Hermin Dowe, Attorney at Law

Immigration Law

North Bay | Pleasant Hill | San Pablo


1. What is the difference between a nonimmigrant visa and an immigrant visa?

A. Nonimmigrant visas: Foreign nationals can enter theUS temporarily as tourists (B-2), business visitors (B-1), students (F-1, M-1), workers (H-1B, L-1, etc.) or for a variety of other reasons. These temporary visas are known as nonimmigrant visas and are issued at US embassies and consulates abroad. Officers at theUS embassy or consulate abroad must be convinced that the visa applicant will not remain in theUS after expiration of the authorized stay. The visa applicant must demonstrate that he/she intends to depart theUS within the prescribed period of time. While some nonimmigrant visa categories are subject to annual quotas (i.e. H-1B), most are unrestricted in number. Nonimmigrant visas can usually be obtained rather quickly. Visas may be valid for one or more entries into theUS. However, a visa does not guarantee entry into theUS. The immigration officer at theUS port of entry makes the final determination.

B. Immigrant visas (aka “Green cards”) grant the holder the right to reside and work in theUS permanently. Holders of these visas are referred to as lawful permanent residents. They are obtained either in theUS or abroad at a US Embassy or Consulate. Green cards are available mostly to those individuals who have immediate family members in theUS or job skills needed by aUS employer. Additionally, a number of green cards each year are granted to investors, refugees, highly educated individuals and DV Lottery winners. The number of green cards issued each year is subject to an annual quota on each category. The speed with which one obtains a green card depends upon the category in which one qualifies.

2. What is an H-1B visa?

H-1B visas are the most common route to work in theUnited Statesfor professional foreign workers. Currently, 85,000 H1Bs are issued every year (with 20,000 of those reserved for graduates of US Graduate Schools), usually in three year increments, with a maximum duration of six years (which can be extended one year at a time past the 6 year limit if one has a labor certification or I-140 petition pending for 1 year or more-see below). A new six year period commences if the person departs theUSfor one year. The basic requirements needed to obtain an H-1B visa are a job offer from aUSemployer, where the position itself requires a minimum of a specific 4 year Baccalaureate degree and the applicant has the relevant education and/or work experience to fulfill these requirements. Additionally, the employer must pay the prevailing wage in that specific area for that specific position (and file a Labor Condition Application with the US Department of Labor). H-1B visas usually take between 2 weeks (through premium processing-for an additional $1000 filing fee) and 12 weeks to process and receive, depending upon the jurisdiction of the work site. Among the many positions considered specialty occupations in this category are: information technology professionals such as programmers, analysts and network engineers, Physicians (who graduated from US Medical schools and passed parts 1 and 2 of the USMLE), Physicians (who graduated Foreign medical schools and passed all 3 parts of the USMLE) some senior/managerial registered nurses, journalists, accountants, teachers, researchers and scientists. Immediate family members of H-1B visa holders are entitled to H-4 visas, which are not work authorized.

H-1B FAQ’s:

2a. What is H-1B Portability? i.e When can I switch H-1B employers? When an individual already holds H-1B status/visa, they may change employers by having the new employer file a petition on behalf of a new employee. The individual may begin employment with the new employer upon filing (and receipt of the I-797 receipt notice) the new petition. The individual does not need to wait for approval of the new petition to begin working for the new employer.

2b. What if I have a gap in H-1B employment? Often, when applying for a “change of employer” H-1B, CIS will request copies of the individuals most recent pay statements with the previous employer to show that the individual maintained his/her status. Officially, workers are out of status immediately upon termination or resignation. While no official grace period exists, H-1B change of employer petitions are commonly approved when filed within a reasonable period time (2-4 weeks) from the last date of employment. ILG strongly recommends filing before leaving the previous position, if possible. The oft-quoted “10 day rule” only applies to H-1B visa holders who fulfilled their entire period of sponsorship, and are given 10 days to leave theUnited States upon the expiration of their visas.

2c. What is the H-1B cap? The H-1B cap is currently set at the very low number of 65,000 per year, and 20,000 were recently added as cap-exempt for graduates ofU.S. master’s degree programs or higher. The visas are released each year on October 1, however, one can apply for the October 1 released visas on April 1, 6 months in advance. ILG strongly recommends filing as early as possible, as all of the FY 2005 H-1B visas were taken on the first day of the year, October 1. Certain employers and employees are exempt from the annual H-1B cap. (see below)

2d. Who is exempt from the H-1B Cap?

  • H-1B visa holders who seek to change employers
  • H-1B workers filing to work concurrently in a second H-1B position
  • H-1B workers filing to change the terms of their employment
  • H-1B workers who will be employed at an institution of higher education or a related or affiliated nonprofit entity, or at a nonprofit research organization or a governmental research organization.
  • Conrad 30 J Waiver Recipients-Physicians working in medically underserved areas (MUA)
  • USCIS will also continue to process H-1B petitions for workers fromSingaporeandChileconsistent with Public Laws 108-77 and 108-78.

2e. What is Dual Intent? An H-1B alien can be the beneficiary of an immigrant visa petition, apply for adjustment of status, or take other steps toward Lawful Permanent Resident status without affecting his/her H-1B status. This is known as “dual intent” and has been recognized in immigration law since passage of the Immigration Act of 1990. During the time that the application for LPR status is pending, an alien may travel on his or her H-1B visa rather than obtaining advance parole or requesting other advance permission from Immigration to return to theU.S.

2f. How can I get a 7th Year Extension (and beyond) of my H-1B visa? An H-1B visa holder who is reaching his/her 6 year limit can extend past the 6th year if they have a labor certification or I-140 pending for more than 365 days, or if they are prevented from gaining their US permanent residence status due to an unavailability of immigrant visas under the per country quota system (see Visa Bulletin).

2g. Can I get an H-1B if I haven’t graduated from college? Work experience evaluations in lieu of baccalaureate degree: Shanti, Inc. v. Reno, 36 F. Supp. 1151, 1161-1166(D.Minn.1999) reaffirmed the longstanding INS rule allowing for 3 years of experience to be equivocated as one year of college. Therefore, H-1B applicants can display the equivalent of a college degree by proving 12 years of relevant, progressive work experience. One should get an accredited evaluator to make such a determination before presenting to CIS.

3. What is a PERM/Labor Certification?

The first step in obtaining permanent resident status through employment is to show the U.S. Department of Labor that there are no qualified American workers available to take the specific job that has been offered. Applicants apply for green cards under preference categories and are subject to country-by-country quotas. The date on which the employer files the labor certification papers is called the priority date. The priority date marks the legally recognized moment when the waiting period for a green card starts to elapse. The following are the preference categories for employment-based immigration:

  • First Preference: Priority workers, require no labor certification.
  • Second Preference: Members of the professions holding an advanced degree or exceptional ability; if their work falls under the “national interest” requirement, then the labor certification and job offer requirement can be waived;
  • Third Preference: Skilled workers, i.e. those capable of performing work requiring at least two years experience or training for which qualified workers are not available in the US; Professionals, i.e. those with baccalaureate degrees, but not advanced degrees; and Other workers, i.e. unskilled labor, not of a temporary or seasonal nature.

4. How can one obtain a green card without the Labor Certification process?

If a person is in the First Employment-based Preference Category (EB 1), one does not need to go through the labor certification process. Furthermore, persons of extraordinary ability do not need a job offer from aUSemployer.

EB-1 subcategories are:

Persons of Extraordinary Ability: in the sciences, arts, education, business or athletics, as demonstrated by national or international acclaim, which should be recognized through extensive documentation. The individual should continue the work in the field and the entry should substantially benefit theUS.

To demonstrate “sustained or international acclaim” and the recognition of the applicant’s work, the applicant must submit evidence of a one-time achievement such as a major international award (Nobel Prize, Academy Award, etc.) or three OR MORE of the following:

  • receipt of lesser nationally or internationally recognized prizes or awards.
  • membership in association in the field for which classification is sought, which requires outstanding achievement of their members, as judged by recognized national or international experts.
  • published material about the person in professional or major trade publications or other major media.
  • participation as a judge of the work of others.
  • evidence of original scientific, scholastic, artistic, athletic or business-related contributions of major significance.
  • authorship of scholarly articles in the field.
  • artistic exhibitions or showcases
  • performance in a leading or cultural role for organizations or that have a distinguished reputation.
  • high salary or remuneration in relation to others in the field.
  • commercial success in the performing arts.

Outstanding Professors and Researchers: requires that the individual be internationally recognized in an academic area and possess at least 3 years of academic research or teaching experience; have a tenure or tenure track position at a university or an institute of higher education or a comparable research position in an institution that employs at least 3 persons full time in research and which institution has achieved documented accomplishments in the field. Additionally, researchers may accept a job conducting research in industry.

Multinational Executives or Managers: requires that the individual be employed abroad in that capacity during at least one of the three years preceding the application for admission to theUS as priority worker. He/she must enter theUS to be employed as an executive or manager for the same firm, corporation or legal entity or a subsidiary or affiliate of the entity that employed him/her abroad. Most L-1A visa holders qualify for this category.

5. What is a National Interest Waiver (NIW)?

The employment based Second Preference Category (EB-2) includes members of the professions who hold advanced degrees and individuals of exceptional ability in the arts, sciences or business. Although this category requires a job offer and labor certification, USCIS may waive this requirement if the work of the alien is in the “national interest”. Statements by experts concerning the importance of their work to the overall well-being of the nation are considered, along with past accomplishments and the need for their particular type of skill in the U.S.This standard has not been well defined by USCIS. Successful cases will prove that the alien’s presence will improve: the US economy; US working conditions; the educational system of the US; health care; housing; the environment; or an interested US government agency has requested the waiver. In August of 1998, the USCIS attempted to further define this standard through the New York Dept. of Transportation case (NYDOT). NYDOT states: (1) the applicant must seek to work in an area of “substantial intrinsic merit”; (2) the applicant must provide a benefit that is national in scope; and (3) the benefit to the US must considerably outweigh the inherent national interest in protecting US workers.

6. How can an individual obtain permanent residence through marriage to a US citizen?

If the US citizen resides in the US:

An application to the USCIS office having jurisdiction over theU.S.citizens (petitioners) residence is the first step. Usually, this is a one-step filing, meaning that one applies for petition approval, adjustment of status, and work authorization all at the same time. The USCIS will issue an employment authorization document (EAD), usually within 90 days of applying. The USCIS then arranges marriage interviews for the couple. This may take from two months to over two years, depending on the USCIS jurisdiction. The USCIS will examine documents and question the applicants to determine the bona fides of the marriage. Documents one should be prepared to produce include: wedding photographs, tax returns, joint bills, joint leases or deeds, joint bank accounts, insurance documents naming each spouse as beneficiaries. If the immigration officer suspects that the marriage was entered into solely for immigration purposes, USCIS may investigate at the candidate’s home and place of work. If the marriage is less than 2 years old at the time of interview, then the green card will be issued as conditional, and it will expire in 2 years. The applicant and spouse must file papers to have the conditions removed within the 90 day period prior to the expiration of the green card. They must then return for another interview to have the conditions removed.

If theUScitizen resides abroad, the paperwork must be submitted and processed at the appropriateUSconsulate. The process is nearly the same but the waiting time is less – from two to six months.

Permanent Resident through Relatives?

There are five categories under which an individual can obtain permanent residency through relatives. They are:

  1. Immediate relatives of US citizens: There are no quotas and no priority date waiting for immediate relatives of US citizens. They are defined as: spouses of US citizens (including widows and widowers who were married to the US citizen for at least 2 years and are applying within 2 years of the citizen’s death); unmarried people under 21 who have at least one US citizen parent; parents of US citizens, if the US citizen is over 21.
  2. First Preference-Unmarried sons and daughters of US citizens (23,400 per year, plus unused visas from the fourth Preference);
  3. Second Preference-(F2A) Spouses and unmarried children of permanent residents (114,000 per year, plus excess over 226,000 the floor for family based immigration, plus unused visas from the first Preference); (F2B) Unmarried sons and daughters of green card holders who are at least 21.
  4. Third Preference-Married sons and daughters of US citizens (923,400 per year, plus unused visas from the first and second Preferences);
  5. Fourth Preference- Brothers and sisters of US citizens (65,000 per year, plus unused visas from the first second and third Preferences).

The waiting period to obtain an immigrant visa through relatives will vary depending on one’s preference category and one’s country of origin. Nationals ofMexico,India, People’s Republic ofChinaand thePhilippinesgenerally have longer waits in these categories.

Common family-based immigration FAQ’s:

7a. What if my relative/spouse entered the US illegally? When an alien enters without inspection (EWI), or with fraudulent documentation, they are ineligible to adjust under current immigration law, unless the petition was filed prior to April 30, 2001. In that case, and if certain conditions are met, they are eligible to adjust under INA section 245(i) (see FAQ: What is section 245(i) LINK). In certain cases, aliens may be “grandfathered” in under INA sec. 245(i) if they filed another type of case prior toApril 30, 2001 and other certain conditions are met. This prohibition even applies to spouses of US citizens. Please contact ILG for a more case-specific analysis of this regulation.

7b. What if my spouse/relative overstayed his/her authorized period of stay I-94 card? For spouses of US citizens and other immediate relative filings, one may still adjust status in the US even if you have overstayed your visa. However, for the other family preference categories, an alien cannot adjust status if he/she has overstayed their visa. In fact, if one overstays a visa by 180 days or more, one is barred from adjusting or reentering for 3 years. Furthermore, if one overstays for 365 days or more, one is barred from adjusting or reentering for 10 years. (see FAQ: consequences of remaining in the US illegally) However, if the priority date was established prior to April 30, 2001, then an alien who has overstayed can adjust status under sec. 245(i), if certain conditions are met (see FAQ: What is sec. 245(i)).

7c. Do I make enough money to sponsor my relative? All sponsors must submit form I-864, Affidavit of Support, which assures the government that you are financially capable of bringing an immigrant relative to the United States. Most sponsors must earn 125% of the poverty income level-please see form I-864P for the current guidelines.

All sponsors must submit the following documentation with their I-864.

  • Proof of current employment or self employment
  • Your individual Federal income tax returns for the most recent 3 tax years, or an explanation if fewer than 3 are submitted. Your W-2s or 1099 forms may also be required, see the I-864 instructions for details. If you are using the income of persons in your household or dependents to qualify as a sponsor, you must also submit a separate Form I-864A, Contract Between Sponsor and Household Member, for each person whose income you will use. If you are unable to show enough income on your own, one may use a joint sponsor for the Affidavit of Support.

8. How can an individual become a citizen of the US?

There are 4 ways to become aUScitizen:

  1. By Naturalization Petition
    1. Must be a lawful permanent resident.
    2. Must be 18 years or older.
    3. Must be a permanent resident for five years. However, if a person obtained permanent residence through marriage to a US citizen, they may be eligible for naturalization in three years if: a) the couple has been married for 3 years, b) if the spouse was a citizen during that entire period, and c) if the couple are still living in marital unity.
    4. Must have resided for at least three months in the state where the petition was filed.
    5. Must be physically present in theUSfor at least one half of the five years (or one half of three if spouse is a citizen), with no absences longer than 1 year. (please note that absences longer than 6 months, but less than 1 year can also break this rule if the immigration officer deems that the applicant did not give a “reasonable explanation” for the absence).
    6. Must have resided continuously within theUSfrom the date the petition was filed to the time of admission to citizenship.
    7. Must be a person of good moral character for the five years
    8. An elementary level of understanding, reading and writing English. Exceptions to this rule for persons over fifty, in theUSfor 20 years or more as a permanent resident; and persons over 55, in theUSfor 15 years as a permanent resident.
    9. A basic knowledge of the fundamentals ofUSgovernment and history, to be displayed by passing an USCIS examination. This requirement can be waived for people over 65 and have been permanent resident for 20 years.
  2. By birth in the US: Under the 14th Amendment, all persons born … in the United States … are citizens regardless of the status of their parents, who may be citizens, green card holders, or illegal aliens.
  3. By acquisition at birth: A child born outside theUSwhere one or both parents are US citizens may acquireUScitizenship at birth.
  4. By derivation through naturalization of parents: A child born outside theUSmay become a citizen by virtue of the parents’ naturalization.

9. What is Political Asylum?

USCIS grants aliens political asylum in the United States based upon a well-founded fear of persecution in one’s home country due to one’s race, religion, nationality, political opinion or membership in a particular social group. The fact that one is suffering economically is not considered a reason for asylum. A person must request political asylum within one year of arriving in the United States, unless exceptional circumstances can be shown. The asylum officer or Immigration Judge will determine if the applicant’s subjective fear of returning to his or her home country is supported by objective evidence and whether the applicant is credible. If political asylum is granted, the applicant is allowed to remain in the United States and eventually obtain permanent residence.

10. What is the Diversity Visa Lottery (DV)?

The Immigration Act of 1990 created a new green card category to benefit people from countries that have low immigration to theUnited States. The goal of the program is to diversify the pool of immigrants entering theUnited States. The DV program grants 55,000 immigrant visas each year by random drawing (hence the term “lottery). The visas are divided among geographic regions . A greater number of visas will go to those regions that have lower immigration rates and no visas may be issued to countries that have sent more than 50,000 immigrants to theU.S.during the previous five years. DV applicants must have a high school education or its equivalent, or within five years have two years of work experience in an occupation that requires at least two years of training or experience. The DV registration period is usually between early October and early November of each year and successful registrants are usually notified between April and July of each year. Registrations submitted one year are not held over until the next, so if you are not chosen one year you must reapply the next year to be considered.

11. What is INA section 245(i)?

INA§245(i) was first added to immigration law in 1994 to allow persons who qualify for green cards, but not for adjustment of status, to be able to adjust their status in the U.S. upon payment of a fine (currently $1,000). Congress phased §245(i) out of the law onJanuary 14, 1998. However, persons who had already qualified under the law as of that date were “grandfathered” into the benefits of §245(i) for the rest of their lives. The problem was that hundreds of thousands of otherwise qualified persons who missed the January 14, 1998 deadline could not adjust status in the U.S., and therefore could not return to their countries of origin to obtain green cards without being subject to either a three or a ten-year bar from returning to the U.S.

On December 15, 2000Congress extended the grandfathering date of §245(i) to April 30, 2001. Not only does this extend the benefits of §245(i) to persons who had labor certifications or visa petitions (I-130, I-140 or I-360) filed on their behalf between 1998 and 2000, but it gives persons over four months after the passage of the law (April 30, 2001) to qualify for the benefits of §245(i).

12. What if I stay in the US illegally?

Most immigrants don’t realize or understand the very grave consequences of remaining in the United States illegally. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 created substantial penalties for aliens who overstay their visas or enter the country illegally.

Aliens subject to these penalties are termed to have been “unlawfully present” in The United States. INS defines unlawful presence with three categories: (1) those who entered without inspection (EWI), or crossed the border illegally; (2) those who stayed in the country beyond the date on their I-94 arrival/departure card (overstays); and (3) those who are found by the INS or an immigration judge to have violated the terms of their stay.

The serious penalties apply when an alien has been unlawfully present for more than 180 days. If someone is unlawfully present in theUSfor between 180 and 365 days, they are then barred from reentering, changing or adjusting their immigration status for 3 years. People unlawfully present for more than one year are barred for 10 years.

Not All Time Illegally in the US Will Count Toward Unlawful Presence

No period of unauthorized presence prior to April 1, 1997will be counted toward the three and ten year bars. Furthermore, no period of unlawful presence which occurred before the alien’s 18th birthday will be counted toward the three and ten year bars. Additionally, periods of unauthorized presence will not be counted in the aggregate for purposes of the three and ten year bars. This means that the INS will not add up three months of overstay during one visit with three months of overstay during a past visit to determine that you were unlawfully present for six months.

Some nonimmigrant visa holders, such as students (F,M visas), certain diplomats (A,G visas), information media representatives (I visas) and exchange visitors (J visas) are admitted for duration of status (marked “d/s” on their I-94 cards). These people will begin to accrue unlawful presence only if an immigration judge or an INS officer determines that a status violation has occurred, whichever comes first. This means that even if these people remain in the country after the completion of the original intent of their stay (i.e., graduates from school, leaves diplomatic post), if they leave the country without undergoing immigration court or INS proceedings, they can apply for another visa abroad without fear of the three and ten year bars. According to State Department Cable No. 060529 (April 4, 1998), under these circumstances, consular officers may not refuse a visa based on their own findings of unlawful presence. Rather, an immigration judge or INS officer must have made a formal finding that the alien violated their status.

Additionally, aliens who have bona fide asylum applications pending, are beneficiaries from of the family unity program, or are battered women and children are exempt from the three and ten year bars. Aliens who have pending applications for extension of stay or change of status are granted 120 days of tolled, or frozen, lawful presence, providing the application was timely filed and non frivolous and the alien did not work without authorization prior to or during the pendency of the application.

Conditional permanent residents who fail to file a timely form I-751 petition to remove conditional status are deemed to be unlawfully present from the date of the missed filing deadline. Additionally, aliens who enter without inspection are determined to be unlawfully present from the date of the illegal entry.

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 makes remaining in theU.S.illegally a much more dangerous act than most people realize. As stated above, unlawful presence can affect one’s ability to enter theUnited Statesfor years to come. This harsh law has trapped a class of aliens in a permanent state of illegality. While there are a number of bills pending before the Congress to soften this severe law, the current political atmosphere does not make passage likely. Potential immigrants must be vigilant in maintaining valid immigration status.

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