Richard Jacobs, P.C.

U.S. Immigration

Features of the U.S. Immigration Process


Reorganization of U.S. immigration agencies: The Immigration and Naturalization Service (INS) no longer exists. Its functions are now performed by three government agencies within the new Department of Homeland Security. The United States Citizenship and Immigration Service (USCIS) handles immigration benefits e.g. petitions and applications for citizenship and lawful status within the U.S. Customs and Border Protection (CBP) screens admission to the U.S. at the airports and ports of entry. Immigration and Customs Enforcement (ICE) handles immigration matters within the U.S.

Visa applications: Generally foreign nationals need a visa to enter the U.S. and apply for one at the U.S. Consulate that has jurisdiction over where they live. Nationals of some countries may enter the U.S. as visitors without a visa stamp under the Visa Waiver Program: they must obtain prior authorization through the ESTA system - available online through CBP. Canadians do not need visas, save for E and K status and immigrant visas.  Visa applications may take several weeks and sometimes months to schedule and process. Personal interviews are normally required and security checks are made on all applications. If you have a common name or work in a profession that involves “sensitive” technology, your application is likely to take even longer. Consular posts also take fingerprints for the IDENT biometric database.

US-VISIT program: US-VISIT is an automated system that records people entering the U.S. On each application for admission, your fingerprints and face will be scanned for matching with the IDENT database. The US-VISIT system has not been implemented to record departures from the U.S. and the normal system of handing in your Form I-94 arrival/departure card to an airline representative applies.  

H-1B cap reached for 2013/2014: The maximum number of H-1B petitions for the 2013/2014 fiscal year has been filed. USCIS is no longer accepting H-1B petitions, including petitions from foreign nationals whose qualification is a Master's degree or higher from a U.S. educational institution.  No new H-1B petitions may be filed until April 1, 2014 for work starting on or after October 1, 2014.  

Filing fee surcharges on H-1B and L-1 petitions: Non-exempt H-1B petitions are subject to a $1,500 filing fee surcharge; $750 if the U.S. petitioner, including any affiliate or subsidiary, employs 25 or fewer full-time staff. U.S employers with 50 or more employees, over half of which are in H-1B or L status must pay a further surcharge of $2,000 (H-1B) or $2,250 (L) on new petitions.  In addition, a further $500 fraud prevention and detection fee applies to all initial L-1 and H-1B petitions: petitions to amend or extend are not subject to this fee. These filing fee surcharges are all in addition to the base $325 filing fee.

Proposed new laws being considered by Congress: A new Comprehensive Immigration Reform Bill has been introduced in the Senate (S. 744).  It would provide a path to permanent legal status for most of the current undocumented population: a new merits based system for gaining permanent residency: immediate Green Cards for spouses and children of permanent residents and also persons who have been lawfull present in the U.S. with work authorization for over 10 years.  Both parties in Congress and the government seem to agree that immigration law reform has to be addressed and one hopes that a fair and viable solution may be found. 

Backlogs in immigrant visa numbers: Immigrant visas for employment based applicants are subject to numerical quotas. These are shown on the Visa Bulletin which is available online.  For example, there is a 5 year backlog for professional and skilled workers (EB3) from all countries as well as unskilled workers. A backlog in all the advanced professional employment based category applies to nationals of China and India.

Labor certification (PERM) – the process for Green Cards through employment:  The underlying concept is that the DOL must certify that there are no qualified and available U.S. workers for the offered position before the employer can sponsor the foreign national. The U.S. employer conducts the recruitment program and, if no qualified U.S. workers apply for the position, then files an electronic attestation with the DOL. The DOL either certify or audit the attestation and, once certified, the U.S. employer must file the immigrant petition to sponsor the foreign worker for a Green Card within 180 days.

Penalties against overstays: Persons who have been unlawfully present in the U.S. after April 1, 1997 for a total of more than 180 days but less than one year will not be allowed back in the U.S. for three years from their date of departure. Persons who remain illegally in the U.S. after April 1, 1997 for a total of one year or more will be inadmissible from the U.S. for 10 years after their date of departure. Longer bars apply to persons who have been removed from the U.S. These bars may apply even to persons who have obtained advance parole (permission to re-enter).

Adjustment of Status: Adjustment of status is the process whereby persons already in the U.S. may adjust their status to lawful permanent resident.  To qualify for this process, an immigrant visa must be immediately available, whether through close family relationship, employment or investment. See PERMANENT RESIDENT.  Foreign nationals are not able to adjust status if (i) they entered the U.S. illegally, or (ii) they have worked without authorization or have not maintained lawful status since their entry, unless they qualify for an immigrant visa as immediate relatives. See PERMANENT RESIDENT.  Certain foreign nationals who qualify for an immigrant visa on the basis of employment may still adjust status if they have not been out of status for an aggregate of more than 180 days. Foreign nationals who qualify for immigrant visas but are ineligible for adjustment of status may apply for immigrant visas through U.S. Consulates outside the United States. However, if they have been unlawfully present in the U.S.for more than 180 days, they will be inadmissible for three years if they leave the country. (see penalties against overstays above).

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