IMMIGRANT VISAS
General Questions about Immigration
Why does one need an immigration attorney?
An attorney is trained in understanding and applying relevant laws and regulations.
Immigration and nationality laws, regulations, and administrative procedures are
extremely complex. Congress and the various federal agencies, such as the Department
of Homeland Security, the Department of State, and the Department of Labor are continually
enacting and amending laws, regulations and administrative procedures that have far
reaching immigration consequences. An immigration attorney will be aware of new and
amended laws, regulations, and administrative procedures, as well as being versed
in working with these agencies, and will thus be able to provide a client with the
best possible options and outcomes for with his or her particular immigration need
or problem. In addition, immigration attorneys are in the best position to offer
guided analysis and recommendations regarding big picture strategies to attain long-term
nonimmigrant and immigrant objectives—objectives which might otherwise
be precluded if incorrect steps are taken early in a foreign born national's
efforts to come to the U.S.
Even with today's technology and access to voluminous legal and agency resources
via the Internet, one can easily become confused by and entangled with the vast quantities
of available information and data. Moreover, there is a large volume of misinformation
about and misinterpretation of immigration laws and procedures, and what a friend
or family member perceives to be the "law" may or may not be
accurate. Visa eligibility is highly case specific and what worked for a friend or
family member may or may not be applicable to your case based on case-specific facts
and changes in the pertinent law and or regulations. An experienced immigration attorney
is in the best position to evaluate and determine the best course of action for resolving
your particular issue with the greatest chance for success.
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How do I apply for a visa to come to the U.S.?
Different visas entail different eligibility standards, documentation requirements,
and application procedures. Many visas require pre-certification or approval by the
U.S. Citizenship and Immigration Service or by a SEVIS or Department of State authorized
sponsor. Accordingly, it is highly advisable that you consult with a licensed immigration
attorney prior to applying for a particular type of visa in order to determine the
most appropriate visa classification, eligibility requirements and procedure.
If you are entering the U.S. for the first time after having obtained a visa from
a U.S. embassy or consulate abroad, the I-94 is a small white card noting your visa
category, date of entry and date of expiration of your authorized stay in the U.S.
If you were already in the U.S. and obtained a change of status or extension of stay
from the US CIS, your new I-94 is attached at the bottom of your I-797 approval notice
and lists the new visa category and date of expiration of your authorized stay in
the U.S. Please note: there is a "latest in time rule"
which governs the length of authorized stay. In the event you have two I-94 cards
that both appear on their face to be valid but which conflict with respect to length
of stay authorized (e.g., an I-94 issued by the US CIS and an I-94 stamped at the
border upon entry), the most recently issued I-94 governs the length of
your authorized stay. If you find yourself having conflicting I-94 dates, it is recommended
that you consult a licensed immigration attorney to resolve the matter in light of
the grave consequences that may result from your remaining in the U.S. beyond the
expiration date of your authorized stay as governed by your I-94 card.
If you have already retained our services, please send us a copy of your I-94
card and any entry stamps or new visas upon each and every arrival into the U.S.
so that we can ensure you have been granted the full length of authorized stay. Moreover,
it is important that you notify our law office if the border officer has made an
error and admitted you for a shorter period of time than the validity period as indicated
on your I-797 Approval Notice, or if the US CIS has granted a validity period on
your I-797 Approval Notice that is different from that requested on the underlying
petition or application. Your employer and our office will assume that you were admitted
and/or approved for the correct period of stay and will not know that your status
is expiring sooner than anticipated.
If you wish to retain our services, please contact our office at (610) 975-4599
or via email at info@piverlaw.com.
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What Is Conditional Residence?
If a couple filing for Permanent Residence based on marriage has been married
for less than two (2) years at the time the foreign citizen spouse enters the U.S.
on an immigrant visa or obtains permanent residence through Adjustment of Status,
the permanent resident status is considered "conditional." The
permanent residence status, and immigrant visa, in the case of consular processing,
is "conditional" in nature and is only granted for two years.
The couple is then required to take the additional step of applying together to the
U.S. Citizenship and Immigration Services (US CIS) to remove the "conditions"
within the 90-day window preceding the second year anniversary of the date on which
the foreign spouse obtained conditional permanent resident status. The two (2) year
anniversary date from which this 90-day window is calculated is indicated as the
expiration date on the temporary Green Card.
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How do I become a naturalized citizen?
If you are not a U.S. citizen by birth and did not acquire U.S. citizenship automatically
after birth, you may be eligible to become a citizen through naturalization. If you
are 18 years or older, and have been a Permanent Resident of the U.S. or Green Card
holder for a minimum of four years and nine months, or two years and nine months
in the case of marriage-based permanent resident status, you may be eligible to apply
for naturalization. It is recommended that you consult with a licensed immigration
attorney in order to further assess your eligibility.
After applying for naturalization, eligible applicants will be required to appear
for an in-person interview where they will be tested for English proficiency (some
limited exceptions apply) and knowledge of U.S. civics. Those applicants who are
found to be eligible for citizenship following the foregoing steps will be scheduled
for the next available oath ceremony during which they will be sworn in as U.S. citizens
along with a number of other newly naturalized citizens, and given Naturalization
Certificates as evidence of their U.S. citizenship.
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What is the difference between an "extension of stay"
and a "change of status," and what is the purpose of requesting
either?
Whether you request an extension of stay and change of status depends on whether
you are seeking to extend the nonimmigrant classification in which you are
already present, or whether you wish to change to a different nonimmigrant
classification.
Extensions of stay and changes of status relate only to nonimmigrant visa classifications.
The advantage of requesting an extension of stay (EOS) or change of status (COS)
of nonimmigrant visa classification is that it affords the applicant or beneficiary
the opportunity to remain in the U.S. while the respective application or petition
is pending, and upon approval, accords the benefits of the particular status extended
or granted without the need for traveling outside the U.S. for visa stamping. Both
extensions of stay and changes of status require maintenance of valid nonimmigrant
status at the time the request is made in addition to meeting the eligibility requirements
of the continued or new nonimmigrant classification.
If you were already in the U.S. when you or your petitioning sponsor (e.g., employer)
filed the application or petition and an extension of stay/change of status request
and you were found eligible for the extension/ change, the I-797 approval notice
will contain a notation showing that the extension or change of status was approved.
An approval under these circumstances means that as long as you are in the U.S. and
comply with the terms of the extended or new nonimmigrant classification, you remain
in valid status up to the expiration date listed on the most recently issued I-797
approval notice and attached I-94. So long as you remain in the United States, you
will not need a new visa that corresponds to the extended or new nonimmigrant classification
in order to be authorized to remain in the U.S. and, in the case of employment authorized
nonimmigrant classifications, you will be authorized to continue or begin work for
your authorized (petitioning) employer. Accordingly, the benefit of requesting an
extension of stay or change of status is that, if approved, you do not need to travel
outside the U.S. and re-enter in order to validate your extended or new status.
IMPORTANT - By approving your change of status or extension
of stay, the USCIS granted you a right to remain in the United Sates for a designated
period of time in accordance with the terms of your extended or new nonimmigrant
classification. The USCIS did not grant you the right to travel out of the country
and automatically be re-admitted in the extended or newly acquired status. The approval
notice alone will not serve as an entry document if you should leave the United States.
Accordingly, if you choose to travel outside the United States at any point during
your period of validity, as indicated on your I-797 approval notice and attached
I-94, you will need to obtain a newly issued visa which corresponds to the extended
or new nonimmigrant classification and validity period prior to reentering
the United States by applying for a new visa at a U.S. Embassy or Consulate
in your home country. Under appropriate circumstances, many visa applicants will
be eligible to apply at consular posts outside their home country including those
in Canada and Mexico as "third country nationals."
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How long can a person legally remain in the U.S. in the same
nonimmigrant visa classification?
While the duration for which one may remain in the U.S. is governed by the I-94
card as explained in the foregoing How do I know if I am lawfully present
in the U.S. section, the US CIS imposes caps on the total amount of time one
may spend in the same nonimmigrant visa classification based on congressionally mandated
time limits. Some overall time limits include, but are not limited to:
- H-1B - 6 years;
- J-1 - category specific (see J-1 under Overview of Most Common Nonimmigrant
Visas)
- L-1A - 7 years;
- L-1B - 5 years;
- O-1 - No overall limit;
- P-1 - 10 years (individual), 1 year (team);
- P-2/3 - 1 year;
- R-1 - 5 years.
Several of the above overall time limits include limitation on combinations of
statuses including, but not limited to time spent in various H and L visa classifications.
It is recommended that you consult a licensed immigration attorney with questions
regarding combined time limits and their impact on your eligibility for extension
of stay or change of status.
Moreover, there are exceptions for extension of stay beyond the total time limit
in some visa classifications including, but not limited to: 1-year H-1B extensions
in cases where qualifying steps toward employment-based permanent residency (e.g.,
the filing of a labor certification application) were taken more than 365 days prior
to the expiration of the beneficiary's sixth year in H-1B status, and 3-year
H-1B extensions in cases where an I-140 was approved but pursuit of permanent residency
through adjustment of status or consular processing is precluded by retrogression
of the applicable immigrant visa category. The foregoing exceptions to time limits
are subject to a variety of factors and it is recommended that you consult with a
licensed immigration attorney in order to further assess your eligibility.
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