One of the most concerning moments in my practice as an immigration attorney, or as some call me: H1b lawyer, is when my client falls out of compliance without even knowing it. Because employment in general is a fluid matter, I mean by that employees come and go continuously; a company which employs foreign nationals could become an H-1b Dependent Employer and not even know it. Failing to comply with the regulations if an worker becomes H1b dependent could could be cost the payment of penalties if the US Department of Labor ever audits the employer.
Our firm services employers nationwide, however, they usually meet with me in one of my offices located in Columbus, Ohio, Cleveland, Ohio, and Southfield, Michigan or in the nation’s capital, Washington, DC. I am on a constant communication with my clients to assure that they continue in compliance with the regulatory directives when it comes to the employment of foreign workers. It is important for an worker who regularly employs foreign nationals to keep open communication channels with a competent immigration lawyer. This communications relative to the hiring, terminating and the resignation of the foreign national on H-1b visas.
The immigration attorney could predict when an employer becomes H1B dependent which then requires him to undertake additional measures to protect the worker. For instance, the regulations at 8 CFR §214.2(h)(11)(i) require the employer to “immediately notify the Service of any changes in the terms and conditions of employment of an H-1B employee.” such changtes include when an H-1b visa employee resigns or is otherwise terminated. By having such an open relationship with an H1b lawyer, the attorney should be keeping a running tally of the number of H1b workers present on the employer’s payroll at any given time. Why is this important? It is because the ratio of an employer’s H1b employees can cause to unwittingly take on additional legal obligations.
How Does An Employer Become H-1B Dependent?
Most of the time, the determination is rather simple and arithmetic:
25 or fewer full-time equivalent (FTE) employees, including 8 or more H-1Bs;
26-50 FTE employees, including 13 or more H-1Bs; and
51 or more FTE employees, including at least 15% H-1Bs.
Take this as an example: Employer A employs foreign nationals. Presently, Employer A has 30 employees and 8 of them are H-1bs and the rest are US Workers. If Employer A loses 6 US Workers only, Employer A automatically becomes an H1b Dependent. The interesting thing about this is that the loss of the workforce had nothing to do with H-1b visa employees. Nonetheless, the regulations are written in a manner that could easily cause an worker to become H1b dependent and not even know it.
What Are the Responsibilities of H-1B Dependent Employers?
Non-Displacement – The employer shall promise that he shall not displace a similarly employed U.S. worker within 90 days before or after an H-1B visa petition is filed;
Secondary Inquiry – Employer must inquire of a secondary worker whether an H-1B will displace a similarly employed U.S. worker;
Recruitment – Employer will make good faith efforts to recruit U.S. workers; and
Employer will offer the job to an equally or better qualified U.S. applicant.
The worst scenario happens when an employer files an H-1B petition utilizing a previously approved LCA after the worker unwittingly becomes dependent without undertaking the additional directives now placed upon him by the regulations. For instance, the non-displacement requirement could cause an worker to be in violation if he hired an H1b employee over an equally qualified US worker within 90 days prior to filing such petition.
This is why it is exceedingly important to have a close relationship with a competent H1b lawyer and to keep communications open with such lawyer so that he could keep the employer in compliance with the regulations at all times.
The lawyers at Shihab & Associates, Co, LPA with offices in Columbus, Cleveland, Southfield Michigan and Washington DC are experienced in these matters and could offer assistance in assuring that your company continues to be in compliance at all times.
As an H1B attorney, I have observed a recent alarming increase in the frequency of Requests for Evidence (RFE) issued against H1b petitions filed by smaller Information Technology firms. There is no geographical pattern for the location of such IT consultants as I observed this flurry of record RFEs coming against our clients based in Columbus, Ohio, Washington, DC, or anywhere for that matter. The RFEs are extremely lengthy and require the submission of voluminous documentation, some of which has nothing with the regulatory requirements for Specialty Occupation (H1B). For instance, some of the RFEs demand the submission of zoning permits, floor plans of the premises occupied by the company, tax records, a list of all H visas submitted, and more; but the most concerning request usually proof that the petitioner is an employer, not an “agent.”
Although an “agent” technically may petition for an H-1B worker, once the Service believes that the employer is acting as an agent, it imposes extremely taxing documentary requirements on the petitioner that go above and beyond the normal kinds of paperwork that evidence most employment relationships. Once USCIS believes the employer is acting as an agent, its demands for evidence can become impossible to fulfill and may trap the employer in an impossible spiral in which all of its petitions become suspect in the eyes of the Service. Once an employer has fallen into such a trap, it may prove nearly impossible to get out of and result in disastrous consequences for the employer’s business.
In essence the petitioner is placed on the defensive to invoke the IRS of whether there exists and employer employee relationship since the H1B employees may work at a “worksite” other than the petitioner’s offices. USCIS charges such petitioners as a “staffing agencies” and requires a detailed itinerary of activities of the H1b beneficiary.
The flexibility and fast pace that business demands today from employers and their employees challenges traditional, old school business models. This is particularly true in fields such as information technology, where companies need to be able to move their employees from one site another in order or provide specific consultants with specialized skills at a moment’s notice to satisfy their clients. Companies that cannot provide these services when and how they are needed will not be able to compete. Gone are the days of the single office or worksite, the leisurely pace of life without the Internet.
Unfortunately, the USCIS has not kept pace with the changes that business today requires. The Service still imposes standards reminiscent of outdated business models onto petitioning companies, and the results can be exasperating for companies seeking to employ an H-1B worker, the employee, and the company’s clients.
Because of this, it is important for employers to seek truly experienced immigration counsel. Such counsel must have experience that goes beyond the typical bounds of navigating the demands and requirements of filing a successful H-1B petition. The ideal attorney will also be able to give employers practical advice on ways to structure and run human resource models and employment relationships that will minimize interference or suspicion from USCIS. Such advice may take the form of examining the employer’s typical work orders or employment contracts. The attorney will also advise the employer on best practices in documenting the placement and hiring of its employees, in addition to warning the employer of the kinds of employment and business practices that may rouse the suspicion of USCIS or trigger requests for evidence or denials.
Unfortunately, very often employers come to knowledgeable and experienced attorneys when problems have already started, due to retaining inexperienced counsel that charges bargain basement fees or after having filed a petition on its own. At this point, many employers have already been characterized as an “agent” by USCIS and are unable to prove to the adjudicators that they have a normal employer-employee relationship. Smart employers seek experienced counsel early in the hiring process, when the attorney can advise the employer on how to document and create relationships with both the employee and its clients that will lead to smooth and successful H-1B employment. The lawyers at Shihab & Associates, Co., LPA are experienced in these matters and have successfully counseled their clients on measures to avoid these traps.
We try to be proactive in our practice at our Washington DC office as we know employers will be banging on our doors closer to the dreaded April 1 deadline each year, and demanding that we file dozens of H-1b visa petitions for their prospective employees. I truly believe in educating the client because once armed with knowledge, they help me represent their interests and implement the best and most cost effective strategies that would achieve their business goals.
When it comes to H-1b visa petitions, I normally go through the program highlights. But once I review the regulatory requirements, I am usually presented with a question that is all too familiar: H-1b or Not to Be? In other words, employers usually ask me: can I exploit another endorse category for my employees? Is there another visa type that can be applied for? My answer usually is look at the statistics; in federal fiscal year 2007 for instance, there were 424,369 H visas issued at the various consular posts around the world while there was less than 200,000 other combined employment based non-immigrant visas issued.
Said in a different way, the H visa program is utilized more than twice of all of the combined non-immigrant work endorse categories that exist. This leads us to believe that the H visa category is of great utility to employers notwithstanding the somewhat cumulative regulatory requirements. Let me first review these regulatory requirements, and then let’s discuss other visa scenarios that I have been able to implement for my clients.
A. Basic requirements for the H-1b Visa Program:
Labor Condition Application Attestation – An employer must attest, through the filing of a Labor Condition Application (“LCA”) that the H-1b validation employee will receive prevailing wages as those wages exist within the geographical area where the work will be performed. In addition, the employer must also provide certain notice at the worksite that it is about to file LCA and keep certain records showing its compliance with the LCA regulations. If the employer is deemed an H-1b endorse dependant (or a willful violator), then the employer must also attest that it has not laid off US workers 90 days before and after the filing of the LCA.
Filing of the H-1b visa Petition – The filing of the H-1B endorse petition follows the electronic filing and approval of an LCA. In other words, the employer completes the LCA process prior to the filing of the H-1b visa petition with the USCIS. The filing of the H-1b endorse petition carries with a couple of requirements: a) the employer has the financial means to pay for the wages of the employee, and b) that the position is a specialty occupation.
Filing Fees – The employer must also pay certain filing fees: The H-1b endorse program is the only non-immigrant validation type that has its own filing fee. They don’t come by cheap.
Numerical Limitations – There only 65,000 visas given annually to H-1b endorse holders (1400 visas withheld for Chilean and 5400 visas withheld for Singaporean citizens) as well as 20,000 visas reserved for aliens who have attained a master’s degree from a US institution). Since federal fiscal year 2007, the USCIS has run out of visas on April 1, the first day employers were allowed to file for these visas.
B. Alternatives to the H-1B Visa Program:
There are several alternatives that could be considered, however, the H visa program is the most “playable” validation category as it includes L, O, TN, J, and E visas. For purposes of this article, I will discuss in greater details the L-1, O-1 and TN visa categories as viable alternatives to the H-1b endorse program:
Intra-Company Transfer “L-1” Visa – The L-1 visa category is only a good alternative to the H validation program if all of the following exist at the time of filing the petition: a)the US employer must have a “qualifying business relationship” with another company outside the US such as parent/subsidiary, affiliate, or joint venture; b) the employee must had worked in the company outside the US for one out of the three years prior to his/her admission to the US in executive/managerial capacity or in specialized position; and c) the employee is coming to the US to fill a position that is executive/managerial capacity or in specialized position. One of the disadvantages is obvious: the US employer may not have a qualifying business relationship with another firm outside of the US. Another one is that the intracompany transferee must be coming to the US to primarily work on the employer’s premises. One great advantage is that the intracompany transfer program does not require the employer to pay the foreign national prevailing wages. Furthermore, there are not numerical limitations for validation type and holders of the L endorse category may hold immigrant and nonimmigrant visa intent simultaneously (this is referred to as “dual intent”).
Aliens of Extraordinary Abilities “O-1” Visa – One avenue worthy of consideration is the O-1 endorse category. It is highly doubtful that this avenue is a viable alternative to the H visa program due to the high regulatory threshold requirements that it has. This visa category is reserved for those aliens who have risen to the very top of their career endeavors. For a complete listing of the regulatory criteria, please refer to our detailed article on O-1 visas. One disadvantage is the obviously high threshold criteria for acceptance into this category. An advantage is that the professional employee in this category will not be subject to the prevailing wage requirement. There are no numerical limitations to this validation type and holders of this visa enjoy dual intent.
Professionals pursuant to NAFTA “TN” Visas – Certain Canadian and Mexican professionals are eligible to receive endorse and accept employment within their professional filed pursuant to NAFTA. Previously TN visa holders were only able to hold this visa category for one year renewable annually. As of October 18, 2008, USCIS amended the regulations allowing these nationals to receive this visa designation for three years. Holders of this visa type are not subject to any numerical limitations but holders of TN endorse category may not hold immigrant intent.
The H visa category carries the largest flexibility in terms of US employer’s ability to hire foreign nationals. Even though the filing fees are higher, the employer must pay prevailing wages and keep certain records pursuant to the regulations, there are relatively low threshold criteria for approval when compared to the other alternative visa types.
As you take office, the many problems this country is facing are probably dominating every second of your day. It may seem, given our present economic situation, and the need to focus resources on other pressing issues and long legislative agenda in Washington, DC. that immigration reform should take the back seat for now. However, some aspects of immigration reform, such as an increase in the annual H-1B cap, would actually contribute to, and not hurt, an attempt to remedy the economy. Many Cities like Detroit, Michigan, Cleveland, Ohio and Columbus, Ohio to name a few can certainly benefit from a pro H-1B policy.
The purpose of this message is to outline the reasons why the H-1B cap should be increased and to address the concerns of opponents to an increase to the H-1B cap.
The H-1B visa, or at least the concept behind it, is a historically important part of our country’s immigration law. This visa has been a driving force for innovation and a vehicle by which to attract the top talent and skills from across the globe. The H-1B visa allows foreign nationals with a Bachelor’s or more advanced degree (or the equivalent of those degrees through experience) to work temporarily in the United
Starting with the Immigration Act of 1990, Congress arbitrarily fixed a numerical limit, referred to as a cap, for the number of H-1Bs that would be available each year. The H-1b cap was set at 65,000 per year. Several exemptions from this H-1B cap have been added via subsequent legislation, the most important of which is 20,000 visas for persons holding a U.S. Master’s degree. The cap has been increased for some years, notably from 1999 to 2003, reaching a maximum of 195,000 per year.
But since 2004, though, the cap has been reduced back to its pre-1999 level of 65,000. On top of this, the actual number of H-1Bs available in the general pool is reduced to 58,200 by the Free Trade Agreements that the U.S. has with Singapore and Chile, which reserve 6,800 H-1Bs for persons from those countries.
The reversion of available H-1B visas to the 65,000 cap has caused a massive failure in meeting the demand of U.S. companies seeking to hire skilled employees, especially in the computer-technology industry. For example, for FY 2008, United States Citizenship and Immigration Services received enough H-1B applications to exhaust the cap on the first day of the filing season. And for FY 2009, approximately 163,000 applications were filed when the filing season began.
The failure to meet the employment demands of U.S. companies diminishes the ability of those companies to maintain their viability and competitiveness in the global market. Companies that rely on professional skill which is not readily available within the domestic work force endure lower productively than actually possible due to their inability to obtain visas for skilled foreign workers. Without qualified employees, growth in these companies is halted and revenue does not increase as it could.
Companies in such a situation are faced with two alternatives, both of which have negative impacts on our economy: they must either hire workers to be employed offshore or the workers will seek employment with competitors abroad. In the first case, compensation paid to offshore employees does not get pumped back into our economy, as it would if those employed lived and worked in our country. In the second case, projects that cannot be completed by U.S. companies will be sent to foreign competitor businesses that are able to hire skilled workers that could not get visas to the U.S.
U.S. immigration law allows foreign citizens who are employed by companies with operations in the U.S. to enter the U.S. in order to perform their work duties. These individuals are issued special types of visas known L-1 visas, which are further divided into L-1A visas and L-1B visas. L-1A visas are typically issued to transferring executives or managers of a qualifying business, while L-1B visas are typically issued to lower level employees of a business with specialized skills or knowledge which are necessary to complete the employee’s assigned duties. Not only can the L-1 series visa be used to allow employees to transfer to the U.S. based offices of a business, but the visa can also be used by foreign businesses interested in sending an employee to the U.S. in order to establish a U.S. office, if one is not already in operation.
L-1A Basic Qualifications for Employees
The basic qualifications of the L-1A visa require the employee to have worked for a qualifying employer for a period of at least one year in the last three years immediately before the employee’s admission to the U.S., and also that the employee will be entering the U.S. for the purposes of serving in an executive or management capacity for the U.S. based operation of a multinational business. If they are joining an existing U.S. office, the employee will be issued an initial visa for up to three years. If they are entering the U.S. in order to establish a U.S. presence, the visa will be issued for a period of up to one year. In either case, extensions to the visa can be granted in increments of up to two years at a time, until the maximum allowed number of years in the country is reached, which is currently set at seven years.
L-1B Basic Qualifications for Employees
The basic qualifications of the L-1B visa, which are similar to those of the L-1A visa, require the employee who will be entering the country on the visa to have worked for a qualifying employer for a period of at least one year within the last three years immediately before the employee enters the U.S., and also that the employee will be entering the U.S. for the purposes of performing services for the qualifying employer which require specialized knowledge. Also like the L-1A visa, initial visas will be issued for up to one year, if a new office is being established, or up to three years if the employee will be joining a U.S. based office already up and running. Extensions to this visa are also issued in increments of two years until the maximum allowed number of years in the country is reached, which is currently set at five years for this visa type.
Basics for Businesses
In addition to requirements for employees who will be working in the U.S. under an L-1 visa, immigration law requires that the employing business meets certain requirements before it is allowed to request a transfer to the U.S. for an employee. The business is not required to be involved in international trade, but it must be a legitimate business that maintains a qualifying relationship with a foreign based company. A qualifying relationship is typically considered a parent company, subsidiary, affiliate, or branch.
The United States has always been a land of opportunity, which is why so many foreign citizens try so hard to get to the United States for work. If they possess extraordinary abilities in the arts or athletics, foreign citizens may qualify for an O-1 visa. As holders of O-1 visas, immigrants can qualify for a stay period of up to three years in the U.S., with an extension of stay granted in one year increments for as long as the validation holder remains active in his or her field. There are two types of O-1 visas, as well as two additional O series visas that are issued to individuals who may travel with the primary O-1 validation holder.
The O-1A validation is reserved for those who have achieved extraordinary ability in the field of athletics, but is also issued to those with extraordinary abilities in the fields of business, education, and science.
The O-1B validation is reserved for individuals with extraordinary abilities in the fields of art or in the TV or movie business.
The O-2 visa is not for athletes and performers themselves, but is for individuals who will accompany the primary performer into the United States for the purpose of assisting the primary performer through the primary performance. Holders of this type of validation must be an “integral” part of the O-1 validation holder’s performance.
The O-3 visa is reserved for the spouses and children of O-1 and O-2 visa holders.
Although the United States invites foreign artists, performers and athletes to come to the United States to practice their craft, it does not make the process very easy. The government requires foreign citizens who are applying for an O-1A or O-1B validation to meet certain evidentiary requirements – that is, to provide specific proof that the individual has reached a certain level of extraordinary ability and recognition.
For athletes applying for an O-1A visa and artists and performers applying for an O-1B visa, extraordinary ability can be shown if the athlete, artist, or performer has received a major international award or prize. In the absence of an international award or prize, the government allows foreign athletes, artists, and performers to show that they have reached a level of extraordinary ability through substitute criteria, like membership in certain respected organizations relating to the field in which the O validation holder will work, a substantially higher relative salary or pay rate than others in the same field, or significant recognition from critics and organizations in the field in which the foreign citizen works. If they have never won a major, internationally recognized award or prize, then three substitute criteria, like those that were just mentioned, can take the place of the major, international prize.
Always Best to Get Good Legal Advice
To say the least, working without an attorney for an O series validation is possible, but can be very tricky, and is not generally recommended. The government has very strict requirements in place for holders of O series visas and failure to prove that these requirements are met can result in a visa denial. An experienced attorney will know what the foreign citizen needs to do and what he or she needs to show in order for the application process to go as smooth as possible.
In the U.S., a green card signifies that the holder is a lawful and permanent resident of the United States. For individuals who are still citizens of foreign countries but who have established a new life in the United States, getting a green card is usually a good idea because of all the benefits that it will allow the foreign citizen to enjoy. Holders of green cards are able to leave and enter the country without the risk of being denied entry by an immigration official at a port of entry, and are able to enjoy certain government sponsored benefits, like educational financial aid from the federal government and certain forms of financial assistance from state and local governments.
Green card holders will also usually have more opportunities for economic advancement while in the country since they would be allowed to legally seek employment, form a business entity, and apply for jobs that may require security clearances, which are only issued to full fledged U.S. citizens and lawful and permanent residents / current holders of green cards. As far as constitutional rights, green card holders enjoy all of the same legal rights as U.S. citizens, except for the right to vote – they can, however, make contributions to political campaigns and causes, if they wish.
Foreign citizens currently in the U.S. on a work visa can apply for an upgrade from visa to green card status. This type of upgrade requires the employer to file a Form I-140, which is also known as a Petition for Alien Worker. Once the I-140 is approved, a Form I-485 must be completed which is the form used to register permanent residence or adjust the status of a foreign citizen already in the country.
By Family Relation
By using Form I-130, Petition for Alien Relative, current U.S. citizens and permanent residents can sponsor foreign citizen family members for green cards of their own. Assuming the foreign citizen family member is already in the United States legally, then a Form I-485 can be filled out to begin the green card process. If the foreign citizen family member is outside of the United States at the time of sponsorship, then the family member may be required to complete his or her portion of the application process at a U.S. consulate or embassy.
If they have been admitted to the country as a seeker of asylum or as a refugee, the person can apply for a green card after one year in the U.S. Form I-485 will need to be filled out in order to process the upgrade in immigration status.
Registry provisions of immigration law allow foreign nationals in the United States continuously since January 1st, 1972, either legally or illegally, to apply for a green card by using Form I-485 to complete the process.
Playing the Lottery
The green card lottery allows the federal government to issue a total of 50,000 green cards to individuals who qualify for admission to the U.S. The program is designed for foreign citizens from countries that are considered under-represented in the U.S., which is why this program is also referred to as the Diversity Immigrant Visa Program.
By an Act of Congress
While rare, an official act of Congress can allow individuals previously ineligible for green card status to apply for a green card.
As a Columbus E1 & E2 investor visa law firm, we know that one option for getting a visa to live and work in the U.S. is for foreign citizens to make a substantial investment in the U.S. economy. The government defines a substantial investment as either $500,000 or $1,000,000. The lower amount is allowed if the investment is made into a government designated industry, and the higher amount is allowed if the investment is made into any other industry. The government offers the discount in order to boost investments into industries that could use them the most.
Legitimacy is Key
Some hurdles which foreign investors may face on the path to an investor visa include proving that the business into which the investment is made is a legitimate business, and that the funds used to make the investment were legally earned. An attorney with experience in helping foreign citizens get approved for the investor visa can help foreign investors prove that a business and investment funds are legitimate by explaining to the foreign investor what kind of documentation will be needed to prove legitimacy.
The reason why legitimacy is so important is because, if the government believes that the business or investment funds are suspect, it will generally deny the visa application. If the business and funds are in fact actually legitimate, a denial from the government can add a substantial amount of waiting time to the foreign investor’s overall application process, so being able to show legitimacy as early as possible is crucial.
If a person is approved for an investor visa, the first issuance of the visa will be provisional, and will last for a period of two years, according to our business immigration lawyers. During this time, the foreign investor’s investment is required to grow the business by a minimum amount. For new businesses, the investment must create at least 10 jobs for qualified American workers. For existing businesses, the investment must expand the business by either 40% in terms of work force or net worth. Unfortunately, nobody can guarantee that an investment will be successful, but an attorney can help foreign investors should they feel that they may need an extension to their provisional visas if they are unable to expand the business by minimum amounts within the two year provisional period.
A Visa Option with a Strong Reputation
The investor visa program, referred to as the EB-5 visa program by immigration officials, has existed since the 1990s, and so far has helped the United States attract millions of investment dollars from foreign citizens. The investments have helped launch and sustain businesses all around the country and have helped the government raise a substantial amount of tax revenue over the years. Part of what makes the program so successful is that it is a true win/win – the foreign investor gets a visa for him or herself, plus the opportunity to get visas for his or her immediate family, and the U.S. economy gets a cash infusion that helps to build business.
If they would like more advice on applying for and getting approved for an EB-5 investor visa, foreign citizens are encouraged to speak with our experienced business immigration attorneys.
Every year, the United States government authorizes 55,000 green cards to be awarded in a lottery. Once awarded, winners of the green card lottery have the chance to live and work in the US so long as they meet the requirements and conditions of the green card program.
Strict Eligibility Requirements
To qualify for the green card lottery program, foreign citizens must meet certain education and work requirements. The general requirements are that the foreign citizen have a high school diploma or equivalent, and have two years of work experience within the last five years. Further, the green card lottery is designed for foreign citizens who are from countries that are underrepresented in the United States – this is why the official name of the green card lottery is the “Diversity Visa Program”.
Beware of Scammers
One disappointing aspect of the green card lottery program is the amount of scammers and con artists taking advantage of prospective immigrants who are trying to start a life in the United States. Two of the most common scams involve tricking foreign citizens into paying big bucks for the chance to play the green card lottery (which they lose), or posing as a representative from the U.S. government by phone or email to elicit personal financial information from foreign citizens who have already applied for the program.
The best way to prevent themselves from becoming a victim of a scam is to work with an established and experienced immigration attorney. Immigration attorneys not only have the experience necessary to offer legitimate assistance to foreign citizens interested in playing the green card lottery, but they also have credentials that can be verified through the state to ensure that their services are legitimate.
Benefits to Working with an Attorney
Along with safeguarding against the risk of a scam or con, working with an attorney is a great way for foreign citizens to ensure that they apply properly and promptly through the green card lottery program. The attorney can review a client’s case to determine if the person is eligible to play the lottery and, if so, can help the individual apply for his or her chance to play.
If they were to apply for the green card lottery on their own, foreign citizens may become confused and frustrated by the process, but this is to be expected. Immigration forms and application procedures can be very confusing to the foreign citizen who has little to no knowledge of the green card lottery program or U.S. immigration policies.
Make no mistake about it, foreign citizens are allowed to apply to play the green card lottery on their own, but this is an option which most immigration attorneys will recommend not be exercised. Immigration attorneys know the green card lottery program inside and out and can make sure that foreign citizens interested in playing fill out their applications fully and correctly. Believe it or not, even a simple typo on an application for the green card lottery can cause a foreign citizen to lose his or her chance to play and cause the foreign citizen to have to wait until next year to apply.
Most people know that citizens of the United States are able to sponsor foreign citizens for visas and green cards (lawful permanent resident status), but current lawful permanent residents are also allowed to sponsor foreign citizens. Lawful permanent residents, as current green card holders, are allowed by the U.S. to sponsor spouses and unmarried children of any age. The rules for foreign citizenship sponsorship are a little different for lawful permanent residents than U.S. citizens; for example, only U.S. citizens are allowed to sponsor married children.
The Application Process
For the current lawful permanent resident to sponsor a husband, wife, or unmarried child, the resident will have to begin the process by filing Form I-130 with the U.S. Citizenship and Immigration Services (USCIS). The Form I-130 is also known as a Petition for Alien Relative. By filling out this form, the sponsoring permanent resident helps the sponsored foreign citizen get a place in line for green card approval.
The place in line is determined by the date that the petition was filed, so filing sooner is typically better. The amount of time between filing the petition and reaching the front of the line can take several years, due in large part to high demand for these types of visas and limits on the number of these types of visas that the government will issue.
Dealing with Status Changes
Since lawful permanent residents are able to sponsor unmarried children, the child’s petition will be automatically revoked if the child does happen to marry. Therefore, if a lawful permanent resident is trying to sponsor a child who is engaged to be married or in a serious relationship, it would be in the child’s best interests if any actual wedding plans were postponed until after a petition decision has been reached. However, if the sponsoring lawful permanent resident is upgraded to naturalized U.S. citizen before a child marries, then the recently upgraded U.S. citizen would be allowed to sponsor his or her married child.
An Application Does Not Allow Residency
Unfortunately, an application to sponsor a foreign citizen does not allow the foreign citizen entrance into the United States nor does it allow the foreign citizen to wait in the United States while his or her application is being filed. Unless the foreign citizen can enter the country legally on his or her own, his or her unlawful presence in the U.S. could have a negative effect on the outcome of a petition when his or her application reaches the front of the line.
Always Best to Speak with an Attorney
The application process and all the rules for sponsoring a foreign citizen as a lawful permanent resident can be pretty confusing for anyone without knowledge of immigration law. For this reason, prospective sponsors of foreign citizens, whether the sponsor is a lawful permanent resident or U.S. citizen, are encouraged to seek the advice of experienced immigration legal counsel. An experienced immigration attorney can explain the entire process to the prospective sponsor to ensure the person he or she wants to sponsor can apply for resident status as quickly and with as little trouble as possible.