Immigration (USA) FAQ: GC and Citizenship questions and answers (part 6 of 6)
Rajiv S. Khanna
Last-Modified: 21 December 1998
The USA Immigration FAQ is maintained by
Rajiv S. Khanna [rskh...@immigration.com]
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Individuals are encouraged to submit corrections, questions and answers
to rskh...@immigration.com directly. In many answers below, submitters are
noted in parentheses at the beginning of comments. (Comments may be
slightly edited.)
"WE CLAIM NO RESPONSIBILITY FOR THE ACCURACY OF THE INFORMATION.
APPLICATION OF LAW CAN VARY DRASTICALLY ACCORDING TO THE FACTS OF A
PARTICULAR CASE. THE FAQ IS NOT MEANT TO BE SPECIFIC LEGAL ADVICE. IT IS
ONLY A STARTING POINT. MUCH OF THE INFORMATION CONTAINED IN THE FAQ IS
PROVIDED BY LAYPERSONS. PLEASE USE YOUR OWN JUDGMENT."
Questions marked with a <<New>> indicate questions new to this issue;
those with significant changes of content since the last issue
are marked by <<Changed>>:
GC and Citizenship questions and answers
-----------------------------------------
Q1:-Does the employer need to show the company's finances?
Ans:-[from B.G. Mahesh, mah...@mahesh.com]
[Modified by Rajiv S. Khanna, rskh...@immigration.com]
Basically the employer needs to demonstrate that the company is
financially sound and it can afford to employ you. So your
employer may have to show INS the company's finances. Technically, the
financial ability to pay must exist at the time of filing the labor
certification and must continue to exist till the time you actually get
your green card.
Q2:-At what point spousal petitions can be attached to the forms
I-140/485 ? I-140 part 7 clearly asks for a list of dependents. Can
a person file I-140, get married and then petition for his/her spouse
on the I-485?
Ans:-[Modified by Rajiv S. Khanna, rskh...@immigration.com]
You may marry after I-140 and include the spouse on the Form I-485.
Q3:-Dear Rajiv, a friend of mine, who doesn't have access to the net, is
a computer consultant
- on an H-1B visa,
- has obtained his labor certification,
- and is about to file his I-140.
Due to budget constraints at work, his contract with his current client
is soon to be terminated, and he is looking for another project with the
same client. If he has to move to another work site in the same state but
has the same employer, does he have to file for labor cert. again?
Ans:-[From Rajiv S. Khanna, rskh...@immigration.com]
If he is within the same Metropolitan Statistical area for which the
labor cert. was done, there should be no problem. But if he is moving beyond
that area, even if he is within the same state, he cannot file an I-140
providing a different job site. The labor cert. would be invalid.
Do note, however, that the labor cert. is for a job in future. Also,
according to the law currently, a labor cert. once granted is valid
indefinitely.
Now if your friend is likely to be sent back to the same geographical
area in future, he can file the I-140 on that basis. But legally, if
he is not posted back to the same area after getting his Green Card,
his GC could be held to be invalid or even fraudulent.
Q4:-Would requiring a BS with 2-3 years of experience change the preference
category of my labor certification process?
Ans:-[From Rajiv S. Khanna, rskh...@immigration.com]
BS falls in the category EB3 while MS (or BS + 5 Years Exp.) falls in category
EB2.
Q5:-What is the statute of limitation on labor certification?
( Once LC is obtained how long is it valid before applying for
the green card)
Ans:-[From Rajiv S. Khanna, rskh...@immigration.com]
Under the current law, a labor certification is valid for ever.
Q6:-Should I apply for GC together with the H-1B, or after I get the H-1B?
Ans:-[from B.G. Mahesh, mah...@mahesh.com]
You can apply for GC with H-1B but it is advisable to wait for about
3-6 months after you get H-1B to apply for GC.
Q7:-If one were waiting for a GC date to become current,
after one got one's labor certification AND the 6 year
limit on H-1B expires while waiting, will one have to
leave the country ?
Ans:-[from Rajiv S. Khanna, rskh...@immigration.com]
Yes, unless you are close enough to getting a green card so
that your adjustment of status application can be filed, so
that you may get a work permit through pendency of adjustment
status.
Q8:-Will my spouse qualify for greencard with me even if she is on a
non-dependent visa like F1 ?
Ans:-[From Pramod S. Badjate, badj...@agcs.com]
Yes. Spouse and Kids qualify for greencard irrespective (except for J1)
of the type of visa, as long as they are on a valid visa in USA.
The type of visa of the spouse/kids does matter. If the spouse/kids
are on a J-1/J-2 visa with a 2yr HRR, they may not adjust status to
permanent residency unless
(1) They have served the HRR
(2) Or have obtained a waiver of the HRR.
Q9:-A friend of mine had got the labor certification and while waiting
for his date became current, he get laid off from his job.
Could you please tell me is his labor certification still valid
for GC application?
Ans:-[From Rajiv S. Khanna, rskh...@immigration.com]
The labor certification is valid, but your friend may not get a GC. Reason:
Labor Certification is for a job in future. But for the GC application,
that job must be certain to be available right now. Currently, that is not
the case. If 6 months (or more time) later, your friend gets rehired by
the old company, he can go ahead and apply for GC as long as the job he
gets is the same as the job for which Labor Cert. was obtained.
Q10:-Will all the GC wait come to a naught in this case , or can
one wait for it outside the country ?
Ans:-[from Rajiv S. Khanna, rskh...@immigration.com]
You can MOST certainly wait outside the country.
Q11:-When Labor Certification has been received, is H-1B still the
operating visa, or do you fall under some new status ?
Ans:-[from Rajiv S. Khanna, rskh...@immigration.com]
Mere receipt of labor certification does not change your status.
You have to apply to the INS for change of status.
Q12:-Can one apply for GC through an employer while on H-1 for
another employer?
Ans:-[from Rajiv S. Khanna, rskh...@immigration.com]
Yes. The labor cert. is for a job in future, which is
currently available to test the labor market. It is open
for US workers. The "alien" may only accept it upon receiving
his/her permanent residence. The H-1, however, is for an entirely
different job.
Q13:-What are the 'additional' things that I need to address, and take
account of before filing the advertisement and starting the LC process?
Ans:-[From Rajiv S. Khanna, rskh...@immigration.com]
Here is a topic for another book. In a nutshell:
Typically, in order to have a good chances of success, we must investigate
beforehand whether the salary being offered to the alien meets the likely U.S.
Department of Labor ("U.S. DOL" or "DOL") prevailing wage standards. We must
also carefully analyze the job opportunity to establish its actual minimum
requirements for the job (these requirements are often not identical to the
personnel department's rudimentary job description and requirements) and to
harmonize these requirements with the standards established by the DOL for
review of job duties and requirements. We might also want to investigate the
current status of the labor market for the position, to assess the
potential availability of qualified U.S. workers.
Q14:-If the second category (EB 2) also needs the labor certifications(except
in cases of national interest), what is the benefit of this over
applications in the third category? Is this somehow related to the
'fast track' approval of some LC applications by the DOL?
Ans:-[From Rajiv S. Khanna, rskh...@immigration.com]
No advantage as of today for the whole world except, people born in
India, Mexico and Philippines, because EB 3 and EB 2 are both current
for the whole world, except the named countries. For professionals
from India, Mexico and Philippines it is much better to be in EB 2.
Q15:-How do I check the status of a labor certification pending with
the U.S. Department of Labor?
Ans:-[NY From Krishna Chivukula additional information by
rskh...@immigration.com]
Most U.S. DOL regions have automated status check phones which are
cable of providing fax as well as audio checks.
New York US DOL
--------
(Responsible for
New York, New Jersey, Puerto Rico,
and Virgin Islands (4 States))
Status Check Phone: (212) 337-2185
Atlanta, GA US DOL
---------
(For Alabama, Florida, Georgia,
Kentucky, Mississippi, North
Carolina, South Carolina, and
Tennessee (8 States))
Regular Voice Line: (404) 347-3938
Boston, MA US DOL
-------
(Connecticut, Maine, Massachusetts,
New Hampshire, Rhode Island,
Vermont (6 States))
Status Checks: (617) 565 2267
San Francisco, CA US DOL
-----------
(For Arizona, California, Guam, Hawaii,
Nevada (5 States))
Regular Voice Line: (415) 744-7618
Chicago, IL US DOL
-------
(Covers Illinois, Indiana, Michigan,
Minnesota, Ohio, Wisconsin (6
States))
Status Checks: (312) 353-1059
Denver, CO, US DOL
--------
(Colorado, Montana, N. Dakota, S.
Dakota, Utah, Wyoming (6 States))
Regular Voice Line: (303) 391-5742
Kansas City, MO US DOL
------------
(Iowa, Kansas, Missouri, and
Nebraska (4 states))
Regular Voice Line: (816) 426-3796
Philadelphia, PA US DOL
-------------
(Delaware, District of Columbia,
Maryland, Pennsylvania, Virginia,
West Virginia (6 States))
Status Check Phone: (215) 596-5033
Seattle, WA US DOL
-----------
(Alaska, Idaho, Oregon, and
Washington (4 States))
Regular Voice Line: (206) 553-7700
Dallas, TX US DOL
--------
(Responsible For: Arkansas, Louisiana, New Mexico,
Oklahoma, and Texas (5 States))
Voice: (214) 767-4989
For status checks call between 3
and 4:30 p.m. Texas time
Q16:-If I am working for Company "A" through another Company "B" which has
started my labor certification process i.e. Ad in newspaper is done and
I am waiting for the Labor Certification from the Dept. of Labor but in
the meantime I got a job offer directly from company "A" and in this
case will the labor certification filed by company "B" valid since the
job description is same or do I need to start all over again and get a
new labor certification ?
Ans:-[from Rajiv S. Khanna, rskh...@immigration.com]
New labor cert. will be necessary.
Q17:-How long does an employee who receives GC through Labor Cert. have to
work after getting the (actual) green card before changing to another
job? I find this a very interesting question in today's dynamic
job market. Would you please kindly give me some advice on this issue.
You help is greatly appreciated.
Ans:-[From Rajiv S. Khanna, rskh...@immigration.com]
There is no brief answer to this question. Let me explain. The basic
premise (or theory) behind permanent residence through offer of
employment is that an employee is accepting a job on a "permanent" bases.
What does "permanent" mean? Does it mean for ever. Obviously not.
That would be unreasonable. But "permanent" also does not mean that
you pack your bags the moment you receive your green card.
So what is the answer? No one really knows. Each case has to be
determined upon its own merits. Normally, I would say working for
one year or more with the same employer after getting your GC is
PROBABLY enough indication of permanency. Less than 4-5 months is
perhaps evidence to the contrary. But REMEMBER, this is just my own
guess. Technically speaking, the moment you decide that you will leave
after a certain period of time, "permanent" intent is gone. Catch-22 eh?
Well that is the way it is.
Q18:-Can an applicant qualify for a GC without going through
Labor Certification?
Ans:-[from Jaap Akkerhuis, ja...@tempel.research.att.com
and Muralidhar Rangaswamy, ranga...@zircon.plh.af.mil]
To qualify as an outstanding professor or researcher, INS requires
meeting at least two of six criteria as follows:
(1) Receipt of major prizes or awards for outstanding
achievement in the academic field.
(2) Membership in associations requiring outstanding achievements
for their members.
(3) Published material in professional publications written by
others on behalf of the person's work in the academic field.
(4) Evidence of the person's participation either individually or
a panel as the judge of work of others in the same or allied
academic field.
(5) Evidence of the person's original scientific or scholarly
research contributions in the academic field.
(6) Evidence of authorship of scholarly books or articles in
scholarly journals with international circulation in the
academic field
In addition, the person must have at least three years of experience
in the academic field. Such work while working on an advanced degree
is not acceptable unless the person obtained the degree and the person
had full responsibility for classes taught or, for research conducted
toward the degree, it has been recognized within the academic field as
outstanding. Such evidence can be in the form of letter or letters from
current or former employers.
So note that a Ph.D. is not required (I don't have one).
If you want me to get more technical!!!
The following classifications do not need labor certification.
(1) Section 203(b)(1)(A): Alien of Extraordinary Ability in the sciences,
arts, business, and athletics.
(2) Section 203(b)(1)(B): Outstanding Professor/Researcher
(3) Section 203(b)(1)(C): Certain Multinational Executives.
(4) Section 203(b)2 A or B: Member of the professions holding an advanced
degree or an alien of exceptional ability seeking a national interest
waiver of the job offer and labor certification requirements.
Q19:-Is a job offer necessary for the above classifications?
Ans:-[From Muralidhar Rangaswamy, ranga...@zircon.plh.af.mil]
For (1) above, although no job offer is necessary, it is advisable to
have evidence of pre-arranged employment commitments with an employer
in the USA or submit other evidence that the alien is seeking to enter
the USA to continue work in the area of extraordinary ability.
For (2), a job offer from a University or company is necessary. In
particular, the letter from the employer must state that the alien
has been offered a tenure-track faculty position or similar position at
a University, or a comparable position with a private company engaged in
research. The alien must be the beneficiary of a petition filed by the
employer with the INS. In addition, if the employer is a private company,
the employer must show that they have documented accomplishments in the
academic arena and that they employ at least 3 people engaged in full-time
research. Finally, the alien must demonstrate evidence through letters from
past/present employers that he/she has at least 3 years of full-time
experience in the field of outstanding ability. Research or teaching
performed while studying for an advanced degree may be used as experience
provided the degree was obtained and the alien had full responsibility
for the teaching or research and the teaching or research was found to be
outstanding by recognized experts in the field.
For (3), job offer is necessary.
For (4) again no job offer is needed. However, in some instances, if
the alien is in the USA, offer of employment may be needed to provide
evidence of financial support.
Q20:-Where can I get details about the rules and regulations pertaining to
the employment based immigration classifications?
Ans:-[From Muralidhar Rangaswamy, ranga...@zircon.plh.af.mil]
Citations from the foreign affairs manual are the best source of
information. You can find this at the end of the faq.
Q21:-Thanks for maintaining the USA Immigration FAQ:
I have a few unanswered questions. I am planning to
submit a petition based on immigrant classification as
an alien of extraordinary ability. What are the major steps
(milestones) towards obtaining the GC after you submitted
the petition? What is the typical duration of each step if
the petition is based on extraordinary abilities?
Ans:-[From Rajiv S. Khanna, rskh...@immigration.com]
Step 1: Filing the petition with INS
(Adjudication times vary from 4 weeks to 10 months depending upon
several factors, such as extent of documentation, place of
application etc.)
Step 2: Filing for adjustment of status (I-485) or consular processing
ADJUDICATION TIME VARIES FROM 8 WEEKS TO 14 MONTHS DEPENEDING
UPON YOUR PLACE OF RESIDENCE)
Q22:-I have seen many people pre-advertise for a position (i.e. not get the
job opening approved before hand) and thus save a significant period of
time in getting the LC. From what I gather, people seem to have a fair
amount of success in this.
However, my company lawyers are strongly opposed to it. DO YOU KNOW WHAT
THE SUCCESS RATE OF THIS IS? Is it any different in NY from other places
like DC area?
Ans:-[From Rajiv S. Khanna, rskh...@immigration.com]
The success rate of pre-recruiment varies widely from state to state,
occupation to occupation and from time to time. It is strongly
discouraged in some regions for some jobs, while it is a good practice in
some other DOL regions. For example, regions I know are likely to create
problems in computer occupations pre-advertise: New York, Boston, Texas
(unless you do it right). I always check with the related U.S. DOL and
local employment agency before filing (even that does not assure success
in all cases).
The big problem most companies have with pre-recruitment is that the
company's name must appear in the advertisement along with a salary
figure (or range). This creates problems for them. BTW, blind ads
are also possible under certain circumstances.
Q23:-New York
--------
Will it be useful for the employer to document recruitment efforts
beyond this job?
Ans:-Yes. Past 6 month's history.
Q24:-Mr. Khanna, as a follow up to the above question, in which step do
you need your dependents to be in the U.S?
(in the interview?).
Ans:-[From Rajiv S. Khanna, rskh...@immigration.com]
Dependents can "follow to join" or be in the U.S. when you file
Form I-485.
Q25:-Chicago
-------
Will you deny any RIR application where there are any special
qualifications required.
Ans:-Not if they are reasonable.
Q26:-I am currently holding an H-1B visa. If I decide to apply for a green
card,what are the steps I need to follow? Does it take less time if I am
working for a university?
Ans:-[from Rajiv S. Khanna, rskh...@immigration.com]
There are special procedures for university professors and/or outstanding
researchers. (See FAQ) Otherwise, working for a university offers no
special advantages.
Q27:-How many days/weeks/months does it take to get a Labor Clearance
for GC?
Ans:-[from B.G. Mahesh, mah...@mahesh.com] [Modified by Rajiv S. Khanna,
rskh...@immigration.com]
This depends on the state you reside. It can take anywhere from 4 months
to 2 years.
[from many on the net]
[Modified by Rajiv S. Khanna, rskh...@immigration.com]
There is a list of approximate Labor certification processing time sorted
statewide. Any additions/modifications should be sent to
rskh...@immigration.com
The list can be found at our web site:
http://www.immigration.com
Q28:-What is "Reduction in Recruitment (RIR)?"
Ans:-[from Rajiv S. Khanna, rskh...@immigration.com]
It is a process whereby the labor certification may be speeded up
considerably. Note: the operative words are "may be."
In RIR, we demonstrate to the Department of Labor that the employer has
already unsuccessfully conducted a recruitment effort. They have a history
of trying to recruit for the position under labor certification.
ADVANTAGE
---------
1. RIR applications are supposed to be placed on fast track
2. You will not have to advertise again
DISADVANTAGE
-----------
1. You may end up losing a little time
2. Your labor certification may end up being too generic
Let me add, with all due respect for the complexity of the undertaking,
the various DOL regions are undertaking different approaches. The following
comments are reported from my conversations this past week with various DOL
regions (I am just reporting some of them to show the different approaches.
I always find it useful to speak with the powers that be and get some
guidance regarding their current thinking before we file a labor
certification):
Q29:-Will you deny any RIR application where there are any special
qualifications required.
Ans:- Yes.
Q30:-Will you permit variations between the job description on labor
certification and the advertisement?
Ans:-No.
Q31:-Will it be useful for the employer to document recruitment efforts
beyond this job?(Chicago)
Ans:-Yes. Past 6 month's history.
Q32:-How many days/weeks/months does it take to get a I-485
approval?<<Changed>>
Ans:-[Compiled by Rajiv S. Khanna, rskh...@immigration.com]
The times below will not apply because the I-485 processing will
now be done at Service Centers NOT locally. It is estimated that
the processing should take appx. 150 days.
THE TIMES ARE SUBJECT TO WIDE VARIATIONS. PLEASE CONFIRM THESE TIMES
BEFORE MAKING ANY PLANS.
INS OFFICE TIME CHECKED IN
------------- ------ ----------
Albany, NY 5 Months (Jan. 96)
Atlanta, GA ?
Arlington, VA 6 Months (Jan. 96)
Baltimore, MD 6 Months (Jan. 96)
Boston, MA 6 Months (Jan. 96)
Buffalo, NY ?
Charlotte, NC ?
Chicago, IL 1 Year (Jan. 96)
Cleveland, OH 4-6 Months (Jan. 96)
Detroit, MI 4-6 Months (Jan. 96)
Fort Lauderdale, FL ?
Hartford, CT 4 Months (Nov. 96)
Jacksonville, FL ?
Key West, FL ?
Los Angeles, CA 14 Months (Feb. 96)
Louisville, KY ?
Memphis ?
Miami, FL ?
Newark, NJ 7 Months (Jan. 96)
New Orleans, LA 5 Months (Dec. 95)
New York City, NY ?
Norfolk, VA ?
Omaha, NE 3 months (May 96)
Philadelphia, PA 3 Months (Jan. 96)
Pittsburgh, PA ?
Portland, ME
Providence, RI ?
Saint Albans, VT ?
Saint Paul, MN 3 months (Dec. 95)
Tampa, FL ?
W. Palm Beach, FL ?
(More Stuff Will Be added)
Q33:-New York
-------
Will you deny any RIR application where there are any special
qualifications required.
Ans:-Strong possibility.
Q34:-What are is the DOL actually looking for when it goes through the labor
certification process?
Ans:-[From Rajiv S. Khanna, rskh...@immigration.com]
This could take a book to answer. Typically, DOL looks into: bona fide job
opportunity (job must not be a sham); the appropriate wages being paid;
reasonableness of job requirements; appropriate recruitment and alien's
appropriateness for the position.
Q35:-New York
-------
Will you permit variations between the job description on labor
certification and the advertisement?
Ans:-Not if they are substantial.
Q36:-Philadelphia
-------------
Will you deny any RIR application where there are any special
qualifications required.
Ans:- No.
Q37:-Philadelphia
-------------
Will it be useful for the employer to document recruitment efforts
beyond this job?
Ans:-Yes. Past 6 month's (or more) history.
Q38:-Philadelphia
-------------
Will you permit variations between the job description on labor
certification and the advertisement?
Ans:-Yes.
Q39:-What is "priorty date?"
Ans:-From Prem, a netter
[Modified by Rajiv S. Khanna, rskh...@immigration.com]
If you have filed for alien labor certification, then your priority
date is the date on which your application was received by the state
level agency (SESA).
If instead of labor cert, you are going through the NIW/EB1 route,
then yourpriority date is the date you filed I-140 petition.
Q40:-How many days/weeks/months does it take to get a I-140 approval ?
Ans:-[from Rajiv S. Khanna, rskh...@immigration.com]
1-4 months for labor certification supported I-140.
Q41:-Can netters please provide their experience in adjustment of status
(I-485) interviews)?
Ans:-San Jose, CA
[From Suresh]
I have been regularly reading this newsgroup for the last few months.
It has often been useful.
I had applied for adjustment of status on July 1, '95. We got a response
from INS at the end of last May. The interview was waived, and they gave
us appointment for July 19th (yesterday) for the clerical processing of
the application - called adit processing.
We presented ourselves there on time. The INS had my wife's name and our
address wrong (typo). We told the person who was handling the adit
processing of this when we were asked to sign the application. She
corrected it right away. After that we signed the application and our
finger prints were affixed on it. Then we went to the neighboring
counter where the officer affixed the permanent residence stamp on our
passport and we were on our way! This stamp will serve as the "green
card" till the actual card arrives.
The INS people we met were very nice. The whole thing lasted a
pleasant 7 minutes or so.
Hope the above helps. Best of luck!
Suresh
Q42:-What is involved in the labor certification?
Ans:-[from B.G. Mahesh, mah...@mahesh.com]
[Modified by Rajiv S. Khanna, rskh...@immigration.com]
This is a much simplified flow chart. Variations exist.
o Prepare a job description for the job being offered.
o Job must be "permanent".
o Alien must be paid at least the minimum wages prevalent
for the job in the geographical area of employment.
o You need to advertise the job for 10 business days in your office
o Advertise for 3 consecutive days in a LOCAL newspaper or one day
nationally.
DOL [dept. of labor] will send in all the responses they get
for your advertisement and your employer needs to justify why
you are better than other applicants. If the DOL doesn't approve
your labor then you can't apply for labor clearance for the next
6 months.
Q43:-I am currently on an H1-B visa on behalf of a Software company. I have a
B.S degree in Electrical Engineering and about 8 years of professional
experience in this area. I am about to begin the process of applying for
Labor Certification. I have 'heard' that not having a Master's degree may
prove a hindrance to my case for LC. ( The job only required a B.S as the
minimum degree with 2-3 years of experience when I applied for it). What if
any impact would my Educational qualifications ( only BS ) have in the DOL
processing my application?
Ans:-[From Rajiv S. Khanna, rskh...@immigration.com]
There is no reason for lack of MS to be a hindrance. As long as you possess
specialized experience, and the job being certified requires that
experience, you should be fine. In fact, I personally believe experience
in most cases may be better than a graduate degree.
Q44:-Will you permit variations between the job description on labor
certification and the advertisement?(Chicago)
Ans:-Depends upon several variables.
Q45:-How strong must my English skills be to qualify for the F-1?
Ans:-[Gregory Siskind, gsis...@telalink.net]
The school must certify that the prospective student has proficiency in
English (usually demonstrated by passing an English proficiency examination
like the TOEFL) or the student will be enrolled in courses in a language in
which the student is proficient or the student will be enrolled in a full
course of study consisting of both academic courses and English instruction
or the student is enrolled in a language training program constituting a
full course of study.
Q46:-If the employer lays-off the employee to avoid payment of the agreed or
the promised salary (as stated on the Labor Certification or the Job Ad.)
Ans:-[from Rajiv S. Khanna, rskh...@immigration.com]
You may have a problem.
Q47:-What are the requirements for U.S. Citizenship?
Ans:-[From Muralidhar Rangaswamy, RANGA...@zircon.plh.af.mil]
There are four main requirements that must be met by every applicant.
(a) Basic literacy in the English language.
(b) Knowledge of U.S. history.
(c) Five years of residency in the U.S.
(d) Good moral character.
Q48:-Under what conditions can I be denied U.S. citizenship?
Ans:-[From Muralidhar Rangaswamy, RANGA...@zircon.plh.af.mil]
(a) If you advocate or if you are a member of any organization
that is opposed to organized government (i.e., if you preach
and practice anarchy).
(b) Membership in communist organizations.
(c) If you advocate the overthrow of the U.S. Government by force,
sabotage, violence or terrorism.
(d) If you publish any material advocating the methods of item (c).
(e) Exemption from services in the armed forces of the U.S.
(unless the alien status does not permit the individual to
serve on the armed forces or if the alien had served in the
armed forces of his/her own country).
(f) Desertion from military forces and draft evasion results in
permanent ineligibility for citizenship.
Q49:-Under what conditions can my citizenship be revoked?
Ans:-[From Muralidhar Rangaswamy, RANGA...@zircon.plh.af.mil]
If your behavior is not well disposed to the good order and happiness
of the U.S. or if you concealed your wartime activities when applying
for visas to enter the U.S. after World War II. Also, for example you do
one of the following:
(a) Refusal to testify before a congressional committee regarding
alleged subversive activities within 10 years after becoming a
U.S. citizen.
(b) Establish permanent foreign residence within 1 year after becoming
a U.S. citizen
Note from Rich Wales, ri...@yank.kitchener.on.ca
This provision was repealed on October 25, 1994, by
Public Law 103-416 (108 Stat. 4305). The old require-
ment that candidates for US citizenship must intend to
reside permanently in the US following naturalization
was also repealed by this same law.
(c) Membership in an outlawed organization within 5 years after becoming
a citizen.
Denaturalization proceedings may be instituted against you for (a)-(c).
REFERENCES:
[1] Nancy-Jo Merritt, "Understanding Immigration Law," Makai Publishing group,
Scottsdale, Arizona, 1993.
Q50:-Are all aliens in the United States who are out of status now
eligible to apply for adjustment of status to permanent residence?
Ans:-[From Allen E. Kaye, India Abroad Oct. 14, 1994]
Yes. All aliens who entered the United States without inspection
or who are not in lawful visa status may apply for adjustment.
Q51:-Is there an estimate of how many such foreign nationals are eligible
to apply for permanent resident status?
Ans:-[From Allen E. Kaye, India Abroad Oct. 14, 1994]
INS anticipates that, in Fiscal year 1995, approximately 100,000
such individuals who formerly would have had to go abroad in order
to obtain an immigrant visa, will now be able to remain in the
United States and apply for permanent resident status.
Q52:-Who can apply for U.S. citizenship?
Ans:-[From Muralidhar Rangaswamy, RANGA...@zircon.plh.af.mil]
Persons who are 18 years of age or older, who are lawfully
admitted permanent resident aliens and who meet certain
requirements (see question 3) may apply for citizenship.
Aliens who have served in the armed forces of the U.S. are
eligible for citizenship under special provisions.
Q53:-Aren't you making it easier for foreign nationals who came here
illegally to obtain green cards?
Ans:-[From Allen E. Kaye, India Abroad Oct. 14, 1994]
No, eligibility requirements for a green card and permanent residence
remain unchanged. Persons who violate the immigration laws and are not
immediately qualified for permanent residence, as required by the new
provision, remain subject to deportation. If encountered by the INS,
they will be placed in deportation proceedings, unless they are eligible
for other relief.
Q54:-US Citizenship
--------------
What is the time-frame to get U.S. citizenship if the spouse is
an U.S. citizen?
Ans:-[from Ashish Nedungadi, ash...@eng.umd.edu]
The spouse of a US citizen gets a CONDITIONAL green card "immediately"
after marriage. After 2 years, the conditionality of this green card
is removed(after successfully proving to INS that the marriage is
legitimate). The spouse is eligible for his/her citizenship after
3 years of receiving the CONDITIONAL green card.
In a nutshell,
3 years after obtaining one's green card(including the CONDITIONAL one)
If you want to get more technical ["technical" may not be
the right word :-)]
[from Rajiv S. Khanna, rskh...@immigration.com]
(a) Any person whose spouse is a citizen of the United States may by
naturalized upon compliance with all the requirement of this title
except the provisions of paragraph (1) of section 316(a) if such
person immediately preceding the date of filing his application for
naturalization has resided continuously, after being lawfully admitted
for permanent residence, within the United States for at least three
years, and during the three years immediately preceding the date of
filing his application has been living in marital union with the
citizen spouse, who has been a United States citizen during all of
such period, and has been physically present in the United States
for periods totaling at least half of that time and has resided
within the State or the district of the Service in the United States
in which the applicant filed his application for at least three months.
Q55:-Why was this provision added to the Appropriations Act?
Ans:-[From Allen E. Kaye, India Abroad Oct. 14, 1994]
It will help reduce the visa issuance workload at U.S. consulates
offices abroad so that they can devote more time to uncovering fraud
and other abuses associated with temporary visas to the United States.
Q56:-Doesn't the new adjustment of status provision in the INS Fiscal
Year 1995 Appropriations Act create another amnesty program
for illegal immigrants?
Ans:-[From Allen E. Kaye, India Abroad Oct. 14, 1994]
Absolutely not. An individual who entered, worked or remained in the
U.S. illegally must meet three prerequisites if he or she wishes to
remain in the U.S. while applying for permanent residence.
1. A relative or employer mush have filed a petition in behalf of
of the foreign national making him or her eligible for an
immigrant visa.
2. The immigrant visa must be immediately available to the
individual at the time the application for permanent residence is
filed.
3. In addition to the prescribed fee of $130, the individual
must agree to pay a monetarty penalty of $650 for previously
having entered and remained in the U.S. illegally (exception
children under 17 and certain family unity aliens).
Q57:-Do permanent residents need to apply for a visitors visa to visit Canada?
Ans:-[From Donald S. Cameron, seatl...@aol.com]
Permanent residents of the United States (Green Card holders) are, like
U.S. Citizens, exempt from the requirement to have a passport or a
Canadian visitor visa in order to visit Canada. The Green Card itself is sufficient documentation.
The decision on whether to admit a visitor to Canada is made by an
Immigration Officer at a Port of Entry to Canada. This is the case for
all visitors including those who hold Canadian visitor visas. The
Immigration Officer also determines the length of stay. If a Green Card
holder is admitted to Canada without any document being issued to him or
her it means that the GC holder has been admitted to Canada for 6 months.
A shorter stay than 6 months would be indicated if the GC holder was
issued a document called a Visitor Record which specifies the length of
time for which the holder has been admitted to Canada.
Persons seeking admission to Canada at the land border do not normally
fill out any forms to apply for admission. Those arriving by air
complete only a Customs form. There is no fee for the admission of
a GC holder to Canada as a visitor.
GC holders, like all other persons seeking admission as visitors, can be
refused admission for a variety of reasons. The most common one is the
existence of one or more criminal convictions in the applicant's past.
The most common criminal conviction is Driving While Intoxicated or
Driving While Impaired. These offenses fall with the criminal law in
Canada and even though they are usually regarded a misdemeanors in the
U.S. they are regarded as criminal offenses in Canada.
Visitors to Canada may not study or work. As in the U.S., different types
of visas or Authorizations are required to study or work.
Q58:-What should I do if I don't have my birth certificate?
Ans:-[From Muralidhar Rangaswamy, ranga...@plh.af.mil]
[Modified by Rajiv S. Khanna, rskh...@immigration.com]
You should obtain sworn affidavits from two relatives. A sample
affidavit is provided below.
AFFIDAVIT OF BIRTH
I, (name of relative), solemnly state and affirm as hereunder:
(1) I presently reside at ___________________________________.
(2) I am a citizen of _______________________________.
(3) I was born on ___________________ at________________.
(4) I am the (state relationship to the person whose birth is being verified)
(5) I personally know that (name of person) was born on ____________ at _________.
(6) A request has been made with the proper authorities for (name of person)'s
birth certificate but the same is unavailable.
____________________
Signed
Date:________________
I hereby affirm under the penalty of perjury pursuant to the laws of
the United States of America (28 U.S.C. Section 1746) that the foregoing is
true and correct.
This affidavit was executed on (date) at (Place).
____________________
Signed
Date:________________
NOTE: The above affidavit does NOT need to be notarized.
Q59:-Under what circumstances can a Permanent Resident Visa be revoked.
Ans:-[from Rajiv S. Khanna, rskh...@immigration.com]
Lots of circumstances: criminal convictions being the foremost;
abandonment of permanent residence.
Q60:-Can a Permanent Resident Visa be revoked for any of the above stated
reasons?
Ans:-[from Rajiv S. Khanna, rskh...@immigration.com]
Yes
Q61:-Specifically what types of foreign nationals are affected by this
new provision?
Ans:-[From Allen E. Kaye, India Abroad Oct. 14, 1994]
There are six groups, as of Oct. 1 1994, who will have the option
of obtaining a green card and permanent residence while remaining in the
United States. They include,
1. Those who entered U.S. illegally
2. Individuals employed in the U.S. without authorization
3. Those who remained in the U.S without maintaining lawful status
4. Foreign crewmen
5. Individuals who entered under the Visa Waiver Pilot Program
6. Those who entered the U.S. as foreign travelers in transit
without visa.
Q62:-Will I lose my permanent resident status or will I be penalized if I have
not yet applied for the new I-551 Green Card?
Ans:-No, you will not lose your permanent resident status if you have not yet
applied for a replacement Green Card, nor will you be penalized if you have
not yet applied for the new card. However, lawful permanent residents are
required by law to carry evidence of their status, and expired I-151s no
longer meet this requirement.
A person can still apply after March 20, 1996, and should still apply as
soon as possible for a replacement card to avoid difficulties in obtaining
employment, entitlement benefits and reentry into the United States from
abroad.
Q63:-Another followup, if you are granted an interview, can you postpone
it until your dependents can join you.
Ans:-[From Rajiv S. Khanna, rskh...@immigration.com]
Bad idea. It may a long time to get another interview and dependents
may be refused visa/admittance into the U.S. if they are arriving merely
to adjust status.
Q64:-Will it be useful for the employer to document recruitment efforts
beyond this job?
Ans:-Yes. Past one year's history.
Q65:-Do priority dates still matter? Can aliens, regardless of priority
dates, now immediately apply for adjustment of status?
Ans:-[From Allen E. Kaye, India Abroad Oct. 14, 1994]
All immigrant applicants (whether applying at INS offices or abroad)
must have priority dates earlier than any applicable visa cut-off
dates to be granted a visa or adjustment of status. This has not
been altered by the recent amendment to the Immigration Act. Under the
terms of Section 245, INS will not accept an application for adjustment
of status from an applicant in a numerically limited category unless
a visa number is available for the alien's priority date. All immigrant
visa applicants will continue to be processed in order of priority date
whether cases are processed at overseas American Consulates or through INS.
Q66:-I ( US Citizen) need to petition for a US greencard for my parents
who are right now in Venezuela.
Q 1. Once the application step is begun, is it TRUE that parents must
remain where they are at? Does this apply to third countries like
Venezuela? I am petitioning for my parents and they are in Venezuela.
So they can't leave Venezuela?
Ans:-[From Rajiv S. Khanna, rskh...@immigration.com]
They are not required to remain where they are. They can go anywhere they
please. But because they would have applied for an immigrant status, it may be difficult for them to come to U.S. on a nonimmigrant visa such a as
Tourist visa.
Q67:-Q 2.Is there a distinction between petition form and
application form? For immediate relative case, is the
I-130 the petition and application form or is it just
the petition form?
Ans:-[From by Rajiv S. Khanna, rskh...@immigration.com]
Same thing. File Form I-130.
Q68:-For immediate relatives, is it really required to produce
birth certificates of the parents? (I am US citizen and
have my birth certificate, but they are Indian and don't have
birth certificates)
Ans:-[From Rajiv S. Khanna, rskh...@immigration.com]
Pick up the affidavits of birth from our FAQ (http://www.immigration.com).
INS may require additional official proof that birth certificates
are not available (e.g., letter from office of records, or
local municipality).
Q69:-When can I apply for U.S. citizenship?
Ans:-[From Muralidhar Rangaswamy, RANGA...@zircon.plh.af.mil]
Five years from the date of entry as a lawful permanent resident.
If married to and living with citizen spouse in marital union for
at least 3 years before filing the application, the residence period
is shortened to 3 years. You can file the application 3 months
before the residence requirement is met. Also, you have to be a
resident for 3 months in the state or INS district where you
are filing the application.
Q70:-How do I know if I need to replace my Green Card:
Ans:-Permanent resident aliens holding an old Form I-151 Alien Registration
Receipt Card (Green Card) issued before 1979 -- must apply in person
as soon as possible for a new card, Form I-1551 Alien Registration Receipt
Card, to maintain proof of permanent resident status. The old Form I-151
Green Card will not be valid after March 20,1996.
The replacement Green Card, Form I-551 Alien Registration Receipt Card,
will contain the holder's picture, fingerprint and signature. It will
positively identify the holder as a legal permanent resident and make it
easier to obtain employment, social security and other public benefits, and
to reenter the United States from abroad.
The more secure I-551 has an expiration date and will need to be renewed
every ten years. This will allow the INS to progressively improve card
features and make the cards increasingly more difficult to counterfeit.
Q71:-Where can I get some information on dual citizenship?<<Changed>>
Ans:-[From Rich Wales, ri...@yank.kitchener.on.ca]
[Modified by Rajiv S. Khanna, rskh...@immigration.com]
http://yank.kitchener.on.ca/~richw/dualcit.html
Using FTP
Connect to yank.kitchener.on.ca
get the two files /home/richw/dualcit.txt and
/home/richw/dualcit2.txt
Using E-Mail
Send a message to ri...@yank.kitchener.on.ca with the
subject "send dualcit". The body of the message can be
blank, but you must type the subject line as indicated.
[from Rajiv S. Khanna, rskh...@immigration.com]
We have retireved the following information:
DUAL NATIONALITY
The concept of dual nationality means that a person is a citizen of two
countries at the same time. Each country has its own citizenship laws
based on its own policy.Persons may have dual nationality by automatic
operation of different laws rather than by choice. For example, a child
born in a foreign country to U.S. citizen parents may be both a U.S.
citizen and a citizen of the country of birth. A U.S. citizen may acquire
foreign citizenship by marriage, or a person naturalized as a U.S. citizen
may not lose the citizenship of the country of birth.U.S. law does not
mention dual nationality or require a person to choose one citizenship
or another. Also, a person who is automatically granted another citizenship
does not risk losing U.S. citizenship. However, a person who acquires a
foreign citizenship by applying for it may lose U.S. citizenship.
In order to lose U.S. citizenship, the law requires that the person must
apply for the foreign citizenship voluntarily, by free choice, and with
the intention to give up U.S. citizenship. Intent can be shown by the
person's statements or conduct.The U.S. Government recognizes that dual
nationality exists but does not encourage it as a matter of policy because
of the problems it may cause. Claims of other countries on dual national
U.S. citizens may conflict with U.S. law, and dual nationality may limit
U.S. Government efforts to assist citizens abroad. The country where a
dual national is located generally has a stronger claim to that person's
allegiance. However, dual nationals owe allegiance to both the United
States and the foreign country. They are required to obey the laws of both
countries. Either country has the right to enforce its laws, particularly
if the person later travels there.Most U.S. citizens, including dual
nationals, must use a U.S. passport to enter and leave the United States.
Dual nationals may also be required by the foreign country to use its
passport to enter and leave that country. Use of the foreign passport
does not endanger U.S. citizenship.Most countries permit a person to
renounce or otherwise lose citizenship. Information on losing foreign
citizenship can be obtained from the foreign country's embassy and
consulates in the United States. Americans can renounce U.S. citizenship
in the proper form at U.S. embassies and consulates abroad.
-------------------------------------------------------------
RULES AND REGULATIONS PERTAINING TO THE EMPLOYMENT BASED IMMIGRATION
CLASSIFICATIONS
[From Muralidhar Rangaswamy, ranga...@zircon.plh.af.mil]
FAM09-42.32(a) FIRST PREFERENCE - PRIORITY WORKERS
(1) Entitlement to Status
(TL:VISA-48; 10-1-91)
An alien shall be classifiable as an employment-based first preference
immigrant under INA 203(b)(1) if the consular office has received
from INS a Petition for Immigrant Worker approved in accordance with
INA 204 to accord the alien such preference status, or official
notification of such an approval, and the consular officer is satisfied
that the alien is within one of the classes described in INA 203(b)(1).
(2) Entitlement to Derivative Status
(TL:VISA-48; 10-1-91)
Pursuant to INA 203(d), and whether or not named in the petition, the
child or spouse of a employment-based first preference immigrant, if not
otherwise entitled to an immigrant status and the immediate issuance of a
visa, is entitled to a derivative status corresponding to the
classification and priority date of the beneficiary of the petition.
RELATED STATUTORY PROVISIONS
INA 203(b), in part
(TL:VISA-55; 3-13-92)
(1) PRIORITY WORKERS.--Visas shall first be made available in a number
not to exceed 28.6 percent of such worldwide level, plus any visas not
required for the classes specified in paragraphs (4) and (5), to qualified
immigrants who are aliens described in any of the following paragraphs (A)
through (C):
(A) ALIENS WITH EXTRAORDINARY ABILITY.--An alien is described in this
subparagraph if-
(i) the alien has extraordinary ability in the sciences, arts, education,
business, or athletics which has been demonstrated by sustained national
or international acclaim and whose achievements have been recognized in
the field through extensive documentation,
(ii) the alien seeks to enter the United States to continue work in the
area of extraordinary ability, and
(iii) the alien's entry into the United States will substantially benefit
prospectively the United States.
(B) OUTSTANDING PROFESSORS AND RESEARCHERS.--An alien is described in
this subparagraph if-
(i) the alien is recognized internationally as outstanding in a specific
academic area,
(ii) the alien has at least 3 years of experience in teaching or research
in the academic area, and
(iii) the alien seeks to enter the United States-
(I) for a tenured position (or tenure-track position) within a university
or institution of higher education to teach in the academic area,
(II) for a comparable position with a university or institution of higher
education to conduct research in the area, or
(III) for a comparable position to conduct research in the area with a
department, division, or institute of a private employer, if the
department, division, or institute employs at least 3 persons full-time in
research activities and has achieved documented accomplishments in an
academic field.
(C) CERTAIN MULTINATIONAL EXECUTIVES AND MANAGERS.--An alien is described
in this subparagraph if the alien, in the 3 years preceding the time of
the alien's application for classification and admission into the United
States under this subparagraph, has been employed for at least 1 year by a
firm or corporation or other legal entity or an affiliate or subsidiary
thereof and the alien seeks to enter the United States in order to
continue to render services to the same employer or to a subsidiary or
affiliate thereof in a capacity that is managerial or executive.
(TL:VISA-48; 10-1-91)
For the provisions of INA 203(d), see section 42.31 (Related Statutory
Provisions).
-------------------- *** ----------------
FAM09-42.32(a) - NOTES EMPLOYMENT-BASED FIRST PREFERENCE IMMIGRANTS
N1 Defining "Priority Workers" (TL:VISA-54; 2-28-92)
a. The statute designates the following aliens as "priority workers" who
may be entitled to status as employment-based first preference applicants:
(1) Aliens with extraordinary ability [see N1.1 below];
(2) Outstanding professors and researchers [see N1.2 below]; and
(3) Certain multinational executives and managers [see N1.3 below].
b. The Immigration and Naturalization Service must approve petitions in
all of the above categories. [See N2 below.]
N1.1 Aliens With Extraordinary Ability (TL:VISA-54; 2-28-92)
To be considered as an alien with extraordinary ability, the alien must
have sustained national or international acclaim. The alien's
accomplishments in the field of science, art, education, business or
athletics must be recognized in the form of extensive documentation. The
alien must be seeking to enter the United States to continue work in the
field, and the entry of such alien must substantially benefit
prospectively the United States.
N1.1-1 Defining "Extraordinary Ability" (TL:VISA-54; 2-28-92)
8 CFR section 204.5(h)(2) defines "extraordinary ability" as follows:
"Extraordinary ability means a level of expertise indicating that the
individual is one of that small percentage who have risen to the top of
the field of endeavor."
N1.1-2 Evidence of Extraordinary Ability (TL:VISA-54; 2-28-92)
a. The Immigration and Naturalization Service regulations (8 CFR
204.5(h)(3)) state the documentary evidence that is to be submitted along
with the petition. Such evidence shall include:
(1) Evidence of a one-time achievement (that is a major, internationally
recognized award) or
(2) At least three of the following:
(a) Evidence of receipt of a lesser nationally or internationally
recognized prize or award for excellence in the field of endeavor;
(b) Evidence of membership in associations which require outstanding
achievements of their members, as judged by recognized experts;
(c) Published material in professional or major trade publications or
major media about the alien's work;
(d) Evidence of participation on a panel, or individually, as a judge of
the work of others in the field;
(e) Evidence of original scientific, scholarly, artistic, or
business-related contributions of major significance;
(f) Evidence of authorship of scholarly articles in professional journals
or other major media;
(g) Evidence of the display of the alien's work in exhibitions or
showcases;
(h) Evidence that the alien has performed in a leading or critical role
for organizations or establishments having a distinguished reputation; and
(i) Evidence of high salary or high remuneration in relation to others in
the field; or
(j) Evidence of commercial successes in the performing arts, as shown by
box office receipts or record, cassette, compact disk or video sales.
b. If the above standards do not readily apply, the petitioner may submit
comparable evidence to establish eligibility.
N1.1-3 Labor Certification/Job Offer (TL:VISA-54; 2-28-92)
Although no offer of employment (including a labor certification) is
required, the alien must include with the petition convincing evidence
that he or she is coming to continue work in the area of expertise.
Evidence may include letter(s) from prospective employer(s), evidence of
prearranged commitments, such as contracts, or a statement from the
beneficiary detailing plans for continuing work in the United States.
N1.2 Outstanding Professors and Researchers (TL:VISA-54; 2-28-92)
An alien may qualify as a priority worker outstanding professor or
researcher if the alien:
(1) Is recognized internationally as outstanding in a specific academic
area;
(2) Has at least 3 years of experience in teaching or research in the
academic area; and
(3) Has the required offer of employment. [See N1.2-3 below.]
N1.2-1 Evidence of Outstanding Achievement (TL:VISA-54; 2-28-92)
The Immigration and Naturalization Service regulations (8 CFR 204.5(h)(3))
indicate the evidence required in submitting a petition for classification
as an outstanding professor or researcher. Such evidence shall include
evidence of international recognition as outstanding in the specific
academic area. This evidence shall consist of at least two of the
following:
(1) Documentation of receipt of major international prizes or awards for
outstanding achievement in the academic area;
(2) Documentation of the alien's membership in associations in the
academic field, which require outstanding achievements of their members;
(3) Published material in professional publications written by others
about the alien's work;
(4) Evidence of participation on a panel, or individually, as the judge
of the work of others in the same, or an allied, academic field;
(5) Evidence of original scientific or scholarly research contributions;
or
(6) Evidence of authorship of scholarly books or articles (in scholarly
journals with international circulation) in the academic field.
N1.2-2 Labor Certification/Job Offer (TL:VISA-54; 2-28-92)
Aliens coming to the United States as outstanding researchers or
professors do not require labor certification. However, such aliens must
have a letter from a(n):
(1) U. S. university or institution of higher learning offering the alien
a tenured or tenure-track teaching or research position in the academic
field; or
(2) Department, division, or institute of a private or non-profit
employer offering the alien a comparable research position in the academic
field. The department must demonstrate that it employs at least three
persons full-time in research positions, and that it has achieved
documented accomplishments in the academic field.
N1.3 Certain Multinational Executives and Managers (TL:VISA-54;2-28-92)
An alien may qualify as a priority worker multinational executive or
manager if:
(1) During the 3 year period preceding the time of the alien's
application for classification and admission into the United States, the
alien has been employed for at least 1 year by a firm or corporation or
other legal entity or an affiliate or subsidiary thereof; and
(2) The alien seeks to enter the United States in order to continue to
render services to the same employer or to a subsidiary or affiliate
thereof in a capacity that is managerial or executive.
N1.3-1 Defining "Affiliate" (TL:VISA-54; 2-28-92)
The term "affiliate" as used in this section means:
(1) One of two subsidiaries both of which are owned and controlled by the
same parent or individual.
(2) One of two legal entities entirely owned and controlled by the same
group of individuals, each individual owning and controlling approximately
the same share or proportion of each entity; or
(3) In the case of a partnership that is organized in the United States
to provide accounting services, along with managerial and/or consulting
services, and markets its accounting services under an internationally
recognized name under an agreement with a worldwide coordinating
organization that is owned and controlled by the member accounting firms,
a partnership (or similar organization) that is organized outside the
United States to provide accounting services shall be considered to be an
affiliate of the U. S. partnership if it markets its accounting services
under the same internationally recognized name under the agreement with
the worldwide coordinating organization of which the U. S. partnership is
also a member.
N1.3-2 Defining "Doing Business" (TL:VISA-54; 2-28-92)
"Doing business" means the regular, systematic, and continuous provision
of goods and/or services by a firm, corporation, or other entity and does
not include the mere presence of an agent or office.
N1.3-3 Defining "Executive Capacity" (TL:VISA-54; 2-28-92)
The term "executive capacity" as defined in INA 101(a)(44)(B) of the
Immigration and Nationality Act, means an assignment within an
organization in which the employee primarily:
(1) Directs the management of the organization or a major component or
function of the organization;
(2) Establishes the goals and policies of the organization, component, or
function;
(3) Exercises wide latitude in discretionary decision-making; and
(4) Receives only general supervision or direction from higher level
executives, the board of directors, or stockholders of the organization.
N1.3-4 Defining "Managerial Capacity" (TL:VISA-54; 2-28-92)
a. "Managerial capacity" as defined in INA 101(a)(44)(A) means an
assignment within an organization in which the employee primarily:
(1) Manages the organization, or a department, subdivision, function, or
component of the organization;
(2) Supervises and controls the work of other supervisory, professional,
or managerial employees, or manages an essential function within the
organization, or a department or subdivision of the organization;
(3) If another employee or other employees are directly supervised, has
the authority to hire and fire or recommend those as well as other
personnel actions (such as promotion and leave authorization) or, if no
other employee is directly supervised, functions at a senior level within
the organization hierarchy or with respect to the function managed; and
(4) Exercises discretion over the day-to-day operations of the activity
or function for which the employee has authority.
b. A first-line supervisor is not considered to be acting in a managerial
capacity merely by virtue of supervisory responsibilities unless the
employees supervised are professional.
N1.3-5 Defining "Multinational" (TL:VISA-54; 2-28-92)
"Multinational" means that the qualifying entity, or its affiliate or
subsidiary conducts business in two or more countries, one of which is the
United States.
N1.3-6 Defining "Subsidiary" (TL:VISA-54; 2-28-92)
"Subsidiary" is defined as a firm, corporation, or other legal entity of
which a parent owns, directly or indirectly, 50 percent of a 50-50 joint
venture and has equal control and veto power over the entity; or owns,
directly or indirectly, less than half of the entity, but in fact controls
the entity.
N1.3-6 Labor Certification/Job Offer (TL:VISA-54; 2-28-92)
No labor certification is required for aliens in this classification.
However, the prospective U.S. employer must furnish a job offer in the
form of a statement which indicates that the alien will be employed in the
United States in a managerial or executive capacity. The letter must
clearly describe the duties to be performed.
N2 Petitions (TL:VISA-54; 2-28-92)
Aliens of extraordinary ability may file petitions with the Immigration
and Naturalization Service on their own behalf. Other employer-sponsored
immigrants must be beneficiaries of approved petitions filed by the
employer.
N3 Spouse and Children (TL:VISA-54; 2-28-92)
The spouse, or the child of a marriage which existed at the time of the
principal alien's admission into the United States, is entitled to
derivative status and may accompany or follow to join the principal
applicant. A spouse or child acquired subsequent to the principal alien's
admission is not entitled to derivative status.
-------------- ************** --------------
FAM09-42.32(b) SECOND PREFERENCE - PROFESSIONALS WITH ADVANCED DEGREES OR
PERSONS OF EXCEPTIONAL ABILITY
(1) Entitlement to Status
(TL:VISA-48; 10-1-91)
An alien shall be classifiable as an employment-based second preference
immigrant under INA 203(b)(2) if the consular officer has received from
INS a Petition for Immigrant Worker approved in accordance with INA 204 to
accord the alien such preference status, or official notification of such
an approval, and the consular officer is satisfied that the alien is
within one of the classes described in INA 203(b)(2).
(2) Entitlement to Derivative Status
(TL:VISA-48; 10-1-91)
Pursuant to INA 203(d), and whether or not named in the petition, the
child or spouse of a employment-based second preference immigrant, if not
otherwise entitled to an immigrant status and the immediate issuance of a
visa, is entitled to a derivative status corresponding to the
classification and priority date of the beneficiary of the petition.
RELATED STATUTORY PROVISIONS
INA 203(b), in part
(TL:VISA-55; 3-13-92)
(2) ALIENS WHO ARE MEMBERS OF THE PROFESSIONS HOLDING ADVANCED DEGREES OR
ALIENS OF EXCEPTIONAL ABILITY.--
(A) IN GENERAL.--Visas shall be made available, in a number not to exceed
28.6 percent of such worldwide level, plus any visas not required for the
classes specified in paragraph (1), to qualified immigrants who are
members of the professions holding advanced degrees or their equivalent or
who because of their exceptional ability in the sciences, arts, or
business, will substantially benefit prospectively the national economy,
cultural or educational interests, or welfare of the United States, and
whose services in the sciences, arts, professions, or business are sought
by an employer in the United States.
(B) WAIVER OF JOB OFFER.--The Attorney General may, when he deems it to
be in the national interest, waive the requirement of subparagraph (A)
that an alien's services in the sciences, arts, professions, or business
be sought by an employer in the United States.
(C) DETERMINATION OF EXCEPTIONAL ABILITY.--In determining under
subparagraph (A) whether an immigrant has exceptional ability, the
possession of a degree, diploma, certificate, or similar award from a
college, university, school, or other institution of learning or a license
to practice or certification for a particular profession or occupation
shall not by itself be considered sufficient evidence of such exceptional
ability.
(TL:VISA-48; 10-1-91)
For the provisions of INA 203(d), see section 42.31 (Related Statutory
Provisions).
----------------------------------------------------------------------
FAM09-42.32(b) - NOTES EMPLOYMENT-BASED SECOND PREFERENCE IMMIGRANTS
N1 Professionals Holding Advanced Degrees (TL:VISA-54; 2-28-92)
An alien may qualify as an employment-based second preference immigrant if
the alien is a member of the professions holding an advanced degree or the
equivalent. The alien must be the beneficiary of a petition approved by
the Immigration and Naturalization Service. [See N4 below.]
N1.1 Definitions
N1.1-1 Defining "Advanced Degree" (TL:VISA-54; 2-28-92)
"Advanced degree" means any U.S. academic or professional degree (or
foreign equivalent degree) above that of baccalaureate.
N1.1-2 Master's Degree Equivalent (TL:VISA-54; 2-28-92)
The conference committee report (H.R. Rep. No. 101-955) states that a
bachelor degree plus five years of progressive experience in the
professions should be considered as the equivalent of a master's degree.
N1.1-3 Doctorate Degree Equivalent (TL:VISA-54; 2-28-92)
Although the Immigration and Naturalization Service (INS) will not
evaluate the equivalence of education and experience to a doctorate, if a
doctorate (or a foreign equivalent degree) is normally required by the
specialty, the alien must possess such a degree.
N1.1-4 Defining "Profession " (TL:VISA-54; 2-28-92)
INA 101(a)(32) defines "profession" as including but not limited to
architects, engineers, lawyers, physicians, surgeons, and teachers in
elementary or secondary schools, colleges, academies, or seminaries. INS
regulations also include any occupation for which a U.S. baccalaureate
degree (or foreign equivalent) is the minimum requirement for entry into
the occupation.
N1.2 Determining Professional Status (TL:VISA-54; 2-28-92)
Evidence to establish an alien as a member of the professions holding an
advanced degree should be in the form of the following:
(1) An official academic record showing possession of an advanced degree
(or foreign equivalent); or
(2) An official academic record showing possession of a baccalaureate
degree (or foreign equivalent) and a letter from current or former
employer(s) showing at least five years of progressive post-baccalaureate
experience in the specialty.
N2 Aliens of Exceptional Ability (TL:VISA-54; 2-28-92)
An alien may qualify as an employment based-second preference immigrant if
the alien has exceptional ability in the sciences, arts, or business,
which will substantially benefit prospectively the national economy,
cultural or educational interests, or welfare of the United States, and
the alien's services in the sciences, arts, or business are sought by an
employer in the United States.
N2.1 Determining Exceptional Ability (TL:VISA-54; 2-28-92)
a. The possession of a degree, diploma, certificate, or similar award
from a college, university, school, or other institution of learning; or a
license to practice, or certification for a particular profession or
occupation, shall not by itself be considered sufficient evidence of such
exceptional ability.
b. "Exceptional ability" has been defined as something more than what is
usual, ordinary, or common, and requires some rare or unusual talent, or
unique or extraordinary ability in a calling which, of itself, requires
that talent or skill. Individuals must have attained a status in their
field wherein contemporaries recognize exceptional ability.
c. To establish evidence of exceptional ability, the petition must be
accompanied by at least 3 of the following:
(1) An official academic record showing a degree, diploma, certificate,
or similar award from a college, university, school, or other institution
of learning relating to the area of exceptional ability;
(2) Letter(s) from current or former employer(s) showing evidence the
alien has at least ten years of full-time experience in the occupation;
(3) A license to practice the profession or certification for a
particular profession or occupation;
(4) Evidence that the alien has commanded a salary, or other remuneration
for services, which demonstrates exceptional ability;
(5) Evidence of membership in professional associations; or
(6) Evidence of recognition for achievements and significant
contributions to the industry or field by peers, governmental entities, or
professional or business organizations.
d. If the above standards do not readily apply the petitioner may submit
comparable evidence to establish the beneficiary's eligibility.
N3 Labor Certification/Job Offer (TL:VISA-54; 2-28-92)
a. Although a labor certification is required for the second preference
category, the Attorney General may, when he deems it to be in the national
interest, waive the requirement that an alien's services in the sciences,
arts, or business be sought by an employer in the United States.
b. The Department of Labor has stated that if there is no employer, there
is no basis for issuing a labor certification. There may be, therefore,
some valid petitions for employer-based second preference that do not have
an underlying labor certification.
N4 Petitions (TL:VISA-54; 2-28-92)
Any U.S. employer may file a petition for classification of an alien under
INA 203(b)(2) as an alien who is a member of the professions holding an
advanced degree or an alien of exceptional ability in the sciences, arts,
or business. If an alien is claiming exceptional ability and seeking an
exemption from the job offer requirement under INA 203(b)(2)(B), then the
alien, or anyone on the alien's behalf, may file the petition.
N5 Spouse and Children (TL:VISA-54; 2-28-92)
The spouse, or the child of a marriage which existed at the time of the
principal alien's admission into the United States, is entitled to
derivative status and may accompany or follow to join the principal
applicant. A spouse or child acquired subsequent to the principal alien's
admission is not entitled to derivative status.
-------------------------------------------------------------------
FAM09-42.32(c) THIRD PREFERENCE - SKILLED WORKERS, PROFESSIONALS, OTHER
WORKERS
(1) Entitlement to Status
(TL:VISA-48; 10-1-91)
An alien shall be classifiable as an employment-based third preference
immigrant under INA 203(b)(3) if the consular officer has received from
INS a Petition for Immigrant Worker approved in accordance with INA 204 to
accord the alien such preference status, or official notification of such
an approval, and the consular officer is satisfied that the alien is
within the class described in INA 203(b)(3).
(2) Entitlement to Derivative Status
(TL:VISA-48; 10-1-91)
Pursuant to INA 203(d), and whether
Q72:-If I apply now, where do I go to apply and how long will it be before I
receive my new Green Card?
Ans:-To replace their Green Card, holders of Form I-151 Alien Registration
Receipt Card must apply in person and submit a completed Form I-90 along
with a $75 filing fee to their local INS office. It will take from three
months to ten months for an applicant to receive his/her new card.
Individuals should contact their local INS office regarding specific
filing procedures.
Q73:-What if I cannot afford the application fee, or I am ill or disabled
and cannot go to my local INS office?
Ans:-Applicants who cannot afford the fee, or who are unable to appear
in person because they are confined due to advanced age or physical
disability, may contact their local INS office and request a waiver of
these requirements.
Q74:-Do I have an alternative to applying for a new Green Card?
Ans:-Yes, there is a simple alternative to Green Card replacement for those
who qualify or apply for citizenship. As a US citizen there is no need
for a Green Card.
Q75:-If I am about to apply for a new Green Card or if I have already
applied for my replacement Green Card or for citizenship what can I use to
maintain proof of permanent resident status until I receive my new Green
Card or until I become a US citizen?
Ans:-For applicants with a valid, unexpired passport: Applicants may bring
their passport with evidence of filing for a new Green Card, or evidence of
filing for naturalization, to their local INS office. A temporary Form I-
551 stamp, valid up to one year, will be placed in the passport.
For applicants without a valid, unexpired passport: If there is a need for
emergency travel, applicants may bring evidence of filing for a new Green
Card, or evidence of filing for naturalization, to their local INS office
and request a temporary Form I-551. If the request is clearly warranted
because of an emergency, the temporary Form I-551 will be issued.
These authorization documents allow the applicant to reenter the United
States and obtain entitlement benefits until he/she receives a replacement
card or becomes a naturalized citizen (if the applicant applied for
citizenship instead of a new Green Card.)
Q76:-After March 20, 1996, what will happen if I present an old Form I-151
Green Card when I try to reenter the United States after traveling abroad,
or when I obtain a new job, or when I apply for entitlement benefits?
Ans:-Reentry into the United States from abroad: To the extent possible, apply
for your new card before you travel and bring with you evidence of your
application for either the new card or naturalization. However, a legal
permanent resident with an old I-151 who applies for admission to the
United States after traveling abroad may experience a delay in admission
due to additional procedures.
Obtaining employment: If you are considering changing jobs, again, we urge
you to apply for your new card or naturalization and bring with you
evidence of your application for either the new card or naturalization.
While employers will not accept the old I-151 , when they verify employment
eligibility for new hires, you may use other documents listed on the Form
I-9 (Employment Eligibility Verification Form) to fulfill this need.
Applying for entitlement benefits: Your status as a legal permanent
resident has not changed. Therefore, your eligibility for entitlement
benefits will not change. However, to avoid any possible inconvenience or
delay in applying for entitlement benefits, we urge you to apply for your
new card or naturalization and bring with you evidence of your application
for either the new card or naturalization.
Q77:-GC Lottery
----------
Provide Info about the GC lottery
Diversity Visa Lottery 1998 (DV-98)
Ans:-[from Rajiv S. Khanna, rskh...@immigration.com]
The registration period for the next Diversity Visa Lottery (DV-98)
will begin at noon on February 3, 1997 and will end at noon on
March 5, 1997. Any entries received before or after these dates will
be disqualified.
Persons born in the following countries are not eligible for
DV-98: Canada, China, including Mainland and Taiwan, Colombia,
Dominican Republic, El Salvador, India, Jamaica, Mexico, Philippines,
Poland, South Korea, Vietnam, and the United Kingdom and its dependent
territories. (Persons born in Hong Kong and Northern Ireland are
eligible to apply.)
If you are in the United States, to receive written instructions on how
to enter the visa lottery (DV-98), please call the U.S. Department of
State's Visa Lottery Information Center at 1-900-884-8840 and leave
your name and address. You will be charged a flat rate of $5.10 on your
telephone bill (callers must be age 18 or older) and the information will
be mailed to you within three business days. If you are overseas, please
contact the nearest U.S. embassy or consulate for DV-98 instructions.
CONSUMER ALERT
Federal Trade Commission
Bureau of Consumer Protection
Office of Consumer and Business Education
Green Card Lottery Scams
Washington, D.C. -- If you or someone you know is trying to obtain a
green card--the right to live permanently in the United States--be on
the alert for unscrupulous businesses and attorneys who claim that, for
a fee, they can increase your chances of winning the U. S. State
Department's annual green card lottery.
Each year the State Department conducts a green card lottery through
its diversity visa program to distribute applications for 55,000
immigrant visas. Winners of the lottery have a chance to apply for
an immigrant visa, which can be used to enter the U.S. Winners are
selected randomly and there is no fee to enter the lottery. If the
winner files a successful application, he or she can enter the U.S.
and exchange the immigrant visa for a green card, issued by the
Immigration and Naturalization Service (INS). If the winner is in the
U.S. already, he or she can get a green card from INS without leaving
the country.
The Scam
Some businesses and attorneys use misrepresentations and unfair practices
to promote services to consumers who hope to win a chance to apply for a
green card through the lottery program. Among the deceptions scam artists
use are statements that:
-- they are affiliated with the U.S. Government;
-- special expertise or a special application form is required to
enter the lottery;
-- their company never has had a lottery entry rejected, and
-- their company can increase an applicant's chances of "winning" the
lottery.
In addition, some fraudulent companies jeopardize an applicant's opportunity
to participate in the lottery by filing multiple entries; and try to force
lottery-winning applicants to pay substantial fees to complete the visa and
green card application process. A delay in processing a winner's application
can kill their chances for a green card because the State Department selects
more winners than there are visas available. The State Department awards
visas on a first-come, first-served basis.
Protecting Yourself
The best way to protect yourself from green card lottery scam artists is to
understand how the State Department's lottery works.
-- Entering the green card lottery is straightforward and costs nothing.
You can enter on your own by following the instructions available from
the State Department or your local consumer affairs office. There is no
entry form. Hiring an attorney or company to enter the lottety for you is
your decision.
-- Do not submit more than one entry. If you do, you will be disqualified
automatically.
-- No special techniques or loopholes are available to increase your
chances of winning the green card lottery. Selection of entries in the
lottery is random.
For more information about the State Department's green card lottery,
contact the U.S. Department of State hotline at 900-884-8840. The cost of
the call is $5.10. You also may access the State Department's website at
http://travel.state.gov. If you think you are a victim of a green card
lottery scam, contact the Federal Trade Commission's New York Regional
Office at (212) 264-1207. Or, contact the National Fraud Information
Center (NFIC), a project of the National Consumers League, at
1-800-876-7060, 9 a.m. - 5:30 p.m. EST, Monday - Friday, or at
http://www.fraud.org on the Internet.
Q78:-Do I have to replace my Green Card?
Ans:-[From Rajiv S. Khanna, rskh...@immigration.com]
FACT SHEET FROM INS
***********************
Green Card Replacement Program
All old I-151 Cards Expire March 20, 1996
Permanent resident aliens with an old Form I-151 Green Card, issued
before 1979, must obtain a new card, Form I-551 Alien Registration Receipt
Card, to maintain evidence of resident status. The old Form I-151 will no
longer be valid after March 20, 1996.
The INS is urging those lawful permanent residents, who are in need of
the new card and have not yet applied, to do so as soon as possible to
avoid any possible confusion about their legal permanent resident status
after March 20, 1996.
Q79:-What supporting documentation must be submitted to demonstrate
the national interest?
Ans:-[From Muralidhar Rangaswamy, RANGA...@zircon.plh.af.mil]
Most of the successful petitions are documented by evidence such as
a letter from an interested U.S. Government agency, evidence showing
that the alien's work is funded by the U.S. Government and/or letters
from distinguished scientists/ professors in the field
attesting to the importance of the research. Cases involving defense
related research or energy related research have the greatest success.
Q80:-And, I had heard that there was a bill up for vote. Do you have
any information on this?
Ans:-[from Rajiv S. Khanna, rskh...@immigration.com]
The proposed special nonimmigrant "S" visas were never voted
on in Congress. The bill is on the back burner.
Q81:-What is the waiting period for such cases [2A category]?
Ans:-[from Rajiv S. Khanna, rskh...@immigration.com]
As of October 1996
Approx. 4 years for India.
Q82:-What are the various categories of "Preferences" ?
Ans:-[From Allen E. Kaye, India Abroad]
FAMILY SPONSORED PREFERENCES
-----------------------------
First Preference : Unmarried sons and daughters of U.S. citizens.
2A exempt second preference : spouse and unmarried children of permanent
residents - exempt from per-country limit.
2A subject second preference : spouses and unmarried children of permanent
residents - subject to per-country limit.
Legalization Beneficiaries - spouses and children (even though the marriage
took place after the date the petitioner was admitted to the U.S. as a
permanent resident.
2B second preference : Unmarried sons and daughters, 21 years of age or
older, of permanent residents.
Third Preference : married sons and daughters of U.S. Citizens.
Fourth Preference : Brothers and sisters of adult U.S. citizens.
EMPLOYMENT BASED PREFERENCES
----------------------------
First Preference : Priority workers.
Second Preference : Professionals holding advanced degrees or persons
of exceptional ability.
Third Preference : Skilled workers and professionals.
Third Preference : Other workers (unskilled workers).
Fourth Preference : Certain special immigrants..
Fourth Preference : Certain religious ministers, professionals and other
religious workers.
Fifth Preference : Employment creation (investors).
Fifth Preference : Employment creation (investors in targeted employment
areas)
Q83:-I have filed an application for change of status. I have a
non-immigrant visa [e.g. H-1B] which will expire next week.
Most likely I will not be called for my GC interview before
next week. Should I file for an extension of my non-immigrant
visa [e.g. extension of H-1B visa] ?
Ans:-[from Rajiv S. Khanna, rskh...@immigration.com]
You should immediately obtain employment authorization. INS should
expedite your request under these circumstances.
Q84:-What are the recent INS proposals regarding the NIW?
Ans:-[From Muralidhar Rangaswamy, RANGA...@zircon.plh.af.mil]
In an attempt to crack down on what it perceives as abuse of the NIW
category, the INS proposed adding the following four conditions (in
addition to the list of factors deemed to be in the national interest
of the USA) to the regulations for this category.
(1) The alien has at least two years of experience (not merely experience
gained while studying at a University, College or institution of
higher learning) in the field intended to be of benefit to the USA.
(2) There is a genuine need for the skills/experience of the alien. In
other words, the alien is not being hired to merely overcome labor
shortage in a particular underserved geographical area (which is viewed
by the INS as benefiting a smaller section of society).
(3) The alien will play a leading or critical role in the activity/event
intended to benefit the USA.
(4) The prospective benefit to the USA on account of the alien's work must
be substantial.
Although (1)-(4) are merely proposals at this stage, it is advisable for
applicants to include satisfactory evidence demonstrating that they meet
these conditions.
Q85:-Can I change employers before my GC interview if my I-140 is approved on
the grounds of a national interest waiver (NIW)?
Ans:-[From Muralidhar Rangaswamy, RANGA...@zircon.plh.af.mil]
If the basis of granting the NIW is the work done while being employed
by a specific employer, then the alien worker must intend/continue to
work for the employer at the time of the GC interview (in general).
It may be possible in some cases to change employers provided the worker's
job duties and responsibilities will be similar to those while employed
with the previous employer and therefore, it is still in the national
interest. In all other NIW cases, changing jobs before the GC interview
has no consequence at all.
Q86:-What is the time-frame to get a GC if the spouse is an U.S. citizen?
Ans:-[from B.G. Mahesh, mah...@mahesh.com]
You will get a temporary green card as soon as you marry
a US citizen. After 2 years that card will get a permanent
GC [You have to prove/show to INS that the marriage is genuine].
Q87:-What form should I file to seek the national interest waiver of the
job offer and labor certification requirements?
Ans:-[From Muralidhar Rangaswamy, RANGA...@zircon.plh.af.mil]
You need to file the form I-140 (immigrant worker petition)and ETA-750
(part B) (special qualifications of the beneficiary) along with a check
for the filing fee and the supporting documentation.
Q88:-How are the national interest waiver cases adjudicated?
Ans:-[From Muralidhar Rangaswamy, RANGA...@zircon.plh.af.mil]
Although the INS states that it will be flexible in determining
who qualifies for the national interest waiver, it sometimes uses
more stringent standards when deciding cases filed for people in
the business and arts than for people in the sciences.
Q89:-Which fields have the greatest chance of success for the NIW?
Ans:-[from rskh...@immigration.com]
There is no such thing as the "greatest chance." It all depends
upon the individual case. NIW's have been granted to acupuncturists,
environmental scientists, artists, civil engineers, geologists, physicians,
etc. etc. etc.
Q90:-Please discuss the consequences, immediately after obtaining
immigration (meaning within a day or two).
Ans:-[from Rajiv S. Khanna, rskh...@immigration.com]
a. If the employee voluntarily quits/leaves the employer.
You may have a problem.
b. If the employer fires the employee for performance related reasons.
You may have a problem.
c. If the employer fires the employee because of the personality
problems. You may have a problem.
d. If the employer lays-off the employee for economic reasons (lack of
adequate business or resources).
You may have a problem.
Q91:-What are the conditions that need to be satisfied to be in the
national interest?
Ans:-[From Muralidhar Rangaswamy, RANGA...@zircon.plh.af.mil]
[Modified by Rajiv S. Khanna, rskh...@immigration.com]
There is no formal definition of what constitutes "national interest".
However INS decisions have established a list of the following
seven factors that may be deemed to be in the national interest in the USA.
(1) Improving the U.S. economy.
(2) Improving the wages and working conditions of U.S. workers.
(3) Improving the education and training programs for U.S. children and
underqualified workers.
(4) Improving health care.
(5) Providing more affordable housing for young and/or older, poorer U.S.
residents.
(6) Improving the environment.
(7) Obtaining a request from an interested U.S. Government agency.
Q92:-Can citizenship once granted be revoked?
Ans:-[From Muralidhar Rangaswamy, RANGA...@zircon.plh.af.mil]
You bet.
Q93:-What is the national interest waiver (NIW)?
Ans:-[From Muralidhar Rangaswamy, RANGA...@zircon.plh.af.mil]
A person may qualify for the waiver of the labor certification and
job offer requirement if they can show that their work will be in
the national interest of the USA. This benefit is popularly called
the national interest waiver.
Q94:-Summary of Green Card Interview in Newark, New Jersey
Ans:-[From Sriraman Kannan, srir...@alumina.rutgers.edu]
Here is a short summary of my Green Card interview experience
at Newark.
On the day of the interview, we went in about 20 minutes before
the appointed time and handed our interview call letter to the
reception counter.
We were called in about an hour after the scheduled time. The
INS officer took our fingerprints and signature. He asked for
my employment letter (I had taken a more recent one along with that
submitted with the I485 application). He also took the
affidavit of support for my wife.
Here is the important part : along with our application
we had submitted our birth certs. (which you may realize
read unnamed, since that was the way things were done in India,
the registration took place prior to the naming ceremony).
I had however submitted an affidavit by an elderly person
swearing that the child referred to in the BC was subsequently
renamed as ....(yours truly). During our appointment
however, the INS officer asked for an affidavit from a second
person. Luckily, we had taken affidavits from two others and
that was more than adequate. That was it - our passports were
stamped and we were told our cards should arrive in
6 weeks - 2 months. Since we were moving apartments, we gave the
officer our new address.
Q95:-If your dependents cannot join you for some reason, can you still
get the GC just for yourself - and apply for the GC of your
dependents later on (even if your original petition has included
your dependents). How long will the latter process take?
Ans:-[From Rajiv S. Khanna, rskh...@immigration.com]
Later petition is no problem. But they will,have to wait (may be even
several years) like all ordinary relative petition beneficiaries. You,
however, can adjust your status while they join you in 2-8 months
if you undertake the process known as "following to join."
Q96:-Who files the petition in a national interest waiver case?
Ans:-[From Muralidhar Rangaswamy, RANGA...@zircon.plh.af.mil]
The petition can be filed either by the alien worker themselves, their
employer or anyone acting as a representative for the alien.
Q97:-Do I need to be a permanent resident to get Social Security benefits?
Ans:-[From Nick Jacobs, nja...@access.digex.net]
You do not have to be a permanent resident (or any kind of resident)
to get a Social Security retirement benefit. It can be paid to
a person living outside the US who does not have any kind of
US visa. The requirement is to have paid a certain amount of
Social Security tax, in the US, for at least 10 years. Of
course it is difficult to work legally in the US for as much
as 10 years without getting a green card. But it is possible,
and also a person who maintains PR for 10 years, then leaves
the US and abandons PR status, is eligible for a Social
Security retirement benefit.
Q98:-How does an individual qualify for the national interest waiver?
Ans:-[From Muralidhar Rangaswamy, RANGA...@zircon.plh.af.mil]
A person qualifies for this benefit if he falls within the second
preference employment based category, namely a person in the
professions who either holds an advanced degree or is considered
possessing exceptional ability in the sciences, business or arts.
Q99:-Does a parent (green card holder) who has filed for a green card for
his/her unmarried child who is under 21 years of age, have to file
another petition if the child turns 21 while waiting for the green card?
Ans:-[from Suresh, s...@hrojr.hr.att.com]
NO, the petition is automatically moved from category 2A (unmarried
children under the age of 21) to category 2B (unmarried children over
the age of 21--I'm not sure if this category includes married children
also). The 2B category moves much slower than 2A.
Q100:-How do I maintain my Green Card if I am traveling abroad for an extended
period of time.
Ans:-[from Rajiv S. Khanna, rskh...@immigration.com]
Before I answer that question, let me strongly recommend, in view of
the seriousness of issues involved, pleases consult competent counsel
regarding the specific facts of your case.
Overall, the answer is exceedingly complicated.
As a preliminary matter, please note that a permanent resident
alien has no statutory or other legal guarantee that assures him a
right to return if he is outside the United States. If he leaves
this country, even on a brief and temporary mission, he may be
unable to return unless he complies with the requirements of the
immigration laws.
Since 1924, the immigration laws have provided for the
issuance of reentry permits to permanent residents of the United
States who wished to make temporary visits to foreign countries.
The reentry permit is one of the acceptable documents that may be
presented by aliens seeking to enter the United States.
Nevertheless, please note, a reentry permit does not infallibly
assure entry into the United States. At most, it is prima facie
evidence of the bearer's lawful status. The reentry permit is
equivalent to a visa and thus relieves its rightful holder from
other documentary requirements. The permit shows that the alien is
returning from a temporary visit abroad. But the statue emphasizes
that the reentry permit has no other effect under the immigration
laws.
The basic prerequisite for obtaining a reentry permit is that
the applicant prove that he has been lawfully admitted to the
United States for permanent residence. It must appear that he has
not abandoned his residence in the United States. He must
establish also that his application is made in good faith in
connection with a temporary visit abroad. The regulations provide
that the reentry permit be issued for a two-year period and not be
renewable. The two-year period runs from the date the permit is
issued and not from the date of the application.
During the period of its validity the permit can be used for any
number of reentries. Moreover, the reentry permit will be deemed
unexpired if its holder departs on a continuous trip to the United
States before its expiration. The permit must be surrendered to
the INS when its validity expires.
In order for you to maintain your permanent resident status,
it is required that your absence abroad must be temporary. The
inquiry revolves around whether an alien intended to retain his
permanent residence status by returning to the United States
"within a relatively short period of time." The term "temporary"
will vary with the facts and circumstances of each case; the
intention of the alien, when it can be ascertained, will control.
Moreover, the intention at the time of departure must be to return
within a relatively short period, fixed by some early event.
Among the factors ordinarily considered in determining whether
the absence was temporary are the duration of absence, the location
of the alien's family ties, property holdings, and job, and his
intention with respect to the location of his actual home. The
government is under no obligation to inform him that his absence
will terminate residence. Although the length of the alien's
absence is not the only factor, a lengthy absence coupled with
establishment of ties abroad may establish abandonment of resident
status. Another factor that may be considered is whether the
traveler had a definite reason for proceeding abroad temporarily.
A lengthy absence may, in certain circumstances, be
satisfactorily explained. Thus, where an alien's absence abroad
was due to his employment by an American company and he maintained
ties in the United States, and where his application to preserve
residence continuity for naturalization purposes had been approved,
the alien's lawful permanent residence status was not lost.
Moreover, loss of naturalized United States citizenship by voting
in a Mexican election during a visit there did not, by itself,
terminate status as a lawful permanent resident of the United
States.
Some of the factors that have been examined in various decided
cases in this area are:
A. Length of residence in the U.S. since becoming a
permanent resident - generally, the longer you have
resided in the U.S., the stronger your case;
B. ownership of real estate in the U.S.;
C. whether or not U.S. income tax returns have been filed
during the time of absence. In this regard, please note,
YOU MUST NOT FILE INCOME TAX RETURNS AS A NON-RESIDENT.
Please consult with a CPA or tax professional as to what
other options exist.
D. How many prior reentry permits have been granted to the
alien;
I recommend the following specific measures in addition to the
material provided above:
A. If you own real estate in the U..S. - do not sell it
prior to departure;
B. Maintain your main savings account in the U.S.
C. Continue to maintain your drivers license and all credit
cards
D. Pay U.S. taxes as a resident
E. Maintain correspondence with all your friends and family
in the U.S.
F. Keep all your telephone bills showing various calls to
the U.S.
This list is not meant to be exhaustive. The rule of common
sense prevails.
Q101:-What are the current requirements of your stay in US to be able to
retain the Green Card.
Ans:-[from Rajiv S. Khanna, rskh...@immigration.com]
There is NO guaranteed way a person can retain their green card,
unless their permanent residence is IN FACT in the U.S. It is
erroneous to think that so long as you keep visiting U.S. every year,
you may retain the GC. Absolutely not true. As a matter of practice,
INS may not catch you, but they can place you in exclusion proceedings
(sort of the first step in canceling a GC when a GC holder is trying to
enter the U.S.) when they do suspect that you are actually not living in
the U.S.
If a GC holder is planning to be away from U.S. for an extended period of time, it is best to seek permission from the INS in the form of "Reentry Permit" (Form I-131). Even this does not "Guarantee" retention of a GC, but it may be the safest thing under most circumstances.
Because losing a green card is a serious matter, I strongly advise that
you seek the guidance of competent counsel for you individual case.
Q102:-Why should I become a U.S. citizen?
Ans:-[From Allen E. Kaye, India Abroad, October 21, 1994]
If you are a U.S. citizen, you will be able to,
o get green cards for your spouse and unmarried children without a
long wait
o get green cards for your parents, your married children, and your
brothers and sisters
o vote
o get a U.S. passport
o work for the U.S. government or in the other jobs that are closed to
non-citizens
Also, a citizen can't be deported or kept out of the U.S.
Q103:-Is it safe to get public benefits?
Ans:-[From Allen E. Kaye, India Abroad, October 21, 1994]
If you or your family members get public benefit, it will not affect your
ability to become a citizen. But before you travel, remember - if you
depend on public benefits, INS can keep you from reentering the United
States. Also, your family members who get permission to stay under the
"family unity" program will have to show that they do not depend on
public benefits when they go to get their green card.
Q104:-If I am a permanent resident, can I get public benefits?
Ans:-[From Allen E. Kaye, India Abroad, October 21, 1994]
You can get many public benefits. These include,
o most forms of Medicaid
o food stamps (if you have amnesty as a farm worker)
o unemployment benefits
o Supplemental Security Income (SSI) if you are 65 or over, blind,
or disabled
o Social Security retirement or disability
o help with housing costs
o most federal scholarships and student loans
o county general assistance
However, there are some benefits you cannot get for five years after you
filed your first amnesty application. These are,
o food stamps (if you have amnesty because you came to United States
before Jan. 1, 1982)
o welfare (AFDC)
Your family members who are U.S. citizens are eligible for all forms
of public benefits.
Q105:-Do I have other responsibilities?
Ans:-[From Allen E. Kaye, India Abroad, October 21, 1994]
Yes. Be sure to,
o pay taxes you owe
o report any change of address to INS within 10 days
o have your children who are permanent residents register within
INS within 10 days of turning 14
Q106:-Can I travel abroad?
Ans:-[From Allen E. Kaye, India Abroad, October 21, 1994]
Yes. You can travel outside the United States. When you travel, you must,
o take your green card to show INS when you come back
o keep a record of the dates each time you leave and come back
o always reenter legally (use the border checkpoint)
Q107:-What are the benefits/restrictions of a U.S. Permanent Resident?
Ans:-[from Alberto Molina, alb...@cybernet.cse.fau.edu]
- Ability to leave/enter the U.S. at will without the risk of being
denied entry by an Immigration official at the port of entry.
- Right to apply for government-sponsored financial aid for education.
- Permission to work in any company located in U.S. territory
regardless of job function, hours/week, etc. except for some
companies that only hire U.S. citizens.
- Permission to start own business and create own corporation.
- To keep PR, the person must reside in the U.S. for a minimum number
of days per year (does anybody know what's the limit?)
- Permanent residents can get into welfare if unable to get a job.
- Permanent residents can sponsor spouse and unmarried children to
obtain PR status.
- Permanent residency can be revoked if the permanent resident gets
involved in illegal activities. An example is a case that was discussed
in this newsgroup where a permanent resident was deported for drug use.
- Permanent residents cannot vote.
- Permanent residents get Social Security benefits when they retire.
[see the next section regarding SS benefits]
Q108:-After getting stamped in the passport for employment based immigration,
how long is an employee required to work with the employer that
sponsored the employee for immigration.
Ans:-[from Rajiv S. Khanna, rskh...@immigration.com]
There is NO prescribed time limit. There are a couple of considerations
that must be borne in mind. The basis for getting a GC are that you took
up a "permanent" position. If you leave too soon, INS may claim that you
did not intend to take the job up on a "permanent" basis.
"Permanent" does not mean forever. But it also does not mean that you may
leave the day after you get the green card. Unfortunately, there are no
bright line tests in this area. (Answered 06/24/94 -- Please leave the
date in, so people know how recent the answer is.) It is imperative that
you seek the opinion of competent counsel in this regards.
Q109:-What does "current" mean?
Ans:-[from Rajiv S. Khanna, rskh...@immigration.com]
"Current" means there is no waiting involved. All people
qualified for the category in question can immediately apply
for adjustment of status (if within U.S.) or an immigrant visa
(if outside the U.S.).
Q110:-Do I have to register with Selective Service?
Ans:-[From Allen E. Kaye, India Abroad, October 21, 1994]
If you are a male over 17 but under 26, you must register with the Selective Service. If you do not register, you may be subject to criminal prosecution. If convicted, you could be deported.
Q111:-Can GC holders sponsor for their parents GC?
Ans:-[from Rajiv S. Khanna, rskh...@immigration.com]
US GC holder can *only* sponsor his/her spouse and unmarried children.
Q112:-If I gained lawful permanent resident status (LPR) through a
previous marriage, can I petition for my current spouse to immigrate
to the US based on my LPR?"
Ans:-[From Brandon Nutter, bnu...@silver.ucs.indiana.edu]
You may NOT file an I-130 (Petition for Alien Relative) for
E. A husband or wife if you gained lawful permanent resident status
by virtue of a prior marriage to a United States citizen or lawful
permanent resident unless:
1) a period of five years has elapsed since you became a lawful
permanent resident; OR
2) you can establish by clear and convincing evidence that the
prior marriage (through which you gained your immigrant status)
was not entered into for the purpose of evading any provision of
the immigration laws; OR
3) your prior marriage (through which you gained your immigrant
status) was terminated by the death of your former spouse.
-----------------------------------------------------------------
Law Offices of Rajiv S. Khanna
3440 N. Fairfax Drive, Suite D, Arlington, VA 22201
2120 L Sreet, N.W., Suite 210, Washington, D.C. 20037
Voice: (703) 908-4800 Xtn 110
rskh...@immigration.com OR rskh...@businesslaw.com
Rich Wales
Q71:-Where can I get some information on dual citizenship?
http://yank.kitchener.on.ca/~richw/dualcit.html
Using FTP
Connect to yank.kitchener.on.ca
get the two files /home/richw/dualcit.txt and
/home/richw/dualcit2.txt
Using E-Mail
Send a message to ri...@yank.kitchener.on.ca with the
subject "send dualcit". The body of the message can be
blank, but you must type the subject line as indicated.
The above information is seriously out of date. My "Dual Citizenship
FAQ" has been at the following location since early 1997:
http://www.webcom.com/richw/dualcit/
If you do not have access to the Web, you can obtain an abbreviated
version of the FAQ via Internet anonymous FTP from ftp.webcom.com as
the files "/pub2/richw/dualcit.txt" and "/pub2/richw/dualcit2.txt".
Note that the FTP version may not be as up to date as the Web version.
Please access the Web version if possible.
Regrettably, I can no longer accommodate requests for copies of the
FAQ by e-mail. Please use either the Web or FTP as described above.
Rich Wales ri...@webcom.com http://www.webcom.com/richw/
*Dual Citizenship FAQ -- http://www.webcom.com/richw/dualcit/
*DISCLAIMER: I am not a lawyer, professional immigration consultant,
or consular officer. My comments are for discussion purposes only and
are not intended to be relied upon as legal or professional advice.