1. Who can sponsor someone to come live in the United States permanently?

Generally, an individual can be sponsored to reside in the United States permanently as a lawful permanent resident as follows:

USC Spouse - A United States citizen spouse may petition for a spouse to obtain an immigrant visa petition. Upon approval, the alien spouse will have to demonstrate eligibility for lawful permanent resident status to the satisfaction of the INS or the U.S. Consulate abroad.

LPR Spouse - A lawful permanent resident spouse may petition for a spouse to obtain an immigrant visa petition. Upon approval of the petition and availability of the visa, the alien spouse will have to demonstrate eligibility for lawful permanent resident status to the satisfaction of the INS or the U.S. Consulate abroad.

USC Parent - A United States citizen parent may petition for a child under 21 or a child over 21 or a married child. Upon approval of the petition and availability of the visa, the child will have to demonstrate eligibility for lawful permanent resident status to the satisfaction of the INS or the U.S. Consulate abroad. The married child's spouse and children will also be permitted to immigrate to the U.S.

LPR Parent - A lawful permanent resident parent may petition for a child under 21 or an unmarried child over 21. Upon approval of the petition and availability of the visa, the child will have to demonstrate eligibility for lawful permanent resident status to the satisfaction of the INS or the U.S. Consulate abroad.

USC Sibling - A United States sibling may petition for another sibling (brother or sister). Upon approval of the petition and availability of the visa, the sibling will have to demonstrate eligibility for lawful permanent resident status to the satisfaction of the INS or the U.S. Consulate abroad. The siblings' spouse and children under 21 (as of the time of receiving lawful permanent resident status) will also be permitted to immigrate to the U.S.

U.S. Employer - A U.S. employer may also petition for an employee to obtain lawful permanent resident status. This petitioning process, known as the labor certification application processing, involves three steps: First, having the job position certified by the U.S. Department of Labor, as a shortage occupation; second, demonstrating that the sponsored alien meets the stated minimum requirements for the position and; third, the alien demonstrates eligibility for lawful permanent resident status to the satisfaction of the INS or the U.S. Consulate abroad. The employee's spouse and children under 21 (as of the time of receiving lawful permanent resident status) will also be permitted to immigrate to the U.S.

Self-Petition - Additionally, in certain specific situations a person may sponsor him or herself for lawful permanent resident status. However, this is only in certain situations defined by regulation.

As with any legal matter, it is best to consult with a knowledgeable attorney before undertaking any action.

2. Why does it take so long to get my family members over to the United States?

The United States government has set an annual minimum family-sponsored preference limit of 226,000. See Section 201 of the Immigration and Nationality Act, as amended. However, the number of persons waiting to come to the United States far exceeds the annual limit. Thus, the government has established a priority system based upon the relationship between the sponsor/petitioner and beneficiary and the region in which the beneficiary was born, as well as, the date the petition was first filed with the INS.

This "priority system" includes four "Preference" classifications based upon the relationship between the petitioner and beneficiary as follows:

· First Preference: Unmarried Children over 21 of a United States citizen.
· Second Preference:

o A - Spouses and children under 21 of a lawful permanent resident
o B - Unmarried children over 21 of a lawful permanent resident

· Third Preference: Married children of a United States citizen
· Fourth Preference: Siblings of an adult United States citizen

This priority-based system is also divided into regions: (India/Mexico/Philippines/All Others).

The "priority-date" is based upon the date the petition was received by the INS. Some waiting periods may extend for 22 years, although most waits are considerably less. However, it is impossible to tell exactly how long someone will have to wait for a priority date to become current and available. Currently available priority dates are available from the Department of State at http://travel.state.gov/visa_bulletin.html. Or see the Visa Numbers Section of this website.

Note: Immediate relatives - spouses and children of United States citizens and parents of adult United States citizens are exempt from the priority system and do not have to wait for priority dates to become current.

3. My mother filed for me a long time ago, recently she passed away, what do I do now?

Unfortunately, federal regulations state that if the petitioner passes before the beneficiary's journey to the United States commences or, if the beneficiary is an applicant for adjustment of status to that of a permanent resident, before the decision on the adjustment application becomes final, the prior approval of a petition is automatically revoked.

4. Should I wait until the employer receives the receipt before beginning my employment?

The danger in beginning employment prior to receiving a receipt is that the attorney or employer who does the filing may forget to sign the petition or include the correct filing fee which will result in the petition being returned. Before accepting employment, check with the company to see what date they want you to begin employment. Most employer's expect you to start when the petition is filed.

5. Are there circumstances where an H-1B alien who is still employed by a Petitioning employer may take an extended leave and still be considered as maintaining status?

Yes, Current INS policy is that an H-1B alien is considered as maintaining status as long as the employer-employee relationship exists between the petitioner and the alien. The employer-employee relationship continues to exist when there is an identifiable tie between the employer and the employee. An example would be an individual has taken leave under the Family and Medical Leave Act.

6. May an individual travel outside the United States while a change of status is
pending?

If an individual travels outside the United States while a change of status is pending before the request has been adjudicated, the request is considered to be abandoned.

7. If an H-1B worker is terminated or benched, is there a grace period in which they are considered to be maintaining status?

No, once one of these events occurs an individual is considered as having failed to maintain status. There is no formal grace period. In June 2001, the INS released a memo indicating the INS was considering a 60 day grace period.

8. Does INS have the discretion to forgive a lapse in status in connection with an extension of status or a change of status?

Yes, the INS has the discretion to grant a change of status or adjustment of status in the event of extraordinary circumstances. One could argue that if an individual is terminated through no fault of his own, he or she could be subject to extraordinary circumstances beyond his or her control.

9. What is a TN Visa?

The TN category of NAFTA (North American Free Trade Agreement) allows temporary entry to a business person seeking to engage in a business activity at a professional level in one of the sixty three occupations listed in the Appendix of NAFTA. Only persons coming to work in one of the enumerated professions will be issued a TN visa. Click here for a list of occupations.

A person coming to work in an occupation not listed will not be admitted as a TN even if the job has been recognized as a specialty occupation in the context of an H-1B.

The advantage of a TN visa is that it can be issued at a port of entry after an interview by a Free Trade Officer. It is issued for a period of one year and is renewable indefinitely.

You must be a Canadian citizen to receive a TN and you must possess the corresponding educational credentials and alternative experiental requirements set forth for each occupation.

There is no prevailing wage requirement for a TN visa.

Be prepared to present evidence of Canadian citizenship, a letter from the employer which sets forth in detail that the position is temporary, the remuneration and a detailed description of the job duties. Diplomas, transcripts and detailed experience letters and the filing fee.

You may want to call the port of entry to determine how early you should arrive in order for the Free Trade Officer to process your application.

10. Are there circumstances where an H-1B alien who is still employed by a Petitioning employer may take an extended leave and still be considered as maintaining status?

Yes, Current INS policy is that an H-1B alien is considered as maintaining status as long as the employer-employee relationship exists between the petitioner and the alien. The employer-employee relationship continues to exist when there is an identifiable tie between the employer and the employee. An example would be an individual has taken leave under the Family and Medical Leave Act.

11. May an individual travel outside the United States while a change of status is pending?

If an individual travels outside the United States while a change of status is pending before the request has been adjudicated, the request is considered to be abandoned.

12. If an H-1B worker is terminated or benched, is there a grace period in which they are considered to be maintaining status?

No, once one of these events occurs an individual is considered as having failed to maintain status. There is no formal grace period. In June 2001, the INS released a memo indicating the INS was considering a 60 day grace period.

13. Does INS have the discretion to forgive a lapse in status in connection with an extension of status or a change of status?

Yes, the INS has the discretion to grant a change of status or adjustment of status in the event of extraordinary circumstances. One could argue that if an individual is terminated through no fault of his own, he or she could be subject to extraordinary circumstances beyond his or her control.

-top-

14. Do I have to change my address with INS if I move?

Section 265 of the Immigration and Nationality Act requires all aliens to notify the Attorney General within 10 days of a change of address. This applies to non-immigrants as well as immigrants. If you have an application pending, notify the office where the application is pending. Otherwise use Form AR-11 which can be found on the INS web site at http://www.ins.gov/graphics/formsfee/forms/ar-11.htm. If you fail to notify INS of the address change within ten days you can be criminally prosecuted. The penalties are a fine not to exceed $200.00 or be imprisoned not more than 30 days or both. Further you could be taken into custody by the INS.

-top-

15. How do I bring my spouse to live in the Unites States?

You cannot go to another country and marry an individual and immediately bring them back to the United States with you. First you must file an immigrant visa petition with the Immigration and Naturalization Service. This Petition is filed at the INS Service Center having jurisdiction over your residence. Adjudication times for this petition vary depending upon the INS workload. It is not unusual for this to take up to a year. After the Petition is approved it is sent by the INS to the National Visa Center. The National Visa Center after completing its work will forward the Petition and supporting documents to the Consular post designated on the form. It also issues Packet 3 which is completed and returned to the Consular Post. After an interview, the Consular officer will issue an immigrant visa for you to enter the United States.

Recently Congress enacted a law establishing a K-3 visa. After filing the I-130 visa petition for your spouse, you can file an I-129F petition. This allows your spouse to enter the US and wait for the visa petition to be approved. The advantage to this is that it decreases the time you are apart from your spouse after your marriage.

It is not appropriate for you to marry and have your spouse use a visitors visa to enter the United States to process the application.

US citizens should consider a fiancée visa which may be processed faster than that listed above. The marriage would then take place within 90 days after your fiancée enters the United States.

-top-

16. Can you file a form I-130 for a relative directly at a U.S. embassy outside the United States?

Yes.

DCF-Direct Consular Filing

Direct Consular filing is when the I-130 is filed directly with a U.S. Embassy abroad. It is authorized only at certain U.S. Embassies under limited conditions in accordance with the Foreign Affairs Manual. It is authorized pursuant to 9FAM Part IV Appendix N, 200.

DCF has become more difficult and less likely to occur after September 11, 2001 and with the advent of the K visa which has been designed to reduce the waiting time for the spouse to enter the United States. You must know the requirements and conditions at Consulates before attempting the filing. Most Consulates will entertain the application as a courteousy to a US citizen residing within the Consular District perhaps on an overseas assignment in the country or for other humanitarian reasons. Check directly with the Consulate because the procedures are rapidly changing. The current trend is moving away from adjudicating applications at the Consulates.

The danger in DCF processing is that if the case is not clearly approvable, it will be forwarded to the United States or an Immigration office abroad with jurisdiction over the Consular district. This could result in a greater delay than if the case was filed in a Service Center in the United States in the first place.

The process is not designed to be a way to circumvent normal filing procedures.

-top-