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United States Immigration Options 2006

United States Immigration Options 2006

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United States Immigration Options 2006

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  1. United States Immigration Options2006 Gamiño Law Offices, LLC 1055 White Rock Avenue Waukesha, WI 53186


  3. US Immigration Laws: Getting a visa to legally enter the US • Immigrant visas (Green Cards) • Right to live and work anywhere in the US • Valid for 10 years and then you can renew • Called a “legal permanent resident” (LPR) • First, you need an approved visa petition • Then, you need your “priority date” to become current • **WE CAN HELP OBTAIN & RENEW YOUR LPR**

  4. (1) Family Based Visa Petition (2) Employment Based Visa Petition Immigrant Visas (Green Cards)- Most common ways

  5. Immigrant Visas- Priority Numbers If you are overseas, you cannot become a green card holder until after you receive an immigrant visa to enter the US If you are in the US, you cannot get a green card until your “priority date”/ “visa number” the date that • Your relative or employer filed a visa petition for you • AND **that dateappears on the State Department’s chart**

  6. Immigrant Visas ***All people who want to become LPRs must wait for an immigrant visa number to become available according to the preference categories • Preference Categories- a numerical limitation on the type of immigrant visas that are available for family and employment immigration.

  7. Immigration Visas- Number of Visas Available (Example based on July 2006) • FAMILY-SPONSORED PREFERENCES • “Immediate Relatives” of US Citizens (Spouse of Citizen, Parent of Citizen who is older than 21, Child under 21) NO WAITING FOR VISA NUMBER • First : Unmarried Sons and Daughters of Citizens: 23,400 plus any numbers not required for fourth preference. • Second : Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents: 114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, and any unused first preference numbers: • A. Spouses and Children: 77% of the overall second preference limitation, of which 75% are exempt from the per-country limit; • B. Unmarried Sons and Daughters (21 years of age or older): 23% of the overall second preference limitation. • Third : Married Sons and Daughters of Citizens: 23,400, plus any numbers not required by first and second preferences. • Fourth : Brothers and Sisters of Adult Citizens: 65,000, plus any numbers not required by first three preferences.

  8. Family Immigrant Visas- Availability (Example based on July 2006)

  9. Family Based Petitions • Who is eligible? Related or engaged to a US Citizen • Spouse • Married son or daughter • Unmarried son or daughter (including divorced or widowed) • Child • Brother • Sister • Engaged to be married

  10. Family Based Petitions B. Related to an LPR (1) spouse (2) child (under age 21) (3) unmarried sons or daughters (of any age)

  11. Family Based Petitons • Does Not Include: • Aunt or Uncle • Niece or nephew • Cousins • Grandparents OF US CITIZENS • Does Not Include • Siblings • Parents or • Fiances OF LPRs (GREEN CARD HOLDERS)

  12. Immediate Relatives of Citizens • Nowaiting for visa “priority date” • Includes • Spouse of Citizen • Parent of Citizen who is older than 21 • Child under 21 **Average wait for green card is 2-12 months

  13. Family Based- 1st Preference • Unmarried sons or daughters of US Citizens • Must be over 21 and not married • (If they were under 21 they would be considered Immediate Relatives) • Average Waits • Worldwide- 6 years • China- 6 years • India- 6 years • Mexico- 14 years • Phillipines-15 years

  14. Family Based-2nd Preference • 2A-Spouses of LPRs and their and unmarried children under 21 yrs old • Average Wait • Worldwide 7 years • 2B unmarried children of LPRs over 21 yrs old • Average Waits: Worldwide, China and India 10 yr wait • Mexico- 15 yr wait • Philippines- 10 year wait

  15. Family Based 3rd Preference • Married children of Citizens • Sons • Daughters • Average Waits • Worldwide, China and India 8 years • Mexico- 12 years • Philippines- as many as 17 years

  16. Family 4th Preference • Brothers of Citizens • Sisters of Citizens • Only citizens over 21 can petition for brothers and sisters • Average Waits: • Worldwide and China- 11 years • India- 12 years • Mexico- 13 years • Philippines- 23 years

  17. What can affect your family preference category? • Marriage of son or daughter over 21 of a citizen 1st 3rd preference • Marriage of child of citizen under 21 Immediate Relative 3rd preference • Divorce of child changes 3rd immediate relative or 1st preference • Child turns 21, Immediate relative 1st preference • LPR petitioner becomes a citizen 2nd  1st or Immediate relative

  18. Petitioning for Parents • You must be at least 21 to petition for your parents • You must be a citizen to petition for your parents • If you were born and raised to married parents you can petition for your parents as immediate relatives

  19. Petitioning for Parents • If your mother was not married to your father when you were born and her maiden name appears on your birth certificate you can file for her and give a copy of your birth certificate when you file for her

  20. Petitioning for Parents • If your biological father did not marry your mother you have to provide some evidence of your relationship such as • Blood test • Proof of financial support • Photographs of your relationship

  21. Petitioning for Parents • You can petition for your step-parent if their marriage to your biological parent occurred before your 18th birthday • You can petition for your adopted parent if you were adopted before age 16

  22. Petitioning for Your Child • As a US citizen or an LPR (green card holder) you can get a green card for your child • A US Citizen for a child < 21 (immediate relative) • A US Citizen for an unmarried child > 21 (1st preference) • A US Citizen for a married child > 21 (3rd preference) • LPR for an unmarried child < 21 (2A preference) • LPR for unmarried child > 21 (2B preference)

  23. Petitioning for Your Child • DEFINITION OF CHILD • Child of Married Parents • Mother and father married before birth of child • Child of Unmarried Parents • Prove parent-child relationship through mother • Need birth certificate with name of mother and child • Prove parent-child relationship through father • Must show biological father • Must show there was a father-child relationship • “Legitimated” Child of Married Parents • Parents got married before child turned 18 • Stepchild • Marriage between biological and step parent must occur before child turns 18 • Adopted Child • Child must have been adopted before age 16 • Child lived w/adopting parents at least 2 years before petition was filed

  24. Parent must file a “visa petition” to prove to the immigration authorities that his/her children are truly and legally his/hers Then child must submit a green card application and attend an interview to prove that they are otherwise eligible for permanent residence Petitioning for Your Child


  26. Petitioning for Your Sibling • WHO IS A SIBLING? • Legitimate sibling • Same mother and father • Citizen must be at least 21 • Half-sibling • Same process as full blooded sibling • Step-sibling • Biological parent must have married step-parent before sibling’s 18th birthday • Adopted sibling • Adoption occurs before 16th birthday of adopted sibling • Spouse and minor children < 21- visa privilege extended to them

  27. EMPLOYMENT-BASED PETITIONS • We can help your employer petition you for permanent residency!

  28. Employment Based Visas- Who qualifies? • 1st Preference- people of extraordinary ability • 2nd preference- advanced degrees and people of exceptional ability • 3rd preference- skilled and unskilled workers and those with a Bachelor’s degree • 4th preference- special and religious workers • 5th preference- entrepreneurs

  29. Immigrant Visas- Number available (Example based on July 2006) • EMPLOYMENT-BASED PREFERENCES • First : Priority Workers: 28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences. • Second : Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability: 28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference. • Third : Skilled Workers, Professionals, and Other Workers: 28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to "Other Workers". Schedule A Workers : Employment First, Second, and Third preference Schedule A applicants are entitled to up to 50,000 “recaptured” numbers. • Fourth : Certain Special Immigrants: 7.1% of the worldwide level. • Fifth : Employment Creation: 7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers

  30. Employment Immigrant Visas- Availability (Example based on July 2006)

  31. Employment Based Petitions • “NONPRIORITY JOBS” (2nd and 3rd preference) • REQUIRE A LABOR CERTIFICATION • WE CAN HELP YOUR EMPLOYER OBTAIN A LABOR CERTIFICATION • Jobs requiring Graduate degrees • Professionals without graduate degrees • Factory workers • Plumbers • Domestic workers • Carpenters • Landscapers

  32. Employment Based Petitions • LABOR CERTIFICATION- a finding by theDepartment of Labor that there are not enough qualified US workers in the location where the alien will perform a job and that the employment of the alien will not adversely affect the US labor market • MUST SHOW: • (1) foreign worker must prove he or she is qualified either by training, education or experience • (2) Employer must prove that it is financially able to pay the wage for the job

  33. Employment Based Petitions • Labor Certifications • Department of Labor must approve the employment of an alien • Employer must prove: • Job being offered to the alien is otherwise open to US residents • There are no unnecessary conditions placed on the position • The wage offered is at least the prevailing wage in the community

  34. Employment Petitions • Special Categories • Religious Workers • Medical doctors licensed in the US and worked in the US since 1978

  35. Priority Workers • Extraordinary ability • Science • Arts • Sports • Computing • Acclaimed in at least one country other than your own • Outstanding professors and researchers • Corporate executives and managers

  36. Professionals and People with exceptional ability Advanced Degrees (MA or Ph.D) At least 5 years of progressively responsible experience after graduating Acclaimed and recognized in your own country Need a labor certification

  37. Skilled Workers • Professionals without advanced degrees • College degree • Less than 5 years experience • Skilled workers • At least 2 years of training and experience • Permanent job

  38. Unskilled workers • Called “schedule B” • If you want to obtain a schedule B employment visa your employer needs a labor certification to show that • there are no citizens or LPRs available to do that job and that • hiring the applicant would not adversely affect the wages of US citizens and LPRs similarly situated

  39. Live-In Domestic Workers • Need offer of employment • Family must show business need---that the work you do requires another person to help 24 hours with either the kids or an ailing parent • Show that no member of the family is able to perform the job while you are not home • Family must submit proof  afford wage offered • Family must show there was no one else available • REQUIREMENT- 6 years of education and 3 months paid experience as live-in household worker

  40. Religious Workers • No Labor cert required • Must have job offer • Who qualifies? • Member or Minister of Religious Denomination • With recognized creed, form of worship, history, places of worship and standard system of training • Bona fide group in the US • Non profit standing in the US • Must have been paid to engage in full time religious vocation or professional work • Requiring college degree or equivalent • In a religious organization for at least 2 years before applying for an immigrant visa • You must have been offered a position by the US religious affiliate to work in “a religious vocation, profession or occupation” • Minister, priest, brother, nun, monk, religious instructors, counselors, cantors, catechists, religious hospitals, translators, missionaries or broadcasters

  41. NONIMMIGRANT VISAS • IF YOU DO NOT QUALIFY FOR LPR, THEN WE CAN HELP YOU GET A NONIMMIGRANT VISA • Nonimmigrant visas (NIVs) • Right to stay in the US temporarily with limited rights • Rights to work, study, visit, conduct business • Rights vary depending on the NIV sought

  42. Nonimmigrant Visas- Most Common • B-1- temporary business • B-2- temporary tourist • F-1 - students • H-1B- specialty occupation requiring bachelor’s degree (employer files) • H-2A- temporary agricultural workers (employer files) • H-2B- temporary workers for jobs for which there is a shortage of qualified American workers (employer files) • K-1- fiancé(e)s of US citizens coming to get married within 90 days of entry to US • R-1- religious occupations (employer files)

  43. NONIMMIGRANT VISAS • WE CAN HELP YOU FILE FOR A RENEWAL, OR CHANGE, YOUR NIV STATUS IF • you were lawfully admitted into the United States with a nonimmigrant visa, • your nonimmigrant visa status remains valid, • and you have not committed any crimes that would make you ineligible • IT IS BEST TO FILE FOR AN EXTENTION OF NIV STATUS AT LEAST 45 DAYS BEFORE THE VISA WILL EXPIRE

  44. NONIMMIGRANT VISAS • IF YOU FALL OUT OF STATUS DUE TO LATENESS OF FILING AN APPLICATION, WE CAN STILL HELP YOU EXTEND OR CHANGE YOUR STATUS IF YOU SHOW THAT: • (1) The delay was due to extraordinary circumstances beyond your control; • (2) The length of the delay was reasonable; • (3) You have not done anything else to violate your nonimmigrant status (such as work without USCIS approval); • (4) You are still a nonimmigrant (This means that you are not trying to become a permanent resident of the United States. There are some exceptions.); and • (5) You are not in formal proceedings to remove (deport) you from the country.

  45. B-1 and B-2 visas • WE CAN HELP YOU BRING YOUR FRIENDS/FAMILY HERE FROM ABROAD • WE CAN ALSO HELP YOU APPLY FOR EXTENTIONS OF YOUR B VISA • If you are coming to the US as a visitor for a temporary business trip • Making investments • Buying goods • Attending seminars (up to 1 year stay) OR • If you are visiting the US temporarily as a tourist or for medical treatment • (usually a 6 month stay)

  46. F-1 Student Visa • WE CAN HELP YOU OR YOUR FAMILY MEMBERS APPLY FOR THIS NIV • Must have been accepted at a school approved by the US government • Public and private colleges, vocational schools, some high school and middle school programs • Must pursue a full course of study • Example: 12 credits at a University a semester • Program must lead to a degree/diploma • Must have been accepted by the school before applying for the visa • Must have enough money to study full-time without working • Must prove that you intend to return to your home country when your program is over • Visa usually issued for the estimated length of time it will take to complete your proposed program of studies

  47. H-1B “Temporary Specialty Worker” • WE CAN HELP YOUR EMPLOYER FILE FOR THIS NIV • College educated workers • Need job offer from a US employer • Must be coming to the US to perform services in a job requiring a college degree or equivalent work experience • Must be offered the prevailing wage for same geographic area for that type of job • Employer must have filed an attestation with the Department of Labor • (similar to a sworn declaration or written oath about the job)

  48. H-1B Temporary Specialty Worker • WE CAN HELP YOUR EMPLOYER FILE FOR THIS NIV • Bachelor’s or higher degree “or the equivalent” • This means 3 years of specialized training and/or work experience for every year of college that you would have attended • “Specialty occupation” • This means that the position must require the skills of a highly educated person • H-1B visas can be extended for 3 years at a time for no longer than a total of 6 years

  49. H-2B-Temporary Nonagricultural Worker • WE CAN HELP YOUR EMPLOYER FILE FOR THIS NIV FOR YOU • Skilled and unskilled • Must have job offer from US employer that is temporary or seasonal • Need a temporary labor certification (to show that no qualified US workers are available) • Show that you intend to return home after your visa expires • Can be first issued for a 1 year maximum • Can be allowed two 1 year extentions

  50. H-2A- Temporary Agricultural Worker • We can help your agricultural employer file for this NIV for you: • US agricultural employer must first search for US workers throughout the entire region of the US in which the employer is based • Usually for large crews of foreign laborers at one time for a particular harvest • Will not be issued for foreign workers who are in the US illegally