Immigration Law

Immigration Questions

US Immigration law is complicated, and there can be serious consequences for making mistakes or missing deadlines.  We are here to help you understand the process and answer your questions.  Below are some brief answers to some of the most common immigration questions we have been asked.  Please feel free to email or call us about your own situation.

The route to becoming a U.S. citizen can be extremely challenging.  There are numerous procedures that must be followed correctly to avoid deportation and the penalty of waiting several years before being allowed to come back to try the process again. 

Yet, somehow, about half of the people who immigrate each year make it through the process and become citizens of the United States. Why only half?  Well, the process can be tricky.  There are numerous forms and deadlines to meet that can be difficult to understand.  Having the help of a skilled and caring professional can make all the difference in success over failure, as well as ease over stress, and in some cases even life over death.

The fast answer is that it could be as fast as four years, or take decades. What are you doing during that time period?  You are living and working in the U.S. and, yes, filing lots of forms, and preparing to meet the requirements at each stage.

There are about 185 different types of visas available for folks who would like to immigrate to the U.S.. A visa is the paperwork necessary for a person who is not a citizen of the United States to legally travel to, enter and remain in United States territory, which includes Puerto Rico and the U.S. Virgin Islands. Visitors to the United States must obtain a visa from one of the United States diplomatic missions unless they are from one of the visa-exempt countries or one of the 38 countries that are part of the Visa Waiver Program. The only further exception is for those who have an approved Authorization for Parole of an Alien into the United States (Form I-512).

If you are interested in entering the United States for the purpose of making it your home, you will want to secure the appropriate Immigrant Visa.  Here are some of the most common visas that you may have heard of:

GREEN CARD:

I-130 is the Petition for Alien Relative Form.  This form is normally the way the process begins. An immediate family member who is a U.S. citizen or permanent resident files this form with evidence of both the petitioner and beneficiary immigrant’s status and intention. If you do not have an immediate relative who is a U.S. citizen or permanent resident, you will need to obtain another type of visa from the U.S. consulate in your country (such as tourist (B-2), student (F-1), or specialty temporary worker (H-1B) to legally enter the country.  Once you are in the U.S., you may seek to adjust your status by filing form I-485 to become a permanent resident.

I-551 is the visa granted on arrival in the U.S. mostly for immediate relatives of U.S. citizens who entered under the above I-130 visa, but can be granted to others under special circumstances.  It is a “machine-readable immigrant visa” (MRIV) that is issued by a Customs and Border Protection (CBP) agent either as a printed document or as a stamp on a foreign passport when a person who intends to immigrate (become a naturalized U.S. citizen) first enters the U.S. It is known as a “Green Card,” but it is only temporary, and it is just the beginning of the process to achieving a permanent Green Card. This I-551 stamp or MRIV is to be used to grant the status of Lawful Permanent Resident (LPR) to the holder.  This status is good for one year from the date of admission. Note that even if the stamp / visa is issued without the statement “FOR 1 YEAR,” employers must treat the MRIV as an acceptable List A document valid for one year from the date of admission.

I-485 is the final stage in obtaining a Green Card. This is the Application to Register Permanent Residence or Adjust Status. Getting this important document will require (at least) the filing of forms I-864, I-140, I-693, I-765, I-131, and G-28 (to register your lawyer’s representation if you choose to have a lawyer help you with all of this), as well as numerous other papers proving your identity, status, and background.

K-1 Fiance visa is good for 90 days to give you time to get married and then apply for a Green Card as a spouse.

IR-3 or IH-3 visas are for adopting a child from a non-U.S. territory or country.  It will allow a child to automatically become a U.S. citizen upon admission to the U.S. with processing for that citizenship with Form N-560.  This visa follows the approval of another form, I-600 or I-800 by the U.S. embassy or consulate.

I-94 visas are issued electronically and are accessible from the CBP website.  The most common temporary visa (42.7 million people entered the U.S. with an I-94 in 2016). Most (34.2 mil) were tourists, while a smaller number came for business (3.7 mil).

F-1 visas are for students.  One million international students entered with this type of visa in 2016. The important thing to remember with this type of visa is that you are promising that you will leave the U.S. by a certain date (the “Admit Until Date”).  That is why the number on this form is also known as the “Departure Number” as well as the Admission Record Number. If you cannot access your Form I-94 on the CBP (Customs and Border Patrol) website, you will need to file Form I-102 to get a copy.

H-1B visas are for highly skilled workers who enter the U.S. to perform a task or complete a project.

H-2B visas are for nonagricultural temporary or seasonal workers

Step One: Become a permanent resident, that means get your Green Card (see above for more on the Green Card visa).

Step Two: After living in the U.S. for 5 consecutive years as a lawful permanent resident, or 3 years if married to a U.S. citizen, if at least 18 years old, of good moral character, and can read, write and speak basic English, Green Card holders can then submit Form N-400 (Application for Naturalization) and pay the fee ($725) to the U.S. Citizenship and Immigration Services (USCIS) to apply to become a “Naturalized Citizen.”

(Note that you may submit this application as early as 90 days before you actually finish the required 3 or 5 years of continuous presence in the U.S.)

Step Three: Take the U.S. Citizenship Test. This test covers reading, writing and speaking English, as well as “Civics,” which includes principles of the U.S. Constitution, history and government. This is a test you will spend a little time studying for. You can take it again if you fail, but you must pass this test to become a U.S. citizen.

Step Four: Get fingerprinted, complete the interview, and take an oath of allegiance to the United States

Uh-oh! This can be very bad. The U.S. government really wants you to stay on top of applying for a new visa, or to keep your word on when you will leave, BEFORE that visa expires.  The evidence of how badly they want you to do this can be seen in the penalty you will face if you do not follow their procedures.

If you over-stayed for less than 6 months (180 days) past the visa expiration: There are no automatic bars to your reentry to the U.S. after you leave, like there would be if you had overstayed for 6 months or longer, but you may still be barred from reentry at the discretion of immigration officials. Just be prepared that it will be more difficult to obtain a visa if you have on your record that you overstayed. And, even if you get a new visa, it will be within the discretion of the border officer who checks your paperwork at the border the next time you enter the U.S. whether s/he wants to let you enter or not.  They will be able to see that you overstayed in the past in their computer system and you will be at the mercy of their kindness.

If you over-stayed for 6 months (180 days) to a year after your visa expiration: When you depart the U.S., you will be barred from reentering the U.S. for three years. After that, you can reapply for a visa, but again, it may be denied because you have that overstay on your record. You will need to have a very good story/argument and present it well in your application to convince them. A good lawyer can help with this.

If you over-stayed for a year or more past the visa expiration: When you depart the U.S., you will be barred from reentering the U.S. for ten years. After that, you may reapply, but the overstay will be a mark against you that immigration officials may use as a reason to deny your application. You will need to explain why you overstayed and convince them that you are worth another visa in spite of your past overstay. A good lawyer can help.

If you applied for an extension or a change in status before the visa expired, but you haven’t heard back from USCIS and the expiration date is approaching or has past: First of all, don’t panic, your situation is very common because the USCIS is always backlogged and overloaded with applications.  You will need to check in with the USCIS online, or in person at a local USCIS office (make an appointment using their INFOPASS system online).  The bad news is that you must stop working in the U.S. if your work visa is expired. If you filed on time, you do not need to leave the country, but you will need to document that you filed your extension on time and prepare to present that proof if the USCIS somehow did not receive it.  A good attorney can help you with that argument.  Do not let a situation like this go.  After a short time, you can be barred from reentry to the U.S. for many years.

You can fill out the Application for Travel Document, which is also called a “re-entry permit” (Form 131) BEFORE you leave the U.S. This re-entry permit is valid for two years, and cannot be extended.  If you stay away longer than that, you will likely be denied re-entry. It will be at the discretion of the border agent whether to let you back in or not, so you will have to hope they are having a nice day.

It is also wise to submit an Application to Preserve Residence for Naturalization Purposes (Form N-470) to the USCIS before you leave if it is your intention to become a citizen.

You will need to file Form I-485 for a change of status well before your current visa expires. You will need to submit quite a few other forms and documents to prove your identity and background.  If accepted, you will be granted permanent resident status, aka a Green Card.  If you would like to proceed to become a citizen, you will need to take a few more steps as outlined above.

A lawful resident has the right to live and work in the U.S., but only a citizen is also granted the right to vote and hold public office.

There are three ways to legally work in the US while you await approval of your citizenship application:

  1. If you have your temporary Green Card, you may work in the U.S.
  1. You can get a work permit through the filing and USCIS approval of a Form I-765 Employment Authorization Document (EAD)
  1. You can get a visa that allows you to work.

Average processing times vary greatly depending on what application you are filing, the center you are filing it with, the complexity of your case, and of course, how well supported your application is and how accurately it is filled out.  If your application is missing items, contains inconsistencies, or lacks detailed supporting information, it can take many weeks, or even months, longer than a form that was prepared well by an attorney.

Below are some average processing times for the government to review some common forms.  These numbers are averages, so some documents will be approved weeks or months earlier, and some much later, based on the factors discussed above.

 

Form NumberForm NameType of ApplicationAverage Processing Time
I-129FPetition for Alien
Fiancé
All Classifications (K1,
K2, K3, and K4)
6 Months
I -130 Petition for Alien RelativeImmediate Relative10 Months
I -131 Application for Travel
Document
Parole in Place/Advance Parole14 Months/4 Months
I - 140Immigrant Petition for
Alien Worker
Premium Filed/Non-Premium.6 Months/6 Months
I - 485Application to Register
Permanent Residence or
to Adjust Status
Based on grant of
asylum more than 1
year ago
8.4 Months
I - 485Application to Register
Permanent Residence or
to Adjust Status
Employment-based, family based, and other adjustment applications
12.3 Months
I - 526Immigrant Petition By
Alien Entrepreneur
20.4 Months
I - 601AApplication for
Provisional Unlawful
Presence Waiver
8 Months
I - 730Refugee/Asylee Relative
Petition
Petition for
accompanying family
members of a
refugee or an asylee
10 Months
I - 765Petition for
accompanying family
members of a
refugee or an asylee
DACA/All other petitions1.2 Months/4.7 Months
I - 829Petition by Entrepreneur
to Remove Conditions
Removal of lawful
permanent resident
conditions (immigrant
investors)
30.9 Months