Can I work in the US while I wait for approval of my permanent residency applicadition?
If you are in the US and are applying for adjustment to permanent resident status you may be eligible to apply for a work permit while your case is pending. Use INS Form I – 765 to apply for a work permit. You do not need to apply for a work permit once you adjust to permanent resident status.
Can I travel outside the US while my application for adjustment to permanent status is pending?
If you apply for adjustment to permanent resident status, you must receive advance permission to return to the United States once you travel outside the United States. This advance permission is called Advance Parole. If you do not apply for Advance Parole before you leave the country, you will abandon your application with the INS and you may not be permitted to return to the United States.
Naturalization: The Making of an American
Am I eligible for naturalization?
If you’re over 18 the eligibility requirements below apply. Note that there are waivers and exceptions for children for which you must consult with your attorney.
Age Applicants must be at least 18 years old.
An applicant must have been lawfully admitted to the United States for permanent residence. Lawfully admitted for permanent residence means having been legally accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws. Individuals who have been lawfully admitted, as permanent residents will be asked to produce an I-551, Alien Registration Receipt Card, as proof of their status.
Residence and Physical Presence
An applicant, immediately preceding the filing of the application, must have been:
- lawfully admitted for permanent residence (see preceding section)resided continuously as a lawful permanent resident in the U.S. for at least 5 years prior to filing with no single absence from the United States of more than one year
- physically present in the United States for at least 30 months out of the previous five years (absences of more than six months but less than one year shall disrupt the applicant’s continuity of residence unless the applicant can establish that he or she did not abandon his or her residence during such period)
- resided within a state or district for at least three months
Good Moral Character
Generally, an applicant must show that he or she has been a person of good moral character for the statutory period (typically five years or three years if married to a U.S. citizen or one year for Armed Forces expedite) prior to filing for naturalization. You will be permanently barred from naturalization if you have been convicted of murder or have been convicted of an aggravated felony.
A person also cannot be found to be a person of good moral character if during the last five years he or she:
- has committed and been convicted of one or more crimes involving moral turpitude
- has committed and been convicted of 2 or more offenses for which the total sentence imposed was 5 years or more
- has committed and been convicted of any controlled substance law, except for a single offense of simple possession of 30 grams or less of marijuana.
- has been confined to a penal institution during the statutory period, as a result of a conviction, for an aggregate period of 180 days or more
- has committed and been convicted of two or more gambling offenses
- is or has earned his or her principal income from illegal gambling
- is or has been involved in prostitution or commercialized vice
- is or has been involved in smuggling illegal aliens into the United States
- is or has been a habitual drunkard
- is practicing or has practiced polygamy
- has willfully failed or refused to support dependents
- has given false testimony, under oath, in order to receive a benefit under the Immigration and Nationality Act.
You must be able to read, write, speak, and understand words in ordinary usage in the English language. Applicants exempt from this requirement are those who on the date of filing:
- have been residing in the United States subsequent to a lawful admission for permanent residence for periods totaling 15 years or more and are over 55 years of age;
- have been residing in the United States subsequent to a lawful admission for permanent residence for periods totaling 20 years or more and are over 50 years of age;
- or have a medically determinable physical or mental impairment, where the impairment affects the applicant’s ability to learn English.
Knowledge of United States Government / History
An applicant for naturalization must demonstrate a knowledge and understanding of the fundamentals of the history and of the principles and form of government of the United States. Applicants exempt from this requirement are those who, on the date of filing, have a medically determinable physical or mental impairment, where the impairment affects the applicant’s ability to learn U.S. History and Government.
Applicants who have been residing in the U.S. subsequent to a lawful admission for permanent residence for at least 20 years and are over the age of 65 will be afforded special consideration in satisfying this requirement.
Oath of Allegiance
To become a citizen you must take the oath of allegiance. By doing so you swears to: support the Constitution and obey the laws of the U.S.; renounce any foreign allegiance and/or foreign title; and bear arms for the Armed Forces of the U.S. or perform services for the government of the U.S. when required. In certain instances, where the applicant establishes that he or she is opposed to any type of service in armed forces based on religious teaching or belief, INS will permit him or her to take a modified oath.
Who creates immigration law?
The US Constitution provides Congress the power “To establish a uniform Rule of Naturalization,” in Article I, Section 8, clause 4. With this authority the US Congress passes laws regulating immigration as well as laws that are applied to US citizens. The immigration laws passed by Congress are found in Title 8 of the United States Code.
Because Congress cannot feasibly make laws governing all the detailed aspects of immigration, the Immigration and Naturalization Service is authorized to make regulations that provide further rules on immigration law.
Which agencies administer immigration law?
The main agency that administers the immigration system is the Immigration and Naturalization Service (INS), a part of the Justice Department. The INS also creates regulations found in Title 8 of the Code of Federal Regulations.
Aside from the INS, US embassies and consulates abroad run by the Bureau of Consular Affairs process immigration paperwork. The Visa Office division of the Bureau of Consular Affairs is responsible for issuing both immigrant visas for permanent residency referred to as “green cards” and nonimmigrant visas for touring or studying or working temporarily in the US. The Visa Office also runs the National Visa Center (NVC), which coordinates immigrant visa processing between the INS and US consulates.
How can I enter the US?
You can enter the US through over 300 Ports-of-Entry (POE). A POE is any station, land, air or water, through which a person can enter the US. All persons entering the US at a port-of-entry are inspected by officials of the U.S. Government. There are four separate inspections: Public Health, Immigration, Customs and Agriculture.
Your entry into the US has to be authorized by the INS. There are basically two ways to come in through a port-of -entry or two methods of being authorized to visit the US. A temporary visit for tourism or business requires a nonimmigrant visa usually obtained prior to arrival. A permanent intent to live in the US requires establishing permanent residency and obtaining an immigrant visa referred to as a “green card”.
What do I have to bring with me in order to enter the US?
At the port-of-entry you will be required to show certain documents to the customs official.
A U.S. citizen must present a passport if traveling from outside of the western hemisphere (The western hemisphere is North, Central, and South America). If traveling from inside the Western Hemisphere, any proof of U.S. citizenship that clearly establishes identity and nationality is permitted such as a birth record or baptismal record.
An alien who is a lawful permanent resident of the United States must present a Permanent Resident Card (“Green Card”, INS Form I-551), a Reentry Permit, or a Returning Resident Visa.
Generally, an alien must present a passport and a valid visa issued by a U.S. Consular Official. Under the Visa Waiver Pilot Program, nationals of participating countries do not require a visa to apply to enter the United States as a Visitor for Business or Pleasure (B-1 or B-2), if staying for no more than 90 days.
Canadians do not generally require a visa unless coming as a Treaty Trader, classification E.
What is a visa and what do I need it for?
A visa is a permit to apply to enter the US. It classifies your visit or stay in the US as a business visit, visit for tourism etc and is valid for multiple entry during a specified period of time. For a temporary visit you need to obtain a nonimmigrant visa. For permanent residency you need to obtain an immigrant visa.
Under the Visa Waiver Program, nationals of participating countries do not require a visa to apply to enter the United States as a visitor for business or pleasure (B-1 or B-2 visa categories), if staying for no more than 90 days.
Canadians do not generally require a nonimmigrant visa unless they are coming to the United States as a Treaty Trader.
How can I get a visa?
For all immigrant visas except those won through the Diversity Visa Lottery Program, you must first apply with the Immigration and Naturalization Service. After receiving approval from the INS, you then must go to your local U.S. consulate to complete your processing.
If you fall under the following nonimmigrant categories apply for a visa at the Department of State:
- Diplomatic and other government officials, and their families and employees
- Temporary visitors for business or pleasure
- Aliens in Transit
- International Traders and Investors
- Representatives to international organizations and their families and employees
- Representatives of foreign media and their families
- Exchange Visitors and their families
- Religious Workers
If you do not fall under these categories but will be coming into the US as a nonimmigrant then apply for a nonimmigrant visa through the INS.
I got my Visa. Is that all I need to come to the US?
No. Once you receive an immigrant or nonimmigrant visa you are authorized to travel to the United States. However, a visa does not guarantee that you will be allowed to enter the United States. The INS has authority to grant or deny your admission to the United States and determine how long you may stay in the United States if admitted. You will have to go through the Inspection process at your port of entry and then be admitted in.
Where else can I get more information on immigration?
If you have further questions about your eligibility to enter, live, work in the US and become a resident or citizen of the US, you should contact an immigration attorney. You can find names of attorneys specializing in immigration law listed in your local phone directory or the Internet yellow pages. Alternatively you can call your State Bar Association and ask for referrals or contact your local INS office and speak directly to an INS employee.
What about “Immigration Clinics”?
Although some law schools have immigration clinics through which law students help those who cannot afford attorneys fees it is in your best interest to seek an attorney. Be vary cautious about anyone who is not an attorney, or who is not recommended by your local bar association. If you are the least bit suspicious about the credentials of your attorney or of the ability of a non-attorney in helping you fill out an immigration form, go somewhere else. Only a licensed attorney may provide legal advice or appear before the Immigration Court. A non-attorney who attempts to help you is limited to helping your fill out paper work. If you believe that you have been taken advantage of, contact your local bar association.
Working in the USA
The purpose of my visit is to work in the US temporarily. What should I do?
If you will be working in the US your prospective employer or agent must file Form I-129, Petition for Nonimmigrant Worker, and the appropriate supplement with the Immigration and Naturalization Service accompanied by the required payment, and initial evidence or documentation. In some cases, your employer must get a certificate from the Department of Labor prior to filing the I-129.
Once your petition is approved, your employer or agent is sent a Notice of Approval, Form I-797. Approval of a petition does not guarantee a visa. After the I-129 has been approved and notice has been sent to the consulate in your country, you must file a visa application with the consulate. Some aliens may be visa exempt. In those cases, the I-129 approval notice is sent to the port of entry (POE) where you intend to apply for admission.
What are the employment related visa categories and their time limits?
The following is a list of some of the more common employment or business related visas used but is not an exhaustive list. You should consult an attorney prior to petitioning the INS for entry under any such categories as there are numerous requirements and specific forms that must be filed in order to obtain employment related visas.
E-1 Treaty Trader Visas are provided to people who will enter the US solely to carry on substantial trade, including trade in services or trade in technology, principally between the US and the foreign country of which the person is a national. Applications for E-1 visas are made directly to the US consulate and not through the INS, unless the applicant is in the US in another visa status and seeks to change to an E-1 visa. The maximum time limit on E-1 visas is five years but it is renewable.
E-2 Treaty Investor visas are provided to people who will enter the US solely to develop and direct the operations of an enterprise in which the traveler has invested, or is actively in the process of investing, a substantial amount of capital. E-2 non-immigrant visas are available to foreign-owned businesses if the home country of the business owner has a treaty with the US that allows American businesses to operate in that home country. The maximum time limit on E-1 visas is five years but it is renewable.
H-1B visa allows workers in specialty occupations to work in the US for up to a total of six years. A US employer makes an offer of employment to begin the petition process. The employer must ensure that the worker will be paid at least 95% of the prevailing wage paid to similarly employed workers in the geographic area where the foreign worker will be employed. Once this information is obtained, a Labor Condition Application (LCA) must be submitted to the US Department of Labor which is approved and returned to the employer to be submitted to the INS as part of the H-1B petition package. The INS will require documentation of the foreign worker’s qualifications, the employer’s type of business, and the type of work the beneficiary will be performing. The H-1B visa is employer-specific which means if the worker moves to a new employer after acquiring an H-1B visa he or she will need to go through a new H-1B approval process. The maximum authorized stay in the US under H-1B status is six years.
R visas are sought by religious workers seeking to enter the US to pursue work in their field. The requirements are that the worker be a minister, or someone working in a professional capacity in a religious occupation or vocation, or a person who works for a religious organization or an affiliate in a religious occupation who has been a member of the religious group for at least the two years immediately preceding the application. The maximum stay in R-1 status is 5 years.
O-1 visas are issued for temporary work purposes to those who have extraordinary ability in the sciences, arts, education, business or athletics demonstrated by national or international acclaim. You can cannot apply for an O visa as a foreigner and need to file your application through a US agent. The time limit on O-1 visas depends on the duration of the event for which you are admitted with a maximum of three years. However, an O visa may be extended in one-year increments for an indefinite period of time.
TN visas were created under the North American Free Trade Agreement (NAFTA). They apply to Canadians and Mexicans only. A TN visa allows admission of those who will be engaged in activities at a professional level in the US. These activities are defined as those that require at least a bachelor’s degree or credentials and experience demonstrating that the person is a professional. Note that self-employment is not permissible on a TN visa. The TN is renewed indefinitely. It is also easier to obtain than an H-1B specifically for Canadians. Canadian citizens can obtain a TN visa at the border without having to wait for a long approval process.
Filing for Permanent Residency
How can I become a permanent resident of the US?
You must go through a multi-step process to become an immigrant. First, the INS must approve an immigrant petition for you, usually filed by an employer or relative – (certain applicants such as investors or workers with extraordinary ability can petition on their own behalf). Second, the State Department must give you an immigrant visa number, even if you are already in the United States. If you are outside the United States, you will be notified to go to the local U.S. consulate to complete the processing for an immigrant visa.
The following is a list of some of the most common ways used to apply for permanent residency which are further described on this website.
- Immigration through a family member
- Immigration through employment
- Immigration through investment
- Adjusting to lawful permanent resident status as an asylee or refugee
- Immigration through the Diversity Lottery
This is not an exhaustive list. There is law relevant to international adoption of orphans through which one can establish permanent residency. The Legal Immigration Family Equity Act covers residency and advance visas for spouses and children of citizens or permanent residents. The Violence Against Women Act as well as country specific laws (Cuban Adjustment Act, Immigration through the Haitian Refugee Immigration Fairness Act of 1998 (HRIFA), Immigration through the Nicaraguan Adjustment , Central American Relief ACT ) allow women, Cubans, Haitians, Nicaraguans and other Central Americans to immigrate and establish permanent residency under certain specific circumstances. Call your INS agent or attorney to find out more about these options.
Immigration Through Employment or Investment
What are the categories for acquiring immigrant status through employment?
There are five categories for granting permanent residence to foreign nationals based on employment skills. If you are an employer and are unsure which employment category applies to the foreign national you wish to sponsor, or if you are a foreign national and want more information on which category matches your particular situation the following lists the categories:
EB-1 Priority workers
Foreign nationals of extraordinary ability in the sciences, arts, education, business or athletics
Foreign national that are outstanding professors or researchers
Foreign nationals that are managers and executives subject to international transfer to the United States.
EB-2 Professionals with advanced degrees or persons with exceptional ability
Foreign nationals of exceptional ability in the sciences, arts or business
Foreign nationals that are advanced degree professionals
Qualified alien physicians who will practice medicine in an area of the U.S. that is underserved.
EB-3 Skilled or professional workers
Foreign national professionals with bachelor’s degrees (not qualifying for a higher preference category)
Foreign national skilled workers (minimum two years training and experience)
Foreign national unskilled workers.
EB-4 Special Immigrants
Foreign national religious workers
Employees and former employees of the U.S. Government abroad.
EB-5 Immigrant Investors
How do I apply for immigrant status based on employment?
Your employer must sponsor (or petition) you to work in the United States on a permanent basis by filing a Form I-140, Petition for Alien Worker. Filing requirements differ for each of the five categories but most employment categories require that the U.S. employer complete a labor certification request (Form ETA 750) for the applicant, and submit it to the Department of Labor’s Employment and Training Administration.
Note also that INS must approve an immigrant visa petition, Form I-140, Petition for Alien Worker, for the person wishing to immigrate to the United States. The employer wishing to bring the applicant to the United States to work permanently files this petition. However, if a Department of Labor certification is needed the application can only be filed after the certification is granted.
Additionally, the State Department must give the applicant an immigrant visa number, even if the applicant is already in the United States. When the applicant receives an immigrant visa number, it means that an immigrant visa has been assigned to the applicant Fifth, if the applicant is already in the United States, he or she must apply to adjust to permanent resident status after a visa number becomes available.
Immigration Through Family Members
Can I immigrate to the US if one of my family members is already there?
Yes you can. Immigration through a family member who is a US citizen or permanent resident is the most common way of gaining US residency. If you want to become a lawful permanent resident based on the fact that you have a relative who is a citizen of the United States or a lawful permanent resident, you must go through a multi-step process.
First, the INS must approve an immigrant visa petition – Form I 130 Petition for Alien Relative – filed by your relative (sponsor) and accompanied by proof of your relationship to the requesting relative.
Second, the Department of State must determine if an immigrant visa number is immediately available to you even if you are already in the United States. When an immigrant visa number becomes immediately available to you, it means that you can apply to have one of the immigrant visa numbers assigned to you. If you are already in the United States, you may apply to change your status to that of a lawful permanent resident after a visa number becomes available for you. If you are outside the United States when an immigrant visa number becomes available for you, you must then go to the U.S. Embassy or consulate in your country to complete the process.
Under the Legal Immigration Family Equity (LIFE) Act you may also get advance admission as a spouse or child of a U.S. citizen by acquiring a K Visa or an advance admission as a spouse or minor child of a lawful permanent resident by acquiring a V Visa.
How long is the wait for a visa to immigrate through family?
People who want to become immigrants are classified into categories based on a preference system. The immediate relatives of U.S. citizens, which includes parents, spouses and unmarried children under the age of 21, do not have to wait for an immigrant visa number to become available once the visa petition is filed. An immigrant visa number will be immediately available for immediate relatives of U.S. citizens.
The relatives in the remaining categories must wait for an immigrant visa number to become available according to the following preferences:
- First Preference: Unmarried, adult sons and daughters of U.S. citizens. Adult means 21 years of age or older.
- Second Preference: Spouses of lawful permanent residents, their unmarried children (under twenty-one), and the unmarried sons and daughters of lawful permanent residents.
- Third Preference: Married sons and daughters of U.S. citizens.
- Fourth Preference: Brothers and sisters of adult U.S. citizens
How can I sponsor a family member?
To be eligible to sponsor a relative to immigrate to the United States you must be a citizen or a lawful permanent resident of the United States and be able to provide documentation proving your status. You must also prove that you can support your relative at 125% above the mandated poverty line.
If you are a lawful permanent resident you may petition for a husband or wife or unmarried son or daughter of any age. If you are a US Citizen you may petition for the following foreign national relatives:
- Husband or wife;
- Unmarried child under 21 years old;
- Unmarried son or daughter over 21;
- Married son or daughter of any age; B
- Brother or sister, if you are at least 21 years old;
- Parent, if you are at least 21 years old.
Can my spouse live in the US while the I-130 visa petition is pending?
If you are a U.S. Citizen then yes! Once you file form I-130, your spouse is eligible to apply for a nonimmigrant K-3 Visa. This will entitle him or her to come to the U.S. to live and work while the visa petition is pending. The form to file for this benefit is Form I-129F. It is not necessary for your spouse to obtain a K-3 visa in order to come to the U.S. to live and work. Your spouse may wait abroad for immigrant visa processing. However, seeking a K-3 visa can be a method for him or her to come the U.S. more quickly.