Saturday, 18 February 2012

Immigration (USA)

United States (H1B Visa)

The H1B visa (or simply called H1 Visa) is a non-immigrant employment based visa for workers coming to the USA to perform a "specialty occupation." Workers from Mexico and Canada can get a special TN status under the NAFTA treaty. The H1B status allows foreign workers to work in the USA for a maximum of six years. It is granted for three years and can only be renewed once for an additional three years. The Information Technology industry uses this type of visa frequently to fill vacant positions. Many H1B applicants are engineers or computer programmers. Quotas are set every year for the H1B visa by the government.

INS will not approve an application you submit because you must have an offer from an employer and the employer must file the petition on your behalf. An employer can be an individual, partnership, or corporation. Applications are "job specific." If your situation changes (for example, you lose your job or change locations), you must file a new H1B visa petition. The visa is only valid for work with the employer that filed the original petition.
In order to qualify for this type of visa, you must have a four-year college degree or the equivalent education and experience. Your employer does not have to prove that there are no available U.S. workers for this position. However, the job offered must require a four-year degree. You will be denied an H1B visa if you have a four-year degree but the job does not require one.
Also, you must prove that your education is equivalent to the minimum requirements of a U.S. bachelor's degree. Sometimes work experience can be substituted for part of a degree. There are organizations that specialize in certifying your credentials for a fee. For example, if your actual education amounts to only two years of college, but you have three years of work experience, the evaluator may determine that your education and experience add up to a four-year bachelor's degree.
Spouses and children under the age of 21 may be eligible to come to the U.S. for the duration of the H1B's authorized stay and will be granted H-4 visas. The H-4 will not allow them to work. Dependents under the age of 21 are allowed to attend college and school.
There are several steps in obtaining an H-1 B Visa:
Prospective employers must obtain a Labor Condition Application (LCA) and have it certified by the U.S. Department of Labor before the H1B petition can be filed.
The prevailing wage and actual wage must be determined and compared. The employer is required to pay the higher of the two. The prevailing wage is determined by the State Employment Security Agency by completing a special form, which asks the employer for the responsibilities, skills and experience needed for the job. The actual wage is determined by comparing other workers in the same positions with the same level of experience.
Once the prevailing wage has been determined, then the LCA can be submitted. This is a two-page form that contains information about the employer. By completing and signing the form, the employer is agreeing to pay the higher of the two wages, that the employment of this individual will not adversely affect the conditions of other workers and that there is no strike for their occupation at the workplace. Recently, Congress determined that employers must attest that they will offer H1B visa holders the same benefits as their other workers. This includes health, life, medical, retirement, stock options and bonuses.
The form is then mailed or faxed to the Department of Labor and they return a certified copy to the employer.
The employer must post notices at two conspicuous places at their business of the H1B filing for ten days or provide notice of the filing to the collective bargaining representative for their employees. The LCA form can be used for the actual posting as well.
After the Department of Labor accepts the LCA, then the employer can file your H1B petition. If you are out of the country, the INS will send notification of your approval to the U.S. consulate in your country and you can apply there using the I-129 form. Be sure to provide supporting documents in your petition such as the accepted LCA, educational transcripts, or a letter from employer describing the position and licenses. The employer must include the fee for the petition.
Processing times vary depending upon service center and the visa. It could be up to a three to four month wait. If the employer can show a substantial need for the employee, INS might approve the petition sooner. However, employment cannot begin until INS has issued the appropriate visa.
If the employee is terminated, the employer is responsible for the employee's return trip home.

United States (H4 Visa)

Spouse and unmarried children under age of 21 of an H1B visa holder are eligible for an H4 visa. A person on an H4 status is not allowed to work unless and until the person gets a Change of Status from the INS from H4 to H1B status. Currently INS is not issuing Social Security Number (SSN) to H4 visa holders.

H4 holders can get a Driver's license, open a Bank account, or even go to college. Children on H4 visas do not need a separate visa to attend school.

It is possible to convert H4 to "F1" if one wishes to attend full-time course work. This means, a minimum of twelve (12) credits per semester in an educational institution recognized by the INS.
Another option for those interested in continuing their education, is to attend community colleges. This way, one does not have to change visa status. These colleges only award the equivalent of a Diploma, instead of a Degree, but they often the serve the purpose at a lesser cost.
It is certainly possible to convert H4 to H1, if one can provide proof, that he / he is qualified, has had prior experience in his/her field of expertise, and have a job offer from a company in the United States.

United States (Going From F1 to H1 to Green Card)

If you are international student in the USA on an F-1 visa, then you have an excellent opportunity to eventually become a permanent resident of the USA. Students come to the USA either on an F-1 or J-1 visa. The J-1 has one advantage over the F-1: it allows the J-1 holder's spouse, who would receive a J-2, to work in the USA while their spouse is studying. But after their education or training, J-1 and J-2 holders have to return to their native countries for at least two years before they can re-enter the country to work. For most individuals from the Third World, this condition usually means that you may never have another opportunity to settle in the USA. But the F-1 has no such restrictions. F-1 visa holders can apply for jobs and use the jobs to get their permanent residence, also known as the green cards.

International students planning to stay back must remember a few things that will help make their progress from an F-1 to an H-1B and then onto the green card smooth and uneventful.

It is always easier if one has at least a master's degree. Unless you arein a high demand area like nursing or information technology, a bachelor's degree is usually inadequate. The labor department, which gives the permission to hire foreign workers, finds it hard to believe that anyone with just a bachelor's degree has such unique skills that there are no Americans who can do that job. In information technology, it is generallyunderstood that skilled workers are unavailable, so even a bachelor's degree will do, but not in other areas.

Never violate your status. As an F-1, you are required to be a full-time student in every semester, which is at least nine credits for graduate students and 12 credits for undergraduate students. When your course work is completed and you are writing your thesis, make sure that you register for that so that your status remains intact. You do not have to register during the summer semesters. Also remember that as an international student you can work only on campus and only for 20 hours a week. If you break these laws you will be out of status. If by any chance you have violated your status, but you still have a valid multiple entry F-1 Visa, then you can restore it by making a short trip overseas ? the Bahamas, Mexico and Canada are all close by ? and then re-enter the USA. While on the subject, it is good to know that F-1 visas are only entry documents. Even if your visa has expired, you can continue to stay in the USA and study, legally, until the validity date on your I-20.
Do not waste your practical training period. All F-1 students are allowed to work off-campus for one year if in the preceding year they have maintained their status as F-1 students. Many students are tempted to avail this privilege in order to make money. It can prove to be a disaster if you do not land a job as soon as you graduate, and you have already used up your practical training period. You will either have to go back or violate your status. Sometimes, even when you get a job on time and your lawyer applies for your F-1 on time, delays at INS , which aren't that infrequent, can abruptly disrupt your life plans. At this time, your practical training period can come in handy. You can start work on your training work permit and not worry about waiting on the INS.
An H-1B is a provision created by the Congress to enable foreigner workers to come to the USA temporarily and help American organizations and business meet a shortfall in expert help. Globalization and the high-tech boom in the USA has created a demand for skilled workers that far outstrips local supply. The amount of H-1B visas available each year varies. In the year 2000-2001, there are 107,000 H-1B visas available. There is a proposal to raise it to 195,000, but that depends on who is elected president. Democrats usually favor immigration, but that might change since globalization is now hurting labor even in the First World. Remember the riots in Seattle and Switzerland against the World Trade Organization?
You can get H-1B sponsorship from two kinds of employers: labor consultants and companies. Some labor consultants hire people whom they can contract to other firms. For example, a company may hire you for $35,000 a year, acquire your H-1B and then subcontract you to some other company at $50 an hour. The company will make about $96,000 by contracting you and profit nearly $61,000. Some candidates who are in a hurry to get a job join such firms. But always remember these firms never sponsor people for green cards. Even larger firms that you could work for directly do not sponsor their employees for green cards. Which means they will use you for six years ? the maximum period available for an H-1B employee ? and then discontinue you. You will have no option but to go out of the USA and won't be able to return for two years. So before you say "I do," make sure that the company you are joining is willing to sponsor your green card. You can join any firm and start looking for another job that will sponsor you. It may entail working in less glamorous places and for lesser wages, but if you want a longer stay in the USA be prepared to pay the price.
You can be on an H-1B for six years, and it takes the entire green card process about three years. You have to be with the same employer during that period. If you switch jobs, you have to restart the entire process.I do not recommend this no matter how much extra the new firm pays. For this entire odyssey you need patience, steadfastness, a good lawyer and about $5,000. The F-1 to H-1B usually costs between $1,500 and $2,000, and the H-1 to green card will cost between $2,500 and $3,500. Remember to hire an immigration attorney. Feel free to interview them and check their past history. Offices in a downtown area are usually good indicators of success, but probably also means higher fees. Do not, under any circumstances, allow ethnicity or back-home connections to influence your choice of attorney. Nothing can be more foolish.
The process sounds tedious, time- and money-consuming and full of legal hurdles. But believe me, it is worth it. The USA is a great country, full of opportunity and freedom. It is a prize worth working hard for.

United States (Employment)

To qualify for permanent resident status in any sub-category of this classification, the alien is required to have employer sponsorship and Labor Certification, or documentation to prove that the alien qualifies for one of the shortage occupation the Department of Labor has identified on a list known as "Schedule A." Schedule A occupations include physical therapists, professional nurses, physicians or surgeons, college or university teachers, aliens of exceptional ability in the sciences or arts (except performing arts), certain religious occupations, and intra company transferees in managerial or executive positions. Certain provisions of the Immigration Act of 1990 directed the Department of Labor to conduct a Labor Market Information Pilot Program to identify additional occupations for which there is a shortage of labor within the United States. Aliens in those occupations, then will be able to apply for permanent resident status under this classification must be filed by the employer on behalf of the alien.

A "skilled worker" means an alien who, at the time the petition is submitted, is qualified and capable of performing a job that requires at least two years of training or experience for which no U.S. workers are available. The job must not b of a seasonal or temporary nature. In some instances, an alien with less than two years experience may be eligible for permanent resident status under this classification if relevant post-secondary education may be considered as training.

The skilled worker's petition must be accompanied by evidence that the alien meets the educational, training, or experience, and any other requirements set forth in the approved Labor Certification application. The evidence may be in the form of letters from trainers, or previous or current employers. The letter must contain the name, address, and title of the trainer or employers, and a detailed description of the training received or the experience of the alien. If the alien seeks status under the provisions of Schedule A, or under DOL's Labor Information Pilot Program, a fully executed uncertified Form ETA-750 must accompany the I-140 Petition.
A "professional" means an alien who holds at least a U.S. baccalaureate degree or a foreign equivalent degree, and who is a member of the professions. The petition must be accompanied by an official college or university record showing the date the baccalaureate degree was awarded, and the area of concentration of study. To show that the alien is a member of the professions, the employer must submit evidence showing that the minimum of a baccalaureate degree is required for entry into the occupation .
"Other workers" are those who, at the time the petition is filed, are capable of performing unskilled labor, or labor that requires less than two years training or experience, for which U.S. workers are not available. The employment must not be of a temporary or seasonal nature. An I-140 petition for an unskilled worker must be accompanied by evidence that the alien meets any educational, training, or experience requirement of the approved Labor Certification application.

United States (USA Lottery)

Green Card - Family Petitions
A person who marries a citizen can qualify for immigration in this category. The marriage must not be a "sham," of course that is, one entered into in order to obtain an immigration benefit. The marriage must be legally entered into that is, both parties were free to marry, all prior divorces were legal, and the marriage formalities themselves are recognized as legal in the jurisdiction where the marriage occurred. The marriage must still legally exist the parties cannot be divorced or legally separated. But the marriage need not be viable even if the parties are separated, if they have not entered into a legal separation agreement or gotten divorced they still have a valid relationship for immigration purposes.

The spouse of a citizen whose marriage was created within two years prior to being granted permanent residence is granted residence on a conditional basis. He or she is a full permanent resident in all respects eligibility for employment, ability to travel freely in and out of the United States, accumulation of time toward compliance with residence and physical presence requirements for naturalization as a U.S. citizen but that residence is subject to termination within two years after it is granted if the marriage has terminated by divorce or annulment during that period, or the marriage turns out to be sham.
Battered Spouses of U.S. Citizen
Battered spouses of citizens may also file their own immediate relative petitions. To qualify, the alien spouse must be a person of "good moral character," must have entered the marriage in good faith, must have resided in the United States with the citizen spouse, and must have been battered or subjected to "extreme cruelty" by the citizen spouse. Any credible evidence submitted with the spousal petition with regard to the treatment of the alien spouse will be considered by the INS. The law provides identical benefits to battered children of a U.S. citizen. The self-petitioning procedure for battered spouses was enacted in 1994 as part of the Violent Crime Control and Law Enforcement Act of 1994.
Widowers of U.S. Citizen
Spouses of deceased citizens qualify as immediate relatives for whom immigration may be sought under some circumstances. In order to qualify, the alien must have been the spouse of the deceased citizen for at least two years and must not have been legally separated at the time of the citizen's death. The alien spouse must file an immediate relative immigrant visa petition within two years after the date of death and must still be unmarried at that time. Alien spouses seeking residence on this basis must use a different form than other family-sponsored immigrants, Form I-360, which they can file themselves. The unmarried minor children of the alien spouse may be included in the petition as well, under a provision of the technical corrections bill passed by Congress in October 1994.
Parents of U.S. Citizen
Parents of U.S. citizens are eligible to immigrate as immediate relatives, but only if the citizen is 21 years of age or older. The citizen must be able to qualify as a child of the parent according to the rules just outlined, except of course that the citizen must be over the age of 21 and can be married. To determine whether a parent qualifies for immigration, then, it is essential to look at the parent-child relationship in the same way as you would if you were determining whether a child would qualify.
Spouses and Unmarried Sons and Daughters of Permanent Resident Aliens
The second family-sponsored preference is set aside for two groups: preference 2A includes spouses and children the immediate family members of permanent residents, and preference 2B includes the rest of the current second preference category, unmarried adult sons and daughters of residents. The entire preference category is allotted a minimum of 114,200 annual visas. Any visas unused by the first family-sponsored preference will go to the second family-sponsored preference. 77% of the annual visas goes to the 2A sub-preference and the other 23% goes to the 2B sub-preference. There is a waiting list for visas to immigrate in this category, regardless of the alien's country. The rules for determining who is a spouse are the same as those set forth for citizenship petitions. The sons and daughters of residents must either presently qualify as "children" as that term is strictly defined in the immigration law, or have qualified as children when they were under 21 years of age. The immediate family members of qualifying aliens can also immigrate with them in the second preference category. Example: The child of a formerly married but presently unmarried son or daughter of a resident can immigrate with the son or daughter. NOTE: Spouses of permanent residents whose marriage was created within two years prior to the grant of permanent residence are given residence on a conditional basis. Residence can be terminated up to two years after it was conferred if the marriage has ended in divorce or annulment or it turns out that it was a sham marriage entered into for immigration purposes.

United States (USA Student Visa)

Before you can come to the United States as a student, you must be accepted to a school and prove that you have sufficient financial resources (scholarships, loans, family or personal resources) to pay your school and living expenses. For information on sources of financial aid, on applying to schools, and on organizations in your country that can assist you, see the area of our website called Study in the U.S.

There are two nonimmigrant visa categories for persons wishing to study in the United States (a nonimmigrant is someone admitted to the U.S. temporarily):
"F" visa includes academic students in colleges, universities, seminaries, conservatories, academic high schools, other academic institutions, and in language training.

"M" visa is for people wishing to pursue nonacademic or vocational studies.
Am I Eligible?
To be eligible to apply for the F or M visas, you must intend to stay for a temporary period of time and have proof of compelling ties (social, family, economic, professional or other) to a residence outside the United States to which you will return after the visit. You must also meet the following criteria:
Scholastic Preparation
You must have successfully completed a course of study normally required for enrollment. Unless you are coming to participate exclusively in an English language training program, you must either be sufficiently proficient in English to pursue the intended course of study, or the school must have made special arrangements for English language courses or teach the course in your native language.
Financial Resources
You must prove that sufficient funds are, or will be, available from an identified and reliable financial source to defray all living and school expenses during the period of your study in the U.S. Specifically, you must prove that you have enough readily available funds to meet all expenses for the first year of study, and that adequate funds will be available for each subsequent year of study. If you are applying for an M-1 visa, you must have evidence that sufficient funds are immediately available to pay all tuition and living costs for the entire period of your intended stay.
Acceptance
You must be accepted as a full-time student in a U.S. academic educational program, language-training program, or vocational program. The school must be approved by the Immigration and Naturalization Service (INS), and the school must send you a Form I-20 (which it receives from the INS).

 






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