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Frequently Asked Questions (FAQs)The information provided herein is general in nature as it regards United States immigration and nationality laws. This information is not a substitute for carefully reviewing your immigration situation with an experienced immigration lawyer. If you would like to make an appointment with David Piver or one of his associates, please call us at 610-975-4599 or send an email to info@piverlaw.com.
General Questions about The Law Offices of David E. Piver (“Piverlaw”)
(Go back to the top of this page) Where are the offices of Piverlaw located?Piverlaw has both an East Coast and western office. Its main office is located in Wayne, PA, a suburb of Philadelphia, while its western satellite office is located in Flagstaff, AZ. For directions to either of our offices, please click here. (Go back to the top of this page) What type of legal matters does Piverlaw handle?Piverlaw handles all immigration and nationality related matters. Please see a more extensive listing of immigration and nationality related services in the Types of Services section on our homepage for further information and about the types of immigration matters we handle. (Go back to the top of this page) What foreign languages capabilities does Piverlaw have?Our firm is comprised of a multilingual staff. The languages spoken include Mandarin Chinese, Spanish, Russian, Finnish, French, Italian, German, Creole, Hindi, Telegu, Kanada, Tamil, and Malyalam. (Go back to the top of this page) Is Piverlaw hiring?Piverlaw is growing at a very fast pace and hiring frequently. If you are interested in working for our firm, please submit a resume to info@piverlaw.com. If we are not hiring at the time of your inquiry, your resume will be kept on file for future reference. (Go back to the top of this page) What is the philosophy behind Piverlaw’s immigration law practice?At Piverlaw, our goal is to provide the best quality of service possible. We care deeply about each and every client and do our best to accommodate each client’s needs as professionally, efficiently and respectfully as possible. (Go back to the top of this page) General Questions about Immigration
(Go back to the top of this page) 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. (Go back to the top of this page) 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. In addition to any pre-certification or approval steps required, visa processing (or stamping) at a U.S. consulate will be required for those applicants who are currently residing outside the U.S. To apply for visa processing or stamping to come to the U.S., you must contact the nearest consulate to determine which documents are needed, how the visa application fee is paid, and whether any special application requirements exist. Except in limited circumstances, you will be required to submit your visa application to the U.S. consulate having jurisdiction over your country of citizenship. You may obtain information about the appropriate U.S. consulate online through the State Department’s website. Each consulate has different rules, regulations and requirements, and we recommend that you speak with a U.S. immigration attorney to ensure that you are eligible to apply for the specific visa you would like to obtain, and that such visa is the option most suited to meet your intended purpose and long term objectives. (Go back to the top of this page) What is the difference between a nonimmigrant visa and an immigrant visa?A nonimmigrant visa, is a temporary visa, given to qualified applicants in a specific classification as defined by U.S. immigration laws and regulations, that allows a foreign born national to enter the United States for a temporary period. Nonimmigrant visa classifications include but are not limited to those available for business, tourism, employment, training, investment, study, performance or competition, and other acceptable purposes. While the underlying nonimmigrant visa classification is often times approved or certified by the U.S. Citizenship and Immigration Service, or SEVIS or Department of State certified sponsoring entity, the actual nonimmigrant visa is usually issued at an American Embassy or Consulate in the applicant’s home country. Under appropriate circumstances, a foreign born national already physically present in the United States in valid nonimmigrant visa status may seek to change his or her status to that of another nonimmigrant or immigrant visa category, without the necessity of traveling to a consulate abroad for visa issuance. An immigrant visa (a/k/a “Green Card”) gives the applicant or beneficiary the right to work and live in the United States on a permanent basis. Immigrant visas are available through employment and family-based sponsorship, as well as through the Diversity Lottery program. Immigrant visa processing is available for applicants who are the beneficiaries of an approved immigrant visa petition (I-130, I-140 or I-360) or diversity lottery application. Once a petition or application is approved and the relevant immigrant visa becomes available, the beneficiary may apply for permanent residency (“green card”) by means of 1) Adjustment of Status through the US Citizenship and Immigration Service, if the applicant is physically present in the U.S. in a valid nonimmigrant classification which is eligible for adjustment of status, or 2) Consular Processing through the US Department of State (Consulate), if the applicant is physically present outside of the U.S. or chooses to travel abroad for processing. The physical presence requirement is determined as of the time of eligibility, meaning that both the visa petition is approved (or approvable in cases of concurrent filing) and a visa is currently available based on immigrant visa classification and country of birth, as governed by the Department of State’s Visa Bulletin found at http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html. (Go back to the top of this page) How do I know if I am lawfully present in the U.S.?You are are only lawfully present (maintaining a lawful status) in the U.S. until the expiration date noted on the Arrival/Departure record Form I-94. Your length of authorized stay is not governed by the dates on your consulate-issued visa. It is essential that you remain in status and avoid staying beyond the expiration date of your I-94 because you may suffer serious consequences and gravely restrict you eligibility for obtaining future visas. A person who remains in the U.S. unlawfully for more the 180 days, but by less than one year, may be ineligible for readmission to the U.S. for a period of three (3) years; and a person who remains in the U.S. unlawfully for one year or longer may be ineligible for readmission the U.S. for a period of 10 years. 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. (Go back to the top of this page) 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. (Go back to the top of this page) 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. (Go back to the top of this page) 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.” (Go back to the top of this page) 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:
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. (Go back to the top of this page) General Questions about H-1B Visas and I-140 Portability
(Go back to the top of this page) How many H-1B visas are available annually?Currently, a total of 65,000 H-1B visas plus an additional 20,000 H-1B visas available to holders of master’s degrees from U.S. institutions of higher education are awarded by the USCIS each year. (Go back to the top of this page) How long is an H-1B usually valid for? Can I renew it?An H-1B visa is initially available for three years, renewable for a total of six years. Thereafter, one must leave the U.S. for one full year before reapplying for H-1B status. Alternatively, if steps toward permanent residency have been taken, H-1B status may be renewed in one or three year increments depending on various factors related to the labor certification and/or permanent residency process. (Go back to the top of this page) When must I apply for an H-1B visa in order to make the cap?H-1B petitions can be filed up to six months prior to the requested start date. In the case of a cap-subject H-1B petition, it may be filed upon certification and execution of the underlying Labor Condition Application. Such certification can be obtained from the Department of Labor as April 1st of each year based on a fiscal year or October 1st start date. Accordingly, we recommend filing a cap-subject H-1B petition as close to April 1st as possible given the particular circumstances of a given case. (Go back to the top of this page) If approved, when can I start work on my H-1B visa?In the case of a first-time H-1B classification, one may commence employment with the authorized employer only after the petition has been approved and the validity date of the petition is current (as notated on the approval notice). In the case of a cap-subject H-1B, the above considerations apply and under current law, the validity date may not predate October 1st. October 1st is the first day of the new fiscal year and that is the date from which each annual cap runs. In contrast, the beneficiary of a cap-exempt first time filing H-1B petition may commence employment with the authorized employer at any time during the year so long as the petition has been approved and the validity date of the petition is current. In the case of an H-1B transfer petition, one may commence employment with the authorized employer upon the filing of the transfer petition, subject to case specific considerations including, but not limited to, maintenance of status, prior validity dates, etc. Consultation with a licensed immigration attorney is recommended to determine eligible start dates for H-1B filings and cap-related strategies. (Go back to the top of this page) Can I apply for my Green Card while in H-1B status if my employer wants to employ me permanently?Yes, you may pursue labor certification and/or permanent residency while in H-1B status because H-1B visa holders are entitled to benefit under the “dual intent” doctrine. Under this provision, one is entitled to maintain the “nonimmigrant” visa status of H-1B classification while simultaneously pursuing permanent residency status. In fact, pursuit of labor certification and/or permanent residency is required in cases where one wishes to extend his or her H-1B status beyond the six years permitted under statute. (Go back to the top of this page) Can I change jobs while working on an H-1B visa?Yes, you may change employers while in H-1B status so long as your new employer files a transfer petition prior to your commencing employment with the new employer. Regulations permit H-1B visa holders to begin work with a new H-1B employer as soon as the new application is filed, rather than waiting for approval of the new petition, as is required in the case of first time petitions. (Go back to the top of this page) I have a Green Card application pending through my job. Can I change employers and still get my Green Card?Whether a change in employer will impact your green card application depends on many factors and consultation with a licensed immigration attorney is highly recommended if you are considering such a change. If you have reached the I-140/I-485 stage of the permanent residency process, you may be permitted to “port” or transfer employers under the American Competitiveness Act of the 21st Century Act (AC-21). This law as passed by Congress late in 2000 allows for "porting" or transfer of I-140 immigrant petitions in limited circumstances. Specifically, if the I-140 Petition for Alien Worker has been approved and the I-485 Adjustment of Status Application has been pending for at least 180 days, the employee may switch employers as long as the new position is “substantially similar” to the position for which the labor certification and I-140 were approved. Please note, the USCIS looks very closely at “portability” cases, and thus we strongly recommend consulting a licensed immigration attorney prior to accepting any new job offer so that your options and potential risks may be fully evaluated.
(Go back to the top of this page) General Questions about the Permanent Residency (“Green Card”) processHow can I obtain a Green Card?
Individuals may obtain a Green Card (officially known as lawful permanent resident status) through a number of avenues available under U.S. immigration laws. (Go back to the top of this page) 1. Family-based sponsorship:Family-based immigration permits U.S. citizens (and in some cases, legal permanent residents) to sponsor foreign born family members for immigration to the U.S. The eligibility requirements and required wait times depend on both the sponsor’s (or petitioner) status and the qualifying relationship on which the petition is premised. Family-based sponsorship may be processed through the Citizenship and Immigration Service or Consulate abroad depending on the location in which the beneficiary is physically present at the time the visa becomes available. Qualifying spouses and unmarried minor children (under 21) of the sponsored family member are eligible to immigrate with the qualifying relative either as “accompanying” dependents or as dependents “following to join.” Such dependents may require their won sponsorship at the I-130 stage depending on the sponsor’s status and qualifying relationship. All dependents will require their own adjustment of status or consular processing applications as separate from those of the principal beneficiary. For a description of the different family based preference categories, please visit our listing under General Questions about the Visa Bulletin in the FAQ section. This categorical listing of family-based classifications can also be found in the Department of State’s Visa Bulletin at [LINK] or on the USCIS’ website. (Go back to the top of this page) 2. Employment:Employment-based immigration permits U.S. based employers to sponsor foreign born workers for immigration to the U.S. (and in some cases, permits foreign born workers to self-petition for permanent residency based on strict qualification standards based on extraordinary ability or national interest). Immigration laws and regulations recognize a number of distinct employment preference categories and subcategories each of which encompass varying skill levels and evidentiary requirements. Some categories require the employer to file a Labor Certification with the Department of Labor, and other categories enable a qualified individual to skip this step. For a summary of the different employment preference categories, please visit our Immigrant Visas Overview section for a brief overview of the criteria and evidentiary requirements necessary to qualify for each employment based immigrant visa category. In addition, the USCIS website also has detailed information on employment-based immigration available at the following website. (Go back to the top of this page) 3. Visa Lottery:The Diversity Visa Program, commonly referred to as the "Diversity Visa Lottery", makes available 55,000 permanent resident visas each year to individuals meeting the eligibility requirements. Applicants are chosen at random through a computer generated drawing from among countries designate by the Department of State as low immigration countries. The diversity visa program is intended to provide immigration visas for individuals from countries from which U.S. immigration rates tend to be low (i.e., countries other than the primary source countries for immigration to the United States). The list of countries that qualify for participation in the diversity visa program is subject to change from year to year based on the previous year’s respective immigration rates. For latest information and eligible countries, please click here. (Go back to the top of this page) 4. Refugee or Asylum:Persons granted Refugee or Asylee status are eligible to apply for permanent residency, subject to strict timing and eligibility requirements. The primary difference between refugee and asylee status is based on whether the individual is physically present outside or inside the U.S. at the time such designation is sought. Both designations require a showing of past persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion as granted by either a USCIS Asylum Officer or Immigration Judge. Once granted status as refugee or asylee, one may subsequently apply for permanent resident status subject to strict timing requirements. (Go back to the top of this page) 5. Cancellation of Removal (formerly called Suspension of Deportation):An individual who is in the United States and is in Removal Proceedings (Deportation) may be eligible for Cancellation of Removal and subsequently for permanent residence. The Immigration Judge may grant cancellation of removal to an individual who has been physically present in the United States for a continuous period of not less than ten years immediately preceding the date of such application; is a person of good moral character during such period; has not been convicted of certain offenses; and can establish that removal would result in extreme and unusual hardship to the foreign born applicant's qualifying relative (e.g., U.S. citizen or permanent resident spouse, parent, or child). (Go back to the top of this page) 6. Self Petition:Coming soon… (Go back to the top of this page) 7. Violence Against Women Act (VAWA):Coming soon… (Go back to the top of this page)
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