IMMIGRANT VISAS

General Questions about Immigration

Why does one need an immigration attorney?

An attorney is trained in understanding and applying relevant laws and regulations. Immigration and nationality laws, regulations, and administrative procedures are extremely complex. Congress and the various federal agencies, such as the Department of Homeland Security, the Department of State, and the Department of Labor are continually enacting and amending laws, regulations and administrative procedures that have far reaching immigration consequences. An immigration attorney will be aware of new and amended laws, regulations, and administrative procedures, as well as being versed in working with these agencies, and will thus be able to provide a client with the best possible options and outcomes for with his or her particular immigration need or problem. In addition, immigration attorneys are in the best position to offer guided analysis and recommendations regarding big picture strategies to attain long-term nonimmigrant and immigrant objectives—objectives which might otherwise be precluded if incorrect steps are taken early in a foreign born national's efforts to come to the U.S.

Even with today's technology and access to voluminous legal and agency resources via the Internet, one can easily become confused by and entangled with the vast quantities of available information and data. Moreover, there is a large volume of misinformation about and misinterpretation of immigration laws and procedures, and what a friend or family member perceives to be the "law" may or may not be accurate. Visa eligibility is highly case specific and what worked for a friend or family member may or may not be applicable to your case based on case-specific facts and changes in the pertinent law and or regulations. An experienced immigration attorney is in the best position to evaluate and determine the best course of action for resolving your particular issue with the greatest chance for success.

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How do I apply for a visa to come to the U.S.?

Different visas entail different eligibility standards, documentation requirements, and application procedures. Many visas require pre-certification or approval by the U.S. Citizenship and Immigration Service or by a SEVIS or Department of State authorized sponsor. Accordingly, it is highly advisable that you consult with a licensed immigration attorney prior to applying for a particular type of visa in order to determine the most appropriate visa classification, eligibility requirements and procedure.

If you are entering the U.S. for the first time after having obtained a visa from a U.S. embassy or consulate abroad, the I-94 is a small white card noting your visa category, date of entry and date of expiration of your authorized stay in the U.S. If you were already in the U.S. and obtained a change of status or extension of stay from the US CIS, your new I-94 is attached at the bottom of your I-797 approval notice and lists the new visa category and date of expiration of your authorized stay in the U.S. Please note: there is a "latest in time rule" which governs the length of authorized stay. In the event you have two I-94 cards that both appear on their face to be valid but which conflict with respect to length of stay authorized (e.g., an I-94 issued by the US CIS and an I-94 stamped at the border upon entry), the most recently issued I-94 governs the length of your authorized stay. If you find yourself having conflicting I-94 dates, it is recommended that you consult a licensed immigration attorney to resolve the matter in light of the grave consequences that may result from your remaining in the U.S. beyond the expiration date of your authorized stay as governed by your I-94 card.

If you have already retained our services, please send us a copy of your I-94 card and any entry stamps or new visas upon each and every arrival into the U.S. so that we can ensure you have been granted the full length of authorized stay. Moreover, it is important that you notify our law office if the border officer has made an error and admitted you for a shorter period of time than the validity period as indicated on your I-797 Approval Notice, or if the US CIS has granted a validity period on your I-797 Approval Notice that is different from that requested on the underlying petition or application. Your employer and our office will assume that you were admitted and/or approved for the correct period of stay and will not know that your status is expiring sooner than anticipated.

If you wish to retain our services, please contact our office at (610) 975-4599 or via email at info@piverlaw.com.

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What Is Conditional Residence?

If a couple filing for Permanent Residence based on marriage has been married for less than two (2) years at the time the foreign citizen spouse enters the U.S. on an immigrant visa or obtains permanent residence through Adjustment of Status, the permanent resident status is considered "conditional." The permanent residence status, and immigrant visa, in the case of consular processing, is "conditional" in nature and is only granted for two years. The couple is then required to take the additional step of applying together to the U.S. Citizenship and Immigration Services (US CIS) to remove the "conditions" within the 90-day window preceding the second year anniversary of the date on which the foreign spouse obtained conditional permanent resident status. The two (2) year anniversary date from which this 90-day window is calculated is indicated as the expiration date on the temporary Green Card.

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How do I become a naturalized citizen?

If you are not a U.S. citizen by birth and did not acquire U.S. citizenship automatically after birth, you may be eligible to become a citizen through naturalization. If you are 18 years or older, and have been a Permanent Resident of the U.S. or Green Card holder for a minimum of four years and nine months, or two years and nine months in the case of marriage-based permanent resident status, you may be eligible to apply for naturalization. It is recommended that you consult with a licensed immigration attorney in order to further assess your eligibility.

After applying for naturalization, eligible applicants will be required to appear for an in-person interview where they will be tested for English proficiency (some limited exceptions apply) and knowledge of U.S. civics. Those applicants who are found to be eligible for citizenship following the foregoing steps will be scheduled for the next available oath ceremony during which they will be sworn in as U.S. citizens along with a number of other newly naturalized citizens, and given Naturalization Certificates as evidence of their U.S. citizenship.

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What is the difference between an "extension of stay" and a "change of status," and what is the purpose of requesting either?

Whether you request an extension of stay and change of status depends on whether you are seeking to extend the nonimmigrant classification in which you are already present, or whether you wish to change to a different nonimmigrant classification.

Extensions of stay and changes of status relate only to nonimmigrant visa classifications. The advantage of requesting an extension of stay (EOS) or change of status (COS) of nonimmigrant visa classification is that it affords the applicant or beneficiary the opportunity to remain in the U.S. while the respective application or petition is pending, and upon approval, accords the benefits of the particular status extended or granted without the need for traveling outside the U.S. for visa stamping. Both extensions of stay and changes of status require maintenance of valid nonimmigrant status at the time the request is made in addition to meeting the eligibility requirements of the continued or new nonimmigrant classification.

If you were already in the U.S. when you or your petitioning sponsor (e.g., employer) filed the application or petition and an extension of stay/change of status request and you were found eligible for the extension/ change, the I-797 approval notice will contain a notation showing that the extension or change of status was approved. An approval under these circumstances means that as long as you are in the U.S. and comply with the terms of the extended or new nonimmigrant classification, you remain in valid status up to the expiration date listed on the most recently issued I-797 approval notice and attached I-94. So long as you remain in the United States, you will not need a new visa that corresponds to the extended or new nonimmigrant classification in order to be authorized to remain in the U.S. and, in the case of employment authorized nonimmigrant classifications, you will be authorized to continue or begin work for your authorized (petitioning) employer. Accordingly, the benefit of requesting an extension of stay or change of status is that, if approved, you do not need to travel outside the U.S. and re-enter in order to validate your extended or new status.

IMPORTANT - By approving your change of status or extension of stay, the USCIS granted you a right to remain in the United Sates for a designated period of time in accordance with the terms of your extended or new nonimmigrant classification. The USCIS did not grant you the right to travel out of the country and automatically be re-admitted in the extended or newly acquired status. The approval notice alone will not serve as an entry document if you should leave the United States. Accordingly, if you choose to travel outside the United States at any point during your period of validity, as indicated on your I-797 approval notice and attached I-94, you will need to obtain a newly issued visa which corresponds to the extended or new nonimmigrant classification and validity period prior to reentering the United States by applying for a new visa at a U.S. Embassy or Consulate in your home country. Under appropriate circumstances, many visa applicants will be eligible to apply at consular posts outside their home country including those in Canada and Mexico as "third country nationals."

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How long can a person legally remain in the U.S. in the same nonimmigrant visa classification?

While the duration for which one may remain in the U.S. is governed by the I-94 card as explained in the foregoing How do I know if I am lawfully present in the U.S. section, the US CIS imposes caps on the total amount of time one may spend in the same nonimmigrant visa classification based on congressionally mandated time limits. Some overall time limits include, but are not limited to:

  • H-1B - 6 years;
  • J-1 - category specific (see J-1 under Overview of Most Common Nonimmigrant Visas)
  • L-1A - 7 years;
  • L-1B - 5 years;
  • O-1 - No overall limit;
  • P-1 - 10 years (individual), 1 year (team);
  • P-2/3 - 1 year;
  • R-1 - 5 years.

Several of the above overall time limits include limitation on combinations of statuses including, but not limited to time spent in various H and L visa classifications. It is recommended that you consult a licensed immigration attorney with questions regarding combined time limits and their impact on your eligibility for extension of stay or change of status.

Moreover, there are exceptions for extension of stay beyond the total time limit in some visa classifications including, but not limited to: 1-year H-1B extensions in cases where qualifying steps toward employment-based permanent residency (e.g., the filing of a labor certification application) were taken more than 365 days prior to the expiration of the beneficiary's sixth year in H-1B status, and 3-year H-1B extensions in cases where an I-140 was approved but pursuit of permanent residency through adjustment of status or consular processing is precluded by retrogression of the applicable immigrant visa category. The foregoing exceptions to time limits are subject to a variety of factors and it is recommended that you consult with a licensed immigration attorney in order to further assess your eligibility.

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THE LAW OFFICES OF DAVID E. PIVER

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