FAQ

I would like to live or work in the United States. How do I know if I qualify for a visa, and which visa would be right for me?

There are two different categories of visas in the United States: immigrant and non-immigrant visas. If you would like to remain in the U.S. for a short period of time, a non-immigrant visa may be most appropriate for you. This type of visa allows an individual to live and possibly work in the U.S. temporarily. It does not lead to Lawful Permanent Resident (LPR) status or to U.S. citizenship. Conversely, an immigrant visa can lead to LPR status and to U.S. citizenship, which both allow an individual to remain in the U.S. indefinitely. Within each category of visa, many different options exist, and each option has different requirements and potential benefits. It is important to consult an attorney to find out which specific visas within the desired category you qualify for and which visa would best achieve your individual goals. An attorney can also tell you if there is a potential bar to admission in your case. Potential bars include, but are not limited to, certain criminal convictions and accrued unlawful presence in the U.S. (time you have spent in the U.S. without authorization from the U.S. government). Many bars are waivable. This means that an attorney can assist you in asking the government to approve the visa even though you would normally be barred from admission.

What is Lawful Permanent Resident (LPR) status, and what does the application process involve?

Lawful Permanent Resident (or LPR) status (commonly referred to as obtaining your green card) is a type of lawful immigration status that allows an individual to live and work permanently in the United States. However, it does not entitle him or her to all of the rights and benefits of citizenship. In some circumstances an individual can apply for LPR status immediately after acquiring a visa. However, in some cases a waiting period is required. You may be eligible to apply for LPR status if you are working or plan to work in the U.S., if you have an LPR or U.S. Citizen family member, or if you are afraid to return to your home country. The road to becoming an LPR varies depending on which path is right for you. In general, the following process applies:

1. Consult an attorney to determine your eligibility (this is usually the most important step)
2. Complete a background check to ensure that no bars to admission involving criminal convictions exist in your case
3. File paperwork with USCIS, which is the governmental organization in charge of affirmative immigration applications, and pay any filing fees associated with applicable forms
4. Complete another background check for USCIS (this involves an appointment to be fingerprinted)
5. Complete an interview with an immigration officer
6. Wait for a ruling on your case

What is Deferred Action for Childhood Arrivals (DACA)?

DACA is a type of status that allows undocumented individuals (persons who do not have legal status in the United States) who are present here, and who meet the requirements below, to live and work in the U.S. for a limited period of time without fear of possible deportation. DACA does not lead to LPR status or to U.S. citizenship. Requirements:

1. You were under the age of 31 as of June 15, 2012;
   1. You came to the United States before reaching your 16th birthday;
2. You have continuously resided in the United States since June 15, 2007, up to the present time;
3. You were physically present in the United States on June 15, 2012;
4. You entered the United States without being properly admitted (i.e. you did not receive authorization from a U.S. immigration official to enter) before June 15, 2012, or your lawful immigration status expired on or before June 15, 2012;
5. You are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States;
   AND
6. You have not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety. The filing fee for DACA is $465. Fee exemptions may be available in very limited circumstances.

What is a family-based visa, and who may petition for one?

A family-based visa is a visa that is acquired through a family member who is either a Lawful Permanent Resident (LPR) or a U.S. Citizen. An approved family-based petition is a path to both LPR status and U.S. citizenship. In order to apply for lawful status through a family member, you must meet the requirements below. In addition, you may need to obtain a waiver if you are subject to any bars to admission to the United States, including those involving unlawful presence and certain criminal convictions. Some bars to admission are not waivable.

Requirements

You must fall into ONE of the following categories:

1. You are the spouse of a U.S. Citizen,
2. the unmarried child - under the age of 21 - of a U.S. Citizen,
3. a parent of a U.S. citizen petitioner 21 or older,
4. the unmarried adult son or daughter (21 years or older) of a U.S. Citizen,
5. the spouse, minor unmarried child (under 21 years old), or unmarried son or daughter (over 21 years old) of a Lawful Permanent Resident (LPR),
6. the married son or daughter (any age) of a U.S. Citizen,
   OR
7. a sibling of a U.S. Citizen, or a child of a sibling of a U.S. Citizen, provided that the U.S. Citizen is at least 21 years old.

Widowers of U.S. Citizens and victims of domestic violence may also be able to obtain a visa.

The filing fees for family-based petitions vary according to which of the following forms may need to be submitted:

• Form I-130: $420
• Form I-485: $985 plus $85 for biometrics (fingerprinting)
• Form I-601 (if applicable): $585
• Form I-601A (if applicable): $585 plus $85 for biometrics (fingerprinting)

Can I apply for Lawful Permanent Residency (a green card) for my same-sex spouse?

Yes. The U.S. Supreme Court has found Section 3 of DOMA (the Defense of Marriage Act), a federal law which formerly prevented the federal government from recognizing same-sex marriages, to be unconstitutional. This means that if a marriage was performed in a state where same-sex marriages are legal (or were legal at the time the marriage was performed), then that marriage will now be recognized by the federal government for immigration purposes. In this circumstance, it is now possible to apply for a family-based visa for a same-sex spouse, following the same procedures outlined in the "what is a family-based visa, and who may petition for one" section above. Even if a couple now resides in a state that does not recognize same-sex marriage, this should not be a barrier to requesting immigration benefits under federal law. A same-sex spouse may also apply for a step-child if the relationship to the child's mother or father was created through a valid marriage.

Same-sex marriage has been legalized at some point in 13 states, including California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont, and Washington, and the District of Columbia. A same-sex marriage in any of these states will now be recognized by the federal government if it was valid at the time it was performed.

It should be noted that the recent Supreme Court decision does not apply to civil unions, civil partnerships, or registered partnerships. Therefore, same-sex couples in these types of unions are not eligible to apply for immigration benefits at this time.

In addition, although same-sex marriages are now recognized under federal law, prejudice does exist at the local level in certain USCIS offices. This may make it more difficult for a same-sex spouse to obtain a green card. Practical evidentiary considerations may also exist for same-sex couples. For example, it may be more difficult for a same-sex couple to prove that their marriage is legitimate, which is one of the requirements under the law. A couple generally needs to show that they have been residing together and sharing their finances to prove legitimacy.

What is the Visa Waiver Program (VWP) and how does it work?

The VWP allows travelers from certain countries to visit the U.S. for business or pleasure for a maximum of 90 days without a visa. If you enter under this program, you must first exit the U.S. before attempting to change, extend, or adjust your status. The only exception is if you qualify as an "immediate relative" of a U.S. Citizen and are applying for Lawful Permanent Resident (LPR) status. To learn more about the Visa Waiver Program, visit:

What is a visitor's visa, and may I reapply for this type of visa if my application is denied?

A visitor's visa is a non-immigrant visa that allows travelers to visit the U.S. for business or pleasure. It is commonly issued for 6 months or one year and is renewable. There are many different types of visitor's visas which each have their own unique requirements, but all applicants must show that they intend to return to their home countries. In general, if your application is denied pursuant to INA Section 214(b), you have the option to reapply soon after the denial. However, you should be prepared to show that your situation has changed since your interview or be able to provide new and material evidence that was not previously considered.

What types of employment-based visas are available?

There are several categories of employment-based visas, based on the purpose of travel and type of work to be done. Because each category is highly specific, it is important to consult an immigration attorney before submitting an application for any employment-based visa.

Below is a short overview:

• H-1B: Applies to persons in a specialty occupation which requires the theoretical and practical application of a body of highly specialized knowledge requiring completion of a specific course of higher education
• H-2A: Applies to temporary or seasonal agricultural workers
• H-2B: Applies to temporary or seasonal non-agricultural workers
• H-3: Applies to trainees other than medical or academic and to special education exchange visitors
• L: Applies to intracompany transferees who, within the three preceding years, have been employed abroad continuously for one year, and who will be employed by a branch, parent, affiliate, or subsidiary of that same employer in the U.S. in a managerial, executive, or specialized knowledge capacity
• O-1: Applies to persons who have extraordinary ability in the sciences, arts, education, business, or athletics, or extraordinary achievements in the motion picture and television field
• O-2: Applies to persons accompanying an O-1 alien to assist in an artistic or athletic performance for a specific event or performance
• P-1: Applies to individual or team athletes, or members of an entertainment group that are internationally recognized
• P-2: Applies to artists or entertainers who will perform under a reciprocal exchange program
• P-3: Applies to artists or entertainers who perform under a program that is culturally unique
• Q-1: Applies to participants in an international cultural exchange program for the purpose of providing practical training, employment, and the sharing of the history, culture, and traditions of the alien's home country

What is the H-1B visa?

The H-1B is a type of employment-based visa that applies to persons in a specialty occupation which requires the theoretical and practical application of a body of highly specialized knowledge requiring completion of a specific course of higher education. In order to qualify for H-1B status, you must meet the following requirements:

1. You must have a job offer from a U.S. employer offering a salary commensurate with the higher of the prevailing or actual wage rate for persons in that occupation and geographic location;
2. you must possess the minimum of a bachelor's degree (which should be considered equivalent to a degree from an accredited college or university in the U.S.), or equivalent in the specialty occupation;
   AND
3. the job offered must be a specialty occupation, requiring a bachelor's degree or equivalent at a minimum and the theoretical and
4. practical application of a body of specialized knowledge.

What is the H-1B cap and how does it work?

The H-1B cap is an annual limitation on the number of new visas available for H1B workers. The cap is currently set (by Congress) at 65,000. However, only 58,500 generally are available, as some numbers are set aside specifically for programs for nationals of Chile and Singapore. This does not include the 20,000 additional visa numbers available to persons who have earned masters' or higher degrees from U.S. institutions of higher education. Please note that at this time Congress is considering potential legislation that would raise the annual H-1B cap. Updates will be provided when they become available.

Would an H-1B visa allow me to work at more then one job?

H-1B visas are specific to the employer and the specific job for the employer. You may have more than one H visa at a time, but you must have a separate visa for each job that you work.

How do I "transfer" my H-1B visa to a new employer?

The process of "transfering" an H-1B is the same as the process for filing a new H-1B petition because each H-1B petition is employer-specific. Therefore, it generally takes the same amount of time to process a "transfer" petition. The main difference between an H-1B "transfer" and a new H-1B petition is that one who already holds an H-1B status is generally not subject to the H-1B cap.

If I obtain an employment-based visa, can I bring family members with me to the U.S.?

Yes, a temporary employment-based visa will allow you to request that your spouse and children accompany you to the U.S.

How can I find out how long I am authorized to stay in the U.S.?

When you enter the United States, your passport will be stamped with a "valid until" date, the date by which you must leave the U.S., or "D/S" (duration of status), which means that there is no specific date by which you must leave the U.S. - you may remain as long as you maintain compliance with the terms of your visa. You will also be issued an electronic I-94, Arrival-Departure Record. It used to be attached to your passport but is now not issued in paper form unless specifically requested. This is another record of your authorized stay in the U.S.

Do I meet the requirements to become a United States Citizen? How does the application process work?

To apply for citizenship, generally you must meet the following criteria:

1. You must be 18 years or older,
2. you must have been a Lawful Permanent Resident (LPR) for at least 5 years,
3. you must have continuously resided in the U.S. as an LPR for at least 5 years immediately preceding the date of filing the application for citizenship,
4. you must have been physically present in the U.S. for at least 30 months out of the 5 years immediately preceding the date of filing the application for citizenship,
5. you must have lived within the state or USCIS district with jurisdiction over your place of residence for at least 3 months prior to the date of filing the application for citizenship,
6. you must be able to demonstrate good moral character for 5 years prior to filing for citizenship, and during the period leading to the administration of the Oath of Allegiance,
7. you must be willing to take an oath to uphold the U.S. Constitution and form of government,
   AND
8. you must be able to read, write, and speak and understand English and have knowledge and an understanding of U.S. history and government.

There are exceptions to the above requirements. For example, you may qualify if you have been an LPR for 3 years or more and are the spouse of a U.S. Citizen, or if you have not been an LPR for 5 years but have served in the U.S. armed forces.

The application process generally involves the following steps:

1. Consult an immigration attorney to find out whether you meet the requirements
2. Complete a background check to support a showing of good moral character
3. File form N-400, Application for Naturalization, with USCIS, which is the governmental organization in charge of affirmative immigration applications, and pay the required $680 in fees (please note that some applicants are exempt from the fee requirement and fee waivers and available in certain circumstances)
4. Complete another background check for USCIS (this involves an appointment to be fingerprinted)
5. Complete an interview with an immigration officer and the English and civics tests
6. Wait for a ruling on your case

If ICE Visits Your Home

All people living in the United States, including undocumented immigrants, have certain U.S. Constitutional rights. If you are undocumented and immigration (ICE) agents knock on your door, know that you have the following rights:

You do not have to open the door. You do not have to open the door or let the officers into your home unless they have a valid search warrant signed by a judge.

• An ICE deportation warrant is not the same as a search warrant. If this is the only document they have, they cannot legally come inside unless you verbally agree to let them in.
• If the officers say they have a search warrant signed by a judge, ask them to slide it under the door or hold it up to a window so you can see it.
• If the warrant does not have your correct name and address on it and is not signed by a judge you do not have to open the door or let them inside.
• If at any point you decide to speak with the officers, you do not need to open the door to do so. You can speak to them through the door or step outside and close the door.

You have the right to remain silent. You do not need to speak to the immigration officers or answer any questions.

• If you are asked where you were born or how you entered the United States, you may refuse to answer or remain silent.
• If you choose to remain silent, say so out loud.
• You may show a know-your-rights card to the officer that explains that you will remain silent and wish to speak to a lawyer.
• You may refuse to show identity documents that say what country you are from.
• Do not show any false documents and do not lie.

You have the right to speak to a lawyer. If you are detained or taken into custody, you have the right to immediately contact a lawyer.

• Even if you do not have a lawyer, you may tell the immigration officers that you want to speak to one.
• If you have a lawyer, you have the right to talk to them.
• If you have a signed Form G-28, which shows you have a lawyer, give it to an officer.
• If you do not have a lawyer, ask an immigration officer for a list of pro bono lawyers.
• You also have the right to contact your consulate. The consulate may be able to assist you in locating a lawyer.
• You can refuse to sign any/all paperwork until you have had the opportunity to speak to a lawyer.
• If you choose to sign something without speaking to a lawyer, be sure you understand exactly what the document says and means before

If ICE Stops You in Public

All people living in the United States, including undocumented immigrants, have certain U.S. Constitutional rights. If you are undocumented and immigration (ICE) officers stop you on the street or in a public place, know you have the following rights:

You have the right to remain silent. You do not need to speak to the immigration officers or answer any questions.

• You may ask if you are free to leave. If the officer says no, you may exercise your right to remain silent.
• If you are asked where you were born or how you entered the United States, you may refuse to answer or remain silent.
• If you choose to remain silent, say so out loud.
• You may show a know-your-rights card to the officer that explains that you will remain silent and wish to speak to an attorney. *You may refuse to show identity documents that say what country you are from.
• Do not show any false documents and do not lie. You may refuse a search. If you are stopped for questioning but are not arrested, you do not have to consent to a search of yourself or your belongings, but an officer may “pat down” your clothes if he or she suspects you have a weapon.

You have the right to speak to a lawyer. If you are detained or taken into custody, you have the right to immediately contact a lawyer. Even if you do not have a lawyer, you may tell the immigration officers that you want to speak to a lawyer. If you have a lawyer, you have the right to talk to them. If you have a signed DHS Form G-28, which shows you have a lawyer, give it to an officer.

• If you do not have a lawyer, ask an immigration officer for a list of pro bono lawyers.
• You also have the right to contact your consulate.
• The consulate may be able to assist you in locating a lawyer. You can refuse to sign any/all paperwork until you have had the opportunity to speak to a lawyer.
• If you choose to sign something without speaking to a lawyer, be sure you understand exactly what the document says and means before you sign it.

If ICE Comes to Your Work Place (Employee)

All people living in the United States, including undocumented immigrants, have certain U.S. Constitutional rights. If immigration officers (ICE) come to your work place, they must have a valid search warrant or the consent of your employer to enter non-public areas. If you are undocumented and immigration officers come to your work place, be aware of the following:

Do not panic and do not run away. If you are frightened and feel like you need to leave, you can calmly walk toward the exit.

• If you are stopped, you may ask if you are free to leave. If the officer says no, do not try to exit the building.
• If you are questioned, you may tell them you want to remain silent.

You have the right to remain silent. You do not need to speak to the immigration authorities or answer any questions.

• If you are asked where you were born, or how you entered the United States, you may refuse to answer or remain silent.
• If you choose to remain silent, say so out loud.
• If they ask you to stand in a group according to immigration status, you do not have to move, or you can move to an area that is not designated for a particular group.
• You may show a know-your-rights card to an officer that explains that you will remain silent and wish to speak to a lawyer.
• You may refuse to show identity documents that say what country you are from.
• Do not show any false documents and do not lie.

You have the right to speak to a lawyer. If you are detained or taken into custody, you have the right to immediately contact a lawyer.

• Even if you do not have a lawyer, you may tell the immigration officers that you want to speak to one.
• If you have a lawyer, you have the right to talk to them. If you have a signed Form G-28, which shows you have a lawyer, give it to an officer.
• If you do not have a lawyer, ask an immigration officer for a list of pro bono lawyers.
• You also have the right to contact your consulate. The consulate may be able to assist you in locating a lawyer.
• You can refuse to sign any/all paperwork until you have had the opportunity to speak to a lawyer.
• If you choose to sign something without speaking to a lawyer, be sure you understand exactly what the document says and means before you sign it.