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L.M. Ireland
US Immigration Regulations at a Glance
Do I qualify for immigration to the US?
Which class should I apply under?
What conditions do I need to satisfy?
The United States grants both temporary (“non-immigrant”) and permanent (“immigrant”) visas. There are two principle ways to obtain a visa: through employment, or through a family member. The U.S. also conducts a “diversity lottery” every year, through which citizens of certain countries are selected to be given immigrant visas. Refugees can seek asylum in the U.S.
The government agency responsible for determining whether you fall within one the categories of persons eligible to live in the United States is called U.S. Citizenship and Immigration Services (USCIS). The agency that ultimately determines whether eligible persons can be granted a visa to travel to the United States is the U.S. Department of State. Another government agency, U.S. Customs and Border Protection (CBP), has authority over entry at the border. Most people wishing to live in the U.S. first need to petition USCIS for classification, then apply to the State Department for a visa, then pass inspection by CBP when arriving at the border.
Permanent (“Immigrant”) Visas: The Green Card
There are three main ways to obtain an immigrant visa:
(1) through employment - click here
(2) through a family member - click here
(3) through the diversity lottery - click here
Holders of an immigrant visa (also known as a “green card”) have the status of “lawful permanent resident” (LPR) of the United States, sometimes called a “legal permanent resident.” A person who is an LPR may live and work in the US and travel in and out of the country relatively easily. An LPR is not a U.S. citizen, but may be eligible to apply for U.S. citizenship after a period of residency, generally five years.
Your spouse and dependents do not need to apply for immigrant visas separately. They may be included in your applications.
By Employer Nomination
The U.S. grants a limited number of permanent visas annually for workers needed by U.S. employers. These are generally highly educated and highly skilled professionals. In most cases, you cannot start the application process for one of these visas yourself. Rather, an employer must petition for you, and the employer must obtain a “labour certification” from the U.S. Department of Labor, certifying that no U.S. workers are available to fill the position.
Workers eligible for an employment-based (EB) immigrant visa are ranked by preference. If demand for EB visas exceeds supply for the year, the higher-preference workers will receive visas first. There are five categories of EB visas:
EB-1 Priority workers
• Persons with extraordinary ability in the sciences, arts, education, business or athletics, as demonstrated by sustained national or international acclaim and by extensive documentation
• Outstanding professors or researchers
• Managers and executives subject to international transfer to the United States
EB-2 Professionals with advanced degrees or persons with exceptional ability
• Members of the professions holding advanced degrees, or persons with exceptional ability in the arts, sciences, or business who will substantially benefit the national economy or culture
• Qualified physicians who will practice medicine in an area of the U.S. that is underserved.
EB-3 Skilled, professional, and other workers
• Professionals with a bachelor's degree or equivalent
• “Skilled workers” (minimum two years’ training or experience)
• All other workers
EB-4 Special Immigrants
• Certain religious workers
• Various / former employees of the U.S. government abroad
• Other limited and special classes of persons
EB-5 Employment creation (investors)
• Persons who invest a certain amount of money in a new commercial enterprise that employs 10 U.S. citizens or authorised immigrant workers full-time and who engage in the business through day-to-day management or policy formation.
| For a FREE initial test of your eligibility, please click here |
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By Family Sponsorship
You may be eligible for an immigrant visa if you have a relative who is a citizen of the United States or who is a LPR. In most cases, you cannot start the application process for one of these visas yourself. Rather, your relative must petition for you.
A relative who wishes to sponsor you to immigrate to the U.S. must:
• Be a U.S. citizen or LPR.
• Be able to support you at 125% above the poverty line. The relative must file and comply with a legally binding Affidavit of Support in order to meet this requirement.
Immediate Relatives
“Immediate relatives” are certain family members of a U.S. citizen who can emigrate to the U.S. without numerical limitation. If the sponsoring petition is approved, the person may apply for a visa without having to wait. A U.S. citizen’s immediate relatives are:
• Husband or wife
• Unmarried children under age 21
• Parents, if the sponsor is at least 21 years old
Other Relatives
Other relatives of U.S. citizens and LPRs can emigrate to the U.S., but visas are limited, so applicants are placed in preference categories. Depending on the country of origin, there may be significant delays before approved relatives may apply for a visa.
- First preference is given to the unmarried sons and daughters of U.S. citizens who didn’t qualify as immediate relatives because they are over 21.
- Second preference is given to spouses, children, and unmarried adult sons and daughters of LPRs.
- Third preference is given to U.S. citizens’ married sons and daughters.
- Fourth preference is given to brothers and sisters of adult U.S. citizens.
| For a FREE initial test of your eligibility, please click here |
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By The Diversity Lottery
Between 50,000 and 55,000 persons each year are selected to be given immigrant visas in the “diversity lottery.” The aim is to permit immigration opportunities for persons from countries other than the principal sources of current immigration to the United States. The visas are divided among six geographic regions, and no one country can receive more than seven percent of the available diversity visas in any one year. The precise allocation is determined by a complex formula based on number of persons from each foreign state who were provided LPR status during the most recent five-year period for which data is available. Under this formula, citizens of certain countries with high levels of immigration to the U.S. do not receive diversity visa opportunities.
For a FREE initial assessment of your eligibility for our services and a more detailed assessment of YOUR ELIGIBILITY UNDER THIS VISA CLASS, please click here to proceed.
The Availability of Immigrant Visas
Except for immediate relatives, the number of immigrant visas that can be issued in a fiscal year is limited, in terms of both the overall number available for family-based immigration, employment-based immigration, and diversity immigration, and in the number that can be given to citizens of any one country. There is also a further annual limit on the number visas given to EB-3 “other workers.”
Because of these annual limits, the number of persons approved by USCIS as eligible for an immigrant visa can exceed the State Department’s yearly supply of visas for them. If there are no more immigrant visas left for the year, you will be put on a waiting list, with a “priority date” established according to the time the petition or labour certification was filed for you. The length of time you will have to wait depends on how many other people, and how many of your fellow countrymen, have applied for the type of visa you seek, and on the speed with which the State Department can process visa applications. It is not unusual for an immigrant visa to be unavailable for an applicant for many years.
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Temporary (Non-Immigrant) Visas
The U.S. provides temporary visas to persons who, for a variety of reasons, do not intend to make the U.S. their permanent home. Such persons include students, trainees, persons who are on temporary assignment to an employer in the U.S., and other persons who wish to work or remain in the U.S. for limited periods.
In addition, because employers wanting to hire certain highly-skilled foreign employees cannot secure permanent immigrant visas for them quickly enough due to backlogs in visa availability, a nonimmigrant visa often is a necessary first step in hiring such employees. The nonimmigrant visa allows the employee to start work in the U.S. while his or her permanent visa is pending.
Although most types of nonimmigrant visa are not limited by any kind of annual quota, two important temporary work visas (H-1B and H-2B visas) are subject to an annual limit. Described below are the most common nonimmigrant visa types.
H-1B Visa for Specialty Occupations
The H-1B visa is available to people in “specialty occupations” that demand a Bachelor’s degree or higher. It allows U.S. employers the opportunity to employ foreign individuals for jobs that require highly specialized knowledge. Except for employees sponsored by certain educational institutions, the H-1B visa is subject to an annual numerical quota, and in recent years demand for these visas has greatly exceeded supply. Citizens of Australia have an additional visa similar to the H-1B available to them. (See the E-3 below.) Citizens of Mexico and Canada may be eligible for a TN visa (see below under Other Temporary Visas), which can serve the same purpose as the H-1B.
The H-1B visa category has requirements for the employer, the particular job, and the skill of the individual. To be eligible for an H-1B visa you must have a “specialty occupation.” This is defined as an occupation that requires a theoretical and practical application of a body of highly specialized knowledge and the attainment of a bachelor’s degree or higher in the specific speciality or its equivalent for entry into the occupation. Those in speciality occupations include architects, engineers, lawyers, physicians, teachers, accountants, computer professionals, social workers, and medical technologists, amongst others.
The first step in obtaining an H-1B visa if you have the required qualifications/work experience is to find a job with an H-1B visa employer or “sponsor.” The employer files the application on your behalf with USCIS. The employer must be a “U.S employer”, i.e., it must be in the United States and have an IRS tax identification number. The relationship must be one of employer–employee. There are also certain Department of Labor requirements that must be met by the employer, such as the wage being offered must be at least as high as that paid by the employer to other employees for the same type of job. USCIS must approve the employer’s petition before an H-1B visa can be issued by the State Department.
H-1B visas are valid for three years, can be extended for three more years, and can be further extended if you are waiting for your permanent visa process to be concluded. In certain circumstances you may change employers while on an H-1B visa.
| For a FREE initial test of your eligibility, please click here |
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E-3 Visas for Australians in Specialty Occupations
The E-3 visa is like an H-1B visa for persons from Australia in specialty occupations (described above). A fixed amount of these visas is available every year. The applicant does not have to have an employer petition for him or her, but a job offer is required, and the applicant will have to file the same type of labour attestation required for an H-1B visa. The visa is normally granted for two years, with extensions granted indefinitely in increments not to exceed the terms established by the labour attestation.
“H” Visas for Other Workers
Other types of H visas are available to temporary agricultural workers, nonagricultural temporary workers, and trainees.
The H-2B visa, for a limited number of nonagricultural temporary workers each year, requires an employer to prove the need for the position is a one-time occurrence, seasonal, peak load, or intermittent, i.e., it is not a permanent position. The maximum duration of an H-2B visa is typically one year, unless the employer can show extraordinary circumstances requiring longer employment. The employer must be able to prove that there are no unemployed US workers willing or able to do the work through a labour certification process. This requires a recruitment campaign including advertising in local newspapers for temporary workers before overseas workers can be recruited.
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L-1 Visa for Intracompany Transferees
The L-1 visa allows multinational companies with offices in the U.S. to bring certain high-level employees of foreign offices to the United States. These intracompany transferees must be in a managerial or executive capacity, or in a position requiring specialized knowledge of the company’s business. The person must have been employed outside the U.S. by the company (or a parent, branch, affiliate, or subsidiary) continuously for one year within the preceding three. The employer must petition USCIS on the employee’s behalf before a visa is issued by the State Department.
There is a 7-year maximum for managers and executives and a 5-year maximum for specialized knowledge employees, unless the employee is in U.S. for seasonal or intermittent work or for less than 6 months per year.
“E” Visas for Traders and Investors
The E-1 visa is for persons who will be in the U.S. solely to carry on trade of a substantial nature, which is international in scope, either on their own behalf or as an employee, if the person is from a country with which the U.S. has a trade treaty and the trade is principally between the U.S. and that country. The E-2 visa is for persons who have invested or are actively in the process of investing a substantial amount of capital in a bona fide enterprise in the U.S. – as distinct from a relatively small amount of capital in a marginal enterprise solely for the purpose of earning a living – and who are seeking entry solely to develop and direct the enterprise. An employee of a treaty investor, if from the same country as the investor, may be classified as E-2 if he or she is coming to the U.S. to engage in duties of an executive or supervisory character, or, if employed in a lesser capacity, the employee has special qualifications that make his or her services essential to the efficient operation of the enterprise.
The trader or investor must have an intention to depart the U.S. at some point. E-1 and E-2 visas are valid for two years, with extensions of stay up to two years at a time.
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Other Temporary Visas
Among the other nonimmigrant visas available are:
* F-1 visas, for full-time academic study
* J-1 visas, for “exchange visitors” coming to the U.S. as a student, researcher, professor, nonacademic specialist, physician, international visitor, camp counsellor, au pair, or summer student in a travel/work program
* M-1 visas, for vocational students
* K-1 visas, for fiancé(e)s of U.S. citizens who are entering for the sole purpose of getting married within 90 days of their admission
* K-3 visas, for people already married to U.S. citizens, where the U.S. citizen spouse has filed an immediate relative immigrant petition, and the beneficiary seeks admission while awaiting its approval
* “I” visas, for individuals who are representatives of foreign media
* “O” visas, for people who, through sustained national or international acclaim, have demonstrated extraordinary abilities in the sciences, arts, education, business, or athletics, and for people in the motion picture or TV production business who have a record of extraordinary achievement
* “P” visas, for athletes and entertainers
* “Q” visas, for persons participating in an international cultural exchange program approved for the purpose of providing employment, practical training, and the sharing of history, culture, and traditions of the entrant’s country of nationality
* “R” visas, for religious workers
* TN visas, for nationals of Canada or Mexico admitted under the North American Free Trade Agreement (NAFTA) and who seek temporary entry as a business person to engage in business activities at a professional level.
| For a FREE initial assessment of your eligibility, please click here |
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CLICK HERE - to complete an online Full Check Immigration Assessment. Please Note: The Full Check evaluation is a paid service and fees apply.
(CAUTION: Immigration Regulations can change without advance notice. You are strongly advised to seek the advice of a Migration Consultant before applying.
Information on this page has been verified by US Immigration Lawyer Richard Link, AILA, SBC #149977 as at 9th June 2011.
