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Navigating The Immigration and Naturalization Process
by Margaret Wong

As a stranger in a new land, compliance with immigration regulations is a necessary evil. In the USA, this area of immigration law is highly regulated, seemingly arcane, and frequently frustrating. For those who seek to remain in the USA as permanent residents, and ultimately as citizens, navigating the immigration and naturalization process can sometimes seem like a battle of endurance.

The routes of visa entry into the USA and to permanent residency are many and varied, too many to cover here. The most common nonimmigrant temporary worker visa is the H-1B visa, valid for a maximum of six years, with initial validity of three years. For the H-1B visa, an employer must petition on your behalf for a position that requires at least a bachelor's degree in a specialized field. You must have that degree or its equivalent and your employer must pay an amount in accordance with the field's prevailing wage as determined by the State Employment Agency or another recognized source. Although this may sound complicated, it can usually be navigated smoothly over a couple of months, providing you meet the necessary criteria.

An L-1A visa is another common nonimmigrant visa, specifically for intra-company transferees at the executive or managerial level. This visa is available to foreigners who have been continuously employed abroad for one of the three years immediately preceding entry by a parent, affiliate, or subsidiary of a U.S. company. The L-1A can be valid for a maximum of seven years. An L-1B visa, for intra-company transferees possessing specialized knowledge related to the company and its products, procedures, and so on, can be valid for a maximum of five years.

If you're studying, then the F-1 visa category applies to you. Alternatively, you may find yourself on a J-1 visa, a visa that allows a foreign national to come to the USA in order to receive training or to serve as a visiting scholar, among other things. Under this category, you may also find yourself subject to the two year foreign residency requirement. If your field is on your home country's skills list, if you have government funding, or if you came to the USA to complete a medical residency, then you will be subject to this requirement. Although you may not have given this too much thought previously, after a few years in the USA, it can suddenly take on a whole new perspective. Unless you obtain a waiver, you must return to your home country for a period of two years prior to returning to the USA as a permanent resident or on the majority of nonimmigrant visas.

Another of the nonimmigrant visas is the O-1 visa for extraordinarily talented and nationally or internationally known scientists, educators, artists, athletes or business people. Extraordinary ability in your field of expertise must be extensively documented and substantiated through awards won, media attention received, association with other renowned experts in the same field, and innovation or major contributions in the specific field of expertise. As with the H-1B visa, the O-1 is employer specific and a job offer is needed.

For those who have successfully navigated the nonimmigrant visa process and who decide that they like the USA enough to consider a long-term hiatus, the fun is about to begin! In general, there are three ways to acquire permanent residency: an approved I-130 Family-based Immigrant Visa Petition; an approved I-140 Employment-based Immigrant Visa Petition; or selection in the Diversity Lottery Program. Certain family members who are U.S. citizens or permanent residents can agree to petition for other family members. Who can petition for whom is dependent upon the petitioner's status in the USA and the type of familial relationship involved. For example, U.S. Citizens can petition for their siblings, but permanent residents cannot. Parents, children over 21 years of age, siblings and spouses may be eligible to petition, yet aunts, uncles, cousins, and grandparents cannot directly petition.

The I-140 Petition is for employment-based cases. In most instances, the employer must petition on behalf of the foreign national. The Labor Certification is a process whereby the State Employment Agency and the U.S. Department of Labor work to ensure that allowing a foreign national to immigrate to the USA as a result of a job offer will not have a negative impact upon U.S. Citizens or permanent residents. It is only after establishing that no U.S. citizen or permanent resident is qualified, willing and available for a given position meeting prevailing wage requirements that a Labor Certification will be issued by the Department of Labor. Upon certification being granted, an employer may then file Form I-140 with the INS. Upon approval of the I-140, the foreign national may then seek permanent residency in this country as long as his quota is open. Unfortunately, this is a lengthy process that often extends to two to three years and tests the patience and commitment of many.

In other cases, for intra-company transferees, while no Labor Certification is required, the employer must still complete the necessary forms. While not detrimental, it has the effect of binding the employee to the employer. Other I-140 Petitions, such as the National Interest Waiver (NIW) and Alien of Extraordinary Ability, are self-petitioned cases based upon your talents, abilities and contributions and enable you to waive the time consuming Labor Certification procedure. A person possessing a master's degree or higher or five years of progressive experience in the field following receipt of a bachelor's degree and whose work is in the national interest is eligible to file for an NIW. In order to qualify as an Alien of Extraordinary Ability, you must demonstrate that you have achieved a sustained national or international acclaim. These achievements must have been recognized in the field through extensive documentation. Generally speaking, this process takes from a few months to a year, after which you can seek permanent residency status.

If chance appeals to you more than any of the above options, then the Diversity Lottery Program is for you. As an attempt by Congress to increase the diversity found in this nation by increasing immigration from countries that traditionally do not send many immigrants to this country , the government determines which countries are eligible annually. Individuals submit entries and people are randomly selected. Selection does not guarantee permanent residency. Individuals must file appropriate documentation quickly in order to have the opportunity to be interviewed and granted permanent residency before the limited visa numbers are gone.

If you survive the months, or years, of confusion, stress, and frustration, the green card is the ultimate reward. Although years ago the card establishing permanent residency was green, today, it is pink. A green card is the document that allows you to remain in the USA on a permanent basis with the right to live and work in this country. After having been a permanent resident for a period of five years, you will be eligible to apply for citizenship. If your permanent residency was based on marriage to a U.S. Citizen and that marriage still exists, the wait is three years. If you plan on making it this far, remember to hire a good lawyer and to bring plenty of patience. The end result is surely worth it.


About The Author

In the late 1960s, Margaret Wong came to the USA on a student visa with little money and big dreams. She worked as a waitress to pay her way through college and law school. In light of a 1973 U.S. Supreme Court ruling, she became one of the first non-U.S. Citizens licensed to practice law in New York and Ohio. Because of her personal experience with the immigration and naturalization process, Wong recognized that foreign nationals in the USA and American businesses need sound guidance in this highly regulated arena of immigration law. She founded Margaret W. Wong & Associates with one desk and no secretary. Over the last twenty years, Wong has assisted thousands of people in coming to the USA to become permanent residents or to advance their education, work, or other opportunities.


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