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

H-1B Visa Count (August 27, 2010)

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Here is the latest H-1B cap count released (August 27, 2010).  More information can be found at the USCIS H-1B Fiscal Year (FY) 2011 Cap Season Page.

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 Attorney Scheduling Consultations in South Africa

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Karen will be in Johannesburg in mid-September and will be accepting immigration consultations from September 20, 2010 through October 3, 2010.  She will be providing consulting services at the law offices of Cyril Ziman & Associates, Inc., located at 43 Keyes Ave Rosebank Johannesburg 2196.  The telephone number there is 011-880-9363.  Please feel free to call the local number to schedule an appointment or you can email Karen directly at karenp@gucl.com. 

Please pass this information on to your friends and family who may be considering options to live and work in the United States. 

H-1B Visa Count (August 6, 2010)

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Here is the latest H-1B cap count released (August 6, 2010).  More information can be found at the USCIS H-1B Fiscal Year (FY) 2011 Cap Season Page.

Immigration Question of the Day | Differences Between H-1B & EB Visas

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I am a recent graduate F1 student, and I want to immigrate to the US. I have a master degree in business administration.

I wonder what type of employment immigration I should process. What are the differences between a H-1B and a EB visa (overview, processing time, procedure, requirements, advantages...)? Is there any salary base restrictions for employers to employ and sponsor me?

• Employment-Based Immigrant Visas—Working Permanently In The United States
• H-1B Specialty Occupation
• USCIS to Accept H-1B Petitions for Fiscal Year 2011 Beginning April 1, 2010

Immigration question?  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

H-1B Visa Fees Raised by Senate to Fund Border Security

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WASHINGTON: The US Senate has voted to beef up US-Mexico border security with another 1,500 agents and more unmanned aerial vehicles that scan the frontier for undocumented immigrants or drug runners. 

The legislation's $600-million price tag would be paid for by raising fees on what the measure's backers called a handful of foreign firms that exploit US visa programs to improperly import workers to the United States.

A summary of the bill said the funds would be raised with a $2,000 per visa increase in the price paid by specific companies for non-immigrant "H1B" visas for highly skilled workers or "L" visas for intra-company transfers. 

"We're talking about foreign companies that more than half of their employees" are on those visas, said Democratic Senator Chuck Schumer. "All we're saying is, you're going to have to pay more for those visas." 

"This is not going to affect American manufacturing. This is not going to affect American jobs. What it's going to do is hopefully create some vacancies for Americans at some of these higher skilled jobs that these companies -- foreign companies -- are using the visas," he added.

The measure includes money for 1,000 new US Border Patrol agents to form a "strike force" for quick deployment, 250 new Immigration and Customs Enforcement agents as well as 250 new Customs and Border Protection officers at ports of entry, and to boost communications among law-enforcement officials. 
The bill, unveiled by Democratic Senators Chuck Schumer and Claire McCaskill, would also pay for building forward operating bases along the border as well as unmanned aerial vehicles (UAVs) to patrol the border.

"A lot of people now think of drones in the way they've been used in Pakistan, taking out Al-Qaeda, but primary to the drone is their ability to get real-time surveillance," said McCaskill.

"But these are not military UAVs. These are civilian UAVs, so they wouldn't be armed," said Schumer. "There are seven of them right now. And they've been successful."

The legislation must still pass through the House of Representatives to go to President Barack Obama to sign into law. 

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

Immigration | Non-Immigrant Visas | New Developments with O & P Visas

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There have been several recent developments with respect to O and P visas:  On July 20, 2010, U.S. Citizenship and Immigration Services (USCIS) issued clarifying guidance on the "O" nonimmigrant visa petition with regard to determining the appropriate validity period of an approvable petition when a gap exists between two or more events reflected in the itinerary.

The memo explains that the validity dates for the O-1 visa classification are defined by the specific period of time required to perform or participate in a specific event. When reviewing an O-1 petition, the length of time between the scheduled events, also known as a gap, has sometimes been viewed as a gauge to determine whether an itinerary represented one continuous "event" or separate events requiring separate petitions.

In certain cases where there has been a significant gap between events, adjudicators have sometimes concluded that a single petition was filed for separate events rather than a continuous event. In such cases, the petition may have been approved only for a validity period equal to the length of time needed to accomplish what appeared to be the initial specific event rather than the continuous event as represented by the petition.

The memo notes that there is no statutory or regulatory authority for the proposition that a gap of a certain number of days in an itinerary automatically indicates a new event. "The regulations speak in terms of tours and multiple appearances as meeting the 'event' definition." The statutory and regulatory background provides flexibility on the length of validity period that may be granted, the memo states:

"The statute and regulations allow for an approval of an O-1 petition for a period necessary to accomplish the event or activity, not to exceed 3 years. Adjudicators should evaluate the totality of the evidence submitted to determine if the activities described in the itinerary are related in such a way that they would be considered an 'event' for purposes of the validity period. When the validity period requested is established though the submission of appropriate evidence, Service Centers should approve a petition for the length of the validity period requested where the law and regulations permit."

In other news, USCIS promised during a public meeting with stakeholders on July 20, 2010, that processing times for regularly filed O and P visas for performers and athletes will not exceed 14 days. In some previous cases, adjudications reportedly have taken up to four months, and delays have led to last-minute scrambles and missed performances. Although arts groups say more needs to be done, many were hopeful about this recent development. The Performing Arts Alliance said it was "extremely pleased with this week's breakthrough." 

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