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Immigration FAQ

Legal Disclaimer

While every effort has been made to ensure the accuracy of this FAQ, Cohen & Grigsby, P.C. makes no warranty, express or implied, concerning its content. This FAQ is intended to serve as a basic guide, and should not be construed as legal advice. Each individual’s circumstances and background must be taken into account to determine the best immigration strategy. Please consult an attorney to discuss your particular issues and concerns.

Links:

General visa information

Visa Waiver Program information

U.S. Citizenship and Immigration Services H-1B Information

U.S. Department of Labor H-1B FAQ

What does “work” mean for U.S. immigration purposes?

Generally, “work” refers to:

Performing any “hands on” work that would need to be performed even if the visa holder were not present
Performing any and all activities which go beyond consultations or meetings and involve actual “work”
Receiving payment of any kind from the U.S. company (excluding reimbursement for expenses)

Activities that are not “work” include:

Participating in business meetings
Consulting with colleagues regarding business-related matters
Participating in litigation-related activities
Attending corporate-related functions/events
Participating in limited training-related activities (as the recipient of the training rather than the provider of the training)

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

An immigrant visa enables a person to live and work in the United States permanently. Commonly known as a "green card," this is the visa status most foreign nationals want to secure because it enables them to avoid the limited duration associated with temporary visas as well as any of the attendant difficulties associated with obtaining nonimmigrant visas. Moreover, and very importantly, it also enables their spouses and minor (under 21) children to simultaneously obtain permanent residence status. Also, and once a person becomes a permanent resident, he or she is no longer "tied" to the petitioning U.S. employer. Instead, that person (like all U.S. citizen workers) becomes eligible to work for any employer that he or she chooses.

What documents will I need to re-enter the United States after international travel?

If you are in a nonimmigrant visa status, you will need a passport and a valid visa stamp. For certain nonimmigrant visa categories, you will need other documentation, such as pay stubs and a letter verifying current employed.

If you are an adjustment of status applicant, you will need a valid visa stamp, advance parole documents, and your adjustment of status receipt notice.

If you are a permanent resident, you may be required to have a re-entry permit to return to the United States.

Must I have an F-1 visa to be a student?

You can study in certain categories other than F-1. For example, L-2 or H-4 visa holders may study full time. However, certain visa categories are not valid for study in the United States.

Must my family accompany me to the Consulate when I complete my visa interview?

If your family (spouse or children) will travel with you to the United States as your dependents, they must obtain a visa stamp at the Consulate. Your family must bring proof of their relationship to you, such as a marriage certificate or birth certificate. If these documents are in a language other than English, you must bring a translated copy with you to the interview.

What is the H-1B cap and does it affect me?

Annually, 65,000 new nonimmigrant visas are allocated for the H-1B category. The U.S. Citizenship and Immigration Services begins accepting visa petitions as early as April 1 for visas valid beginning October 1 (the start of the fiscal year).

Additionally, 6,800 H-1B visas are set aside each fiscal year for the H-1B1 program under the terms of the U.S.-Chile and U.S.-Singapore Free Trade Agreements. Under the “Advanced Degree Exemption,” 20,000 H-1B visas are set aside for foreign nationals with a master’s (or higher) degree.

Since this category is so popular and the number of available visas is so limited, these visas run out well before their validity date. In 2006, the cap for regular H-1B visas (bachelor’s degree or equivalent) was reached on May 25, 2006, more than five months before the beginning of the fiscal year. The Advanced Degree cap was reached on July 26, 2006.

It is important to note that certain H-1B petitions do not count towards the H-1B cap:

H-1B workers for certain non-profit institutions, such as universities
Filings for workers already in H-1B status

Why does it take so long to obtain a green card?

There are a limited number of immigrant visas available each year. These are allocated among several immigrant visa categories. Many categories have a wait list, or backlog. In these categories, the date you entered the green card process, referred to as a “priority date,” serves as a sort of “place holder” in line. You will receive a green card when one becomes available to those with your priority date.

What happens if I lose my passport and/or U.S. immigration papers?

You must report a lost or stolen passport immediately. You must submit a DS-56 Form to the U.S. Department of State Passport Services with as much detail as possible. Passports reported as lost or stolen are no longer valid for travel, even if they are later recovered.

Next, you must request a replacement passport using a DS-11 Form.

For more details, please visit: http://travel.state.gov/passport/lost/lost_849.html.

Can I travel outside of the United States if my adjustment application has been filed but remains pending?

You can travel outside the United States after the adjustment application has been filed as long as you have the following documentation:

Advance parole and
An Adjustment of Status Application (Form I-485) receipt notice

It may also be helpful to have a letter from your employer and a few recent paystubs verifying your current employment.

I’d like to visit the United States for travel/business. What visa can I use?

The Visa Waiver Program (“VWP”) is only available to nationals of certain countries. The VWP can be used for short trips for business or tourism. For example, you can come to consult with U.S. colleagues, have meetings concerning business ventures, prepare for litigation in the United States, or travel. You do not need to file anything with the consulate or U.S. Citizenship and Immigration Services; you simply enter the United States using the VWP by presenting your passport at the port of entry. The VWP has three principle limitations: you cannot be "working" in the United States, i.e., cannot be paid by U.S. entity, the maximum stay is 90 days, and you cannot change status to another temporary visa category while in the United States.

You can find more information on the Visa Waiver Program at http://www.travel.state.gov/visa/temp/without/without_1990.html

If you need to stay in the United States for more than 90 days for a business visit, you should consider applying for a B-1. This visa has the same restrictions as the VWP, except it is valid for up to six months, can be extended to a total of one year, and you can change to a different temporary visa category while in the United States (with some restrictions).

If I have a visa stamp/approval notice, am I guaranteed entry to the United States?

No, obtaining a visa stamp or approval notice does not guarantee entry into the United States. Each visa holder must still successfully pass through inspection by the Customs and Border Protection each and every time he or she enters the United States.

Once I am in the United States, can I change my visa status?

Generally, unless you entered the United States using the Visa Waiver Program, you are allowed to change your visa status. This is accomplished by filing certain forms with the U.S. Citizenship and Immigration Services.

How can I come to the United States to study?

In F-1 student visa status, you can pursue/complete an academic program at an accredited college or university in the United States. The basic requirements for this category are: admission to a college/university and full-time academic status (at least 12 credit hours per semester). Employment in this status is only allowed in certain limited situations. For example, you may be authorized to complete curricular practical training that is part of your academic program. In addition, after completion of your degree, you may be eligible for a year of post-completion of studies practical training.

I’m transferring to my company’s U.S. office. What kind of visa can I obtain?

The L-1 visa category is available to intra-company transferees as long as the following requirements are met: A “qualifying relationship" must exist between the foreign business and U.S. business (such as parent/subsidiary or sister company), the employee has worked for the foreign business for at least one year during the three-year period immediately preceding the transfer to the United States, the employee worked for the foreign entity in an executive, managerial, or “specialized knowledge capacity,” and the employee will work for the U.S. entity in an executive, managerial, or “specialized knowledge” capacity.

The initial L visa is valid for a period of three years (for an established U.S. business) or one year (for a new U.S. office). An L visa can be extended for up to seven years for executive/managerial personnel and up to five years for “specialized knowledge” employees.

My business conducts regular trade between the United States and my home country. What status is right for me?

The E-1 “Treaty Trader” visa is available if a commercial treaty exists between the United States and the foreign country. The basic requirements for this category are:

The foreign business is majority owned by foreign nationals,
The employee is also a national of same foreign country,
“Substantial” trade exists between the U.S. company, the foreign/treaty country (more than 51%), and
The employee is filling an executive/supervisory or “essential skills” position with the U.S. employer.

The E-2 “Treaty Investor” visa is available if a commercial treaty exists between the United States and the foreign country. The basic requirements for this category are:

The foreign business is majority owned by foreign nationals,
The employee is also a national of same foreign country,
The foreign individual or business has made a “substantial” investment of its own capital into the U.S. business, and
The employee is filling an executive/supervisory or “essential skills” position with the U.S. employer.

This visa can be renewed indefinitely.

Can my spouse and children obtain a visa to accompany me to the United States?

Your dependents can obtain visas based on your valid visa status. In most situations, dependent visas are not work-authorized – notable exceptions are dependents of L-1 and E-2 visa holders, who are authorized to work in the United States after obtaining approval from the USCIS.

When should I file for an extension of my visa?

Extensions can be filed up to six months before the expiration date of your current visa. To avoid additional costs or last-minute hassles, it is better to extend visas at least three months before your current visa expires.

How can I check the status of my pending visa petition?

Status of petitions pending with the U.S. Citizenship and Immigration Service can be found online at: https://egov.immigration.gov/cris/jsps/index.jsp.

How long is will my visa be valid?

Visa Type	Initial Visa Term	Extension of Visa
E-1/E-2	Two years	Two years per extension. No limit to total stay.
H-1B	Three years	Three years. Maximum stay limited to six years (with some exceptions).
L-1A	Three years (existing office) One year (new office)	Maximum stay limited to seven years.
L-1B	Three years (existing office) One year (new office)	Maximum stay limited to five years.

How do I become a permanent resident?

Permanent residency is obtained in one of four ways:

Based on a request from a U.S. Citizen or permanent resident family member
Based on a grant of asylum
Diversity visa lottery,
Based on an offer of permanent employment in the United States

Can I obtain a green card through investment in the United States?

The EB-5 visa is an immigrant visa category for investors. The basic requirements for this category are: establishment of a new commercial enterprise, the foreign national must play an active role in the day-to-day operation of the U.S. business, the foreign national has already invested (or is in the process of investing) capital into the new enterprise, the amount of the investment must be “substantial” (typically in excess of $1 million), and the investment must create at least 10 full-time jobs.

The foreign national receives "conditional" permanent resident status for two years and, at the end of two-year period, must reestablish (through an interview and submission of documentation) that these requirements are still satisfied.

How do I apply for the diversity visa lottery?

For more details on the diversity visa lottery, please visit: http://travel.state.gov/visa/immigrants/types/types_1318.html.

How do I become a U.S. Citizen?

To become a U.S. Citizen, you must first become a permanent resident. Permanent residents become U.S. Citizens by applying for naturalization. Permanent residents are eligible for naturalization after meeting certain requirements, including maintaining physical presence and a residence in the United States for a designated period of time (three years if your permanent residence is based on marriage to a U.S. Citizen, five years if your permanent residence is based on employment).

During the naturalization interview, you will be tested on your understanding of English, U.S. civics and history. You will also be asked a series of questions regarding criminal history, affiliation with certain political groups, and other questions dealing with moral character.

After successfully passing the naturalization interview and security check, you will be issued a notice to appear at an oath ceremony. Once you have taken the oath of citizenship, you will receive a certificate of naturalization.