ABOUT RICHARD JACOBS
Immigration Attorney, Bainbridge Island WA
I have practiced U.S. immigration law for more than 30 years; I am a member of the Washington State Bar Association and the American Immigration Lawyers Association. My first experience of immigration law was in 1987, when I applied for a green card after marrying a U.S. citizen. Since then, I have supported many individuals, families, and businesses within the U.S. and around the world through their U.S. immigration processes. I work on my own and will communicate with you personally and promptly.
This page outlines the structure of U.S. immigration law; it includes information on some common visa options/processes and links to resources. I hope it will provide context for the choices you encounter. It is not a comprehensive outline; U.S. immigration law is a volatile field with numerous variations, exceptions, and unknowns. The standard comprehensive outline (Kurzban’s Sourcebook) runs to more than 2,500 pages.
THE BASIC PREMISE
If not a U.S. citizen, you generally need to qualify for admission under one of the 22 temporary visa categories or as a permanent resident (green card). There are about 13 green card options based on employment, investment, and close family relationship. When you come into the U.S., you may only be admitted in a single specific category: https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/all-visa-categories.html
THE MAIN DISTINCTION
Temporary ways of coming to the U.S. are called nonimmigrant categories of admission. If you plan to live indefinitely in the U.S. you have immigrant intent and may be refused admission in a nonimmigrant category. If your main home is to be in the U.S., you must have a green card, a fiancee or immigrant visa, or a nonimmigrant visa that permits dual intent, such as H and L.
THE PROCESS
If you are outside the U.S. and flying to the U.S. or driving to a land crossing, you will apply for admission at a CBP (Customs and Border Protection) port of entry or pre-clearance facility. Unless you are Canadian, you must have pre-authorization to apply for admission, i.e. either a visa in the appropriate nonimmigrant category issued by a U.S. consulate, or ESTA pre-authorization if you are a national of one of the 40 Visa Waiver Program countries and are coming to visit the U.S. Some nonimmigrant categories and all immigrant categories require a petition to be approved by USCIS (United States Citizenship and Immigration Services) before you may apply for a visa. Normally, you would apply for a visa through the U.S. consulate that has jurisdiction over where you live.
When CBP admits you to the U.S., you are assigned a specific nonimmigrant status, which limits what you may do in the U.S., and admitted to a specified date; your period of stay. This is shown on your I-94 card, which you should download from https://i94.cbp.dhs.gov/I94/#/home shortly after you arrive. The visa in your passport allows you to apply for admission but the I-94 card determines how long you may stay and in what nonimmigrant status.
Once in the U.S., you have to maintain your status, i.e. only do what is permitted for your nonimmigrant category and leave the U.S. before your period of stay expires. You may request USCIS to extend or change your status; it must be filed before your I-94 expiration date.
If you are already in the U.S. and qualify for a green card, you may file to adjust status within the U.S. rather than apply for an immigrant visa abroad. You need first to make sure you are not subject to any of the regulatory bars – https://www.law.cornell.edu/cfr/text/8/245.1 – or otherwise inadmissible – see PITFALLS below.
COMMON TEMPORARY OPTIONS
B Visitors: the most common and tricky of all categories. The main parameters are that a visitor must maintain a home abroad, be able to pay for their stay in the U.S. and, limit their activities to what is permissible. The Department of State, responsible for U.S. consulates abroad, has determined various specific situations where a visitor visa is appropriate: https://fam.state.gov/FAM/09FAM/09FAM040202.html
E Treaty Visas: a robust, reliable, and renewable work visa. They are based on treaties between the U.S. and 60 or so other countries. The application process is through a U.S. consulate; complete consular guidelines, including the list of treaty countries (2/3 down the page) are at https://fam.state.gov/FAM/09FAM/09FAM040209.html
E visas are based on a U.S. business that is at least 50% owned by treaty nationals. The owner(s) and their senior or key employees may be issued E1 Treaty Trader visas, based on a substantial existing trade between the treaty country and the U.S., or: E2 Treaty Investor visas based on a substantial investment in a U.S. business, which does more than provide a minimal living for the investor and their family.
Substantial, whether in trade or investment, isn’t quantified in the rules but is often within reach. For substantial existing trade (E1), the consular officer will look at the number and value of transactions between the two countries during the previous 12 months; a dozen transactions worth $250,000 could be sufficient. The substantial investment for an E2 visa must be enough to capitalize the business, show the investor’s financial commitment to its success, and be a high enough proportion of the business’ net worth or set-up cost. Debt secured by the business does not count towards the investment and tends to undermine an E2 visa application. For example, if a dry-cleaning business in the U.S. costs $150,000 to buy and the investor pays the entire amount most consular officers would consider the investment to be substantial. However, if the investor invests $100,000 and borrows the $50,000 balance, secured by the business’ assets, that would probably not be considered substantial. If you are looking at an E visa option, I strongly recommend seeking guidance from an immigration attorney before making any commitments.
E visas may be valid for up to five years and CBP normally admits E visa holders for two years. Spouses and children (under 21) may also be issued E visas; spouses are authorized to work in the U.S. and children may attend school.
E3 Professional (Australia only): An extremely convenient option for Australian professionals that also authorizes spouses to work. A U.S. employer may sponsor an Australian citizen for E-3 status to work in a position that requires at least a bachelor’s degree in the specialty field and the employee has this degree. The salary for the job must meet or exceed the prevailing wage; prevailing wages are published at https://www.flcdatacenter.com/ The U.S. employer first submits a Labor Condition Application, relating to the position and salary offered, with the Department of Labor; then the Australian employee applies for an E3 visa through their local U.S. consulate; no petition with USCIS is required. The visa is generally valid for two years and the employee may either renew the visa through a consulate abroad or the employer may file a petition to extend the employee’s status for a further two years; no maximum period of stay. Spouses and children (under 21) may also be issued E3 visas; spouses are authorized to work in the U.S. and children may attend school.
F Student Visas: generally needed before attending a course of study in the U.S. The university or school must be enrolled in SEVP (Student and Exchange Visitor Program), which is administered by ICE (Immigration and Customs Enforcement). Enrolled schools have a Designated School Official who issues the I-20 form needed to apply for an F1 student visa and maintains international student records in SEVIS, the online system for the SEVP. Students must show financial ability to pay for the schooling and maintain a home abroad. Canadians are visa exempt and may travel to the U.S. as soon as the I-20 form is issued.
H-1B Specialty Occupation: the generic visa for professionals but subject to numerical limitations. A U.S. employer may sponsor a foreign national for H-1B status to work in a position that requires at least a bachelor’s degree in the specialty field and the employee has this degree. The salary for the job must be at least the prevailing wage for the occupation; prevailing wages are published at https://www.flcdatacenter.com/ Only 85,000 H-1B visas are available each year for work starting on October 1 and employers register the proposed employee with USCIS in March for selection by lottery. This year 483,927 registrations were received and 127,600 selected so the chance of selection is low. If selected, the U.S. employer first submits a Labor Condition Application, relating to the position and salary offered, with the Department of Labor and then files a petition with USCIS. The petition may be approved for up to three years; the employee would then apply for an H1B visa. Canadians are visa exempt and may travel to the U.S. as soon as the petition is approved.
The period of admission is normally until the expiration of the approved petition. The employer may extend the employee’s status for a further three years for a maximum of six years. Spouses and children (under 21) may be issued H4 visas; spouses are not authorized to work in the U.S. but children may attend school.
J Exchange Visitors: often a convenient short-term work option if you need to work in one of the specified occupations: Professor, Research Scholar, Short-Term Scholar, Trainee, Intern, College and University Student, Teacher, Secondary School Student, Specialist, Alien Physician, Camp Counselor, Au Pair, and Summer Work Travel. https://j1visa.state.gov/ J1 exchange programs are administered by designated sponsor organizations, which coordinate between the J1 employer and employee and issue the DS-2019 form needed to apply for a J1 visa.
L-1 Intracompany Transferees: a reasonable work option for employees of multinational businesses. Executives, managers, and specialized staff employed by a business abroad may be transferred to work for a related U.S. business. The U.S. business and business abroad must both be doing business and under common control; https://www.uscis.gov/forms/explore-my-options/l-visas-l-1a-and-l-1b-for-temporary-workers The employer first files a petition with USCIS, documenting the L1 requirements are met; USCIS is stringent in applying the regulatory definitions of executive, manager, and specialized knowledge employee; adjudicators commonly request further evidence. Approval is for three years; one year if the U.S. business has been operating for less than a year. Once approved, the employee applies for an L1 visa and may then travel to the U.S. Canadians are visa exempt and may travel to the U.S. as soon as the petition is approved.
The period of admission is normally until the expiration of the approved petition. The employer may extend the employee’s L1 status in two-year increments for a maximum of seven years (executives and managers) or five years (specialized knowledge). Executives and managers are often eligible for a green card – see below. Spouses and children (under 21) may be issued L2 visas; spouses are authorized to work in the U.S. and children may attend school.
O, P, and R visas: work visas for specific situations. O1 visas are for individuals who are distinguished in their field; https://www.uscis.gov/forms/explore-my-options/o-1-visa-individuals-with-extraordinary-ability-or-achievement P visas are for athletes (P1 – https://www.uscis.gov/forms/explore-my-options/p-1a-visa), reciprocal exchange and culturally unique artists (P2 and P3 https://www.uscis.gov/forms/explore-my-options/p-2-and-p-3-visa). R visas are for ministers and other religious workers: https://www.uscis.gov/forms/explore-my-options/r-1-visa-temporary-nonimmigrant-religious-workers
TN status (Canada and Mexico): a very useful option for Canadians and Mexicans who qualify in one of the 63 listed occupations. This link is to the USCIS regulations, which list the occupations https://www.law.cornell.edu/cfr/text/8/214.6
TN status is based on an offer of employment by a U.S. employer in one of the listed occupations: https://www.uscis.gov/working-in-the-united-states/temporary-workers/tn-nafta-professionals Canadians simply apply at a CBP pre-clearance facility at the airport or at a land port of entry; Mexicans must first apply for a visa.. The employer letter describes its business, the position offered, and the compensation. The employee needs to document they are appropriately qualified. Admission is for up to three years and may be renewed at the border/airport or the employer may file a petition with USCIS to extend the employee’s status.
COMMON GREEN CARD OPTIONS
Immigrant options are classified as Immediate Relative (spouse, parent, or child of a U.S. citizen), Family Based (adult children/siblings of U.S. citizens and spouse and children of permanent residents), and Employment Based. The process for fiancees is a modified immigrant process. Where the green card is based on a marriage that took place less than two years’ ago, it will be conditional, valid only for two years; the couple must demonstrate the marriage is genuine in a petition to remove the conditions. Permanent residency continues indefinitely; the I-551 green card documents the holder is a Lawful Permanent Resident. It is valid for 10 years and may be renewed indefinitely.
Immediate Relative: immigrant visas for immediate relatives are always available and so the only delay is in the process. From outside the U.S., the U.S. citizen sponsor initially files an I-130 immigrant petition, which documents the relationship; once approved, the immediate relative applies for an immigrant visa in the country they live in. An excellent and detailed description of the process is at https://travel.state.gov/content/travel/en/us-visas/immigrate/the-immigrant-visa-process/step-1-submit-a-petition.html If the immediate relative is already present in the U.S., they would normally apply to adjust to permanent resident status through USCIS; https://www.uscis.gov/i-485 The package would include the I-130 immigrant petition of the U.S. citizen sponsor and applications for temporary work and travel authorization. Save for immediate relatives who hold H or L status, they may not travel abroad until USCIS has issued a temporary travel document; otherwise USCIS would deny their application as abandoned. Processing times vary according to where the application is processed; normally, the USCIS field office local to where the immediate relative lives; https://egov.uscis.gov/processing-times/
Fiancee: This option is for a U.S. citizen to sponsor their fiancee to come to the U.S. to get married. The U.S. citizen fiancee files an I-129F petition with USCIS demonstrating that the engagement is in good faith. The approved petition is forwarded to the National Visa Center, which then forwards it to the consular post where the fiancee is living. The process is normally a few months’ quicker than the immigrant visa process where the couple are already married. Once in the U.S. the couple have 90 days to get married and then the fiancee applies to adjust to permanent resident status through USCIS; https://www.uscis.gov/i-485 The package would include applications for temporary work and travel authorization. Processing times vary according to where the application is processed; normally, the USCIS field office local to where the immediate relative lives; https://egov.uscis.gov/processing-times/
Family Based: A limited number of visas are allocated to each category. The Visa Bulletin describes the family-based categories and has charts showing the Priority Date for each category, i.e. the date the relative may apply for an immigrant visa; https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin.html The priority date is generally the date the immigrant petition is filed. At present there is no wait for spouses and children of permanent residents but other qualifying relatives have to wait for years. The immigrant visa application process is the same as for immediate relatives – see above. If the qualifying relative is in the U.S. and is thinking of applying to adjust status within the U.S., they first need to make sure they are not subject to a regulatory bar; https://www.law.cornell.edu/cfr/text/8/245.1
Employment Based: The most common employment-based categories (EB2 and EB3) require the U.S. employer to offer at least the prevailing wage and make sure there are no qualified and available U.S. workers. This involves advertising the position and then filing a permanent labor certification application (PERM) with the Department of Labor. Once the PERM is certified, the U.S. employer files an I-140 immigrant petition with USCIS. If the employee is already in the U.S., they may file a concurrent application to adjust to permanent resident status. If outside the U.S., they would apply for immigrant visas in the same process as for family based applicants https://travel.state.gov/content/travel/en/us-visas/immigrate/the-immigrant-visa-process/step-1-submit-a-petition.html At present there is no wait for employees from most countries, but citizens of India and China have to wait several years before their priority date becomes current; https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin.html
EB1, certain EB2, EB4, and EB5 categories don’t require a PERM labor certification. The U.S. employer or individual would file the I-140 immigrant petition with USCIS, demonstrating the requirements are met. An employee lawfully in the U.S. may file a concurrent application to adjust status; if outside the U.S., the employee would wait for the petition to be approved and then apply for an immigrant visa; https://travel.state.gov/content/travel/en/us-visas/immigrate/the-immigrant-visa-process/step-1-submit-a-petition/step-2-begin-nvc-processing.html
The EB1 category includes individuals who have reached the top of their field (EB1a), outstanding professors and researchers (EB1b), and multinational executives and managers (EB1c); https://www.uscis.gov/working-in-the-united-states/permanent-workers/employment-based-immigration-first-preference-eb-1 The requirements for EB1c executives and managers are almost the same as the L1A requirements – see above; it is often a clear option for senior employees to obtain a green card.
Individuals may self-petition, i.e. do not need a U.S. employer, under the EB1a extraordinary ability and the EB2 National Interest Waiver categories. The National Interest Waiver is available to persons with exceptional ability or an advanced degree who have a specific proposed endeavor they wish to implement in the U.S. This endeavor must have both substantial merit and national importance: the person must be well positioned to advance it, and: it would be beneficial to the U.S. to waiver the normal PERM labor certification.
The EB4 category is for religious workers; the requirements are similar to the R1 visa option – see above. The EB5 category is for persons who invest $1.05 million in a new business that creates employment for 10 or more full-time workers; the required investment is reduced to $800,000 in areas of high unemployment or where the investment is made in a designated Regional Center https://www.uscis.gov/forms/explore-my-options/eb-5-employment-based-immigration-immigrant-investor-program
CITIZENSHIP
U.S. citizenship is automatically conferred on individuals who are born in the U.S. or who have U.S. citizen parents or who have one U.S. citizen parent, who was physically present in the U.S. for a specified period before the child was born. The period of physical presence varies according to the child’s date of birth.
Otherwise, permanent residents may apply to USCIS for citizenship once they have had a green card for five years and been physically present in the U.S. for 30 months. Where permanent residence was acquired through marriage to a U.S. citizen, the required period of residence is reduced to three years and the physical presence to 18 months; https://www.uscis.gov/citizenship/learn-about-citizenship/citizenship-and-naturalization If the U.S. citizen spouse is employed abroad by a U.S. company, it may be possible for the permanent resident spouse to apply for citizenship straightaway.
PITFALLS
Violation of status, overstaying the period of admission (unlawful presence), and work without authorization generally will lead to USCIS denying extensions of stay, change of status, and adjustment of status. Once you are no longer in lawful status it is difficult to regain it within the U.S. and normally you would have to leave the country and apply for a visa abroad. Immediate relatives of U.S. citizens who apply to adjust to permanent resident status are exempted from these bars.
Being honest and forthright is critical: a determination of material misrepresentations made when applying for a visa, applying for admission, or applying for a benefits application will lead to an indefinite bar from coming to the U.S. If you file an application with USCIS shortly after arriving in the country that is inconsistent with the category of admission, it may raise the suspicion of misrepresentation. Consular officers have stricter guidelines and may presume a material misrepresentation has been made if a person “engages in conduct inconsistent with their nonimmigrant status” within 90 days of arrival. This includes visitors who work or enroll in a course of study after being admitted as a visitor.
Staying beyond the period of admission automatically voids the visa used for admission. An overstay (unlawful presence) of more than 180 days leads to a 3-year bar: more than one year’s unlawful presence results in a 10-year bar.
The USCIS forms for permanent residency (I-485) and citizenship (N-400) contain some broad and invasive security questions, e.g. “Have you EVER committed a crime of any kind (even if you were not arrested, cited, charged with, or tried for that crime)?” and “Have you EVER violated (or attempted or conspired to violate) any controlled substance law or regulation of a state, the United States, or a foreign country?”. U.S. federal law still prohibits use of marijuana, even in states where personal use is legal. The consular forms (DS-160 and DS-260) also have security questions but are less broad.
Since Covid, U.S. consulates have fewer available visa appointments. Many consular posts are still backlogged from when they were closed and short staffed. This translates to long waits for visa appointments. Most consulates prioritize immediate relative and fiancee visa applications but for other categories, the wait can be months or years.
RESOURCES
Immigration laws are mainly statutory in the Immigration and Nationality Act at Title 8 of the U.S. Code. The Department of Homeland Security, which includes USCIS, promulgates immigration regulations at 8 Code of Federal Regulations (CFR). The Department of State has its own regulations at 22 CFR.
USCIS maintains online information pages on many subjects but the most definitive guidance on its policies, procedures, and interpretations is in the USCIS Policy Manual; https://www.uscis.gov/policy-manual This is a work in progress as the agency transfers and updates guidance from the older Adjudicator’s Field Manual.
The Department of State provides comprehensive guidance to U.S. consular officers in the Foreign Affairs Manual; https://fam.state.gov/ Volume 9 addresses visa services.
Customs and Border Protection (CBP), the agency that handles admissions at the border and airports, hasn’t published its internal guidance, the Officer’s Reference Tool (ORT). In most cases, the guidance seems unchanged from the former Inspector’s Field Manual, which CBP published two years before adopting the ORT.
