Frequently Asked Questions
1) Why are some individuals able to easily obtain temporary visas to enter the U.S. while others are not?
A: With the exception of Hs, Ls, and Os, most other temporary visas carry with them the requirement that the individuals have only temporary intent to reside in the U.S. While applying for visas they will be presumed to have permanent intent and it is their burden to establish otherwise. Each consular official makes determination of that intent based on whether individuals can show substantial ties to their country such as property, a job, and/or close family. It is more difficult, obviously, to establish temporary intent when coming from a country with serious political or economic problems or with a high rate of emigration to the U.S. Anyone applying for a temporary visa should carefully prepare whatever documentation is available to establish such ties.
2) Do Canadian citizens need visas to enter the U.S.?
A: No, in most cases Canadian citizens are eligible to enter the U.S. without visas. With the exception of E status for investors, this means they do not have to go to the U.S. Consulate in Canada prior to entering the U.S. in one of the nonimmigrant categories. On the other hand, as with all other nationals, preliminary approval by the USCIS of certain types of nonimmigrant status is required, meaning that certain applications must first be filed at the USCIS regional processing centers. The approval notice is then submitted to the officer at the border on entry and an I-94 card is issued indicating the Canadian's status in the U.S. and authorized period of stay. An exception is that Canadians are generally not given I-94 cards as tourists or business visitors and consequently have no proof of their authorized period of stay.
3) What are the advantages and disadvantages of the Visa Waiver Program and who is eligible?
A: The Visa Waiver Program is available to nationals from certain countries that the U.S. has determined should be able to travel freely to the U.S. The visa waiver is available only to visitors for pleasure or business travel. The advantage is obviously that such individuals do not need to pay a visit to the U.S. Consulate in their country to obtain B-1/B-2 visas prior to entering the U.S. The disadvantage is that the visa waiver is only available for 90 days and does not allow extension of stay, change of status to another nonimmigrant category or adjustment of status to lawful permanent residence. One exception is that spouses of U.S. citizens may adjust status to lawful permanent residence after entering under a visa waiver provided they did not enter the U.S. with preconceived intent to remain and that they did not use the visa waiver process as a means of getting around the law.
4) How long are nonimmigrants legally allowed to remain in the U.S.? Is it the date their visa expires or the date their I-94 expires, and is there a "grace period"?
A: The date of a visa expiration has nothing to do with how long an individual is allowed to remain in the U.S. On entry, all nonimmigrants are given I-94 cards, which typically state an expiration date, which is the date that they are required to depart the U.S. or make application for a change of status or extension of stay to another immigrant classification. Upon approval of that application, such individuals will receive new I-94 cards. Contrary to popular myth, there is no "grace period" beyond the expiration date on the I-94 card.
5) How do J-1 and F-1 status holders know when their status expires, since the I-94 card says "D/S," and is there a "grace period"?
A: J-1 and F-1 visa holders are given I-94 cards for "duration of status," which means that they are eligible to remain in the U.S. as long as they have maintained status according to the terms of their visa and have not worked without authorization. The dates on the IAP-66 and I-20 forms, respectively, indicate the end of these individuals' programs. In the case of a J-1 holder there is a thirty-day grace period and for F-1 status holders there is a sixty-day grace period beyond the programs' completion.
6) What are the consequences of overstaying one's nonimmigrant status?
A: Individuals who have overstayed their nonimmigrant status are not eligible to change or extend their status from within the United States. Additionally, with the exception of immediate relatives, such individuals are ineligible to adjust status to lawful permanent residence (with the exception of certain individuals who were "grandfathered-in" under INA § 245(i) which allows for adjustment with the payment of a $1000 penalty). Under harsh legislation that was passed in 1996 there are serious consequences for overstaying nonimmigrant status. First, an overstay of any duration results in a requirement that from that day forward these individuals must return to their home country in order to obtain visas of any kind, therefore, barring them from third country processing. Second, an overstay of more than 180 days bars individuals from re-entering the United States for a period of three years. An overstay of more than one year bars individuals for a period of ten years. Individuals in J-1 or F-1 status with I-94s that are designated "D/S" are not impacted by these consequences unless USCIS has made a separate determination that they have overstayed their status. Please note that these bars are not triggered until an individual has departed the U.S.
7) What are the special visas for artists and entertainers and how famous does one have to be to get one?
A: The typical nonimmigrant visas for artists and entertainers are O's and P's. O's require that individuals establish through substantial documentation that they are of "distinguished ability." This is a lower standard than the "extraordinary ability" standard required for permanent residents or for non-artists in O-1 status. P's are divided into three categories: P-1, P-2, and P-3. The first category is for entertainment groups or individual athletes; the second is for individuals involved in an established reciprocal arts exchange program; and the third is for culturally unique artists, entertainers, and coaches. This last category is very useful for artists who cannot provide substantial documentation of sustained renowned ability. Laura Danielson is well known for her representation of international artists, entertainers, and athletes and has written and spoken widely on this topic. [For more see LINK.]
8) Why do most employees who have received change of status or extension of stay to H-1B, O-1, L-1, or some other similar nonimmigrant status still need to get a visa in order to come back into the U.S. once they have left?
A: It is important to recognize that the U.S. Immigration Service does not issue visas, which are required for most foreign nationals (with the exception of Canadians) to enter the U.S. If an employee is already in the U.S., however, the USCIS has the authority to issue a change of status or extension of stay and the employee will receive a new I-94 card authorizing continuation of lawful status in the U.S. Once that person departs, he or she is unable to re-enter the U.S. without obtaining a visa from a U.S. consulate abroad. The only exception to the rule is for foreign nationals traveling to Canada or Mexico for less than thirty days, wherein they are allowed to re-enter the U.S. on the basis of their I-94 card alone.
9) What are the advantages of going to Canada or Mexico to obtain a new visa rather than to one's own country?
A: Many foreign nationals travel to Canada or Mexico to obtain new visas rather than doing so in their own countries. This option may save the foreign national from having to make a tedious, time-consuming and expensive visit to the consulate in their home country. Please be aware that as of April 1, 2002, foreign nationals who apply for U.S. visas in Canada or Mexico AND ARE DENIED, will be unable to re-enter the U.S. on their I-94 cards, even if they have been absent from the U.S. for under thirty days.
10) What strategies can employers utilize to ensure that their employees will not run out of status, either as a result of practical training expiring before H-1B status is available or because they have used up a full six years in H-1B status?
A: Because of the risk of running out of employment authorization, either prior to applying for an H-1B or due to using up all six years of H-1B availability, a careful analysis of the timing issues should be done early on in one's practical training year. Too often individuals wait until it is too late to remedy the situation. For those whose status in H-1B is running out, it may be possible to obtain O-1 status, L-1 status if the company is multinational and the employer is willing to send the foreign national abroad for a year, or recapture H-1B time spent out of the country.
11) When a U.S. citizen plans to marry a foreign spouse, are there any special immigration issues that should be considered?
A: U.S. citizens are frequently surprised to find that marrying a foreign spouse, particularly while abroad, is not a simple matter when it comes to immigration strategy. A wrong decision can result in prolonged separation between husband and wife. Therefore, it is advisable for someone contemplating marriage to have a consultation with an immigration attorney to determine the ideal plan.
12) If a person is here as a "conditional resident" based on marriage and the marriage breaks up before the two-year period of conditional residency expires, is there anything that can be done to preserve his/her status beyond that period?
A: A common misunderstanding is that individuals cannot get the condition removed from their status unless their marriage lasts beyond the two-year period after acquisition of conditional permanent residence. In fact, even USCIS recognizes that valid marriages may break up. Accordingly, there are ways that individuals can separate, divorce, and still maintain lawful permanent residence. In most cases, the bona fides of the marriage must be well documented in order to prevail. The USCIS will scrutinize the application and typically re-interview the foreign spouse. It is wise to have legal counsel when pursuing such a case.
13) What is the difference between "green card" status and "lawful permanent residence."
A: They are actually one and the same. A long time ago, the alien residence cards were green and the name has stuck.
14) How does someone get a "green card"?
A: Immigration to the United States is not an easy process. This is very broad question, though frequently asked. Essentially, individuals acquire lawful permanent residence in one of four ways: employment sponsorship, applications by close family members, asylum, and winning the visa lottery (for more on the visa lottery, click here). On occasion, individuals will also receive permanent residence by a judge in deportation or removal proceedings.
15) How does someone with an approved employment or family immigrant petition figure out when he or she is eligible to adjust status?
A: Unless an individual is an immediate relative (a U.S. citizen's spouse, child under age 21, or parent) he or she is subject to both a worldwide and country-wide quota, which applies to both employment and family-related cases. The date the initial petition is filed is the individual's "priority date." When that date becomes current, the individual is eligible to adjust status to lawful permanent residence or enter the U.S. via immigrant processing at a consulate. To determine eligibility, one must look at the visa bulletin published by the U.S. Department of State and available on the Web at: http://www.state.gov/.
16) Why is there frequently an employment-based backlog related to Indian and Chinese nationals and is there anything that can be done to speed things up?
A: Lawful permanent residence is issued to individuals based on a complicated formula related to preference categories, world-wide quotas, and country specific quotas. Because the quota is the same for every country in the world, the larger countries with high levels of immigration to the U.S. obviously fill up first. Nothing can be done to prompt the U.S. State Department to grant an immigrant visa out of order. Therefore, great care should be taken with employment-based immigration cases to ensure that individuals are eligible for the highest preference category that they are qualified for and that the employer is willing to support. This analysis should begin at the nonimmigrant level when applying for H-1B or other status. For more on the current availability of employment-based immigrant visas go to the U.S. Department of State site on the web at http://www.state.gov/.
17) Under what circumstances do people lose their "green card"?
A: People can lose their "green card" for failure to maintain lawful permanent residence in the U.S., for example, by living outside the U.S. for prolonged periods without establishing an intent to reside permanently in the U.S. or failing to file U.S. tax returns. Individuals planning to remain out of the country for more than six months are strongly urged to obtain a re-entry permit (valid for up to two years) before departing. Individuals can also lose their "green card" through deportation or removal proceedings for a variety of reasons, the most common of which is for criminal offenses.
18) Other than obtaining the right to vote, is there any special reason people should consider naturalizing (becoming U.S. citizens) rather than remaining in the U.S. as lawful permanent residents?
A: We always recommend, whenever possible, that individuals naturalize, as acquiring citizenship is the only true way of securing important rights and ensuring long-term permanent residence. Permanent residence can be lost by those who spend prolonged periods outside the U.S. Also under very strict immigration laws passed in 1996, even fairly minor criminal offenses can result in loss of permanent residence and removal from the U.S. Finally, certain welfare benefits and even certain government jobs are unavailable to non-citizens.
19) Do individuals automatically lose their foreign citizenship once they have naturalized as a U.S. citizen?
A: No. The U.S. recognizes dual-citizenship and taking the naturalization oath does not strip individuals of their foreign citizenship provided that their country also recognizes dual-citizenship.
20) Although the naturalization process is relatively simple and many individuals undertake it without any legal counsel, under what circumstances should an individual seek legal counsel before applying?
A: Anyone who has committed criminal offenses, no matter how minor or how long ago should seek legal counsel before pursuing the naturalization process. Similarly, individuals who have spent prolonged periods outside the U.S. should have their case carefully evaluated before filing an application.
21) What is up with the incredible backlogs at the USCIS? Is there any way to expedite cases in emergencies?
A: USCIS is currently experiencing unprecedented backlogs at the regional service centers. This is in part due to a major national push to process a record number of naturalization applications. Applications that used to take a couple of weeks are now taking a few months and cases that used to take six months are now taking up to two years and more. This is extremely frustrating for all concerned, especially those who have emergent reasons why they need their application processed. USCIS will expedite applications in certain emergencies, for example when performers need to be in the U.S. by a certain time or when a child is "aging-out" (turning 21 and therefore losing derivative status). Each regional service center has its own procedures for handling expedited cases. Since such information is typically unavailable to the general public, legal help will usually need to be sought in order to pursue an expedited matter.
22) Does immigration law vary from state to state or from region to region and is there any special reason an attorney should be hired from the same geographic area?
A: Immigration law is federal and therefore it remains the same from state to state and region to region. While there are certain variances in terms of procedures between different district offices and regional USCIS offices, most experienced attorneys have a network of colleagues they can contact with questions about these minor differences. Since the majority of cases are handled through the mail and without any personal appearances, an immigration attorney can represent a client anywhere in the U.S. An exception to this would be for people in deportation or removal proceedings, which require local court appearances. In such cases it is advisable to obtain local counsel.
23) What is the best way to find an experienced, well-qualified and ethical immigration attorney?
A: Because immigration is a highly refined area of the law, it is essential to find an attorney who practices primarily or exclusively in the field. Most competent immigration lawyers are members of the American Immigration Lawyers Association (click here for more on AILA). Excellent attorneys are asked to speak and write at AILA conferences and seminars. Another resource is Martindale-Hubble, a national service which ranks attorneys (AV being the highest rating). Finally, in some states, including Minnesota, a resource called Law & Leading Attorneys is available which designates the top attorneys in their field as voted on by their peers. At an initial consultation with a new immigration attorney, whether telephonic or in person, attorneys should be willing to answer questions about their education, experience, and affiliations. Although excellent attorneys will be busy, they should return phone calls and respond to email promptly (either personally or through a staff member), and will always keep their clients informed about the status of their cases. Most top attorneys are unable to take calls or answer detailed emails from non-clients because they must their focus attention on the clients who have already engaged their services. Their staff should nonetheless be accessible and friendly and willing to make an appointment for a consultation. Individuals should be wary of attorneys who guarantee success or promise to make things go more quickly because of "connections" with the USCIS. It is unethical in most states for attorneys to refuse to give former clients their file or to hold onto important original documents for any reason, including non-payment. A newly engaged attorney should be able to handle a change in attorneys quickly and easily and avoid any personal confrontation on the part of the foreign national.
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