5 Surprising Facts About Marriage-Based Green Cards

Tailwind Immigration Law has been fortunate to advise a number of U.S. citizens in their efforts to bring their spouses to the United States.

The following facts about the marriage-based green card process often surprise U.S. citizens preparing for a green card application:

It’s a long process.

When the green card was first introduced in the 1940s, immigrants simply registered their presence by visiting any U.S. post office.

With the advent of FBI background checks, and the increasing backlogs at government processing centers, it is now commonplace for a green card application to take 1-2 years, or even longer.

These timelines vary depending on the time it takes an applicant to prepare their application materials, the service center that processes the application, any requests for additional evidence made by the U.S. government, and other factors.

Work and travel authorization can make the wait more manageable.

If the green card application is filed while the foreign spouse is lawfully in the United States, the foreign spouse may file applications for work and travel authorization at the same time as their green card application.

Currently, USCIS is processing these work and travel applications in approximately 6-8 months, although these processing times are subject to change.

Please note that work and travel authorizations are not available to applicants who apply for green cards from outside the United States. Additionally, USCIS will deny an application for travel authorization if the applicant leaves the United States while the application is pending.

A green card holder may work for any U.S. employer.

Once a person is approved for a green card, they are eligible to work for any U.S. employer. A green card is much less restrictive than an employment-based visa, allowing a spouse on a green card to pursue a broad range of employment opportunities.

The U.S. spouse must be domiciled in the United States.

At or before the time of the foreign spouse’s entry to the United States as a permanent resident, the U.S. citizen spouse must be domiciled in the United States. This means that the U.S. citizen spouse must consider the U.S. to be their permanent home.

Generally, an immigration officer will require evidence of the U.S. citizen spouse’s U.S. domicile, which may include evidence of a job offer in the United States, of a home owned or leased in the United States, of enrolling children in schools in the United States, and other evidence.

A U.S. citizen spouse living as an expatriate will generally not be successful in applying for a green card for their foreign spouse unless they plan to establish a U.S. domicile no later than the time their spouse enters the United States as a permanent resident.

A green card holder can accidentally abandon their green card.

Once a person receives a green card, they should be very careful not to accidentally abandon their green card by spending too much time outside the United States.

If a green card holder has spent a year or longer outside the U.S., the green card becomes invalid for re-entry to the United States.

If a green card holder has spent 180 days or longer outside the United States, they should expect to receive additional scrutiny from the customs officer to determine whether they have abandoned their U.S. residence. If a green card holder is out of the U.S for 180 or more days during any 12 month period, they should also expect to receive additional scrutiny from the customs officer when they re-enter the United States.

For trips of 180 days or longer, it is possible to apply for a Re-entry Permit, which is a government-issued permission to re-enter the United States after an extended amount of time abroad. This process generally takes 4-7 months, so it is important to plan ahead. If a green card holder is planning extensive travel outside the United States, they should consult with an experienced immigration attorney, as recommendations can only be made on a case-by-case basis.

Conclusion

The green card application process is complex, and there are potential pitfalls that await the unwary. That said, a successful green card application offers significant benefits and can open a new world of opportunities in the United States.

Without discussing the specifics of an individual’s case, it is impossible to give legal advice. For this reason, I recommend that anyone schedule a consultation with an immigration attorney who is experienced in helping people in their situation. The information provided here is only intended as general information and is not a substitute for legal advice.

Did you know? All State Department Employees Ordered Back to Work Today

On December 22nd, the federal government shut down all non-essential, discretionary functions carried out by federal administrative agencies. As the shutdown crosses the one month threshold, there has been significant media coverage of how the shutdown has impacted the immigration courts, as well potential impacts on so-called “dreamers” with DACA status. The impact of this shutdown on employment-based immigrants, including businesspeople, artists, athletes, researchers, and others, has received little publicity. I am posting this analysis to provide additional information on the impacts of the shutdown on employment-based immigrants.

U.S. Department of State: The U.S. Department of State has ordered all direct-hire employees and locally-hired staff furloughed as a result of the government shutdown to return to work effective today, January 22.

The Department of State had previously announced that scheduled appointments to apply for U.S. passports and visas would be held as scheduled. In a January 17 announcement, the Department of State indicated that most personnel operations would resume as of January 22, with some limits on additional expenditures due to budget constraints. See https://www.state.gov/m/2019/288491.htm for details.

This change will likely alleviate delays in immigrant and nonimmigrant visa processing and processing of J-1 waiver requests, although funding constraints may mean that some delays continue until the government is fully funded.

U.S. Citizenship and Immigration Services: Let’s start with some good news. U.S. Citizenship and Immigration Services, or USCIS, is the Federal administrative agency that issues decisions on immigration applications and petitions, including applications for many employment-based visas and green cards, as well as U.S. citizenship applications. Business will resume as usual for most applicants filing with USCIS, as the agency is mainly funded by filing fees rather than annual appropriations.

However, there are a handful of exceptions to this general rule. USCIS also administers the following initiatives, which are funded by federal appropriations. Since these appropriations were not renewed in December 2018, these programs have been impacted. These programs include the following:

• E-Verify. E-Verify is an online service that allows U.S. employers to verify that their employees are authorized to work in the United States. E-Verify is unavailable during the government shutdown. During this time, employers should continue to complete Forms I-9 for all employees.

• EB-5 Investors. The EB-5 investor program allows individuals to invest substantial sums of money in the U.S. economy in exchange for the chance to pursue green card applications. USCIS has indicated that it will continue to process pending applications for EB-5 investors, although it will not accept new green card applications on Form I-485 for EB-5 investors until shutdown ends. Additionally, the Department of State has indicated that it will not schedule additional green card interviews for EB-5 investors until the shutdown has ended.

• Conrad 30 Physicians. The Conrad 30 physician program allows foreign physicians to enter the United States in J-1 status to provide medical care in an underserved area. In general, a physician entering the United States in J-1 status would be required to return to their home country for two years before they would be allowed to apply for another work-authorized status or a green card in the U.S. The Conrad 30 program provides a compromise that allows for better patient care while also providing these physicians with the opportunity to remain in the United States long-term. In return for providing 3 years of service in an underserved area, physicians in the Conrad 30 program are allowed to work in J-1 status without the need to return to their home countries for two years before applying for a green card or another employment-based status. While this program has proven effective, its appropriations lapsed in December 2018, and new applications will not be accepted until the program is funded. While Physicians currently working under the Conrad 30 program will retain their status, physicians hoping to apply for Conrad 30 J-1 status will have to wait until funding is available to continue the program.  

• Non-Minister Religious Workers. Annual appropriations to fund the government generally include funds to extend the Non-Minister Permanent Residence Program. This program allows people in religious occupations the opportunity to apply for permanent residence. USCIS has indicated that any pending non-minister immigrant petition (Form I-360) filed on or before Dec. 21, 2018, will be placed on hold until the program is renewed. In addition, any non-minister I-360 petition received by USCIS on or after Dec. 22, 2018, will be rejected. However, this lapse in funding does not impact temporary R-1 visa applications for religious workers or permanent residence applications for ministers.

• USCIS Ombudsman. The USCIS Ombudsman’s office, which accepts requests to inquire into long-pending matters, is closed during the government shutdown.

U.S. Customs and Border Protection: U.S. Customs and Border Protection (“CBP”) continues to review applications for admission to the United States at ports of entry on the land borders to the United States and at international airport.

However, as of December 21, 2018, CBP’s website is not being actively managed, so information listed there should be considered accurate only as of December 21. CBP has also confirmed that its Administrative Review Office is currently furloughed, meaning that ports of entry are not currently accepting Applications for Advance Permission to Enter as a Nonimmigrant (Form I-192), which allow individuals who are inadmissible to the United States to request permission to temporarily enter the country. The NEXUS program, which allows pre-screened travelers expedited entry to the United States and Canada, has also been furloughed.

U.S. Department of Labor. The Department of Labor is not impacted by the government shutdown, as it is fully funded through September 30, 2019. This means that labor certification applications, labor condition applications, and other applications adjudicated by the U.S. Department of Labor should continue to be processed normally.

Without discussing the specifics of an individual’s case, it is impossible to give legal advice. For this reason, I recommend that anyone schedule a consultation with an immigration attorney who is experienced in helping people in their situation before applying for a visa or travelling to the United States. The information provided here is only intended as general information and is not a substitute for legal advice.

Sincerely,

Vance Berry, Managing Attorney

Can an athlete come to the U.S. on a visitor visa?

A Tailwind Upshot

All those early morning workouts have paid off, and you now have an opportunity to train and compete in the U.S. As the ink dries on your new contract, you wonder — can you come to the U.S. as a visitor, or is this going to be more involved?

Finding the right visa class is like online dating. A quick search can provide a staggering number of options, but how do you sift through the options to determine which is best? In this post, I will clarify when athletes may use visitor visas to enter the U.S. in hopes of avoiding heartache down the line.

Temporary Immigration Options for Athletes

Professional athletes normally use the following types of U.S. visas to train and compete in the United States:

• B-1/B-2 visitor visa

• ESTA (also known as the Visa Waiver Program)

• O-1 visa for individuals with extraordinary ability

• P-1 visa for individual athlete or member or an athletic team

Two of these options, the B-1/B-2 visitor visa and ESTA, are considered “visitor” statuses. Unlike the O-1 and P-1 visas, these visitor statuses do not require the applicant to file an application with U.S. Citizenship and Immigration Service. This makes the process much quicker, less expensive, and more predictable.

Unfortunately, it is not as simple as it may seem for an athlete to come to the U.S. as a visitor. Here’s the rub: U.S. immigration authorities only allow very specific groups of athletes to enter the U.S. as visitors, while others will need to apply for O-1 or P-1 visas.

Visitor Options - B-1/B-2 and ESTA

An athlete can receive a B-1/B-2 visitor visa by filing a visa application at a U.S. Consulate or Embassy outside the United States. A B-1 / B-2 visa allows a person to enter the U.S. for up to 180 days during any given visit.

ESTA makes this process even simpler, allowing an applicant to apply for and receive visitor status online, without the need to schedule an in-person visa appointment. However, ESTA is only available to citizens of certain countries, and it only allows a person to enter the U.S. for up to 90 days at a time.

There are four scenarios in which an athlete may enter the U.S. in a visitor status. These are as follows:

(1) Amateur Engaging in Unpaid Events

Amateurs engaging in unpaid events may enter the U.S. in visitor status. An amateur is defined as anyone who normally performs without compensation, other than compensation for expenses.

For example, a rugby player from Scotland could enter the United States in visitor status to participate in a match in New York City, as long as the only compensation he received was reimbursement for flights, hotels, and other normal expenses.

(2) Professional Receiving Only Prize Money

The ESTA program and B-1/B-2 visas also allow professional athletes to enter the United States if they receive no compensation other than prize money.

For example, if an professional marathoner from Japan enters the United States to compete in the Boston Marathon, and her only compensation will be any prize money she earns from the marathon, she may enter using a B-1/B-2 visa or the ESTA program.

(3) Member of a Foreign Team

An athlete may also enter the U.S. in visitor status as a member of a foreign-based team to coming to compete against another team.

In this case, both the athlete and the team must be based outside the U.S., the income of the team and the players salary must be primarily attributable to events outside the U.S., and the foreign team must either be a member of an international sports league or the event must have an international dimension.

(4) Hockey Player Engaging in Try-Outs

Finally, amateur hockey players who are asked to join a professional hockey team for brief try-outs may be eligible to enter the U.S. using a B-1/B-2 visa or under the ESTA program.

Other Options & Next Steps

If none of these four scenarios match an athlete’s situation, they will most likely not be able to lawfully enter the U.S. in visitor status under the B-1/B-2 or ESTA classifications. Instead, they will need to apply for a work-authorized visa, such as an O or P visa. Watch this space for an upcoming post exploring O and P visa options for athletes.

Every person’s immigration options will be different, and there may be options available beyond those outlined above based on an individual’s unique background. Without discussing the specifics of an individual’s case, it is impossible to give legal advice. For this reason, I recommend that athletes schedule a consultation with an immigration attorney who focuses on athletes before applying for a visa or travelling to the United States. The information provided here is only intended as general information and is not a substitute for legal advice.

I have helped numerous athletes achieve their dreams in the United States, and I would be delighted to help you as you plan the next step in your career. To contact me directly, please fill out the form here.

Vance Berry, Managing Attorney

Upshot: Temporary U.S. Visas for Researchers

Researchers have a wide variety of options that allow them to work, attend conferences, take part in business meetings, and engage in other activities in the United States, whether they plan to stay in the United States for a few days or several years.

The temporary U.S. visa options that tend to be most promising for researchers are summarized below. This summary is only intended to highlight the most common options in enough detail to allow for a basic understanding of the relative advantages and disadvantages of each option.

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O-1 Individual with Extraordinary Ability or Achievement

Duration: Granted for an initial period of 3 years. May be extended indefinitely in increments of one year or, if the researcher will engage in a “new event,” in increments of up to 3 years.

Government Processing Time: Approximately 2-3 months. May request expedited 15 day processing for an additional fee of $1,225.

Tailwinds (Advantages): 

• May be extended indefinitely

• Eligible for expedited processing

• A stepping stone to sought-after green card options

Headwinds (Disadvantages)

• Applicant must have extraordinary abilities in their area of focus, as defined by USCIS

• Even strong cases often receive complex requests for additional evidence from USCIS

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L-1 Intracompany Transferee

Duration: Granted for and initial period of 3 years. May be extended for up to a total of 5 years for specialized knowledge workers and up to a total of 7 years for managers or executives.

Government Processing Time: If the employer has an approved L-1 blanket petition, may apply directly through U.S. consulate or embassy abroad, and processing is generally complete within 5 business days following visa interview, although additional delays do occur in some cases.

If the employer does not have an approved L-1 blanket petition, must first apply through USCIS. USCIS is currently processing L-1 petitions in about 2-4 months. May request expedited 15 day processing for an additional fee of $1,225.

Tailwinds:

• For a manager or executive who will serve in a managerial or executive role in the U.S. (as defined by US regulations), L-1A status serves as a stepping stone to a sought-after green card option.

• Fast processing options, especially if U.S. employer has an approved L-1 blanket petition

• May travel internationally throughout green card process

• Spouse may apply for work authorization

Headwinds:

• US & foreign employer must have an affiliate or parent / subsidiary relationship

• Must have worked for foreign employer for 1 continuous year during past 3 years

• Even strong cases often receive complex requests for additional evidence from USCIS

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H-1B Specialty Occupation Employee

Duration: Granted for an initial period of 3 years and extendable for an additional 3 years. May sometimes extend beyond 6 years based on progress of green card application, but this generally  requires at least 2 years of advance planning.

Government Processing Time: If this is the applicant’s first time being sponsored for H-1B visa status, they will be subject to a randomized, annual lottery, unless their U.S. employer is exempt from the lottery.

Exempt employers, whose H-1B petitions are not subject to the random lottery, include the following:

• Institutions of higher education;

• Non-profit entities which are “related to” or “affiliated with” institutions of higher education;

• Non-profit research organizations; and

• Government research organizations.

You should consult an experienced attorney to determine whether a potential U.S. employer is likely to be exempt from the lottery.

If the U.S. employer is subject to the lottery, they must file the H-1B petition within the first 5  business days of April (they should begin working with an attorney no later than March 1). If selected in the lottery and approved, the applicant will be eligible to begin work in H-1B status October 1.

Lottery-exempt employers may file an H-1B petition at any time of year. Normal processing takes 5-7 months. May request expedited 15 day processing for an additional fee of $1,225.

Tailwinds:

• Spouse may apply for work authorization (but the current administration has signaled its intention to end work authorization for spouses of H-1B workers)

• May travel internationally throughout green card process

• Potential to extend H-1B status beyond 6 years, based on pending green card process.

• For citizens of Chile, Singapore, and Australia, similar statuses are available that are not subject to the annual lottery (known as H-1B1 and E-3 statuses)

Headwinds:

• Most H-1B employers are subject to the annual H-1B lottery. In recent years, the odds of being selected in the lottery have been in the range of approximately 30% - 50%.

• The Department of Labor requires that applicants be paid the “prevailing wage,” the amount it considers normal for a given occupation and skill level in a given location. It is sometimes difficult for U.S. employers to offer a salary that meets the prevailing wage.

• Even strong cases often receive complex requests for additional evidence from USCIS.

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J-1 Intern, Trainee, Professor / Research Scholar, or Short-Term Scholar

Duration: Short-Term Scholar programs are available for up to 6 months. Intern programs are available for up to 12 months. Trainee programs are available for up to 18 months. Professor or Research Scholar programs are issued in initial allotments of up to 2 years and may be extended up to a total of 5 years, although some federally-funded positions do not have this 5-year limitation.

Government Processing Time: Approximately 1-4 weeks for designated sponsor organization to issue certificate of eligibility for J-1 status.

Once an applicant receives a certificate of eligibility for J-1 status, they are eligible to apply for a J-1 visa stamp in their passport. J-1 visa stamps are generally issued within 5 business days following the visa appointment, although additional delays do occur in some cases.

Tailwinds: 

• Spouse may apply for work authorization

• Relatively fast application process

Headwinds:

• J-1 visa applicants are sometimes required to return to their home country for 2 years before they are allowed to receive another work-authorized status in the U.S. You should discuss this with an experienced attorney if you are considering J-1 status.

• Some J-1 categories require an individual to wait 24 months before beginning an additional J-1 program.

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TN Scientist (citizens of Canada and Mexico only)

Duration: For Canadian citizens, granted in increments of 3 years, extendable indefinitely. For Mexican citizens, receive one-year TN visa stamp, extendable indefinitely.

Government Processing Time: Same day processing for Canadian citizens by applying directly at the border.

For Mexican citizens, visa generally issued within 5 business days following visa appointment, although additional delays do occur in some cases.

Tailwinds:

• Quick processing

• May be extended indefinitely

Headwinds: 

• Must fit into one of the categories set by the TN visa regulations

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E-1 / E-2 Essential Employee

Duration: Granted for an initial period of stay of 2 years. May be extended indefinitely in 2 year increments. If applying for an E-2 visa directly through a U.S. consulate or embassy, the applicant will receive a visa stamp in their passport valid for 5 years. Any time an individual enters the U.S. on this visa stamp, U.S. customs should automatically grant an additional 2 years of E-2 status.

Government Processing Time: If applying through a consulate or embassy abroad, the consulate or embassy will generally take between 4 and 12 weeks to review the application. At that point, the consulate or embassy will schedule an in-person visa interview. Following the interview, the consulate or embassy will normally issue a visa within 5 business days following the appointment, although additional delays do occur in some cases.

Tailwinds: 

• May be renewed indefinitely

• Spouse may apply for work authorization

Headwinds

• U.S. employer must be majority owned by citizens of visa applicant’s country of citizenship.

• Applicant's country of citizenship must have signed treaty allowing for E-1 or E-2 status.

• Visa applicant must have skills that are essential to the efficient operation of the U.S. employer.

• The U.S. employer must conduct substantial foreign trade or have received a substantial investment from citizens of visa applicant’s home country

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This summary is intended to provide a treetops-level summary of the visa options generally utilized by researchers entering the United States temporarily. More detailed content on these options will follow in subsequent posts to Tailwind Blog.

If you are a researcher and have questions about any of these visa options, please contact Tailwind Immigration using the “Let’s Talk” button above, and we can help you understand which options are likely to be most promising for you.

Disclaimer: This blog site is made available by the lawyer or law firm publisher for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand that there is no attorney client relationship between you and the blog site publisher. The blog site should not be used as a substitute for competent legal advice from a licensed attorney.