FAQ: Immigration to The United States

  1. What is Special Registration and who does it affect?
  2. What is the difference between an immigrant visa and a non-immigrant visa?
  3. If I am a “permanent resident” why does my green card expire in ten years?
  4. How can I become a United States citizen?
  5. What are the different categories of Temporary work visas?
  6. I have an offer for employment in the United States, can I bring my family with me?
  7. I am in the United States on a temporary work visa. My spouse has a derivative visa. Does my authorization to work extend to her?
  8. I have an H-1B visa. Can I work at more than one job?
  9. I have an H-1B visa and I want to change my job, how long will it be before I can change jobs?
  10. What is the two-year home country requirement?
  11. How do I know if I am subject to the two-year home country requirement?
  12. If I am subject to the two-year home country requirement do I have any recourse?
  13. I came to the United States as a J-1 visitor and my spouse is a J-2. Is my spouse subject to the two-year home country requirement as well?
  14. For purposes of an E-1 Visa, which countries are designated as “Treaty Trader” countries?
  15. For purposes of an E-2 Visa, which countries are designated as “Treaty Investor” countries?
  16. What is “premium processing” and who is eligible?
  17. What is “conditional permanent resident” status?
  18. Can I become a permanent resident based on my investment in the United States?
  19. I have a criminal conviction, can I still become a permanent resident?
  20. What is 245(i) and does it affect me?
  21. What is “recapture” and how does it help me?
  22. What are the new travel document procedures for entering the United States?

Q. What is Special Registration and who does it affect?

A. Special Registration is a mandatory registration process that applies to certain individuals who come from designated countries, and are in the United States as non-immigrants. To see a current list of countries that are affected please visit the USCIS homepage. It is designed to create a database of specific non-nationals and provide USCIS with an opportunity to interrogate said individuals in the interest of national security.

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Q. What is the difference between an immigrant visa and a non-immigrant visa?

A. Generally, visas are separated into two categories: immigrant and non-immigrant. Immigrant visas are permanent visas, i.e. green cards. Green card holders, also known as permanent residents, are classified as immigrant visa holders. Non-immigrant visas are temporary visas. These visas are only valid for a specific amount of time.

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Q. If I am a “permanent resident” why does my green card expire in ten years?

A. Permanent resident status is permanent as long as the individual obeys the immigration laws of the United States. Green cards (physical evidence of Permanent Residence status) used to be valid indefinitely, however in an effort to keep files accurate the U.S. Citizenship and Immigration Services mandated several years ago that green cards would have to be replaced every ten years. This is similar to renewal of a passport.

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Q. How can I become a United States citizen?

A. In general United States Citizenship is acquired by birth, registration, transmission, or application. All persons who are born in the United States are, by law, United States citizens unless their parents are diplomats. Persons born outside the United States to United States citizen parents are entitled to citizenship, however the birth must be registered with a United States embassy or consulate. If you are born outside of the United States and one of your parents is a United States Citizen, it is possible that citizenship can be transmitted to you through your parent. There are several determining factors involved and an attorney should be consulted to discuss the matter. The last option to acquire United States citizenship is to apply for it. Permanent residents who obtained permanent resident status based upon their marriage to a United States Citizen are eligible to apply for citizenship three years after they obtain status as a permanent resident. If status as a permanent resident is obtained otherwise then the waiting period to apply for citizenship is five years.

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Q. What are the different categories of Temporary work visas?

A. Please see our discussion on temporary employment visas.

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Q. I have an offer for employment in the United States, can I bring my family with me?

A. Temporary employment visas allow for your spouse and children to accompany you.

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Q. I am in the United States on a temporary work visa. My spouse has a derivative visa. Does my authorization to work extend my spouse?

A. Authorization to work does not extend to a spouse, however your spouse may apply for a separate work visa. Work authorization is available for spouses who hold L-2, E-4 and J-2 status.

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Q. I have an H-1B visa. Can I work at more than one job?

A. H-1B visas are specific to the employer and the specific job for the employer. Should you desire to work at an additional job, you must apply for another visa. You must have a separate visa for each job. It is permissible to have more then one H visa at a time.

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Q. I have an H-1B visa and I want to change my job, how long will it be before I can change jobs?

A. Recent regulations allow for an individual to start a new job once United States Citizenship and Immigration Services has received the application for a new visa. There is an automatic 240 employment authorization based upon the presumption of approvability.

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Q. What is the 212(e) two-year home country requirement?

A. The two-year home country requirement is an obligation for some people who enter the United States in “J” status to return to their home country for a two-year period before they are eligible to obtain most other non-immigrant visas or become a permanent resident. Typically, those individuals are: individuals performing services on their country’s specific skills list, physicians doing clinical training and those in receipt of government funding.

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Q. How do I know if I am subject to the two-year home country requirement?

A. Please see our discussion on the two-year home country requirement.

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Q. If I am subject to the two-year home country requirement do I have any recourse?

A. It may be possible to have the two-year home country requirement waived. Please see our discussion on the two-year home country requirement.

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Q. I came to the United States as a J-1 visitor and my spouse is a J-2. Is my spouse subject to the two-year home country requirement as well?

A. Yes. If the primary visa holder is subject to the two-year home country requirement then the derivative visa holder is subject to it as well.

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Q. For purposes of an E-1 Visa, which countries are designated as “Treaty Trader” countries?

A. For a current list of “Treaty Trader” countries please contact Teplen Law Group, PLLC, or click here for the list.

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Q. For purposes of an E-2 Visa, which countries are designated as “Treaty Investor” countries?

A. For a current list of “Treaty Trader” countries please contact Teplen Law Group, PLLC, or click here for the list.

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Q. What is “premium processing” and who is eligible?

A. Premium processing is a service that United States Citizenship and Immigration Services offer to expedite certain non-immigrant petitions for a fee. The following visa categories are eligible for premium processing: E-1, E-2, H-1B, H-2B, H-3, L-1, O-1, O-2, P-1, P-2, P-3, TN, Q-1, and I-140. The cost to expedite is $1,000 and ensures a response within ten days plus e-mail responsiveness.

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Q. What is “conditional permanent resident” status?

A. Individuals who apply for permanent resident status based upon marriage, if the underlying marriage is less than two years old at the time of the issuance of residence status, are accorded conditional permanent resident status. Essentially, conditional permanent resident status is no different than permanent resident status; however, those individuals in Conditional Permanent Resident status must make a separate application to the United States Citizenship and Immigration Services (“USCIS”) in the three month period prior to the two year anniversary of the date that conditional permanent resident status was obtained, in order to remove the condition and establish permanent residence. The purpose of this application is to reduce fraud and allow USCIS an extra opportunity to verify that the marriage is real, wherein there is a bona fide intent to establish a life together.

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Q. Can I become a permanent resident based on my investment in the United States?

A. If an individual invests at least one million dollars in a new commercial enterprise and that enterprise will employ at least ten employees within two years then an application for permanent resident status can be submitted. If the investment is made in an area designated by the United States government as an area of high unemployment then an individual can qualify to become a permanent resident with an investment of five hundred thousand dollars. A qualifying investment can also be made into an existing enterprise given the correct circumstances.

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Q. I have a criminal conviction, can I still become a permanent resident?

A. Certain criminal convictions can prevent you from becoming a permanent resident while others will not interfere. You should contact Teplen Law Group, PLLC, for more information.

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Q. What is 245(i) and does it affect me?

A. If you have previously filed an immigrant petition or labor certification prior to April 30, 2001 then you may benefit by this law which will allow you to become a permanent resident even if you entered the United States illegally, or otherwise filed to maintain status. If you think that you may fit in this category please contact Teplen Law Group, PLLC, so that we may explore your options.

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Q. What is “recapture” and how does it help me?

A. ”Recapture” allows an alien to extend H status by subtracting the period of time spent outside the United States from the authorized period of stay in H status. A person in H-1B status is considered to have accrued the 6-year period of authorized admission only during periods when the alien is lawfully admitted and physically present in the United States. This recapture policy was an Administrative Appeals Office (AAO) decision which was later made into binding policy.

Any part of a day spent in the United States in H1B status is considered a full day in H1B status. Therefore the day that the alien departs and returns cannot be recaptured. Only documented full days outside of the United States can be recaptured.

What is needed to “recapture”?

USCIS will only accept the recapture time if there is supporting documentary evidence. The alien must submit evidence such as: copies of passport stamps, Form I-94s, plane tickets, etc. to show that the alien was not in the United States during parts of their H-1B status. The alien must also have a statement or chart of dates that clearly shows the departures and re-entries into the United States.

How does it help?
The normal maximum period of authorized stay for H-1B non-immigrants may not exceed 6 years. With recapturing, a person in H-1B status may extend their stay in the U.S. beyond the maximum authorized stay.

Stays beyond six years are permitted, providing an application for a labor certification is filed for an alien employee 365 days before the expiration of the 6th year; any time an alien spent outside the United States may be recaptured to seek an extension of H1B status. This allows the alien some “grace” time to make his deadline for a labor certification filing.

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Q. What are the new travel document procedures for entering the United States?

A. U.S. and Canadian citizens should not expect to cross the border by orally declaring their identity and citizenship alone.  Effective January 31, 2008, travelers will be asked to present documents from one of the options below when entering the United States at land or sea ports of entry.

One Document Option

One of the following documents should be presented to prove both identity and citizenship:

  • U.S. or Canadian Passport
  • U.S. Passport Card
  • Trusted Traveler Cards (NEXUS, SENTRI, or FAST)*
  • State or Provincial Issued Enhanced Driver’s License (when available – this secure driver’s license will denote identity and citizenship.)
  • Enhanced Tribal Cards (when available)
  • U.S. Military Identification with Military Travel Orders
  • U.S. Merchant Mariner Document
  • Native American Tribal Photo Identification Card
  • Form I-872 American Indian Card
  • Indian and Northern Affairs Canada (INAC) Card

Two Document Option

All U.S. and Canadian citizens who do NOT have one of the documents from the list above must present BOTH an identification and citizenship document from each of the columns below.

  1. Identification Documents
    (All identification documents must have a photo, name and date of birth.)

    • Driver’s license or identification card issued by a federal, state, provincial, county, territory, or municipal authority
    • U.S. or Canadian military identification card
  2. Citizenship Documents
    • U.S. or Canadian birth certificate issued by a federal, state, provincial, county, territory or municipal authority
    • U.S. Consular report of birth abroad
    • U.S. Certificate of Naturalization
    • U.S. Certificate of Citizenship
    • U.S. Citizen Identification Card
    • Canadian Citizenship Card
    • Canadian certificate of citizenship without photo

U.S. AND CANADIAN CITIZENS CHILDREN

Children of U.S. and Canadian citizens 18 and under will be expected to present a birth certificate issued by a federal, state, provincial, county or municipal authority.

U.S. LAWFUL PERMANENT RESIDENTS

Permanent Resident Card (I-551) or other valid evidence of lawful permanent residence is required.

MEXICAN CITIZENS

Mexican citizens, including children, must present a valid passport and a B-1/B-2 non-immigrant visa or a Border Crossing Card.

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