Answers to common questions about Immigration & Citizenship
Why should you hire an immigration lawyer?
Immigration law is a complicated area of practice. The federal government is very strict and requirements can seem challenging without assistance. Hiring an experienced immigration lawyer ensures your case is processed successfully and can greatly save you in time and stress.
Consulting an immigration attorney is always a good idea when:
You have urgent needs in a matter of immigration
You are having problems obtaining a green card, citizenship, or other benefit
You have questions regarding your eligibility
You are confused with the process, forms, or requirements
How do I become legal in the United States?
An applicant’s legal status will really depend on the individual, where they are from, and what intentions they have in the United States. For instance, foreign-born individuals that have family in the United States, especially immediate family members, may be able to petition for a green card. For those that are entering the U.S. for business or as tourists, there are temporary visas that can be granted. Individuals or families that are looking for permanent residence can obtain immigrant visas and go through the process of naturalization.
Immigration law can often be complex. An immigration lawyer can help understand your needs and assist you through the required process for your individual case.
How do I become a US citizen?
There are two ways of becoming a U.S. citizen, either by birth or through the process of naturalization.
Citizenship by Birth
Generally, people are born U.S. citizens if they are born in the United States or if they are born to U.S. citizens.
In most cases, you are a U.S. citizen if:
One of your parents was a U.S. citizen when you were born
The citizen parent lived at least 5 years in the United States before you were born
At least 2 of those 5 years in the United States were after your citizen parent’s 14th birthday
Citizenship by Naturalization
Those that were not born in the United States must go through a process called naturalization. Naturalization is the legal process that allows an individual to apply for and be granted citizenship in the U.S. There are certain criteria and guidelines set by Congress that an individual must meet in order to become a citizen.
Although some cases are unique with different rules, generally the criteria for applicants requires the following:
If you were born abroad, your record of birth was registered with a U.S. consulate or embassy
Be admitted into the U.S. as a lawful permanent resident (which means having a “green card”)
Live in the U.S. for at least 5 continuous years
Reside in the state where the petition is being filed for at least three months prior to filing
Have the basic ability to read, speak, and write in English
Have a basic understanding of U.S. government and history
Have good moral character consistent with the values of the U.S. constitution
Legal permanent residents obtain a green card. A green card is legal proof that an individual is authorized to reside and work in the United States. A green card can also help an individual obtain a Social Security Card.
Be at least 18 years of age.
How can I work in the U.S. legally?
In employment-based immigration, an individual can apply for a work visa. There are various types of work visas, generally granting either temporary or permanent status. Depending on the type of employment opportunity and your qualifications, you may be eligible for different employment immigration options. Generally, most employment visas are non-immigrant, which grants a foreign citizen ability to temporarily work in the U.S.
Determining what type of work visa you might need can often be difficult, and dependent on the nature of your work. Overall the process can be long and complicated. Getting legal advice to understand the right options for your situation can be the best way to start.
What are the most common types of work visas?
Nonimmigrant visas are temporary. They allow a foreign citizen to work for a specific employer within the U.S. Nonimmigrant visas have an expiration date, and individuals are intended to depart the country by that expiration date. Individuals can also apply to extend a work visa.
The following are the most common nonimmigrant visas:
The H-1B visa permits a foreign national to work temporarily for a U.S. employer. This type of visa is usually in high demand, and there is a limit to the number of cases that are accepted by the U.S. each year. Known as the H1B cap, 85,000 cases are accepted in a fiscal year, with 20,000 reserved for advanced degree holders and 65,000 applicants designated in an H1B lottery. To obtain an H-1B, you must have an offer of employment from a U.S. employer and your proposed job position must be in a specialty occupation - which typically means that a bachelor’s degree or higher is required to do the job. The U.S. employer must also file a petition for that individual with the U.S. Citizenship and Immigration Services (USCIS).
The L-1 nonimmigrant visa allows a U.S. employer to temporarily transfer a key employee from one of its foreign offices to an office they have inside the United States. An employer can submit a visa application for one of their foreign executives, managers, or specialized staff members that have worked for them for 12 consecutive months. An L-1 visa has two types depending on the position or skill, L-1A or L-1B, and is typically short in duration (5 to 7 years).
The O-1 nonimmigrant visa is for individuals who possess extraordinary ability in the arts, sciences, education, athletics, business, or significant achievements in the motion picture or television industries. To obtain an O-1 visa, a U.S. employer can petition on your behalf. Individuals must prove that they are extraordinary in their field, and typically must be recognized nationally or internationally for their achievements. O-1 nonimmigrant visas usually last as long as it takes to perform the work, not to exceed 3 years.
The E-1 nonimmigrant visa grants access to foreign nationals who plan to carry on trade activities and investments within the U.S. An individual can obtain the E-1 visa as a Treaty Trader or a Treaty Investor, with the intention to perform substantial trades or investments with a U.S. business but intend to return to their home country. Applications for an E-1 visa are usually filed at the U.S. consulate in their home country and do not require filing with the USCIS. The duration of stay is usually two years, although further extensions can be filed.
The TN visa was created by the North American Free Trade Agreement (NAFTA) and allows citizens of Canada and Mexico to work for a U.S. employer. Applicants must prove that they are Canadian or Mexican citizen, have a job offer with a U.S. employer, and that the job position meets the TN visa requirements under NAFTA. Scientists, engineers, designers, accountants, lawyers, teachers, and medical professionals are a few examples of positions on the NAFTA list.
Immigrant work visas are for foreign citizens that intend to live permanently within the United States and provides them with lawful permanent residence (a green card). There are 3 “preferences” or classifications of immigrant work visas that allow permanent residence. Priority workers, exceptional abilities, those holding advanced degrees in their field, and skilled professionals are considered for immigrant work visas.
The following are the most common nonimmigrant visas:
First Preference - EB-1 for an Extraordinary Ability
An extraordinary ability (EB-1) is the first preference in the immigrant visa categories. Very few qualify for this type of visa, as applicants are expected to be nationally or internationally recognized and a leading professional in their field. A foreign national applying for the EB-1 visa must prove extraordinary ability with records of achievement, awards, publications, activities, acclaim, and contributions to a particular field in the arts, sciences, education, athletics, or business.
Second Preference - EB-2 for an Advanced Degree
A U.S. employer can sponsor a foreign citizen for the (EB-2) second preference immigrant category if that individual possesses an advanced degree for an equivalent position that matches that degree. For instance, if you have a master’s degree in education, you’re more likely to qualify for a teaching position at a university that requires a master’s degree, versus a teaching position at an elementary school which only requires a bachelor’s degree. To obtain an EB-2 visa, a U.S. employer can petition on your behalf and you will need to have earned at least a Master’s degree (or the foreign equivalent). In some cases, you may also qualify for EB-2 with a bachelor’s degree with five progressive years of experience.
Can my minor U.S. citizen child petition for me?
A U.S. citizen can file a petition for their parents or certain family members if they are at least 21 years of age. U.S. immigration laws give priority to reuniting families. Family petitions can be filed by U.S. citizens and legal permanent residents, who are at least 21 years of age, on behalf of immediate relatives to enable them to immigrate and unite with their family members. The parents of a U.S. citizen may apply for a green card from either inside or outside the United States, with a separate petition being filled out for each parent. If the parent is outside of the U.S., the parent may apply to become a permanent resident at a U.S. embassy or consulate, also known as consular processing.
Although a child U.S. citizen can file a petition for their foreign parent, there will be requirements for a financial sponsor for the immigrant parent, and the parent must also meet the eligibility qualifications for a legal permanent resident (green card). Considering the laws and regulations regarding immigration, it’s advisable to first consult with an experienced attorney on the right options for your family-based immigration.
How long does it take to get a green card?
The time it takes for the U.S. Citizenship and Immigration Services (USCIS) to process an application for a green card can vary depending on the type of filing, the office location, and other factors. The typical processing time of an application can range from 7 months to 33 months.
Why do some people get to adjust their status in the U.S. and some have to go to a U.S. Consulate abroad?
Filing an adjustment of status within the U.S. or at a U.S. Consulate abroad all depends on where the individual is located or if they are legally within the U.S. Foreign individuals that are living outside of the United States - and many that are living illegally within the U.S. - must complete their visa or green card applications through consular processing in their home country before entering the United States. Immigrants that are living legally within the U.S. are able to obtain their adjustment of status within the country.
What is the difference between a fiancé visa and a marriage visa?
A U.S. citizen can bring their fiancé or spouse to the United States through two main types of visas: the fiancé visa or a marriage visa. A fiancé visa allows a foreign individual 90 days to enter the United States with the intention of marrying and living with a U.S. citizen. Alternatively, a marriage visa allows a U.S. citizen’s foreign spouse to immigrate to the country. Both types of visas have eligibility requirements, and the couple must demonstrate that the marriage is legitimate and “bona fide.” A fiancé visa is considered as the fastest option for an unmarried couple to join in the states, and once married, the foreign spouse can then undergo an adjustment of status for legal permanent residence.
How do we prove our marriage is real or “bona fide”?
The U.S. Citizenship and Immigration Services (USCIS) requires marriage-based immigration to be authentic, meaning the purpose of the marriage is for a couple to build a future together and not be married with the intention of obtaining a green card. This means that a marriage should be “bona fide” or legitimate and will require proof as such.
There are 2 main ways that you will prove your marriage is “bona fide” or real:
By providing the necessary marriage-based legal documentation required by the USCIS
Completing a USCIS conducted interview
What is an Affidavit of Support (I-864)?
Family-based petitions and some employment-based applications for lawful permanent residence (green card) in the U.S. require an Affidavit of Support (form I-864). The Affidavit of Support is a contract naming someone as a financial “sponsor” that will accept legal responsibility for financially supporting the sponsored immigrant. This is an important measure in getting a green card and ensures the USCIS that someone in the U.S. will prevent an immigrant from becoming a “public charge.” This includes repaying any federal debts or welfare benefits the immigrant applies for.
When a sponsor signs an Affidavit of Support (I-864), they agree to the following:
To be financially responsible for the immigrant while they reside in the United States, until they become a U.S. citizen or until they have been credited with 40 quarters of work (typically 10 years). Obligations would also end if the immigrant were to become deceased or depart the U.S.
To ensure the immigrant’s income is above the 125 percent Federal poverty income line.
Federal benefits such as Medicaid, state child health insurance programs (CHIP), or other benefits like food stamps will be paid back by the sponsor.
Address and contact information will always be updated with USCIS.
What affects me if I get government assistance?
Immigrants who are applying for entry into the U.S. or for a green card may be denied due to the public charge rule. If the U.S. government considers a non-citizen to likely use government assistance at any time, even if they’ve never received public benefits in the past, their applications for admission into the U.S. and for lawful permanent residence (green card) are more likely to be denied.
Public benefits or government assistance that can affect your application approval includes the following:
Cash Assistance Programs (federal, state, local, or tribal) such as Supplemental Security Income (SSi), Temporary Assistance for Need Families (TANF), and other cash assistance benefits
Medicaid (unless pregnant or under 21 years of age)
Section 8 Housing or Project-Based Rental Assistance
What is the “Public Charge” rule?
RECENT UPDATE – September 11, 2020:
The “Public Charge” immigration rule has been temporarily halted and not being enforced due to the COVID-19 pandemic. During the national health crisis, new injunctions were issued in federal courts that allow temporary access to critical health care and public assistance in immigrant communities. This is temporary and updates can be found at https://www.uscis.gov/green-card/green-card-processes-and-procedures/public-charge.
The public charge rule was early established by Congress in the 1800’s as the concept that immigrants entering the United States should be self-sufficient and able to support themselves financially without the need for government assistance. The principle would not permit immigrants into the U.S. if they cannot care for themselves without becoming public charges. The United States Citizenship & Immigration Services (USCIS) adheres to this rule when considering new immigration applications.
What happens at the USCIS interview?
The U.S. Citizenship & Immigration Services (USCIS) will schedule interviews for all adjustment of status applicants (unless the interview is waived by USCIS). A USCIS officer will be assigned to your case and schedule an interview where they will determine if an application is eligible for the adjustment.
A USCIS officer will perform the following in an interview:
Review and verify all application information and any changes since it was submitted
Ask several questions about your application and supporting documents
Test your ability to read, write, and speak English
Test your knowledge and understanding of U.S. history and government