By Ceridwen Koski, Associate Attorney, Tooma & Ozisik LLP
In late July, a group of Finland Center members gathered to discuss a wide variety of immigration issues in the parlor of the Salmagundi Club. Amanda Goodman and I talked about visa possibilities in many different contexts but only covered a tiny fraction of the important stuff. Here are some must-knows to consider.
One rule of thumb is that your status is usually dependent on a sponsor until you obtain a Green Card or are simply traveling to the U.S. for a short time to visit.
Those visiting for 90 days or less may register for permission to visit the U.S. through the visa waiver program (if your country is listed) or apply for a B visa. But remember, if you enter with the visa waiver program, you cannot change or extend your status. With the B visa, you may do both of those things.
Think of the following as sponsors: school, work, and family.
Some employers host training and exchange programs applicable to numerous professions and skill sets, from medical training programs to summer camp. If you find a program, you may qualify for a J visa. The sponsor needs to be pre-approved and there are many organizations that facilitate the sponsorship. J-1 visas sometimes have two-year return residency requirements to the home country – so be aware of this when planning. Some will qualify for a waiver to allow change of visa status without returning home.
If you are thinking about studying in the U.S, identify a specific school or program and contact that institution’s international student department regarding the F-1 visa. The school will provide the I-20 form and SEVIS registration, which are needed to apply for the visa. If you wish to work while studying, you must have the I-20 specifically endorsed for work. Similarly, after you complete the program, you may benefit from “optional practical training” – a year’s worth of work authorization. If your degree is in Science, Technology, Engineering or Mathematics, the work authorization may last up to 29 months based on your study program!
Things to know about working in the U.S: there are numerous visas specifically for employment – all require planning and consideration of timelines. You need to have a job offer and an employer who will sponsor you. A bachelor’s degree or the equivalent is required for the H-1B visa. If you plan to work for the same employer in the U.S. that you have already worked for at home for over one year, you may qualify for an L-1 visa. If your employer in the U.S. has same nationality as you, may qualify for an E-1/E-2. If you are renowned in your field, look into the O-1 visa. If you are a performer and have a tour planned, you might use the P visa.
Working temporarily in the U.S. can result in an opportunity to apply for a Green Card. Talk to your employer about Green Card sponsorship as soon as possible to set expectations and learn about timelines. There are significant waits associated with some work-based Green Cards depending on the category under which you apply. If you do not qualify under EB-1, you may have to wait between three and eight years to apply for your Green Card after the employer’s petition is approved. Some common pathways to work-based green cards include H-1B to EB-3OR EB-2, E to EB-1 or EB-2, L-1 to EB-1 or O-1 to EB-1.
If you are an H-1B holder, the process of obtaining a Green Card often involves a labor certification, which is the employer’s labor market test through the Department of Labor. Labor Certification is required for all EB-3 categories and some EB-2 categories. As long as the labor certification is filed by your 5th year in H-1B status, you can stay in the U.S. until you obtain the green card. EB-1 (and some EB-2) allows you to skip the labor certification all together. Plan ahead and make sure that both you and your employer understand the minimum requirements for the position as they determine the work-based category. People who are leaders in their fields or published researchers may qualify under the EB-1 category with very short wait times.
Are you married to a U.S. Citizen? Then you qualify as an immediate relative! Your spouse may sponsor you by filing an I-130 petition with the USCIS or directly at a consulate abroad. Filing the petition, your spouse needs to show that he/she has the finances to support you (alternatively, a co-sponsor may file the petition by submitting three years of tax returns). You should have a Green Card in six months to a year. If processing times increase, you should apply for a K visa to enter the U.S. until the Green Card is approved.
Other forms of family sponsorship fall into five categories, with various wait times. During this process, a family member has to file the I-130 petition. You should apply for a Green Card when the priority date is current: otherwise you might lose your chance.
Generally, work-based visas depend on your credentials and your employer. Whenever you change sponsors, you will need to file more paperwork.
Some useful websites include www.uscis.gov (U.S. Citizenship and Immigration Services), www.usembassy.gov (U.S. embassies and consulates abroad), www.cbp.gov (immigration inspection at airports and U.S borders) and http://www.immigrationdirect.com/ (e.g. U.S. immigration news, informative blog).
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