourth:  Brothers and Sisters of Adult Citizens:  65,000, plus any numbers not required by first three preferences.

EMPLOYMENT-BASED PREFERENCES

First:  Priority Workers:  28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.

Second:   Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability:  28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.

Third:   Skilled Workers, Professionals, and Other Workers:  28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to "Other Workers".  

Fourth:   Certain Special Immigrants:  7.1% of the worldwide level.

Fifth:   Employment Creation:  7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of P.L. 102-395.

4.  INA Section 203(e) provides that family-sponsored and employment-based preference visas be issued to eligible immigrants in the order in which a petition in behalf of each has been filed.  Section 203(d) provides that  spouses and children of preference immigrants are entitled to the same  status, and the same order of consideration, if accompanying or following to join the principal.  The visa prorating provisions of Section 202(e)  apply to allocations for a foreign state or dependent area when visa demand exceeds the per-country limit.  These provisions apply at present to the following oversubscribed chargeability areas:  CHINA-mainland born, DOMINICAN REPUBLIC, INDIA, MEXICO, and PHILIPPINES.

5.  On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); "C" means current, i.e., numbers are available for all qualified applicants; and "U" means unavailable, i.e., no numbers are available.  (NOTE:  Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.)

*NOTE:  For September, 2A numbers EXEMPT from per-country limit are available to applicants from all countries with priority dates earlier than 01JAN09.  2A numbers SUBJECT to per-country limit are available to applicants chargeable to all countries EXCEPT the DOMINICAN REPUBLIC and MEXICO with priority dates beginning 01JAN09 and earlier than 01JAN10.  (All 2A numbers provided for the DOMINICAN REPUBLIC AND MEXICO are exempt from the per-country limit; there are no 2A numbers for the DOMINICAN REPUBLIC AND MEXICO subject to per-country limit.)

The Department of State has available a recorded message with visa availability information which can be heard at: (area code 202) 663-1541. This recording will be updated in the middle of each month with information on cut-off dates for the following month.

Employment Third Preference Other Workers Category: Section 203(e) of the NACARA, as amended by Section 1(e) of Pub. L. 105-139, provides that once the Employment Third Preference Other Worker (EW) cut-off date has reached the priority date of the latest EW petition approved prior to November 19, 1997, the 10,000 EW numbers available for a fiscal year are to be reduced by up to 5,000 annually beginning in the following fiscal year. This reduction is to be made for as long as necessary to offset adjustments under the NACARA program. Since the EW cut-off date reached November 19, 1997 during Fiscal Year 2001, the reduction in the EW annual limit to 5,000 began in Fiscal Year 2002.

B. DIVERSITY IMMIGRANT (DV) CATEGORY

Section 203(c) of the Immigration and Nationality Act provides a maximum of up to 55,000 immigrant visas each fiscal year to permit immigration opportunities for persons from countries other than the principal sources of current immigration to the United States.  The Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997 stipulates that beginning with DV-99, and for as long as necessary, up to 5,000 of the 55,000 annually-allocated diversity visas will be made available for use under the NACARA program.  This reduction has resulted in the DV-2010 annual limit being reduced to 50,000.   DV visas are divided among six geographic regions.  No one country can receive more than seven percent of the available diversity visas in any one year.

For September, immigrant numbers in the DV category are available to qualified
DV-2010 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

Entitlement to immigrant status in the DV category lasts only through the end of the fiscal (visa) year for which the applicant is selected in the lottery.  The year of entitlement for all applicants registered for the DV-2010 program ends as of September 30, 2010.  DV visas may not be issued to DV-2010 applicants after that date.  Similarly, spouses and children accompanying or following to join DV-2010 principals are only entitled to derivative DV status until September 30, 2010.  DV visa availability through the very end of FY-2010 cannot be taken for granted.  Numbers could be exhausted prior to September 30.

C. ADVANCE NOTIFICATION OF THE DIVERSITY (DV) IMMIGRANT CATEGORY RANK CUT-OFFS WHICH WILL APPLY IN OCTOBER

For October, immigrant numbers in the DV category are available to qualified DV-2011 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

Immigration questions?  We have answers.  Free phone consultation available | 800-969-5529

Immigration Question of the Day | What to Include in an I-601?

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What should I include for a I-601 letter as a brother in law who is a citizen?

You need to write a clear and detailed letter explaining each situation and circumstance that will cause “extreme hardship”. It is not enough to say that the US Citizen will feel sad or miss the fiancé/spouse – this is “normal” hardship. The details provided in the letter as well as the evidence/documentation are the key, vital issues in the waiver process. 

The best way to approach the hardship letter and evidence is to think about every aspect of how their life would change if they had to relocate permanently to their fiancé/spouses country. These arguments form the basis of the hardship letter. 
Extreme hardship can be demonstrated in many aspects of your life such as: 

HEALTH/MEDICAL - Ongoing or specialized treatment requirements for a physical or mental condition; availability and quality of such treatment in your fiancé/spouse’s country, anticipated duration of the treatment; whether a condition is chronic or acute, or long-or short-term. 

FINANCIAL CONSIDERATIONS - Future employability; loss due to sale of home or business or termination of a professional practice; decline in standard of living; ability to recoup short-term losses; cost of extraordinary needs such as special education or training for children; cost of care for family members (i.e., elderly and infirm parents). 

EDUCATION - Loss of opportunity for higher education; lower quality or limited scope of education options; disruption of current program; requirement to be educated in a foreign language or culture with ensuing loss of time for grade; availability of special requirements, such as training programs or internships in specific fields. 

PERSONAL CONSIDERATIONS - Close relatives in the United States; separation from spouse/children; ages of involved parties; length of residence and community ties in the United States. 

SPECIAL FACTORS - Cultural, language, religious, and ethnic obstacles; valid fears of persecution, physical harm, or injury; social ostracism or stigma; access to social institutions or structures. 

Any other situation that you feel may help you meet the burden of extreme hardship. 

Include as much legitimate, detailed evidence as possible. For example, personal letters from your doctor, nurses, therapists, medical records, prescription information, etc.

• Download I-601 (308KB PDF)
• Download Instructions for Completing Form I-601 (214KB PDF)
• Download Form G-1145, E-Notification of Application/Petition Acceptance USCIS - E-Notification of Application/Petition Acceptance (NaNKB PDF)

Immigration questions?  We have answers.  Free phone consultation available | 800-969-5529

Let's Talk Employment-Based Immigration Visas (EB Visas)

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As immigration lawyers, we get many questions about how to come live and work in the USA.  In order to receive an immigrant visa through employment, you must have a job offer from a U.S. employer, specific education and/or work experience and in some cases there must be no American willing or able to take that particular job.  Below are some answers to common questions we receive regarding the employment-based immigration visa topic.

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Q: How many types of employment-based immigration visas are available?

A: The Immigration and Nationality Act provides a yearly minimum of 140,000 employment-based immigrant visas, divided into five preference categories. They may require a labor certification from the U.S. Department of Labor ("DOL"), and the filing of a petition with the Bureau of Citizenship and Immigration Services (previously INS).

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Q: Who is considered Employment First Preference (E1)?

A: Priority workers receive 28.6 percent of the yearly worldwide limit. All priority workers must be the beneficiaries of an approved Form I- 140, Immigrant Petition for Foreign Worker, filed with the Bureau of Citizenship and Immigration Services (previously INS). Within this preference, there are three sub-groups:

1. Persons of extraordinary ability in the sciences, arts, education, business, or athletics. Applicants in this category must have extensive documentation showing sustained national or international acclaim and recognition in the field of expertise. Such applicants do not have to have a specific job offer, so long as they are entering the U.S. to continue work in the field in which they have extraordinary ability. Such applicants can file their own petition with the Bureau of Citizenship and Immigration Services (previously INS), rather than through an employer.
2. Outstanding professors and researchers with at least three years experience in teaching or research, who are recognized internationally. No labor certification is required for this classification, but the prospective employer must provide a job offer and file a petition with the Bureau of Citizenship and Immigration Services (previously INS).
3. Certain executives and managers who have been employed at least one of the three preceding years by the overseas affiliate, parent, subsidiary, or branch of the U.S. employer. The applicant must be coming to work in a managerial or executive capacity. No labor certification is required for this classification, but the prospective employer must provide a job offer and file a petition with the Bureau of Citizenship and Immigration Services (previously INS).

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Q: Who is considered Employment Second Preference (E2)?

A: Professionals Holding Advanced Degrees, or Persons of Exceptional Ability in the Arts, Sciences, or Business receive 28.6 percent of the yearly worldwide limit, plus any unused Employment First Preference visas. All Second Preference applicants must have a labor certification approved by the DOL, or Schedule A designation, or establish that they qualify for one of the shortage occupations in the Labor Market Information Pilot Program. A job offer is required, and the U.S. employer must file a petition on behalf of the applicant. Aliens may apply for exemption from the job offer and labor certification if the exemption would be in the national interest, in which case the alien may file the petition, Form I-140, along with evidence of the national interest. There are two subgroups within this category:

1. Professionals holding an advanced degree (beyond a baccalaureate degree), or a baccalaureate degree and at least five years progressive experience in the profession; and
2. Persons with exceptional ability in the arts, sciences, or business. Exceptional ability means having a degree of expertise significantly above that ordinarily encountered within the field.

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Q: Who is considered Employment Third Preference (E3)?

A: Skilled Workers, Professionals Holding Baccalaureate Degrees and Other Workers receive 28.6 percent of the yearly worldwide limit, plus any unused Employment First and Second Preference visas. All Third Preference applicants require an approved I-140 petition filed by the prospective employer. All such workers require a labor certification, or Schedule A designation, or evidence that they qualify for one of the shortage occupations in the Labor Market Information Pilot Program. There are three subgroups within this category:

1. Skilled workers are persons capable of performing a job requiring at least two years' training or experience
2. Professionals with a baccalaureate degree are members of a profession with at least a university bachelor's degree; and
3. Other workers are those persons capable of filling positions requiring less than two years' training or experience

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Q: Who is considered Employment Fourth Preference (E4)?

A: Special Immigrants receive 7.1 percent of the yearly worldwide limit. All such applicants must be the beneficiary of an approved I-360, Petition for Special Immigrant, except overseas employees of the U.S. Government (who must use Form DS-1884). There are six subgroups:

1. Religious workers coming to carry on the vocation of a minister of religion, or to work in a professional capacity in a religious vocation, or to work for a tax-exempt organization affiliated with a religious denomination
2. Certain overseas employees of the U.S. Government
3. Former employees of the Panama Canal Company
4. Retired employees of international organizations
5. Certain dependents of international organization employees
6. Certain members of the U.S. Armed Forces

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Q: Who is considered Employment Fifth Preference (E5)?

A: Employment Creation Investors receive 7.1 percent of the yearly worldwide limit. All applicants must file a Form I-526, Immigrant Petition by Alien Entrepreneur, with the Bureau of Citizenship and Immigration Services (previously INS). To qualify, an alien must invest between U.S. $500,000 and $1,000,000 (depending on the employment rate in the geographical area) in a commercial enterprise in the United States which creates at least 10 new full-time jobs for U.S. citizens, permanent resident aliens, or other lawful immigrants, not including the investor and his or her family.

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Immigration question?  We have answers.  Free phone consultation available 800-969-5529

Visa Bulletin for August 2010 | Immigration

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A. STATUTORY NUMBERS

K-1 Fiancé Visa | Immigration | Don't Try to Scam the System

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As immigration lawyers, we get a lot of questions about the requirements for a K-1 fiance visa.  Last year 227,000 foreign nationals obtained green cards through marriage -- more than any other category of applicant, according to the USCIS. 

Because the K-1 visa leads to immediate immigration, and eligibility for employment, in the United States, it is considered to be a high fraud visa category.  For these reasons, many couples with a foreign spouse say marriage is not the easy or automatic path to legal U.S. residency.  And, efforts are intensifying from the USCIS to uncover sham marriages through more thorough interviews and investigations.

A bona fide relationship is key in these investigations.  Once your visa petiton has been filed and your interview has been scheduled, a Consular officer reviews the documents that both the American petitioner and the foreign fiancé(e) have submitted. The Consular officer looks for evidence to determine that a bona fide relationship exists. "We might ask about the number of bedrooms in their house, their dog's name or whether they even have a dog, what color toothbrush their spouse uses," said USCIS spokeswoman Chris Rhatigan of the agency's effort to uncover scams. "We'll also go to the address they give us to see that they actually live there."

Once the interview is finished the Consular officer can issue the visa, if he is convinced of a bona fide relationship that meets all legal requirements. The officer may also request that further evidence be submitted before making a decision. If the Consular officer does not think the relationship is bona fide or finds some legal impediment to issuing the visa, the petition will be returned to USCIS and recommended for revocation and no visa will be issued.

While the number of sham marriages is relatively small in comparison to the residency petitions filed by foreign spouses with the USCIS, the mere existence of fraud has adversely impacted the process for legitimate couples.  Interviews are under more scrutiny and wait times have increased.

Devin Dwyer of ABC News explores this topic in his series of stories on immigration.  Immigrant Couples Face Scrutiny in Bid to Root Out Sham Marriages 

Immigration questions?  We have answers.  Free phone consultation available 800-969-5529 begin_of_the_skype_highlighting              800-969-5529      end_of_the_skype_highlighting

EB-5 Visa Creates Jobs in Vermont

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In the midst of an economic downturn, Americans are looking for long-term strategic solutions to our unemployment woes.  One solution is to leverage our immigration system to attract investors to come to the United States and create jobs in exchange for a coveted green card.  

This is happening right now in Vermont.  Bill Stenger, president and co-owner of the Jay Peak Resort, has not had to borrow a penny for his $125 million project. It is almost entirely funded by about 250 foreign investors from 43 countries through the EB-5 visa program.  The development is the second phase of a goal to make Jay Peak a four-season resort. The first phase included an indoor ice rink, golf course and clubhouse, and the Tram Haus Lodge -- a 57-suite hotel with a bar, restaurant and coffee shop.

The EB-5 program is based on making a substantial financial commitment to create additional employment in the US. The EB5 Visa is based on a qualifying US investment. It does not require management of the day-to-day affairs of a business, provides the flexibility to invest in an existing or a new business and allows more than one person to invest as well as minority ownership. You can also live anywhere in the United States regardless of where the investment is made.

One may qualify for an EB5 visa in three different ways:

• Invest $1,000,000 and hire ten employees anywhere in the USA, or
• Invest $500,000 and hire ten employees in an area where the unemployment rate exceeds the national average by 150% or the rural population is less than 20,000, or
• Invest in a Government designated Regional Center

In exchange, the investors obtain permanent green cards for themselves and their families, and a chance to gain full U.S. citizenship.  The program began nationally in 1992 and became available to businesses in Vermont in 1997 except in the Burlington area, where the unemployment rate was too low to qualify.

Senator Patrick Leahy, D-Vt., was instrumental in bringing the EB-5 program to Vermont.  "Were it not for the extensions to EB-5 that Senator Leahy has championed, we would not be here today," Stenger said. "We want to see Vermonters employed," Leahy said during his keynote speech. "Bill, you and your team have made that possible."

Leahy is committed to expand the role of EB-5 investments in Vermont.  Stenger said the planning and construction has provided temporary jobs for about 800 people. He predicted that when the project is finished, the new facilities will bring 2,000 or more permanent jobs to Orleans County.

Job creation has crossed county lines. For example, DEW construction group, which is heavily involved with the project, is headquartered in Williston; the mechanical engineering firm for the project is located in Winooski; the landscape architect is from Burlington; and Engineered Solutions Inc., the civil engineering firm, is in Winooski.

Let's hope more Senators follow Leahy's lead.  These programs offer our economy robust job creation and reaffirm that we’re the world’s best place to do business.  Historically, responsible immigration policies plus free markets have yielded high levels of prosperity.  That's exactly what this country needs in these uncertain economic times.

Immigration Fees To Increase | USCIS Seeking Public Comment

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U.S. Citizenship and Immigration Services (USCIS) is seeking public comment on a proposed federal rule that would adjust fees for immigration benefit applications and petitions. The proposal would increase overall fees by a weighted average of about 10 percent but would not increase the fee for the naturalization application.

USCIS is a fee-based organization with about 90 percent of its budget coming from fees paid by applicants and petitioners to obtain immigration benefits. The law requires USCIS to conduct fee reviews every two years to determine whether it is recovering its costs to administer the nation’s immigration laws, process applications, and provide the infrastructure needed to support those activities. This proposed rule results from a comprehensive fee review begun in 2009. USCIS’s fee revenue in fiscal years 2008 and 2009 was much lower than projected, and fee revenue in fiscal year 2010 remains low. While USCIS did receive appropriations from Congress, budget cuts of approximately $160 million have not bridged the remaining gap between costs and anticipated revenue. A fee adjustment, as detailed in the proposed rule, is necessary to ensure USCIS recovers the costs of its operations while also meeting the application processing goals identified in the 2007 fee rule.

The proposed fee rule would increase the average application and petition fees by approximately 10 percent. Understanding the unique importance of naturalization, USCIS is proposing that the naturalization application fee not be increased. The proposed rule would establish three new fees for: Regional center designation under the Immigrant Investor Pilot Program (EB-5); Individuals seeking civil surgeon designation; and Recovery of the cost of processing immigrant visas granted by the Department of State. The rule also proposes to adjust fees for the premium processing service. This would ensure that USCIS can continue to modernize to become a more efficient and effective organization.

The proposed fee structure also reduces fees for five individual applications and petitions as a result of lower processing costs: Petition for Alien Fiancé (Form I-129F); Application to Extend/Change Nonimmigrant Status (Form I-539); Application to Adjust Status From Temporary To Permanent Resident (Form I-698); Application for Family Unity Benefits (Form I-817); and Application for Replacement Naturalization/Citizenship Document (Form N-565).

Write you Senators or Congressman to voice your opinion.

Copy of the Startup Visa Act 2010

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We have obtained a draft copy of the proposed Startup Visa Act of 2010 and attached for your reference.

Startup Visa Act 2010 

More on the Startup Visa Act of 2010

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Comments from Senator Richard Lugar (R-Ind.), Chairman and Ranking Member of the Senate Foreign Relations Committee on the Startup Visa Act of 2010.