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Subject: Immigration (USA) FAQ: GC and Citizenship questions and answers (part 6 of 6)

This article was archived around: Mon, 21 Dec 1998 14:01:01 GMT

All FAQs in Directory: us-visa-faq
All FAQs posted in: alt.visa.us, misc.immigration.usa
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Archive-name: us-visa-faq/part6 Last-Modified: 21 December 1998
The USA Immigration FAQ is maintained by Rajiv S. Khanna [rskhanna@immigration.com] If you have access to the Web you can access the FAQ from http://www.immigration.com Many FAQs, including this one, are available via FTP on the archive site rtfm.mit.edu in the directory pub/usenet/news.answers. The path for this faq is /pub/usenet/news.answers/us-visa-faq/part6. To get the FAQ by E-mail, you should send a message to mail-server@rtfm.mit.edu with send usenet/news.answers/us-visa-faq/part6 in the body of the message. Please see part1 of this faq for standard disclaimers. Individuals are encouraged to submit corrections, questions and answers to rskhanna@immigration.com directly. In many answers below, submitters are noted in parentheses at the beginning of comments. (Comments may be slightly edited.) "WE CLAIM NO RESPONSIBILITY FOR THE ACCURACY OF THE INFORMATION. APPLICATION OF LAW CAN VARY DRASTICALLY ACCORDING TO THE FACTS OF A PARTICULAR CASE. THE FAQ IS NOT MEANT TO BE SPECIFIC LEGAL ADVICE. IT IS ONLY A STARTING POINT. MUCH OF THE INFORMATION CONTAINED IN THE FAQ IS PROVIDED BY LAYPERSONS. PLEASE USE YOUR OWN JUDGMENT." Questions marked with a <<New>> indicate questions new to this issue; those with significant changes of content since the last issue are marked by <<Changed>>: GC and Citizenship questions and answers ----------------------------------------- Q1:-Does the employer need to show the company's finances? Ans:-[from B.G. Mahesh, mahesh@mahesh.com] [Modified by Rajiv S. Khanna, rskhanna@immigration.com] Basically the employer needs to demonstrate that the company is financially sound and it can afford to employ you. So your employer may have to show INS the company's finances. Technically, the financial ability to pay must exist at the time of filing the labor certification and must continue to exist till the time you actually get your green card. Q2:-At what point spousal petitions can be attached to the forms I-140/485 ? I-140 part 7 clearly asks for a list of dependents. Can a person file I-140, get married and then petition for his/her spouse on the I-485? Ans:-[Modified by Rajiv S. Khanna, rskhanna@immigration.com] You may marry after I-140 and include the spouse on the Form I-485. Q3:-Dear Rajiv, a friend of mine, who doesn't have access to the net, is a computer consultant - on an H-1B visa, - has obtained his labor certification, - and is about to file his I-140. Due to budget constraints at work, his contract with his current client is soon to be terminated, and he is looking for another project with the same client. If he has to move to another work site in the same state but has the same employer, does he have to file for labor cert. again? Ans:-[From Rajiv S. Khanna, rskhanna@immigration.com] If he is within the same Metropolitan Statistical area for which the labor cert. was done, there should be no problem. But if he is moving beyond that area, even if he is within the same state, he cannot file an I-140 providing a different job site. The labor cert. would be invalid. Do note, however, that the labor cert. is for a job in future. Also, according to the law currently, a labor cert. once granted is valid indefinitely. Now if your friend is likely to be sent back to the same geographical area in future, he can file the I-140 on that basis. But legally, if he is not posted back to the same area after getting his Green Card, his GC could be held to be invalid or even fraudulent. Q4:-Would requiring a BS with 2-3 years of experience change the preference category of my labor certification process? Ans:-[From Rajiv S. Khanna, rskhanna@immigration.com] BS falls in the category EB3 while MS (or BS + 5 Years Exp.) falls in category EB2. Q5:-What is the statute of limitation on labor certification? ( Once LC is obtained how long is it valid before applying for the green card) Ans:-[From Rajiv S. Khanna, rskhanna@immigration.com] Under the current law, a labor certification is valid for ever. Q6:-Should I apply for GC together with the H-1B, or after I get the H-1B? Ans:-[from B.G. Mahesh, mahesh@mahesh.com] You can apply for GC with H-1B but it is advisable to wait for about 3-6 months after you get H-1B to apply for GC. Q7:-If one were waiting for a GC date to become current, after one got one's labor certification AND the 6 year limit on H-1B expires while waiting, will one have to leave the country ? Ans:-[from Rajiv S. Khanna, rskhanna@immigration.com] Yes, unless you are close enough to getting a green card so that your adjustment of status application can be filed, so that you may get a work permit through pendency of adjustment status. Q8:-Will my spouse qualify for greencard with me even if she is on a non-dependent visa like F1 ? Ans:-[From Pramod S. Badjate, badjatep@agcs.com] Yes. Spouse and Kids qualify for greencard irrespective (except for J1) of the type of visa, as long as they are on a valid visa in USA. The type of visa of the spouse/kids does matter. If the spouse/kids are on a J-1/J-2 visa with a 2yr HRR, they may not adjust status to permanent residency unless (1) They have served the HRR (2) Or have obtained a waiver of the HRR. Q9:-A friend of mine had got the labor certification and while waiting for his date became current, he get laid off from his job. Could you please tell me is his labor certification still valid for GC application? Ans:-[From Rajiv S. Khanna, rskhanna@immigration.com] The labor certification is valid, but your friend may not get a GC. Reason: Labor Certification is for a job in future. But for the GC application, that job must be certain to be available right now. Currently, that is not the case. If 6 months (or more time) later, your friend gets rehired by the old company, he can go ahead and apply for GC as long as the job he gets is the same as the job for which Labor Cert. was obtained. Q10:-Will all the GC wait come to a naught in this case , or can one wait for it outside the country ? Ans:-[from Rajiv S. Khanna, rskhanna@immigration.com] You can MOST certainly wait outside the country. Q11:-When Labor Certification has been received, is H-1B still the operating visa, or do you fall under some new status ? Ans:-[from Rajiv S. Khanna, rskhanna@immigration.com] Mere receipt of labor certification does not change your status. You have to apply to the INS for change of status. Q12:-Can one apply for GC through an employer while on H-1 for another employer? Ans:-[from Rajiv S. Khanna, rskhanna@immigration.com] Yes. The labor cert. is for a job in future, which is currently available to test the labor market. It is open for US workers. The "alien" may only accept it upon receiving his/her permanent residence. The H-1, however, is for an entirely different job. Q13:-What are the 'additional' things that I need to address, and take account of before filing the advertisement and starting the LC process? Ans:-[From Rajiv S. Khanna, rskhanna@immigration.com] Here is a topic for another book. In a nutshell: Typically, in order to have a good chances of success, we must investigate beforehand whether the salary being offered to the alien meets the likely U.S. Department of Labor ("U.S. DOL" or "DOL") prevailing wage standards. We must also carefully analyze the job opportunity to establish its actual minimum requirements for the job (these requirements are often not identical to the personnel department's rudimentary job description and requirements) and to harmonize these requirements with the standards established by the DOL for review of job duties and requirements. We might also want to investigate the current status of the labor market for the position, to assess the potential availability of qualified U.S. workers. Q14:-If the second category (EB 2) also needs the labor certifications(except in cases of national interest), what is the benefit of this over applications in the third category? Is this somehow related to the 'fast track' approval of some LC applications by the DOL? Ans:-[From Rajiv S. Khanna, rskhanna@immigration.com] No advantage as of today for the whole world except, people born in India, Mexico and Philippines, because EB 3 and EB 2 are both current for the whole world, except the named countries. For professionals from India, Mexico and Philippines it is much better to be in EB 2. Q15:-How do I check the status of a labor certification pending with the U.S. Department of Labor? Ans:-[NY From Krishna Chivukula additional information by rskhanna@immigration.com] Most U.S. DOL regions have automated status check phones which are cable of providing fax as well as audio checks. New York US DOL -------- (Responsible for New York, New Jersey, Puerto Rico, and Virgin Islands (4 States)) Status Check Phone: (212) 337-2185 Atlanta, GA US DOL --------- (For Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, and Tennessee (8 States)) Regular Voice Line: (404) 347-3938 Boston, MA US DOL ------- (Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, Vermont (6 States)) Status Checks: (617) 565 2267 San Francisco, CA US DOL ----------- (For Arizona, California, Guam, Hawaii, Nevada (5 States)) Regular Voice Line: (415) 744-7618 Chicago, IL US DOL ------- (Covers Illinois, Indiana, Michigan, Minnesota, Ohio, Wisconsin (6 States)) Status Checks: (312) 353-1059 Denver, CO, US DOL -------- (Colorado, Montana, N. Dakota, S. Dakota, Utah, Wyoming (6 States)) Regular Voice Line: (303) 391-5742 Kansas City, MO US DOL ------------ (Iowa, Kansas, Missouri, and Nebraska (4 states)) Regular Voice Line: (816) 426-3796 Philadelphia, PA US DOL ------------- (Delaware, District of Columbia, Maryland, Pennsylvania, Virginia, West Virginia (6 States)) Status Check Phone: (215) 596-5033 Seattle, WA US DOL ----------- (Alaska, Idaho, Oregon, and Washington (4 States)) Regular Voice Line: (206) 553-7700 Dallas, TX US DOL -------- (Responsible For: Arkansas, Louisiana, New Mexico, Oklahoma, and Texas (5 States)) Voice: (214) 767-4989 For status checks call between 3 and 4:30 p.m. Texas time Q16:-If I am working for Company "A" through another Company "B" which has started my labor certification process i.e. Ad in newspaper is done and I am waiting for the Labor Certification from the Dept. of Labor but in the meantime I got a job offer directly from company "A" and in this case will the labor certification filed by company "B" valid since the job description is same or do I need to start all over again and get a new labor certification ? Ans:-[from Rajiv S. Khanna, rskhanna@immigration.com] New labor cert. will be necessary. Q17:-How long does an employee who receives GC through Labor Cert. have to work after getting the (actual) green card before changing to another job? I find this a very interesting question in today's dynamic job market. Would you please kindly give me some advice on this issue. You help is greatly appreciated. Ans:-[From Rajiv S. Khanna, rskhanna@immigration.com] There is no brief answer to this question. Let me explain. The basic premise (or theory) behind permanent residence through offer of employment is that an employee is accepting a job on a "permanent" bases. What does "permanent" mean? Does it mean for ever. Obviously not. That would be unreasonable. But "permanent" also does not mean that you pack your bags the moment you receive your green card. So what is the answer? No one really knows. Each case has to be determined upon its own merits. Normally, I would say working for one year or more with the same employer after getting your GC is PROBABLY enough indication of permanency. Less than 4-5 months is perhaps evidence to the contrary. But REMEMBER, this is just my own guess. Technically speaking, the moment you decide that you will leave after a certain period of time, "permanent" intent is gone. Catch-22 eh? Well that is the way it is. Q18:-Can an applicant qualify for a GC without going through Labor Certification? Ans:-[from Jaap Akkerhuis, jaap@tempel.research.att.com and Muralidhar Rangaswamy, rangaswamy@zircon.plh.af.mil] To qualify as an outstanding professor or researcher, INS requires meeting at least two of six criteria as follows: (1) Receipt of major prizes or awards for outstanding achievement in the academic field. (2) Membership in associations requiring outstanding achievements for their members. (3) Published material in professional publications written by others on behalf of the person's work in the academic field. (4) Evidence of the person's participation either individually or a panel as the judge of work of others in the same or allied academic field. (5) Evidence of the person's original scientific or scholarly research contributions in the academic field. (6) Evidence of authorship of scholarly books or articles in scholarly journals with international circulation in the academic field In addition, the person must have at least three years of experience in the academic field. Such work while working on an advanced degree is not acceptable unless the person obtained the degree and the person had full responsibility for classes taught or, for research conducted toward the degree, it has been recognized within the academic field as outstanding. Such evidence can be in the form of letter or letters from current or former employers. So note that a Ph.D. is not required (I don't have one). If you want me to get more technical!!! The following classifications do not need labor certification. (1) Section 203(b)(1)(A): Alien of Extraordinary Ability in the sciences, arts, business, and athletics. (2) Section 203(b)(1)(B): Outstanding Professor/Researcher (3) Section 203(b)(1)(C): Certain Multinational Executives. (4) Section 203(b)2 A or B: Member of the professions holding an advanced degree or an alien of exceptional ability seeking a national interest waiver of the job offer and labor certification requirements. Q19:-Is a job offer necessary for the above classifications? Ans:-[From Muralidhar Rangaswamy, rangaswamy@zircon.plh.af.mil] For (1) above, although no job offer is necessary, it is advisable to have evidence of pre-arranged employment commitments with an employer in the USA or submit other evidence that the alien is seeking to enter the USA to continue work in the area of extraordinary ability. For (2), a job offer from a University or company is necessary. In particular, the letter from the employer must state that the alien has been offered a tenure-track faculty position or similar position at a University, or a comparable position with a private company engaged in research. The alien must be the beneficiary of a petition filed by the employer with the INS. In addition, if the employer is a private company, the employer must show that they have documented accomplishments in the academic arena and that they employ at least 3 people engaged in full-time research. Finally, the alien must demonstrate evidence through letters from past/present employers that he/she has at least 3 years of full-time experience in the field of outstanding ability. Research or teaching performed while studying for an advanced degree may be used as experience provided the degree was obtained and the alien had full responsibility for the teaching or research and the teaching or research was found to be outstanding by recognized experts in the field. For (3), job offer is necessary. For (4) again no job offer is needed. However, in some instances, if the alien is in the USA, offer of employment may be needed to provide evidence of financial support. Q20:-Where can I get details about the rules and regulations pertaining to the employment based immigration classifications? Ans:-[From Muralidhar Rangaswamy, rangaswamy@zircon.plh.af.mil] Citations from the foreign affairs manual are the best source of information. You can find this at the end of the faq. Q21:-Thanks for maintaining the USA Immigration FAQ: I have a few unanswered questions. I am planning to submit a petition based on immigrant classification as an alien of extraordinary ability. What are the major steps (milestones) towards obtaining the GC after you submitted the petition? What is the typical duration of each step if the petition is based on extraordinary abilities? Ans:-[From Rajiv S. Khanna, rskhanna@immigration.com] Step 1: Filing the petition with INS (Adjudication times vary from 4 weeks to 10 months depending upon several factors, such as extent of documentation, place of application etc.) Step 2: Filing for adjustment of status (I-485) or consular processing ADJUDICATION TIME VARIES FROM 8 WEEKS TO 14 MONTHS DEPENEDING UPON YOUR PLACE OF RESIDENCE) Q22:-I have seen many people pre-advertise for a position (i.e. not get the job opening approved before hand) and thus save a significant period of time in getting the LC. From what I gather, people seem to have a fair amount of success in this. However, my company lawyers are strongly opposed to it. DO YOU KNOW WHAT THE SUCCESS RATE OF THIS IS? Is it any different in NY from other places like DC area? Ans:-[From Rajiv S. Khanna, rskhanna@immigration.com] The success rate of pre-recruiment varies widely from state to state, occupation to occupation and from time to time. It is strongly discouraged in some regions for some jobs, while it is a good practice in some other DOL regions. For example, regions I know are likely to create problems in computer occupations pre-advertise: New York, Boston, Texas (unless you do it right). I always check with the related U.S. DOL and local employment agency before filing (even that does not assure success in all cases). The big problem most companies have with pre-recruitment is that the company's name must appear in the advertisement along with a salary figure (or range). This creates problems for them. BTW, blind ads are also possible under certain circumstances. Q23:-New York -------- Will it be useful for the employer to document recruitment efforts beyond this job? Ans:-Yes. Past 6 month's history. Q24:-Mr. Khanna, as a follow up to the above question, in which step do you need your dependents to be in the U.S? (in the interview?). Ans:-[From Rajiv S. Khanna, rskhanna@immigration.com] Dependents can "follow to join" or be in the U.S. when you file Form I-485. Q25:-Chicago ------- Will you deny any RIR application where there are any special qualifications required. Ans:-Not if they are reasonable. Q26:-I am currently holding an H-1B visa. If I decide to apply for a green card,what are the steps I need to follow? Does it take less time if I am working for a university? Ans:-[from Rajiv S. Khanna, rskhanna@immigration.com] There are special procedures for university professors and/or outstanding researchers. (See FAQ) Otherwise, working for a university offers no special advantages. Q27:-How many days/weeks/months does it take to get a Labor Clearance for GC? Ans:-[from B.G. Mahesh, mahesh@mahesh.com] [Modified by Rajiv S. Khanna, rskhanna@immigration.com] This depends on the state you reside. It can take anywhere from 4 months to 2 years. [from many on the net] [Modified by Rajiv S. Khanna, rskhanna@immigration.com] There is a list of approximate Labor certification processing time sorted statewide. Any additions/modifications should be sent to rskhanna@immigration.com The list can be found at our web site: http://www.immigration.com Q28:-What is "Reduction in Recruitment (RIR)?" Ans:-[from Rajiv S. Khanna, rskhanna@immigration.com] It is a process whereby the labor certification may be speeded up considerably. Note: the operative words are "may be." In RIR, we demonstrate to the Department of Labor that the employer has already unsuccessfully conducted a recruitment effort. They have a history of trying to recruit for the position under labor certification. ADVANTAGE --------- 1. RIR applications are supposed to be placed on fast track 2. You will not have to advertise again DISADVANTAGE ----------- 1. You may end up losing a little time 2. Your labor certification may end up being too generic Let me add, with all due respect for the complexity of the undertaking, the various DOL regions are undertaking different approaches. The following comments are reported from my conversations this past week with various DOL regions (I am just reporting some of them to show the different approaches. I always find it useful to speak with the powers that be and get some guidance regarding their current thinking before we file a labor certification): Q29:-Will you deny any RIR application where there are any special qualifications required. Ans:- Yes. Q30:-Will you permit variations between the job description on labor certification and the advertisement? Ans:-No. Q31:-Will it be useful for the employer to document recruitment efforts beyond this job?(Chicago) Ans:-Yes. Past 6 month's history. Q32:-How many days/weeks/months does it take to get a I-485 approval?<<Changed>> Ans:-[Compiled by Rajiv S. Khanna, rskhanna@immigration.com] The times below will not apply because the I-485 processing will now be done at Service Centers NOT locally. It is estimated that the processing should take appx. 150 days. THE TIMES ARE SUBJECT TO WIDE VARIATIONS. PLEASE CONFIRM THESE TIMES BEFORE MAKING ANY PLANS. INS OFFICE TIME CHECKED IN ------------- ------ ---------- Albany, NY 5 Months (Jan. 96) Atlanta, GA ? Arlington, VA 6 Months (Jan. 96) Baltimore, MD 6 Months (Jan. 96) Boston, MA 6 Months (Jan. 96) Buffalo, NY ? Charlotte, NC ? Chicago, IL 1 Year (Jan. 96) Cleveland, OH 4-6 Months (Jan. 96) Detroit, MI 4-6 Months (Jan. 96) Fort Lauderdale, FL ? Hartford, CT 4 Months (Nov. 96) Jacksonville, FL ? Key West, FL ? Los Angeles, CA 14 Months (Feb. 96) Louisville, KY ? Memphis ? Miami, FL ? Newark, NJ 7 Months (Jan. 96) New Orleans, LA 5 Months (Dec. 95) New York City, NY ? Norfolk, VA ? Omaha, NE 3 months (May 96) Philadelphia, PA 3 Months (Jan. 96) Pittsburgh, PA ? Portland, ME Providence, RI ? Saint Albans, VT ? Saint Paul, MN 3 months (Dec. 95) Tampa, FL ? W. Palm Beach, FL ? (More Stuff Will Be added) Q33:-New York ------- Will you deny any RIR application where there are any special qualifications required. Ans:-Strong possibility. Q34:-What are is the DOL actually looking for when it goes through the labor certification process? Ans:-[From Rajiv S. Khanna, rskhanna@immigration.com] This could take a book to answer. Typically, DOL looks into: bona fide job opportunity (job must not be a sham); the appropriate wages being paid; reasonableness of job requirements; appropriate recruitment and alien's appropriateness for the position. Q35:-New York ------- Will you permit variations between the job description on labor certification and the advertisement? Ans:-Not if they are substantial. Q36:-Philadelphia ------------- Will you deny any RIR application where there are any special qualifications required. Ans:- No. Q37:-Philadelphia ------------- Will it be useful for the employer to document recruitment efforts beyond this job? Ans:-Yes. Past 6 month's (or more) history. Q38:-Philadelphia ------------- Will you permit variations between the job description on labor certification and the advertisement? Ans:-Yes. Q39:-What is "priorty date?" Ans:-From Prem, a netter [Modified by Rajiv S. Khanna, rskhanna@immigration.com] If you have filed for alien labor certification, then your priority date is the date on which your application was received by the state level agency (SESA). If instead of labor cert, you are going through the NIW/EB1 route, then yourpriority date is the date you filed I-140 petition. Q40:-How many days/weeks/months does it take to get a I-140 approval ? Ans:-[from Rajiv S. Khanna, rskhanna@immigration.com] 1-4 months for labor certification supported I-140. Q41:-Can netters please provide their experience in adjustment of status (I-485) interviews)? Ans:-San Jose, CA [From Suresh] I have been regularly reading this newsgroup for the last few months. It has often been useful. I had applied for adjustment of status on July 1, '95. We got a response from INS at the end of last May. The interview was waived, and they gave us appointment for July 19th (yesterday) for the clerical processing of the application - called adit processing. We presented ourselves there on time. The INS had my wife's name and our address wrong (typo). We told the person who was handling the adit processing of this when we were asked to sign the application. She corrected it right away. After that we signed the application and our finger prints were affixed on it. Then we went to the neighboring counter where the officer affixed the permanent residence stamp on our passport and we were on our way! This stamp will serve as the "green card" till the actual card arrives. The INS people we met were very nice. The whole thing lasted a pleasant 7 minutes or so. Hope the above helps. Best of luck! Suresh Q42:-What is involved in the labor certification? Ans:-[from B.G. Mahesh, mahesh@mahesh.com] [Modified by Rajiv S. Khanna, rskhanna@immigration.com] This is a much simplified flow chart. Variations exist. o Prepare a job description for the job being offered. o Job must be "permanent". o Alien must be paid at least the minimum wages prevalent for the job in the geographical area of employment. o You need to advertise the job for 10 business days in your office o Advertise for 3 consecutive days in a LOCAL newspaper or one day nationally. DOL [dept. of labor] will send in all the responses they get for your advertisement and your employer needs to justify why you are better than other applicants. If the DOL doesn't approve your labor then you can't apply for labor clearance for the next 6 months. Q43:-I am currently on an H1-B visa on behalf of a Software company. I have a B.S degree in Electrical Engineering and about 8 years of professional experience in this area. I am about to begin the process of applying for Labor Certification. I have 'heard' that not having a Master's degree may prove a hindrance to my case for LC. ( The job only required a B.S as the minimum degree with 2-3 years of experience when I applied for it). What if any impact would my Educational qualifications ( only BS ) have in the DOL processing my application? Ans:-[From Rajiv S. Khanna, rskhanna@immigration.com] There is no reason for lack of MS to be a hindrance. As long as you possess specialized experience, and the job being certified requires that experience, you should be fine. In fact, I personally believe experience in most cases may be better than a graduate degree. Q44:-Will you permit variations between the job description on labor certification and the advertisement?(Chicago) Ans:-Depends upon several variables. Q45:-How strong must my English skills be to qualify for the F-1? Ans:-[Gregory Siskind, gsiskind@telalink.net] The school must certify that the prospective student has proficiency in English (usually demonstrated by passing an English proficiency examination like the TOEFL) or the student will be enrolled in courses in a language in which the student is proficient or the student will be enrolled in a full course of study consisting of both academic courses and English instruction or the student is enrolled in a language training program constituting a full course of study. Q46:-If the employer lays-off the employee to avoid payment of the agreed or the promised salary (as stated on the Labor Certification or the Job Ad.) Ans:-[from Rajiv S. Khanna, rskhanna@immigration.com] You may have a problem. Q47:-What are the requirements for U.S. Citizenship? Ans:-[From Muralidhar Rangaswamy, RANGASWAMY@zircon.plh.af.mil] There are four main requirements that must be met by every applicant. (a) Basic literacy in the English language. (b) Knowledge of U.S. history. (c) Five years of residency in the U.S. (d) Good moral character. Q48:-Under what conditions can I be denied U.S. citizenship? Ans:-[From Muralidhar Rangaswamy, RANGASWAMY@zircon.plh.af.mil] (a) If you advocate or if you are a member of any organization that is opposed to organized government (i.e., if you preach and practice anarchy). (b) Membership in communist organizations. (c) If you advocate the overthrow of the U.S. Government by force, sabotage, violence or terrorism. (d) If you publish any material advocating the methods of item (c). (e) Exemption from services in the armed forces of the U.S. (unless the alien status does not permit the individual to serve on the armed forces or if the alien had served in the armed forces of his/her own country). (f) Desertion from military forces and draft evasion results in permanent ineligibility for citizenship. Q49:-Under what conditions can my citizenship be revoked? Ans:-[From Muralidhar Rangaswamy, RANGASWAMY@zircon.plh.af.mil] If your behavior is not well disposed to the good order and happiness of the U.S. or if you concealed your wartime activities when applying for visas to enter the U.S. after World War II. Also, for example you do one of the following: (a) Refusal to testify before a congressional committee regarding alleged subversive activities within 10 years after becoming a U.S. citizen. (b) Establish permanent foreign residence within 1 year after becoming a U.S. citizen Note from Rich Wales, richw@yank.kitchener.on.ca This provision was repealed on October 25, 1994, by Public Law 103-416 (108 Stat. 4305). The old require- ment that candidates for US citizenship must intend to reside permanently in the US following naturalization was also repealed by this same law. (c) Membership in an outlawed organization within 5 years after becoming a citizen. Denaturalization proceedings may be instituted against you for (a)-(c). REFERENCES: [1] Nancy-Jo Merritt, "Understanding Immigration Law," Makai Publishing group, Scottsdale, Arizona, 1993. Q50:-Are all aliens in the United States who are out of status now eligible to apply for adjustment of status to permanent residence? Ans:-[From Allen E. Kaye, India Abroad Oct. 14, 1994] Yes. All aliens who entered the United States without inspection or who are not in lawful visa status may apply for adjustment. Q51:-Is there an estimate of how many such foreign nationals are eligible to apply for permanent resident status? Ans:-[From Allen E. Kaye, India Abroad Oct. 14, 1994] INS anticipates that, in Fiscal year 1995, approximately 100,000 such individuals who formerly would have had to go abroad in order to obtain an immigrant visa, will now be able to remain in the United States and apply for permanent resident status. Q52:-Who can apply for U.S. citizenship? Ans:-[From Muralidhar Rangaswamy, RANGASWAMY@zircon.plh.af.mil] Persons who are 18 years of age or older, who are lawfully admitted permanent resident aliens and who meet certain requirements (see question 3) may apply for citizenship. Aliens who have served in the armed forces of the U.S. are eligible for citizenship under special provisions. Q53:-Aren't you making it easier for foreign nationals who came here illegally to obtain green cards? Ans:-[From Allen E. Kaye, India Abroad Oct. 14, 1994] No, eligibility requirements for a green card and permanent residence remain unchanged. Persons who violate the immigration laws and are not immediately qualified for permanent residence, as required by the new provision, remain subject to deportation. If encountered by the INS, they will be placed in deportation proceedings, unless they are eligible for other relief. Q54:-US Citizenship -------------- What is the time-frame to get U.S. citizenship if the spouse is an U.S. citizen? Ans:-[from Ashish Nedungadi, ashish@eng.umd.edu] The spouse of a US citizen gets a CONDITIONAL green card "immediately" after marriage. After 2 years, the conditionality of this green card is removed(after successfully proving to INS that the marriage is legitimate). The spouse is eligible for his/her citizenship after 3 years of receiving the CONDITIONAL green card. In a nutshell, 3 years after obtaining one's green card(including the CONDITIONAL one) If you want to get more technical ["technical" may not be the right word :-)] [from Rajiv S. Khanna, rskhanna@immigration.com] (a) Any person whose spouse is a citizen of the United States may by naturalized upon compliance with all the requirement of this title except the provisions of paragraph (1) of section 316(a) if such person immediately preceding the date of filing his application for naturalization has resided continuously, after being lawfully admitted for permanent residence, within the United States for at least three years, and during the three years immediately preceding the date of filing his application has been living in marital union with the citizen spouse, who has been a United States citizen during all of such period, and has been physically present in the United States for periods totaling at least half of that time and has resided within the State or the district of the Service in the United States in which the applicant filed his application for at least three months. Q55:-Why was this provision added to the Appropriations Act? Ans:-[From Allen E. Kaye, India Abroad Oct. 14, 1994] It will help reduce the visa issuance workload at U.S. consulates offices abroad so that they can devote more time to uncovering fraud and other abuses associated with temporary visas to the United States. Q56:-Doesn't the new adjustment of status provision in the INS Fiscal Year 1995 Appropriations Act create another amnesty program for illegal immigrants? Ans:-[From Allen E. Kaye, India Abroad Oct. 14, 1994] Absolutely not. An individual who entered, worked or remained in the U.S. illegally must meet three prerequisites if he or she wishes to remain in the U.S. while applying for permanent residence. 1. A relative or employer mush have filed a petition in behalf of of the foreign national making him or her eligible for an immigrant visa. 2. The immigrant visa must be immediately available to the individual at the time the application for permanent residence is filed. 3. In addition to the prescribed fee of $130, the individual must agree to pay a monetarty penalty of $650 for previously having entered and remained in the U.S. illegally (exception children under 17 and certain family unity aliens). Q57:-Do permanent residents need to apply for a visitors visa to visit Canada? Ans:-[From Donald S. Cameron, seatlimmig@aol.com] Permanent residents of the United States (Green Card holders) are, like U.S. Citizens, exempt from the requirement to have a passport or a Canadian visitor visa in order to visit Canada. The Green Card itself is sufficient documentation. The decision on whether to admit a visitor to Canada is made by an Immigration Officer at a Port of Entry to Canada. This is the case for all visitors including those who hold Canadian visitor visas. The Immigration Officer also determines the length of stay. If a Green Card holder is admitted to Canada without any document being issued to him or her it means that the GC holder has been admitted to Canada for 6 months. A shorter stay than 6 months would be indicated if the GC holder was issued a document called a Visitor Record which specifies the length of time for which the holder has been admitted to Canada. Persons seeking admission to Canada at the land border do not normally fill out any forms to apply for admission. Those arriving by air complete only a Customs form. There is no fee for the admission of a GC holder to Canada as a visitor. GC holders, like all other persons seeking admission as visitors, can be refused admission for a variety of reasons. The most common one is the existence of one or more criminal convictions in the applicant's past. The most common criminal conviction is Driving While Intoxicated or Driving While Impaired. These offenses fall with the criminal law in Canada and even though they are usually regarded a misdemeanors in the U.S. they are regarded as criminal offenses in Canada. Visitors to Canada may not study or work. As in the U.S., different types of visas or Authorizations are required to study or work. Q58:-What should I do if I don't have my birth certificate? Ans:-[From Muralidhar Rangaswamy, rangaswamy@plh.af.mil] [Modified by Rajiv S. Khanna, rskhanna@immigration.com] You should obtain sworn affidavits from two relatives. A sample affidavit is provided below. AFFIDAVIT OF BIRTH I, (name of relative), solemnly state and affirm as hereunder: (1) I presently reside at ___________________________________. (2) I am a citizen of _______________________________. (3) I was born on ___________________ at________________. (4) I am the (state relationship to the person whose birth is being verified) (5) I personally know that (name of person) was born on ____________ at _________. (6) A request has been made with the proper authorities for (name of person)'s birth certificate but the same is unavailable. ____________________ Signed Date:________________ I hereby affirm under the penalty of perjury pursuant to the laws of the United States of America (28 U.S.C. Section 1746) that the foregoing is true and correct. This affidavit was executed on (date) at (Place). ____________________ Signed Date:________________ NOTE: The above affidavit does NOT need to be notarized. Q59:-Under what circumstances can a Permanent Resident Visa be revoked. Ans:-[from Rajiv S. Khanna, rskhanna@immigration.com] Lots of circumstances: criminal convictions being the foremost; abandonment of permanent residence. Q60:-Can a Permanent Resident Visa be revoked for any of the above stated reasons? Ans:-[from Rajiv S. Khanna, rskhanna@immigration.com] Yes Q61:-Specifically what types of foreign nationals are affected by this new provision? Ans:-[From Allen E. Kaye, India Abroad Oct. 14, 1994] There are six groups, as of Oct. 1 1994, who will have the option of obtaining a green card and permanent residence while remaining in the United States. They include, 1. Those who entered U.S. illegally 2. Individuals employed in the U.S. without authorization 3. Those who remained in the U.S without maintaining lawful status 4. Foreign crewmen 5. Individuals who entered under the Visa Waiver Pilot Program 6. Those who entered the U.S. as foreign travelers in transit without visa. Q62:-Will I lose my permanent resident status or will I be penalized if I have not yet applied for the new I-551 Green Card? Ans:-No, you will not lose your permanent resident status if you have not yet applied for a replacement Green Card, nor will you be penalized if you have not yet applied for the new card. However, lawful permanent residents are required by law to carry evidence of their status, and expired I-151s no longer meet this requirement. A person can still apply after March 20, 1996, and should still apply as soon as possible for a replacement card to avoid difficulties in obtaining employment, entitlement benefits and reentry into the United States from abroad. Q63:-Another followup, if you are granted an interview, can you postpone it until your dependents can join you. Ans:-[From Rajiv S. Khanna, rskhanna@immigration.com] Bad idea. It may a long time to get another interview and dependents may be refused visa/admittance into the U.S. if they are arriving merely to adjust status. Q64:-Will it be useful for the employer to document recruitment efforts beyond this job? Ans:-Yes. Past one year's history. Q65:-Do priority dates still matter? Can aliens, regardless of priority dates, now immediately apply for adjustment of status? Ans:-[From Allen E. Kaye, India Abroad Oct. 14, 1994] All immigrant applicants (whether applying at INS offices or abroad) must have priority dates earlier than any applicable visa cut-off dates to be granted a visa or adjustment of status. This has not been altered by the recent amendment to the Immigration Act. Under the terms of Section 245, INS will not accept an application for adjustment of status from an applicant in a numerically limited category unless a visa number is available for the alien's priority date. All immigrant visa applicants will continue to be processed in order of priority date whether cases are processed at overseas American Consulates or through INS. Q66:-I ( US Citizen) need to petition for a US greencard for my parents who are right now in Venezuela. Q 1. Once the application step is begun, is it TRUE that parents must remain where they are at? Does this apply to third countries like Venezuela? I am petitioning for my parents and they are in Venezuela. So they can't leave Venezuela? Ans:-[From Rajiv S. Khanna, rskhanna@immigration.com] They are not required to remain where they are. They can go anywhere they please. But because they would have applied for an immigrant status, it may be difficult for them to come to U.S. on a nonimmigrant visa such a as Tourist visa. Q67:-Q 2.Is there a distinction between petition form and application form? For immediate relative case, is the I-130 the petition and application form or is it just the petition form? Ans:-[From by Rajiv S. Khanna, rskhanna@immigration.com] Same thing. File Form I-130. Q68:-For immediate relatives, is it really required to produce birth certificates of the parents? (I am US citizen and have my birth certificate, but they are Indian and don't have birth certificates) Ans:-[From Rajiv S. Khanna, rskhanna@immigration.com] Pick up the affidavits of birth from our FAQ (http://www.immigration.com). INS may require additional official proof that birth certificates are not available (e.g., letter from office of records, or local municipality). Q69:-When can I apply for U.S. citizenship? Ans:-[From Muralidhar Rangaswamy, RANGASWAMY@zircon.plh.af.mil] Five years from the date of entry as a lawful permanent resident. If married to and living with citizen spouse in marital union for at least 3 years before filing the application, the residence period is shortened to 3 years. You can file the application 3 months before the residence requirement is met. Also, you have to be a resident for 3 months in the state or INS district where you are filing the application. Q70:-How do I know if I need to replace my Green Card: Ans:-Permanent resident aliens holding an old Form I-151 Alien Registration Receipt Card (Green Card) issued before 1979 -- must apply in person as soon as possible for a new card, Form I-1551 Alien Registration Receipt Card, to maintain proof of permanent resident status. The old Form I-151 Green Card will not be valid after March 20,1996. The replacement Green Card, Form I-551 Alien Registration Receipt Card, will contain the holder's picture, fingerprint and signature. It will positively identify the holder as a legal permanent resident and make it easier to obtain employment, social security and other public benefits, and to reenter the United States from abroad. The more secure I-551 has an expiration date and will need to be renewed every ten years. This will allow the INS to progressively improve card features and make the cards increasingly more difficult to counterfeit. Q71:-Where can I get some information on dual citizenship?<<Changed>> Ans:-[From Rich Wales, richw@yank.kitchener.on.ca] [Modified by Rajiv S. Khanna, rskhanna@immigration.com] http://yank.kitchener.on.ca/~richw/dualcit.html Using FTP Connect to yank.kitchener.on.ca get the two files /home/richw/dualcit.txt and /home/richw/dualcit2.txt Using E-Mail Send a message to richw@yank.kitchener.on.ca with the subject "send dualcit". The body of the message can be blank, but you must type the subject line as indicated. [from Rajiv S. Khanna, rskhanna@immigration.com] We have retireved the following information: DUAL NATIONALITY The concept of dual nationality means that a person is a citizen of two countries at the same time. Each country has its own citizenship laws based on its own policy.Persons may have dual nationality by automatic operation of different laws rather than by choice. For example, a child born in a foreign country to U.S. citizen parents may be both a U.S. citizen and a citizen of the country of birth. A U.S. citizen may acquire foreign citizenship by marriage, or a person naturalized as a U.S. citizen may not lose the citizenship of the country of birth.U.S. law does not mention dual nationality or require a person to choose one citizenship or another. Also, a person who is automatically granted another citizenship does not risk losing U.S. citizenship. However, a person who acquires a foreign citizenship by applying for it may lose U.S. citizenship. In order to lose U.S. citizenship, the law requires that the person must apply for the foreign citizenship voluntarily, by free choice, and with the intention to give up U.S. citizenship. Intent can be shown by the person's statements or conduct.The U.S. Government recognizes that dual nationality exists but does not encourage it as a matter of policy because of the problems it may cause. Claims of other countries on dual national U.S. citizens may conflict with U.S. law, and dual nationality may limit U.S. Government efforts to assist citizens abroad. The country where a dual national is located generally has a stronger claim to that person's allegiance. However, dual nationals owe allegiance to both the United States and the foreign country. They are required to obey the laws of both countries. Either country has the right to enforce its laws, particularly if the person later travels there.Most U.S. citizens, including dual nationals, must use a U.S. passport to enter and leave the United States. Dual nationals may also be required by the foreign country to use its passport to enter and leave that country. Use of the foreign passport does not endanger U.S. citizenship.Most countries permit a person to renounce or otherwise lose citizenship. Information on losing foreign citizenship can be obtained from the foreign country's embassy and consulates in the United States. Americans can renounce U.S. citizenship in the proper form at U.S. embassies and consulates abroad. ------------------------------------------------------------- RULES AND REGULATIONS PERTAINING TO THE EMPLOYMENT BASED IMMIGRATION CLASSIFICATIONS [From Muralidhar Rangaswamy, rangaswamy@zircon.plh.af.mil] FAM09-42.32(a) FIRST PREFERENCE - PRIORITY WORKERS (1) Entitlement to Status (TL:VISA-48; 10-1-91) An alien shall be classifiable as an employment-based first preference immigrant under INA 203(b)(1) if the consular office has received from INS a Petition for Immigrant Worker approved in accordance with INA 204 to accord the alien such preference status, or official notification of such an approval, and the consular officer is satisfied that the alien is within one of the classes described in INA 203(b)(1). (2) Entitlement to Derivative Status (TL:VISA-48; 10-1-91) Pursuant to INA 203(d), and whether or not named in the petition, the child or spouse of a employment-based first preference immigrant, if not otherwise entitled to an immigrant status and the immediate issuance of a visa, is entitled to a derivative status corresponding to the classification and priority date of the beneficiary of the petition. RELATED STATUTORY PROVISIONS INA 203(b), in part (TL:VISA-55; 3-13-92) (1) PRIORITY WORKERS.--Visas shall first be made available in a number not to exceed 28.6 percent of such worldwide level, plus any visas not required for the classes specified in paragraphs (4) and (5), to qualified immigrants who are aliens described in any of the following paragraphs (A) through (C): (A) ALIENS WITH EXTRAORDINARY ABILITY.--An alien is described in this subparagraph if- (i) the alien has extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation, (ii) the alien seeks to enter the United States to continue work in the area of extraordinary ability, and (iii) the alien's entry into the United States will substantially benefit prospectively the United States. (B) OUTSTANDING PROFESSORS AND RESEARCHERS.--An alien is described in this subparagraph if- (i) the alien is recognized internationally as outstanding in a specific academic area, (ii) the alien has at least 3 years of experience in teaching or research in the academic area, and (iii) the alien seeks to enter the United States- (I) for a tenured position (or tenure-track position) within a university or institution of higher education to teach in the academic area, (II) for a comparable position with a university or institution of higher education to conduct research in the area, or (III) for a comparable position to conduct research in the area with a department, division, or institute of a private employer, if the department, division, or institute employs at least 3 persons full-time in research activities and has achieved documented accomplishments in an academic field. (C) CERTAIN MULTINATIONAL EXECUTIVES AND MANAGERS.--An alien is described in this subparagraph if the alien, in the 3 years preceding the time of the alien's application for classification and admission into the United States under this subparagraph, has been employed for at least 1 year by a firm or corporation or other legal entity or an affiliate or subsidiary thereof and the alien seeks to enter the United States in order to continue to render services to the same employer or to a subsidiary or affiliate thereof in a capacity that is managerial or executive. (TL:VISA-48; 10-1-91) For the provisions of INA 203(d), see section 42.31 (Related Statutory Provisions). -------------------- *** ---------------- FAM09-42.32(a) - NOTES EMPLOYMENT-BASED FIRST PREFERENCE IMMIGRANTS N1 Defining "Priority Workers" (TL:VISA-54; 2-28-92) a. The statute designates the following aliens as "priority workers" who may be entitled to status as employment-based first preference applicants: (1) Aliens with extraordinary ability [see N1.1 below]; (2) Outstanding professors and researchers [see N1.2 below]; and (3) Certain multinational executives and managers [see N1.3 below]. b. The Immigration and Naturalization Service must approve petitions in all of the above categories. [See N2 below.] N1.1 Aliens With Extraordinary Ability (TL:VISA-54; 2-28-92) To be considered as an alien with extraordinary ability, the alien must have sustained national or international acclaim. The alien's accomplishments in the field of science, art, education, business or athletics must be recognized in the form of extensive documentation. The alien must be seeking to enter the United States to continue work in the field, and the entry of such alien must substantially benefit prospectively the United States. N1.1-1 Defining "Extraordinary Ability" (TL:VISA-54; 2-28-92) 8 CFR section 204.5(h)(2) defines "extraordinary ability" as follows: "Extraordinary ability means a level of expertise indicating that the individual is one of that small percentage who have risen to the top of the field of endeavor." N1.1-2 Evidence of Extraordinary Ability (TL:VISA-54; 2-28-92) a. The Immigration and Naturalization Service regulations (8 CFR 204.5(h)(3)) state the documentary evidence that is to be submitted along with the petition. Such evidence shall include: (1) Evidence of a one-time achievement (that is a major, internationally recognized award) or (2) At least three of the following: (a) Evidence of receipt of a lesser nationally or internationally recognized prize or award for excellence in the field of endeavor; (b) Evidence of membership in associations which require outstanding achievements of their members, as judged by recognized experts; (c) Published material in professional or major trade publications or major media about the alien's work; (d) Evidence of participation on a panel, or individually, as a judge of the work of others in the field; (e) Evidence of original scientific, scholarly, artistic, or business-related contributions of major significance; (f) Evidence of authorship of scholarly articles in professional journals or other major media; (g) Evidence of the display of the alien's work in exhibitions or showcases; (h) Evidence that the alien has performed in a leading or critical role for organizations or establishments having a distinguished reputation; and (i) Evidence of high salary or high remuneration in relation to others in the field; or (j) Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk or video sales. b. If the above standards do not readily apply, the petitioner may submit comparable evidence to establish eligibility. N1.1-3 Labor Certification/Job Offer (TL:VISA-54; 2-28-92) Although no offer of employment (including a labor certification) is required, the alien must include with the petition convincing evidence that he or she is coming to continue work in the area of expertise. Evidence may include letter(s) from prospective employer(s), evidence of prearranged commitments, such as contracts, or a statement from the beneficiary detailing plans for continuing work in the United States. N1.2 Outstanding Professors and Researchers (TL:VISA-54; 2-28-92) An alien may qualify as a priority worker outstanding professor or researcher if the alien: (1) Is recognized internationally as outstanding in a specific academic area; (2) Has at least 3 years of experience in teaching or research in the academic area; and (3) Has the required offer of employment. [See N1.2-3 below.] N1.2-1 Evidence of Outstanding Achievement (TL:VISA-54; 2-28-92) The Immigration and Naturalization Service regulations (8 CFR 204.5(h)(3)) indicate the evidence required in submitting a petition for classification as an outstanding professor or researcher. Such evidence shall include evidence of international recognition as outstanding in the specific academic area. This evidence shall consist of at least two of the following: (1) Documentation of receipt of major international prizes or awards for outstanding achievement in the academic area; (2) Documentation of the alien's membership in associations in the academic field, which require outstanding achievements of their members; (3) Published material in professional publications written by others about the alien's work; (4) Evidence of participation on a panel, or individually, as the judge of the work of others in the same, or an allied, academic field; (5) Evidence of original scientific or scholarly research contributions; or (6) Evidence of authorship of scholarly books or articles (in scholarly journals with international circulation) in the academic field. N1.2-2 Labor Certification/Job Offer (TL:VISA-54; 2-28-92) Aliens coming to the United States as outstanding researchers or professors do not require labor certification. However, such aliens must have a letter from a(n): (1) U. S. university or institution of higher learning offering the alien a tenured or tenure-track teaching or research position in the academic field; or (2) Department, division, or institute of a private or non-profit employer offering the alien a comparable research position in the academic field. The department must demonstrate that it employs at least three persons full-time in research positions, and that it has achieved documented accomplishments in the academic field. N1.3 Certain Multinational Executives and Managers (TL:VISA-54;2-28-92) An alien may qualify as a priority worker multinational executive or manager if: (1) During the 3 year period preceding the time of the alien's application for classification and admission into the United States, the alien has been employed for at least 1 year by a firm or corporation or other legal entity or an affiliate or subsidiary thereof; and (2) The alien seeks to enter the United States in order to continue to render services to the same employer or to a subsidiary or affiliate thereof in a capacity that is managerial or executive. N1.3-1 Defining "Affiliate" (TL:VISA-54; 2-28-92) The term "affiliate" as used in this section means: (1) One of two subsidiaries both of which are owned and controlled by the same parent or individual. (2) One of two legal entities entirely owned and controlled by the same group of individuals, each individual owning and controlling approximately the same share or proportion of each entity; or (3) In the case of a partnership that is organized in the United States to provide accounting services, along with managerial and/or consulting services, and markets its accounting services under an internationally recognized name under an agreement with a worldwide coordinating organization that is owned and controlled by the member accounting firms, a partnership (or similar organization) that is organized outside the United States to provide accounting services shall be considered to be an affiliate of the U. S. partnership if it markets its accounting services under the same internationally recognized name under the agreement with the worldwide coordinating organization of which the U. S. partnership is also a member. N1.3-2 Defining "Doing Business" (TL:VISA-54; 2-28-92) "Doing business" means the regular, systematic, and continuous provision of goods and/or services by a firm, corporation, or other entity and does not include the mere presence of an agent or office. N1.3-3 Defining "Executive Capacity" (TL:VISA-54; 2-28-92) The term "executive capacity" as defined in INA 101(a)(44)(B) of the Immigration and Nationality Act, means an assignment within an organization in which the employee primarily: (1) Directs the management of the organization or a major component or function of the organization; (2) Establishes the goals and policies of the organization, component, or function; (3) Exercises wide latitude in discretionary decision-making; and (4) Receives only general supervision or direction from higher level executives, the board of directors, or stockholders of the organization. N1.3-4 Defining "Managerial Capacity" (TL:VISA-54; 2-28-92) a. "Managerial capacity" as defined in INA 101(a)(44)(A) means an assignment within an organization in which the employee primarily: (1) Manages the organization, or a department, subdivision, function, or component of the organization; (2) Supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function within the organization, or a department or subdivision of the organization; (3) If another employee or other employees are directly supervised, has the authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leave authorization) or, if no other employee is directly supervised, functions at a senior level within the organization hierarchy or with respect to the function managed; and (4) Exercises discretion over the day-to-day operations of the activity or function for which the employee has authority. b. A first-line supervisor is not considered to be acting in a managerial capacity merely by virtue of supervisory responsibilities unless the employees supervised are professional. N1.3-5 Defining "Multinational" (TL:VISA-54; 2-28-92) "Multinational" means that the qualifying entity, or its affiliate or subsidiary conducts business in two or more countries, one of which is the United States. N1.3-6 Defining "Subsidiary" (TL:VISA-54; 2-28-92) "Subsidiary" is defined as a firm, corporation, or other legal entity of which a parent owns, directly or indirectly, 50 percent of a 50-50 joint venture and has equal control and veto power over the entity; or owns, directly or indirectly, less than half of the entity, but in fact controls the entity. N1.3-6 Labor Certification/Job Offer (TL:VISA-54; 2-28-92) No labor certification is required for aliens in this classification. However, the prospective U.S. employer must furnish a job offer in the form of a statement which indicates that the alien will be employed in the United States in a managerial or executive capacity. The letter must clearly describe the duties to be performed. N2 Petitions (TL:VISA-54; 2-28-92) Aliens of extraordinary ability may file petitions with the Immigration and Naturalization Service on their own behalf. Other employer-sponsored immigrants must be beneficiaries of approved petitions filed by the employer. N3 Spouse and Children (TL:VISA-54; 2-28-92) The spouse, or the child of a marriage which existed at the time of the principal alien's admission into the United States, is entitled to derivative status and may accompany or follow to join the principal applicant. A spouse or child acquired subsequent to the principal alien's admission is not entitled to derivative status. -------------- ************** -------------- FAM09-42.32(b) SECOND PREFERENCE - PROFESSIONALS WITH ADVANCED DEGREES OR PERSONS OF EXCEPTIONAL ABILITY (1) Entitlement to Status (TL:VISA-48; 10-1-91) An alien shall be classifiable as an employment-based second preference immigrant under INA 203(b)(2) if the consular officer has received from INS a Petition for Immigrant Worker approved in accordance with INA 204 to accord the alien such preference status, or official notification of such an approval, and the consular officer is satisfied that the alien is within one of the classes described in INA 203(b)(2). (2) Entitlement to Derivative Status (TL:VISA-48; 10-1-91) Pursuant to INA 203(d), and whether or not named in the petition, the child or spouse of a employment-based second preference immigrant, if not otherwise entitled to an immigrant status and the immediate issuance of a visa, is entitled to a derivative status corresponding to the classification and priority date of the beneficiary of the petition. RELATED STATUTORY PROVISIONS INA 203(b), in part (TL:VISA-55; 3-13-92) (2) ALIENS WHO ARE MEMBERS OF THE PROFESSIONS HOLDING ADVANCED DEGREES OR ALIENS OF EXCEPTIONAL ABILITY.-- (A) IN GENERAL.--Visas shall be made available, in a number not to exceed 28.6 percent of such worldwide level, plus any visas not required for the classes specified in paragraph (1), to qualified immigrants who are members of the professions holding advanced degrees or their equivalent or who because of their exceptional ability in the sciences, arts, or business, will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States, and whose services in the sciences, arts, professions, or business are sought by an employer in the United States. (B) WAIVER OF JOB OFFER.--The Attorney General may, when he deems it to be in the national interest, waive the requirement of subparagraph (A) that an alien's services in the sciences, arts, professions, or business be sought by an employer in the United States. (C) DETERMINATION OF EXCEPTIONAL ABILITY.--In determining under subparagraph (A) whether an immigrant has exceptional ability, the possession of a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning or a license to practice or certification for a particular profession or occupation shall not by itself be considered sufficient evidence of such exceptional ability. (TL:VISA-48; 10-1-91) For the provisions of INA 203(d), see section 42.31 (Related Statutory Provisions). ---------------------------------------------------------------------- FAM09-42.32(b) - NOTES EMPLOYMENT-BASED SECOND PREFERENCE IMMIGRANTS N1 Professionals Holding Advanced Degrees (TL:VISA-54; 2-28-92) An alien may qualify as an employment-based second preference immigrant if the alien is a member of the professions holding an advanced degree or the equivalent. The alien must be the beneficiary of a petition approved by the Immigration and Naturalization Service. [See N4 below.] N1.1 Definitions N1.1-1 Defining "Advanced Degree" (TL:VISA-54; 2-28-92) "Advanced degree" means any U.S. academic or professional degree (or foreign equivalent degree) above that of baccalaureate. N1.1-2 Master's Degree Equivalent (TL:VISA-54; 2-28-92) The conference committee report (H.R. Rep. No. 101-955) states that a bachelor degree plus five years of progressive experience in the professions should be considered as the equivalent of a master's degree. N1.1-3 Doctorate Degree Equivalent (TL:VISA-54; 2-28-92) Although the Immigration and Naturalization Service (INS) will not evaluate the equivalence of education and experience to a doctorate, if a doctorate (or a foreign equivalent degree) is normally required by the specialty, the alien must possess such a degree. N1.1-4 Defining "Profession " (TL:VISA-54; 2-28-92) INA 101(a)(32) defines "profession" as including but not limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academies, or seminaries. INS regulations also include any occupation for which a U.S. baccalaureate degree (or foreign equivalent) is the minimum requirement for entry into the occupation. N1.2 Determining Professional Status (TL:VISA-54; 2-28-92) Evidence to establish an alien as a member of the professions holding an advanced degree should be in the form of the following: (1) An official academic record showing possession of an advanced degree (or foreign equivalent); or (2) An official academic record showing possession of a baccalaureate degree (or foreign equivalent) and a letter from current or former employer(s) showing at least five years of progressive post-baccalaureate experience in the specialty. N2 Aliens of Exceptional Ability (TL:VISA-54; 2-28-92) An alien may qualify as an employment based-second preference immigrant if the alien has exceptional ability in the sciences, arts, or business, which will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States, and the alien's services in the sciences, arts, or business are sought by an employer in the United States. N2.1 Determining Exceptional Ability (TL:VISA-54; 2-28-92) a. The possession of a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning; or a license to practice, or certification for a particular profession or occupation, shall not by itself be considered sufficient evidence of such exceptional ability. b. "Exceptional ability" has been defined as something more than what is usual, ordinary, or common, and requires some rare or unusual talent, or unique or extraordinary ability in a calling which, of itself, requires that talent or skill. Individuals must have attained a status in their field wherein contemporaries recognize exceptional ability. c. To establish evidence of exceptional ability, the petition must be accompanied by at least 3 of the following: (1) An official academic record showing a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability; (2) Letter(s) from current or former employer(s) showing evidence the alien has at least ten years of full-time experience in the occupation; (3) A license to practice the profession or certification for a particular profession or occupation; (4) Evidence that the alien has commanded a salary, or other remuneration for services, which demonstrates exceptional ability; (5) Evidence of membership in professional associations; or (6) Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations. d. If the above standards do not readily apply the petitioner may submit comparable evidence to establish the beneficiary's eligibility. N3 Labor Certification/Job Offer (TL:VISA-54; 2-28-92) a. Although a labor certification is required for the second preference category, the Attorney General may, when he deems it to be in the national interest, waive the requirement that an alien's services in the sciences, arts, or business be sought by an employer in the United States. b. The Department of Labor has stated that if there is no employer, there is no basis for issuing a labor certification. There may be, therefore, some valid petitions for employer-based second preference that do not have an underlying labor certification. N4 Petitions (TL:VISA-54; 2-28-92) Any U.S. employer may file a petition for classification of an alien under INA 203(b)(2) as an alien who is a member of the professions holding an advanced degree or an alien of exceptional ability in the sciences, arts, or business. If an alien is claiming exceptional ability and seeking an exemption from the job offer requirement under INA 203(b)(2)(B), then the alien, or anyone on the alien's behalf, may file the petition. N5 Spouse and Children (TL:VISA-54; 2-28-92) The spouse, or the child of a marriage which existed at the time of the principal alien's admission into the United States, is entitled to derivative status and may accompany or follow to join the principal applicant. A spouse or child acquired subsequent to the principal alien's admission is not entitled to derivative status. ------------------------------------------------------------------- FAM09-42.32(c) THIRD PREFERENCE - SKILLED WORKERS, PROFESSIONALS, OTHER WORKERS (1) Entitlement to Status (TL:VISA-48; 10-1-91) An alien shall be classifiable as an employment-based third preference immigrant under INA 203(b)(3) if the consular officer has received from INS a Petition for Immigrant Worker approved in accordance with INA 204 to accord the alien such preference status, or official notification of such an approval, and the consular officer is satisfied that the alien is within the class described in INA 203(b)(3). (2) Entitlement to Derivative Status (TL:VISA-48; 10-1-91) Pursuant to INA 203(d), and whether Q72:-If I apply now, where do I go to apply and how long will it be before I receive my new Green Card? Ans:-To replace their Green Card, holders of Form I-151 Alien Registration Receipt Card must apply in person and submit a completed Form I-90 along with a $75 filing fee to their local INS office. It will take from three months to ten months for an applicant to receive his/her new card. Individuals should contact their local INS office regarding specific filing procedures. Q73:-What if I cannot afford the application fee, or I am ill or disabled and cannot go to my local INS office? Ans:-Applicants who cannot afford the fee, or who are unable to appear in person because they are confined due to advanced age or physical disability, may contact their local INS office and request a waiver of these requirements. Q74:-Do I have an alternative to applying for a new Green Card? Ans:-Yes, there is a simple alternative to Green Card replacement for those who qualify or apply for citizenship. As a US citizen there is no need for a Green Card. Q75:-If I am about to apply for a new Green Card or if I have already applied for my replacement Green Card or for citizenship what can I use to maintain proof of permanent resident status until I receive my new Green Card or until I become a US citizen? Ans:-For applicants with a valid, unexpired passport: Applicants may bring their passport with evidence of filing for a new Green Card, or evidence of filing for naturalization, to their local INS office. A temporary Form I- 551 stamp, valid up to one year, will be placed in the passport. For applicants without a valid, unexpired passport: If there is a need for emergency travel, applicants may bring evidence of filing for a new Green Card, or evidence of filing for naturalization, to their local INS office and request a temporary Form I-551. If the request is clearly warranted because of an emergency, the temporary Form I-551 will be issued. These authorization documents allow the applicant to reenter the United States and obtain entitlement benefits until he/she receives a replacement card or becomes a naturalized citizen (if the applicant applied for citizenship instead of a new Green Card.) Q76:-After March 20, 1996, what will happen if I present an old Form I-151 Green Card when I try to reenter the United States after traveling abroad, or when I obtain a new job, or when I apply for entitlement benefits? Ans:-Reentry into the United States from abroad: To the extent possible, apply for your new card before you travel and bring with you evidence of your application for either the new card or naturalization. However, a legal permanent resident with an old I-151 who applies for admission to the United States after traveling abroad may experience a delay in admission due to additional procedures. Obtaining employment: If you are considering changing jobs, again, we urge you to apply for your new card or naturalization and bring with you evidence of your application for either the new card or naturalization. While employers will not accept the old I-151 , when they verify employment eligibility for new hires, you may use other documents listed on the Form I-9 (Employment Eligibility Verification Form) to fulfill this need. Applying for entitlement benefits: Your status as a legal permanent resident has not changed. Therefore, your eligibility for entitlement benefits will not change. However, to avoid any possible inconvenience or delay in applying for entitlement benefits, we urge you to apply for your new card or naturalization and bring with you evidence of your application for either the new card or naturalization. Q77:-GC Lottery ---------- Provide Info about the GC lottery Diversity Visa Lottery 1998 (DV-98) Ans:-[from Rajiv S. Khanna, rskhanna@immigration.com] The registration period for the next Diversity Visa Lottery (DV-98) will begin at noon on February 3, 1997 and will end at noon on March 5, 1997. Any entries received before or after these dates will be disqualified. Persons born in the following countries are not eligible for DV-98: Canada, China, including Mainland and Taiwan, Colombia, Dominican Republic, El Salvador, India, Jamaica, Mexico, Philippines, Poland, South Korea, Vietnam, and the United Kingdom and its dependent territories. (Persons born in Hong Kong and Northern Ireland are eligible to apply.) If you are in the United States, to receive written instructions on how to enter the visa lottery (DV-98), please call the U.S. Department of State's Visa Lottery Information Center at 1-900-884-8840 and leave your name and address. You will be charged a flat rate of $5.10 on your telephone bill (callers must be age 18 or older) and the information will be mailed to you within three business days. If you are overseas, please contact the nearest U.S. embassy or consulate for DV-98 instructions. CONSUMER ALERT Federal Trade Commission Bureau of Consumer Protection Office of Consumer and Business Education Green Card Lottery Scams Washington, D.C. -- If you or someone you know is trying to obtain a green card--the right to live permanently in the United States--be on the alert for unscrupulous businesses and attorneys who claim that, for a fee, they can increase your chances of winning the U. S. State Department's annual green card lottery. Each year the State Department conducts a green card lottery through its diversity visa program to distribute applications for 55,000 immigrant visas. Winners of the lottery have a chance to apply for an immigrant visa, which can be used to enter the U.S. Winners are selected randomly and there is no fee to enter the lottery. If the winner files a successful application, he or she can enter the U.S. and exchange the immigrant visa for a green card, issued by the Immigration and Naturalization Service (INS). If the winner is in the U.S. already, he or she can get a green card from INS without leaving the country. The Scam Some businesses and attorneys use misrepresentations and unfair practices to promote services to consumers who hope to win a chance to apply for a green card through the lottery program. Among the deceptions scam artists use are statements that: -- they are affiliated with the U.S. Government; -- special expertise or a special application form is required to enter the lottery; -- their company never has had a lottery entry rejected, and -- their company can increase an applicant's chances of "winning" the lottery. In addition, some fraudulent companies jeopardize an applicant's opportunity to participate in the lottery by filing multiple entries; and try to force lottery-winning applicants to pay substantial fees to complete the visa and green card application process. A delay in processing a winner's application can kill their chances for a green card because the State Department selects more winners than there are visas available. The State Department awards visas on a first-come, first-served basis. Protecting Yourself The best way to protect yourself from green card lottery scam artists is to understand how the State Department's lottery works. -- Entering the green card lottery is straightforward and costs nothing. You can enter on your own by following the instructions available from the State Department or your local consumer affairs office. There is no entry form. Hiring an attorney or company to enter the lottety for you is your decision. -- Do not submit more than one entry. If you do, you will be disqualified automatically. -- No special techniques or loopholes are available to increase your chances of winning the green card lottery. Selection of entries in the lottery is random. For more information about the State Department's green card lottery, contact the U.S. Department of State hotline at 900-884-8840. The cost of the call is $5.10. You also may access the State Department's website at http://travel.state.gov. If you think you are a victim of a green card lottery scam, contact the Federal Trade Commission's New York Regional Office at (212) 264-1207. Or, contact the National Fraud Information Center (NFIC), a project of the National Consumers League, at 1-800-876-7060, 9 a.m. - 5:30 p.m. EST, Monday - Friday, or at http://www.fraud.org on the Internet. Q78:-Do I have to replace my Green Card? Ans:-[From Rajiv S. Khanna, rskhanna@immigration.com] FACT SHEET FROM INS *********************** Green Card Replacement Program All old I-151 Cards Expire March 20, 1996 Permanent resident aliens with an old Form I-151 Green Card, issued before 1979, must obtain a new card, Form I-551 Alien Registration Receipt Card, to maintain evidence of resident status. The old Form I-151 will no longer be valid after March 20, 1996. The INS is urging those lawful permanent residents, who are in need of the new card and have not yet applied, to do so as soon as possible to avoid any possible confusion about their legal permanent resident status after March 20, 1996. Q79:-What supporting documentation must be submitted to demonstrate the national interest? Ans:-[From Muralidhar Rangaswamy, RANGASWAMY@zircon.plh.af.mil] Most of the successful petitions are documented by evidence such as a letter from an interested U.S. Government agency, evidence showing that the alien's work is funded by the U.S. Government and/or letters from distinguished scientists/ professors in the field attesting to the importance of the research. Cases involving defense related research or energy related research have the greatest success. Q80:-And, I had heard that there was a bill up for vote. Do you have any information on this? Ans:-[from Rajiv S. Khanna, rskhanna@immigration.com] The proposed special nonimmigrant "S" visas were never voted on in Congress. The bill is on the back burner. Q81:-What is the waiting period for such cases [2A category]? Ans:-[from Rajiv S. Khanna, rskhanna@immigration.com] As of October 1996 Approx. 4 years for India. Q82:-What are the various categories of "Preferences" ? Ans:-[From Allen E. Kaye, India Abroad] FAMILY SPONSORED PREFERENCES ----------------------------- First Preference : Unmarried sons and daughters of U.S. citizens. 2A exempt second preference : spouse and unmarried children of permanent residents - exempt from per-country limit. 2A subject second preference : spouses and unmarried children of permanent residents - subject to per-country limit. Legalization Beneficiaries - spouses and children (even though the marriage took place after the date the petitioner was admitted to the U.S. as a permanent resident. 2B second preference : Unmarried sons and daughters, 21 years of age or older, of permanent residents. Third Preference : married sons and daughters of U.S. Citizens. Fourth Preference : Brothers and sisters of adult U.S. citizens. EMPLOYMENT BASED PREFERENCES ---------------------------- First Preference : Priority workers. Second Preference : Professionals holding advanced degrees or persons of exceptional ability. Third Preference : Skilled workers and professionals. Third Preference : Other workers (unskilled workers). Fourth Preference : Certain special immigrants.. Fourth Preference : Certain religious ministers, professionals and other religious workers. Fifth Preference : Employment creation (investors). Fifth Preference : Employment creation (investors in targeted employment areas) Q83:-I have filed an application for change of status. I have a non-immigrant visa [e.g. H-1B] which will expire next week. Most likely I will not be called for my GC interview before next week. Should I file for an extension of my non-immigrant visa [e.g. extension of H-1B visa] ? Ans:-[from Rajiv S. Khanna, rskhanna@immigration.com] You should immediately obtain employment authorization. INS should expedite your request under these circumstances. Q84:-What are the recent INS proposals regarding the NIW? Ans:-[From Muralidhar Rangaswamy, RANGASWAMY@zircon.plh.af.mil] In an attempt to crack down on what it perceives as abuse of the NIW category, the INS proposed adding the following four conditions (in addition to the list of factors deemed to be in the national interest of the USA) to the regulations for this category. (1) The alien has at least two years of experience (not merely experience gained while studying at a University, College or institution of higher learning) in the field intended to be of benefit to the USA. (2) There is a genuine need for the skills/experience of the alien. In other words, the alien is not being hired to merely overcome labor shortage in a particular underserved geographical area (which is viewed by the INS as benefiting a smaller section of society). (3) The alien will play a leading or critical role in the activity/event intended to benefit the USA. (4) The prospective benefit to the USA on account of the alien's work must be substantial. Although (1)-(4) are merely proposals at this stage, it is advisable for applicants to include satisfactory evidence demonstrating that they meet these conditions. Q85:-Can I change employers before my GC interview if my I-140 is approved on the grounds of a national interest waiver (NIW)? Ans:-[From Muralidhar Rangaswamy, RANGASWAMY@zircon.plh.af.mil] If the basis of granting the NIW is the work done while being employed by a specific employer, then the alien worker must intend/continue to work for the employer at the time of the GC interview (in general). It may be possible in some cases to change employers provided the worker's job duties and responsibilities will be similar to those while employed with the previous employer and therefore, it is still in the national interest. In all other NIW cases, changing jobs before the GC interview has no consequence at all. Q86:-What is the time-frame to get a GC if the spouse is an U.S. citizen? Ans:-[from B.G. Mahesh, mahesh@mahesh.com] You will get a temporary green card as soon as you marry a US citizen. After 2 years that card will get a permanent GC [You have to prove/show to INS that the marriage is genuine]. Q87:-What form should I file to seek the national interest waiver of the job offer and labor certification requirements? Ans:-[From Muralidhar Rangaswamy, RANGASWAMY@zircon.plh.af.mil] You need to file the form I-140 (immigrant worker petition)and ETA-750 (part B) (special qualifications of the beneficiary) along with a check for the filing fee and the supporting documentation. Q88:-How are the national interest waiver cases adjudicated? Ans:-[From Muralidhar Rangaswamy, RANGASWAMY@zircon.plh.af.mil] Although the INS states that it will be flexible in determining who qualifies for the national interest waiver, it sometimes uses more stringent standards when deciding cases filed for people in the business and arts than for people in the sciences. Q89:-Which fields have the greatest chance of success for the NIW? Ans:-[from rskhanna@immigration.com] There is no such thing as the "greatest chance." It all depends upon the individual case. NIW's have been granted to acupuncturists, environmental scientists, artists, civil engineers, geologists, physicians, etc. etc. etc. Q90:-Please discuss the consequences, immediately after obtaining immigration (meaning within a day or two). Ans:-[from Rajiv S. Khanna, rskhanna@immigration.com] a. If the employee voluntarily quits/leaves the employer. You may have a problem. b. If the employer fires the employee for performance related reasons. You may have a problem. c. If the employer fires the employee because of the personality problems. You may have a problem. d. If the employer lays-off the employee for economic reasons (lack of adequate business or resources). You may have a problem. Q91:-What are the conditions that need to be satisfied to be in the national interest? Ans:-[From Muralidhar Rangaswamy, RANGASWAMY@zircon.plh.af.mil] [Modified by Rajiv S. Khanna, rskhanna@immigration.com] There is no formal definition of what constitutes "national interest". However INS decisions have established a list of the following seven factors that may be deemed to be in the national interest in the USA. (1) Improving the U.S. economy. (2) Improving the wages and working conditions of U.S. workers. (3) Improving the education and training programs for U.S. children and underqualified workers. (4) Improving health care. (5) Providing more affordable housing for young and/or older, poorer U.S. residents. (6) Improving the environment. (7) Obtaining a request from an interested U.S. Government agency. Q92:-Can citizenship once granted be revoked? Ans:-[From Muralidhar Rangaswamy, RANGASWAMY@zircon.plh.af.mil] You bet. Q93:-What is the national interest waiver (NIW)? Ans:-[From Muralidhar Rangaswamy, RANGASWAMY@zircon.plh.af.mil] A person may qualify for the waiver of the labor certification and job offer requirement if they can show that their work will be in the national interest of the USA. This benefit is popularly called the national interest waiver. Q94:-Summary of Green Card Interview in Newark, New Jersey Ans:-[From Sriraman Kannan, sriraman@alumina.rutgers.edu] Here is a short summary of my Green Card interview experience at Newark. On the day of the interview, we went in about 20 minutes before the appointed time and handed our interview call letter to the reception counter. We were called in about an hour after the scheduled time. The INS officer took our fingerprints and signature. He asked for my employment letter (I had taken a more recent one along with that submitted with the I485 application). He also took the affidavit of support for my wife. Here is the important part : along with our application we had submitted our birth certs. (which you may realize read unnamed, since that was the way things were done in India, the registration took place prior to the naming ceremony). I had however submitted an affidavit by an elderly person swearing that the child referred to in the BC was subsequently renamed as ....(yours truly). During our appointment however, the INS officer asked for an affidavit from a second person. Luckily, we had taken affidavits from two others and that was more than adequate. That was it - our passports were stamped and we were told our cards should arrive in 6 weeks - 2 months. Since we were moving apartments, we gave the officer our new address. Q95:-If your dependents cannot join you for some reason, can you still get the GC just for yourself - and apply for the GC of your dependents later on (even if your original petition has included your dependents). How long will the latter process take? Ans:-[From Rajiv S. Khanna, rskhanna@immigration.com] Later petition is no problem. But they will,have to wait (may be even several years) like all ordinary relative petition beneficiaries. You, however, can adjust your status while they join you in 2-8 months if you undertake the process known as "following to join." Q96:-Who files the petition in a national interest waiver case? Ans:-[From Muralidhar Rangaswamy, RANGASWAMY@zircon.plh.af.mil] The petition can be filed either by the alien worker themselves, their employer or anyone acting as a representative for the alien. Q97:-Do I need to be a permanent resident to get Social Security benefits? Ans:-[From Nick Jacobs, njacobs@access.digex.net] You do not have to be a permanent resident (or any kind of resident) to get a Social Security retirement benefit. It can be paid to a person living outside the US who does not have any kind of US visa. The requirement is to have paid a certain amount of Social Security tax, in the US, for at least 10 years. Of course it is difficult to work legally in the US for as much as 10 years without getting a green card. But it is possible, and also a person who maintains PR for 10 years, then leaves the US and abandons PR status, is eligible for a Social Security retirement benefit. Q98:-How does an individual qualify for the national interest waiver? Ans:-[From Muralidhar Rangaswamy, RANGASWAMY@zircon.plh.af.mil] A person qualifies for this benefit if he falls within the second preference employment based category, namely a person in the professions who either holds an advanced degree or is considered possessing exceptional ability in the sciences, business or arts. Q99:-Does a parent (green card holder) who has filed for a green card for his/her unmarried child who is under 21 years of age, have to file another petition if the child turns 21 while waiting for the green card? Ans:-[from Suresh, sur@hrojr.hr.att.com] NO, the petition is automatically moved from category 2A (unmarried children under the age of 21) to category 2B (unmarried children over the age of 21--I'm not sure if this category includes married children also). The 2B category moves much slower than 2A. Q100:-How do I maintain my Green Card if I am traveling abroad for an extended period of time. Ans:-[from Rajiv S. Khanna, rskhanna@immigration.com] Before I answer that question, let me strongly recommend, in view of the seriousness of issues involved, pleases consult competent counsel regarding the specific facts of your case. Overall, the answer is exceedingly complicated. As a preliminary matter, please note that a permanent resident alien has no statutory or other legal guarantee that assures him a right to return if he is outside the United States. If he leaves this country, even on a brief and temporary mission, he may be unable to return unless he complies with the requirements of the immigration laws. Since 1924, the immigration laws have provided for the issuance of reentry permits to permanent residents of the United States who wished to make temporary visits to foreign countries. The reentry permit is one of the acceptable documents that may be presented by aliens seeking to enter the United States. Nevertheless, please note, a reentry permit does not infallibly assure entry into the United States. At most, it is prima facie evidence of the bearer's lawful status. The reentry permit is equivalent to a visa and thus relieves its rightful holder from other documentary requirements. The permit shows that the alien is returning from a temporary visit abroad. But the statue emphasizes that the reentry permit has no other effect under the immigration laws. The basic prerequisite for obtaining a reentry permit is that the applicant prove that he has been lawfully admitted to the United States for permanent residence. It must appear that he has not abandoned his residence in the United States. He must establish also that his application is made in good faith in connection with a temporary visit abroad. The regulations provide that the reentry permit be issued for a two-year period and not be renewable. The two-year period runs from the date the permit is issued and not from the date of the application. During the period of its validity the permit can be used for any number of reentries. Moreover, the reentry permit will be deemed unexpired if its holder departs on a continuous trip to the United States before its expiration. The permit must be surrendered to the INS when its validity expires. In order for you to maintain your permanent resident status, it is required that your absence abroad must be temporary. The inquiry revolves around whether an alien intended to retain his permanent residence status by returning to the United States "within a relatively short period of time." The term "temporary" will vary with the facts and circumstances of each case; the intention of the alien, when it can be ascertained, will control. Moreover, the intention at the time of departure must be to return within a relatively short period, fixed by some early event. Among the factors ordinarily considered in determining whether the absence was temporary are the duration of absence, the location of the alien's family ties, property holdings, and job, and his intention with respect to the location of his actual home. The government is under no obligation to inform him that his absence will terminate residence. Although the length of the alien's absence is not the only factor, a lengthy absence coupled with establishment of ties abroad may establish abandonment of resident status. Another factor that may be considered is whether the traveler had a definite reason for proceeding abroad temporarily. A lengthy absence may, in certain circumstances, be satisfactorily explained. Thus, where an alien's absence abroad was due to his employment by an American company and he maintained ties in the United States, and where his application to preserve residence continuity for naturalization purposes had been approved, the alien's lawful permanent residence status was not lost. Moreover, loss of naturalized United States citizenship by voting in a Mexican election during a visit there did not, by itself, terminate status as a lawful permanent resident of the United States. Some of the factors that have been examined in various decided cases in this area are: A. Length of residence in the U.S. since becoming a permanent resident - generally, the longer you have resided in the U.S., the stronger your case; B. ownership of real estate in the U.S.; C. whether or not U.S. income tax returns have been filed during the time of absence. In this regard, please note, YOU MUST NOT FILE INCOME TAX RETURNS AS A NON-RESIDENT. Please consult with a CPA or tax professional as to what other options exist. D. How many prior reentry permits have been granted to the alien; I recommend the following specific measures in addition to the material provided above: A. If you own real estate in the U..S. - do not sell it prior to departure; B. Maintain your main savings account in the U.S. C. Continue to maintain your drivers license and all credit cards D. Pay U.S. taxes as a resident E. Maintain correspondence with all your friends and family in the U.S. F. Keep all your telephone bills showing various calls to the U.S. This list is not meant to be exhaustive. The rule of common sense prevails. Q101:-What are the current requirements of your stay in US to be able to retain the Green Card. Ans:-[from Rajiv S. Khanna, rskhanna@immigration.com] There is NO guaranteed way a person can retain their green card, unless their permanent residence is IN FACT in the U.S. It is erroneous to think that so long as you keep visiting U.S. every year, you may retain the GC. Absolutely not true. As a matter of practice, INS may not catch you, but they can place you in exclusion proceedings (sort of the first step in canceling a GC when a GC holder is trying to enter the U.S.) when they do suspect that you are actually not living in the U.S. If a GC holder is planning to be away from U.S. for an extended period of time, it is best to seek permission from the INS in the form of "Reentry Permit" (Form I-131). Even this does not "Guarantee" retention of a GC, but it may be the safest thing under most circumstances. Because losing a green card is a serious matter, I strongly advise that you seek the guidance of competent counsel for you individual case. Q102:-Why should I become a U.S. citizen? Ans:-[From Allen E. Kaye, India Abroad, October 21, 1994] If you are a U.S. citizen, you will be able to, o get green cards for your spouse and unmarried children without a long wait o get green cards for your parents, your married children, and your brothers and sisters o vote o get a U.S. passport o work for the U.S. government or in the other jobs that are closed to non-citizens Also, a citizen can't be deported or kept out of the U.S. Q103:-Is it safe to get public benefits? Ans:-[From Allen E. Kaye, India Abroad, October 21, 1994] If you or your family members get public benefit, it will not affect your ability to become a citizen. But before you travel, remember - if you depend on public benefits, INS can keep you from reentering the United States. Also, your family members who get permission to stay under the "family unity" program will have to show that they do not depend on public benefits when they go to get their green card. Q104:-If I am a permanent resident, can I get public benefits? Ans:-[From Allen E. Kaye, India Abroad, October 21, 1994] You can get many public benefits. These include, o most forms of Medicaid o food stamps (if you have amnesty as a farm worker) o unemployment benefits o Supplemental Security Income (SSI) if you are 65 or over, blind, or disabled o Social Security retirement or disability o help with housing costs o most federal scholarships and student loans o county general assistance However, there are some benefits you cannot get for five years after you filed your first amnesty application. These are, o food stamps (if you have amnesty because you came to United States before Jan. 1, 1982) o welfare (AFDC) Your family members who are U.S. citizens are eligible for all forms of public benefits. Q105:-Do I have other responsibilities? Ans:-[From Allen E. Kaye, India Abroad, October 21, 1994] Yes. Be sure to, o pay taxes you owe o report any change of address to INS within 10 days o have your children who are permanent residents register within INS within 10 days of turning 14 Q106:-Can I travel abroad? Ans:-[From Allen E. Kaye, India Abroad, October 21, 1994] Yes. You can travel outside the United States. When you travel, you must, o take your green card to show INS when you come back o keep a record of the dates each time you leave and come back o always reenter legally (use the border checkpoint) Q107:-What are the benefits/restrictions of a U.S. Permanent Resident? Ans:-[from Alberto Molina, alberto@cybernet.cse.fau.edu] - Ability to leave/enter the U.S. at will without the risk of being denied entry by an Immigration official at the port of entry. - Right to apply for government-sponsored financial aid for education. - Permission to work in any company located in U.S. territory regardless of job function, hours/week, etc. except for some companies that only hire U.S. citizens. - Permission to start own business and create own corporation. - To keep PR, the person must reside in the U.S. for a minimum number of days per year (does anybody know what's the limit?) - Permanent residents can get into welfare if unable to get a job. - Permanent residents can sponsor spouse and unmarried children to obtain PR status. - Permanent residency can be revoked if the permanent resident gets involved in illegal activities. An example is a case that was discussed in this newsgroup where a permanent resident was deported for drug use. - Permanent residents cannot vote. - Permanent residents get Social Security benefits when they retire. [see the next section regarding SS benefits] Q108:-After getting stamped in the passport for employment based immigration, how long is an employee required to work with the employer that sponsored the employee for immigration. Ans:-[from Rajiv S. Khanna, rskhanna@immigration.com] There is NO prescribed time limit. There are a couple of considerations that must be borne in mind. The basis for getting a GC are that you took up a "permanent" position. If you leave too soon, INS may claim that you did not intend to take the job up on a "permanent" basis. "Permanent" does not mean forever. But it also does not mean that you may leave the day after you get the green card. Unfortunately, there are no bright line tests in this area. (Answered 06/24/94 -- Please leave the date in, so people know how recent the answer is.) It is imperative that you seek the opinion of competent counsel in this regards. Q109:-What does "current" mean? Ans:-[from Rajiv S. Khanna, rskhanna@immigration.com] "Current" means there is no waiting involved. All people qualified for the category in question can immediately apply for adjustment of status (if within U.S.) or an immigrant visa (if outside the U.S.). Q110:-Do I have to register with Selective Service? Ans:-[From Allen E. Kaye, India Abroad, October 21, 1994] If you are a male over 17 but under 26, you must register with the Selective Service. If you do not register, you may be subject to criminal prosecution. If convicted, you could be deported. Q111:-Can GC holders sponsor for their parents GC? Ans:-[from Rajiv S. Khanna, rskhanna@immigration.com] US GC holder can *only* sponsor his/her spouse and unmarried children. Q112:-If I gained lawful permanent resident status (LPR) through a previous marriage, can I petition for my current spouse to immigrate to the US based on my LPR?" Ans:-[From Brandon Nutter, bnutter@silver.ucs.indiana.edu] You may NOT file an I-130 (Petition for Alien Relative) for E. A husband or wife if you gained lawful permanent resident status by virtue of a prior marriage to a United States citizen or lawful permanent resident unless: 1) a period of five years has elapsed since you became a lawful permanent resident; OR 2) you can establish by clear and convincing evidence that the prior marriage (through which you gained your immigrant status) was not entered into for the purpose of evading any provision of the immigration laws; OR 3) your prior marriage (through which you gained your immigrant status) was terminated by the death of your former spouse. ----------------------------------------------------------------- Law Offices of Rajiv S. Khanna 3440 N. Fairfax Drive, Suite D, Arlington, VA 22201 2120 L Sreet, N.W., Suite 210, Washington, D.C. 20037 Voice: (703) 908-4800 Xtn 110 rskhanna@immigration.com OR rskhanna@businesslaw.com