—Bringing People Together—

Frequently Asked Questions

By Bonnie Stern Wasser, Esq.
© 2005

The following is intended as general information only and is no substitute for obtaining individualized legal advice from an attorney with whom you establish a written legal services agreement.

Click on the question below to quickly locate the answer.

Q1. What is a “green card”?

A1. A green card, also known as an “alien registration card” (form I551), is a plastic card which evidences “lawful permanent residence” (LPR). It authorizes the person named on the card to live and work in the U.S. indefinitely or permanently. It is NOT evidence of U.S. citizenship. Alien registration cards used to be green, hence the term “green card.” Nowadays, the card is whitish in color, and contains various security features including a photo, fingerprint and signature, and file or case number, among others.

A person who has been granted LPR status but who has not yet received the plastic card may have or be entitled to a temporary stamp in his or her passport stating “temporary evidence of lawful permanent residence” (“I551 stamp”). Another term for LPR status is “immigrant visa” where LPR status is obtained at a U.S. Consulate abroad rather than in the U.S.

 

Q2. What is a "lawful permanent resident"?

A2. A "lawful permanent resident" (LPR) is an immigrant who is in or coming to the U.S. to live permanently. An LPR continues to have the citizenship of his or her country of origin. After a period of time, an LPR can apply for US citizenship. An LPR can lose permanent residence if he or she fails to keep the U.S. as the primary place of abode, commits certain crimes or other immigration violations.

 

Q3. What rights and obligations does a permanent resident (LPR) have versus a U.S. citizen?

A3. Both can seek work anywhere in the U.S. (depending upon the category under which he/she immigrated); both can live anywhere in the U.S.; both must serve in the U.S. military if asked or drafted and both must register for with selective service depending upon age and other requirements; both can own real and personal property in the U.S.; both must file U.S. tax returns.

A U.S. citizen may vote; an LPR may not unless allowed in local jurisdictions. A U.S. citizen may hold public office; an LPR usually may not. Some jobs requiring security clearances and some government jobs require U.S. citizenship.

LPR’s can lose their status by committing certain crimes, abandoning residence in the U.S., receiving certain kinds of welfare, and committing some other “deportable/removable or excludable” acts. Some naturalized citizens may lose citizenship if it was obtained by fraud.

LPRs continue to hold the citizenship of their country of birth and/or country of last citizenship depending upon the laws of those countries.

 

Q4. What is a “nonimmigrant”?

A4. All people coming to the U.S. are presumed to be immigrants planning to stay in the U.S. indefinitely unless they prove they are nonimmigrants, refugees or US citizens. A nonimmigrant is someone planning to come to the U.S. for a temporary period which could be as short as a few hours or as long as many years. Nonimmigrant visas are lettered “A” through “V”. Each has a different purpose, maximum length of stay and minimum requirements. Nationals of Canada do not need visas in some categories of stay. Bona fide tourists from some countries also do not need visas if coming to the U.S. for a truly temporary stay of 90 days or less for tourism activities. Please see the list of “visa waiver” countries. These people will receive an annotated green arrival card stamped with a “WT” or “WB” when they arrive in the U.S.

 

Q5. What is the difference between a “visa” and an “I-94"?

A5. A “visa” is like a permit allowing a person from one country to travel to another country. The visa is issued by a consulate or embassy of the host country where you will visit. The permit is stamped into the passport and allows the person the go to the door of the country to be visited. Presentation of the passport and visa to a border officer (at a land, sea or airport) is much like knocking on someone’s door and asking for permission to enter. So, for example, if you are from Japan and would like to visit the USA as a nonimmigrant, you will need to go to a U.S. consulate in Japan and apply for the visa. If approved, the visa will be stamped into your Japanese passport. You may then board a plane or ship and present both the visa and passport to the border agent at your port of entry into the USA. As noted in Q&A#4, there are some instances where a visa is not required.

It is important to understand that visas for travel to the USA are NOT obtained within the USA. You must obtain a visa at one of the many US consulates or embassies located around the world. Similarly, if you are an American and wish to travel to France to conduct activities for which a visa is required, you must get the French visa outside of France at a French consulate abroad or within the USA.

Once at the “door” or port of entry of the USA, the immigration officer will “inspect” you to determine if you indeed do qualify for the visa and plan to carry on the activity for which the visa is authorized. He or she will then issue you a form “I-94" or “arrival card” which will be stapled into your passport. The I-94 will be stamped with your “entry date” and the “expiration date” for that particular visa type valid for that particular entry. It is very important to understand that the dates on the I-94 govern the time limits on that particular entry. The card is also very important proof of lawful status, and for keeping track of all legal entries.

Note that the expiration date on the I-94 may be much earlier than the expiration date of the visa. This is common for tourists who may have 10 year visas or indefinitely issued visas. The entry stamp may be limited for six months. This is because that is the maximum time allowed for each entry for a tourist. Although extensions are permissible, the I-94 date and any amendments control the amount of permissible stay and status type since the entry date noted on the I-94. Note also, that visa dates and I-94 expiration dates can differ for other reasons, usually having to do with reciprocity agreements between the USA and other countries. Again, the I94 date controls the length of stay for that particular entry. Always look at the I94 date to determine when to leave the USA or file for an extension of stay or change of status.

 

Q6. I would like to move to the USA and work. What do I need to do? How can I qualify for a visa allowing me to work?

A6. The following visas allow for different types of employment situations. Each has a different list of requirements, maximum length of stay, unique permissible activities, etc:

  1. Temporary “nonimmigrant” visas: Lettered “A” through “V”.
  2. Permanent residence (“immigrant” visas or status): There are several employment based methods for immigrating, each with specific requirements. Employment authorization is also available while certain applications are pending, such as some family based immigration cases, asylees & refugees, certain Central Americans, relatives of amnesty recipients, temporary protected status and others. Each category has its own special requirements; some are employer specific, others are not. What is best for you will depend upon an analysis of the individual facts in your case.

As a general rule, for which there are always exceptions, it is best to look for work in a field directly related to your previous education and/or work history if you are going to immigrate through employment. It is usually harder to qualify for a visa if you are changing careers, unless you are willing to go to school, work as a trainee, invest in your own start up company or have a relative sponsor you.

With the above in mind, it is best to do your job hunting first. Once you have some offers, consult an attorney to discuss whether these opportunities have the potential for visa qualification. Please see List of Nonimmigrant Visas and List of Permanent Residence Categories.

 

Q7. I have been offered a job and it looks like I may qualify for a visa, but the employer seems reluctant to get involved with immigration issues. What should I do?

A7. First, educate yourself about the various visas and qualifications by reading whatever you can on the subject. Better yet, consult an experienced attorney. Once you are confident that you indeed qualify, explain to the employer what is involved or arrange for the employer to speak to your attorney. Often, an employer’s reluctance is due to ignorance about the law and procedures or due to a prior bad experience. If an employer is truly interested in your skills and potential contributions, they will sponsor you, especially if they have recruited for awhile without much success. There are some instances where you might be able to sponsor yourself and still do business with the employer/company.

Watch out for friends and relatives who offer to sponsor you as a “favor”. Sometimes that “favor” leads to more difficult problems if there is no true fit between the job offer and the visa requirements, or there will be fraud involved somewhere along the line.

Some employers who are used to working with immigrants pay the legal fees and costs as they are often considered a business expense and are viewed by the employer as the overall cost to hire the person. Other employers split the costs. Still others make the immigrant pay. The new H-1B visa rules now contain provisions for requiring the employer to pay, at a minimum, portions of the fees. In the end, who ultimately pays for legal fees depends upon your negotiating skills. However, in many states, the person paying the legal fees may not be the actual client depending upon state bar rules.

 

Q8. As a Human Resources Executive, I see many applicants responding to our ads who are foreigners. Should I get involved in sponsoring them? Why or why not?

A8. This will really depend on the nature of the job opening, the qualifications you need and your experience or knowledge about the availability of qualified US workers. If you are seeking unskilled labor, often an applicant who asks you to sponsor him or her is here illegally, because there are few temporary or nonimmigrant visas for unskilled workers at the time of entry into the U.S. Sponsoring them could put your company at risk for employer sanctions and fines if you know the person is unauthorized to work in the U.S. This is not the case in every situation, however, so it would be worth seeking professional advice before rejecting the applicant. Many unskilled laborers are here with some type of legal work authorization, which means you can hire them, but you should, in theory, not need to sponsor them. In a few industries, if you can show a critical shortage of US workers, and have a truly temporary need, you might be able to sponsor unskilled workers.

However, skilled or professional level workers may indeed qualify for any number of visas, so it is worth consulting an attorney to see if there is a good match between your opening and their credentials for visa purposes. In this firm’s experience, when an employer discovers a well qualified foreign worker whose skills are in demand, the employer usually sponsors them for a good reason: they cannot find anyone else with similar credentials. In the end, it comes down to educating yourself and understanding what is involved in the process, having the budget and the time to spend preparing a good case.

 

Q9. I am interested in buying or starting a business in the U.S. What should I know about immigration?

A9. There are different visas available for business owners. As a preliminary step, it may be worth making a short visit as a business visitor (paid from abroad) to the US to do your research. Once you are closer to acquiring or setting up a business, develop a very detailed business plan describing your service or product, marketing plan, financing sources, hiring plans, projected operating expenses, etc. Not only is it useful for visa planning and application purposes, but you can use it to obtain financing from banks and other investors, and it is a good road map to help you build your business. A business plan is very helpful to an immigration attorney (not to mention your tax and corporate counsel) because it helps us to analyze the appropriate immigration vehicle. Also, it is the evidence of choice to support the seriousness of your plans and capabilities.

Next, visit your tax counsel. Tax issues play an important role in immigration planning, because, for example, to reduce US tax liability, you my need to limit your physical presence in the U.S., thus limiting your choice of visas to certain nonimmigrant visas rather than permanent residence. Or, your tax counsel could advise you of the reverse. These issues also play a role in the choice of business entity to set up, who the owners will be, their nationalities, and their respective ownership interests. These issues will also impact your choice of visas. Ultimately, if you can visit the US, make an appointment with both your tax and immigration counsel so we can work together. We work with a number of international tax professionals (accountants and lawyers) to whom we can refer you.

Another issue to consider is whether you intend to stay in a field or industry which you know best. Often the immigration authorities will want some proof that you have the capability to make the business successful. If you have never been in business, at least have the skills and experience to make your business product or service sell. This is not a hard and fast rule, just a recommendation. If you have been in business for a long time or have multiple businesses, moving into new industries, products or services should not be a problem.

 

Q10. How does the quota system work?

A10. The quota system for lawful permanent residence is extremely complex. The following is a very general description. There are two main categories of permanent immigration: family based (FB) and employment based (EB). Within each broad category there are four to five additional sub-categories that are prioritized according to the “preference” which Congress has given to the category in terms of the priority of immigrants needed first. Each sub-category is referred to as a “first preference”, “second preference”, etc.

The only category NOT subject to a preference, and therefore, no quota, is “immediate relative”, the parents, spouses and minor children of U.S. citizens. The preferences are as follows:

FAMILY-SPONSORED PREFERENCES (“FB”)

EMPLOYMENT-BASED PREFERENCES (“EB”)

Each preference category, as well as the lottery (diversity program), and family unity program are subject to numerical limitation. That is, a finite number of visas are available in each category every year. These numerical limitations are set by Congress. Each country of origin is further assigned a “foreign state chargeability”, or a maximum number of visas for that preference category. The appropriate country is usually your country of birth, not citizenship. When the visas in some categories do not get used up, sometimes the unused visas in that category “spill over” into another category. Again, this is a complex formula devised by the US Congress.

If demand for nationals of a particular country exceeds supply, a waiting list or a backlog forms. Over the last 8-10 years, the only countries with such backlogs have been India, China, Mexico, and the Philippines. This is consistent with current and historical migration patterns due to socio-economic, political and geographic conditions in those countries and the resulting pressures on US immigration caused by those conditions. However, even in the “worldwide” category, which includes every country except the ones just mentioned, there are quota backlogs in all family based (FB) preference categories. Beginning October 1, 2005, there will be lengthy backlogs in several employment based categories that have not experienced quota backlogs in several years. However, this could change depending upon supply and demand of visas, and whether Congress decides to allocate more visa numbers.

A new “batch” of visas becomes available on October 1 of every year, the start of the government’s fiscal year. Generally, the quota tends to move a long more quickly (a few weeks to a few months at a time) between October and the following June. From June to the next October, things tend to slow down again. A person’s place in line in the quota is established in chronological order of receipt of a visa petition or labor certification application. In other words, people from the same country in the same category cannot jump in line ahead of you if their petitions were filed later than yours.

Your place in line in the quota or backlog is called the “priority date”. For FB and EB cases that do not require a labor certificate, the priority date is established on the date a “visa petition” is “filed” (received by the USCIS). For EB cases requiring a labor certification, the priority date is the date the labor certificate application is “filed” (received by a State Labor Office under the old system, or USDOL under the new PERM system). For lottery winners, the place in line is established by the number given to the winner at the time of selection.

You cannot file for the final phase of immigration, called “adjustment of status” in the U.S. or “immigrant visa processing” at a U.S. Consulate abroad, until your priority date is “current”, or you have reached the front of the line.

You can monitor the progress of the quota every month by watching the State Department’s “Visa Bulletin” at their web site: (http://www.travel.state.gov/visa/frvi/bulletin/bulletin_1360.html). When you look at it, you will see a table of the FB/EB categories down the left side and countries across the top. Where each preference and country intersect there may be a “C” which means the quota is “current”, open or there is no line. If you see a date, that means visas are available to applicants with that priority date or earlier. If you see a "U", that means visas are unavailable to everyone in that category from that country. When that category opens up again, priority dates will be preserved.

There are complicated rules for “cross-charging” priority dates, preserving and capturing dates, etc. These should be discussed on an individual basis with your attorney.

 

Q11. How can I become a U.S. citizen?

A11. U.S. citizenship is obtained in the following ways:

  1. Automatically, by birth in the U.S., its territories or possessions, or by birth abroad to one or more U.S. citizen parents;

  2. Derivatively, as when a child derives citizenship through the naturalization of at least one parent; and,

  3. Through naturalization, as when an affirmative application is made to become a U.S. citizen by virtue of having been a lawful permanent resident for a specific period. This category usually requires taking the oath of allegiance, being of good moral character, and having knowledge of English and US government and history.

For proof of the first two categories, it is often faster to apply directly for a U.S. passport from the U.S. Passport Agency. Applying for naturalization before the U.S. Citizenship and Immigration Services (USCIS) these days can take six months to a year or more, depending upon where you apply.

 

Q12. Why is my application taking so long to be decided?

A12. We have prepared a more lengthy explanation about the possible causes for delay entitled "Delays, Delays: Why is my case taking so long to be decided?" In a nutshell, however, it could be any one of the following main reasons:

  1. bureaucratic problems (agency limited resources, shifting priorities of the particular office that has your case, lost or misplaced files, fingerprint/clearance problems, etc.);

  2. quota delays - demand for a particular visa category with a numerical limit exceeds supply. See Q9 above.

  3. political, environmental, or security problems abroad forcing US consulates to close or reduce services;

  4. your case is incomplete, not a good case, or is going to be denied and a written opinion has to be prepared.

 

Q13. What are the reasons my visa, green card or citizenship could be denied?

A13. There are a number of reasons a visa, green card or citizenship application could be denied. Failure to meet the requirements of the underlying category is one reason for potential denial. Our system of immigration has two main counterparts: first, grounds of "exclusion" apply to persons seeking to enter the US and which include seeking to adjust to permanent residence. A person can be denied a visa at a US consulate, or can be denied admission into the US at a border, or can be denied a green card or citizenship based upon grounds of exclusion. A person not appearing to be admissible at the border may be turned around and sent home with an order of "expedited removal", or may be permitted to "withdraw the application for admission", go home, get things corrected and try again later. Persons seeking asylum may be given "credibility hearings" to determine if they have bona fide claims for asylum and may be detained until a decision on an asylum application is made. There are several grounds of exclusion discussed below.

Grounds of "deportation" or :removal" are generally for things that have occurred after having been admitted into the US, or when someone is found in the US, perhaps having entered illegally, or was admitted properly but committed a deportable offense subsequently. If caught, the person is usually brought into removal proceedings before an Immigration Judge. The person may or may not be detained or incarcerated during this time. There are several grounds of removal.

Although the grounds of exclusion and removal are fairly similar, they are not always exactly alike. Very generally, they include such things as not having the proper intent to carry on the lawful activities allowed under a visa category, certain criminal and terrorism activities, having certain contagious diseases, mental defects, or substance abuse, having received certain types of welfare in the US, having previously entered illegally, having been previously deported or excluded, having made misrepresentations in an application for an immigration benefit, failing to have labor certification when required, overstaying a visa, and various other reasons.

One of the most challenging areas of exclusion and removal concern prior criminal records because increasingly, Congress is expanding the range of crimes affecting immigration status and making them retroactive to many years ago. It is essential to get legal advice if you have a criminal history no matter how long ago it occurred, or how innocuous or “minor” it was. You can help your attorney enormously (and maybe save some money) if you obtain certified copies of the file from the court where the offense was tried or plead to, whether in the US or abroad. Be aware that this is a very complicated area of the law and it changes frequently.

Despite the grounds of exclusion or removal, there may be remedies available called “waivers” of inadmissibility or other grounds of relief from removal. Legal advice is highly recommended if you believe you may be inadmissible or removable.

 

Q14. Why does your firm not quote fees over the phone or e-mail?

A14. We review every case based on the individual facts pertaining to that client. We often need to ask many questions and review a number of documents. We usually spend about an hour learning all we can about the client’s situation. Sometimes we have to do some additional research. Once we have all the facts and have determined the number and complexity of issues involved, we are in a better position to provide you with fee and cost quotes. See Consultation and Fees which discusses in more detail our fee and billing policy and how to set up a consultation.

So that we can learn more about your case(s) and give you the personal attention needed to evaluate your case, we encourage you to call at 206-282-2279 to set up an appointment. Toward the end of the consultation we will give you a fee quote for your particular situation.

If you require very low cost or pro bono (free) services, see our links page listing various non-profit organizations that might be able to help you. We assist clients through some of these organizations on a periodic basis to meet our pro bono community service goals.

 

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Law Office of Bonnie Stern Wasser
314 W. Galer St., Suite 203, Seattle, WA 98119-2916
Phone: 206-282-2279; Fax: 205-285-8513
Email: bonnie@bswasserlaw.com

This website is designed for general information only. The information presented on this website should not be construed as formal legal advice; likewise, it does not constitute the formation of a lawyer/client relationship.

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