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Who Can Immigrate to the U.S. and how?
The Law Offices of Theodore Behlendorf


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The information provided below is of a general nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of the Law Office of Theodore Behlendorf or establish an attorney-client relationship.

Below are descriptions of immigration possibilities through various sources:

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EMPLOYMENT SPONSORED IMMIGRATION Back to the Top

1. The Employment Based First Preference (EB1) or Priority workers comprise of the following three categories which are listed below as A B & C:

A. "Extraordinary Ability" (Employer - Labor Certification not required) This category requires that the candidate have expertise in business, sciences, athletics or arts, which is demonstrated by national or international acclaim, and well documented achievements. The candidate must be entering the US to continue work in his/her area of extraordinary ability, and this entry must prospectively benefit the US

B. "Outstanding Professor or Researcher" (Employer required - Labor Certification not required) requires that the candidate be:

i. recognized internationally in a specific academic area, and
ii. possess at least three years of teaching or research experience in the academic area; and
iii. seek to enter the United States for :

a. tenure or tenure-track position within a university or other institution of higher education to teach in the academic area; or
b. comparable position with a university or other institution of higher education to conduct research in the area; or
c. comparable position to conduct research in an area with a department, division, or institute or a private employer, if the department, division, or institute employs at least three persons full-time in research activities and has achieved documented accomplishments in an academic field.

C. "Multinational Executive or Manager" (Employer required - Labor Certification not required) requires that the candidate have been employed abroad in that capacity during at least one of the 3 years preceding his/her application for admission into the US as a priority worker. He/she must enter the US to be employed as an executive or manager for the same firm, corporation or legal entity or a subsidiary or affiliate of the entity that employed him/her abroad.

2. The Employment Based Second Preference (EB2) Professionals includes those with advanced degrees or persons of "exceptional ability". These visas are reserved for qualified immigrants who are:

A. members of the professions holding advanced degrees (Employer required - Labor Certification required - Unless work is in National Interest) or their equivalent, or

B. those who are of exceptional ability (Employer required - Labor Certification required - Unless work is in National Interest) in the sciences, arts, or business, who will benefit the national economy, cultural or educational interests of the US and whose services are sought by an employer in the US A Bachelor's degree and five years of professional experience is considered the equivalent of an advanced degree. The mere possession of a degree or license does not constitute sufficient evidence of exceptional ability.

Unlike a priority worker, a person may immigrate to the US under the above category only after his/her employer has obtained a labor certification (LC) for the job. In some circumstances the Immigration and Naturalization Service (INS) may waive the requirements of a job offer and labor certification if the work is deemed to be in the "national interest". The classification of those who can qualify in the national interest and obtain a waiver of the labor certification has been explained in the section on national interest waivers separately at the web site of the Law Office of  Theodore Behlendorf.

3. The Employment Based Third Preference (EB3) (Employer required - Labor Certification required) comprises of skilled workers, professionals or other workers which is explained below.

A qualified "skilled worker" is a person capable of performing a job which requires at least two years of training or experience, for which qualified workers are not available in the United States. To qualify as a "professional", an individual needs to be a professional with a Baccalaureate degree. "Other workers" are those who are considered unskilled labor, not of a temporary or seasonal nature, for which qualified workers are not available in the United States. Skilled workers, professionals and other workers are required to file and obtain a labor certification from the US Department of Labor and be sponsored by their employers for their jobs.

4. The Employment Based Fourth Preference (EB4) (Employer required - Labor Certification required) is comprised of "Special immigrants" which is explained in the following paragraph:

Immigrants in this category include religious ministers, long time employees of the US government employed abroad, and some investors and physicians who have resided in the US for a number of years.
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IMMEDIATE RELATIVES AND FAMILY PREFERENCE
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Immediate relatives of US citizens are : spouses, children and parents of US citizens - unmarried children and under 21 years of age, and, in the case of a parent of a US citizen, the petitioning son or daughter being at least 21 years of age.

The definition of immediate relative includes widows of US citizens provided that the alien was the spouse of the citizen for at least 2 years prior to the citizen's death and was not legally separated from the citizen at the time of his/her death.

IMP : The petition for permanent residence has to be filed within 2 years after the citizen's death and before re-marriage.

The advantage of qualifying as an immediate relative is that there is no numerical limitation or backlogs for sponsorship.

The Family preference categories are as follows:

1st Pref. - unmarried sons and daughters of US citizens,

2nd Pref. - spouses and unmarried sons and daughters of lawful permanent residents,

3rd Pref. - married sons and daughters of US citizens

4th Pref. - brothers/sisters of US citizens.

At present the waiting time frames for the 4th preference siblings of US citizens is approximately 10-12 years!! The Visa Bulletin posted in the Updated Section of our web site which is released each month by the US State Department provides the cut off dates in each of the categories we have outlined above.
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MARRIAGE Back to the Top

Marriages within the United States

The US citizen needs to submit a visa petition to the appropriate INS Regional Service Center to prove that the marriage was not entered into for the for the sole purpose of obtaining a green card. The burden is on the parties to establish the bona fides of the marriage.

The foreign-born spouse should submit an application for adjustment of status - an application for a green card, a completed fingerprint chart, green card type photographs and numerous other INS forms, plus INS filing fees.

Effective since November 29, 1996, the application is now submitted to the INS Regional Service Center for processing.

The INS schedules an interview somewhere between two and 14 months depending on which INS office the application was filed. If the wait exceeds 90 days, chances are that the employment authorization document (EAD) or work card and the travel document will be issued in a matter of a few weeks. The Regional Service Centers are taking on average 3 months to process the EAD. If the interview occurs within 90 days, it is possible that no work or travel permit will be issued.

Marriages outside the United States

The foreign-born spouse usually must remain in his/her country until he/she obtains the green card.

The citizen spouse submits a visa petition to either the appropriate INS office or directly to the US Embassy or Consulate in the country where the foreign-born spouse lives.

Once the visa petition has been approved, the foreign-born spouse will receive a packet from the National Visa Center (NVC). The packet will inform the foreign-born spouse of the various documents required at the immigrant visa interview abroad and the packet will also include documents requesting biographic data which need to be completed and forwarded to the US Embassy or Consulate abroad. The process can take three to six months.

In order to avoid a long separation, sometimes the spouses return to the US after marriage and file the necessary applications only after they are both in the United States. If the foreign-born spouse is able to enter the US, the INS will not deny his/her application for a green card. It is common for the INS to stop the foreign-born spouse at the border and exclude him/her from entering the US as an intending immigrant. Since spouses of US citizens are considered "immediate relatives" under immigration laws, they are exempt from all numerical quota limitations.

CONDITIONAL RESIDENCE

If the marriage is less than two years old when the foreign-born spouse becomes a permanent resident, the green card will expire after a two-year period. Both spouses must submit a joint petition to remove the two-year condition within the 90-day period immediately preceding the end of the two year period.

If the marriage has terminated by reason of divorce, death of the citizen spouse or spousal abuse, the foreign-born spouse may apply for a waiver of the joint petition requirement.
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INVESTMENT Back to the Top

Individuals investing a minimum of $1 million, or in certain circumstances, $500,000, in a new commercial enterprise employing at least 10 US workers (exclusive of the immigrant, his/her spouse and sons and daughters) will qualify for this classification of the visa. If this investment is made in either a rural area or in an area experiencing high unemployment, the minimum amount required for the investment is $500,000. Investor visas for those investing in rural or high unemployment areas is limited to a maximum of 3,000 every year.

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LOTTERY Back to the Top

These visas will be distributed among six geographical regions. A greater proportion of visas will go to those regions that have lower immigration rates in the US The regions are:

Africa : All countries on the continent of Africa and adjacent islands.

Asia : From Israel to all North Pacific Islands, including Indonesia.

Europe : From Greenland to Russia - includes all countries of the former Soviet Union.

North America : Includes only one qualified country this year (1998), The Bahamas.

Oceania : Includes Australia, New Zealand, Papua New Guinea, and all countries and islands in the South Pacific.

South America : Includes Central America, Mexico and the Caribbean countries.

Individuals born in countries that have significant numbers of immigrants to the United States are considered "high admission'' and are not eligible for the program. "High admission'' countries are defined as those from which the United States has received 50,000 or more immigrants during the last five years in the immediate relative, or family or employment preference categories. For 1998, "high admission'' countries are:

China (mainland and Taiwan), INDIA, The Philippines, Vietnam, South Korea, United Kingdom and dependent territories (except Hong Kong and Northern Ireland), Canada, Mexico, Jamaica, El Salvador, Colombia, and The Dominican Republic.

Requirements : In addition to being born in a qualifying country, applicants must have either a high school education or its equivalent, or within the past five years have two years of work experience in an occupation that requires at least two years of training or experience.

Only one entry for each applicant must be submitted during the registration period. Duplicate or multiple entries will disqualify individuals from registration for this program.

Entries received before or after the specified registration dates regardless of when they are postmarked and entries sent to an address other than one of those indicated below are all void. All entries received during the registration period will be individually numbered and entries will be randomly selected by computer without regard to the time of receipt. Only successful registrants will be notified by mail at the address listed on their entry.

No outside service can improve an applicant's chance of being chosen or guarantee an entry will win and any service that claims it can, is promising something it cannot deliver. Outside agencies can only help in the proper filing of the application - paying attention to the details involved.

Persons who think they have been defrauded by a United States based company/consultant in connection with the Diversity Visa Lottery may wish to contact their local consumer affairs office or the National Fraud Information Center at 1-800-876-7060.

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OTHER AVENUES Back to the Top

There are some other avenues available for immigration, for example, the asylum/refugee petition and the suspension of deportation which have undergone and are undergoing substantial changes pursuant to recent laws becoming effective from April 1, 1997.

LAW OFFICE OF THEODORE BEHLENDORF
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The information provided above is of a general nature and may not apply to an particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of the Law Office of Theodore Behlendorf or establish an attorney-client relationship.


|Main Page| What We Do | Who Can Immigrate| Contact US | Immigration Links |
(213)487-4861 or (818) 467-2582