Student Visas

In the 1999-2000 academic year, over half a million foreign students enrolled in the U.S. Just as worker visas are specifically for workers, student visas are only for students. This category of visas has specific requirements. One applying for a student visa must be able to verify that they are a student and currently studying at an institution.

Student visas fall into three categories: F, M, and J. You must meet the qualifications of one of the categories to apply for a student visa. If you do not, the only way you can work is if you happen to be a dependent of certain visa holders. You will need to double-check the qualifications of your relative’s visa.


The F-1 visa covers students for academic study. You must be studying at an institution in the U.S. so you first have to locate a prospective academic institution. You then fill out the necessary forms and go through the application process for the F-1 visa. Researching a specific school increases your chances of being granted an F-1 visa.


The M-1 covers non-academic students. This visa covers such non-academic studies as aviation and auto mechanics. You must follow a similar process to the F-1 visa by locating a prospective school, researching it, and applying. M-1 visas are valid for one year, or the time necessary to complete your studies plus 30 days, whichever is shorter.


This visa is for exchange students. It is administered by the United States Information Agency. Most students prefer the F-1 or M-1 visa due to complications that occur when the program is funded by the foreign person’s government.

Green Card through family

Family reunification has long been an important concept in immigration law. However, not every family relationship will support an application for lawful permanent residence.

Under the Immigration and Nationality Act, there are two basic categories — immediate relatives and preference immigrants.

Immediate relatives are the spouses, children under 21, and parents of a U.S. citizen. For parents of a U.S. citizen, the petitioning child must be at least 21 years of age.

The definition of immediate relative includes widows of U.S. 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 or her death.

There is a distinct advantage to qualifying as an immediate relative of a U.S. citizen as there is no annual numerical limitation and therefore no visa backlogs for this category.

Preference Immigrants fall into four categories depending on the familial relationship.

First preference includes unmarried children over 21 of U.S. citizens.

Second preference has two subcategories:

Spouses and children under 21 of lawful permanent residents;
Unmarried children over 21 of lawful permanent residents.
Third Preference includes married children of U.S. citizens.

Fourth Preference includes brothers and sisters of U.S. citizens over 21.

There is no category for aunts, uncles, nieces, nephews, or cousins of citizens or permanent residents. Each of the preference categories is subject to an annual numerical limitation of immigrant visas.

Because there are significantly more preference immigrants applying for visas than there are visas available every year, there is currently a backlog of at least several years for each category.

The annual numerical limitation of immigrant visas is specified per country therefore some countries, such as Mexico and the Philippines, have longer backlogs than other countries.

The Department of State issues a monthly Visa Bulletin which notes the progress in each of the categories.

To view the latest bulletin, click on the “Department of State Visa Bulletin” for the most recent month in our “News Updates” section of our website.

The spouse and children under 21 of the principal alien are considered derivative beneficiaries and are allowed to immigrate with the preference immigrant. However, there are no derivative beneficiaries for immediate relatives.

The first step in filing a petition based on one of the above familial relationship is to file an I-130 with the regional service center of the INS.

If the alien is an immediate relative, once the case is approved it will be sent to the U.S. consulate in the alien’s home country for immediate processing. If the alien falls into a preference category, the filing date of the I-130 becomes the priority date of the application.

Immigrant visas are issued to preference applicants in chronological order according to the priority dates established at filing.

If the immediate relative of a U.S. citizen is already in the United States based on a lawful entry through a tourist or other nonimmigrant visa, a one-step adjustment of status application may be filed with the local district office of INS.

This application would include the simultaneous filing of both forms I-130 and I-485 as well as additional documentation.

If the immediate relative of a U.S. citizen entered the United States unlawfully, then they need a law called 245(i) to be passed by Congress.

The 245(i) law allows persons who entered unlawfully who are already eligible to adjust their status to do so from within the United States.

This law is very important for persons unlawfully present in the United States for over a year, who could be barred from reentry to the U.S. for a period of ten years if they were to leave the country to process through a U.S. Consulate.

Congress has never passed a 245(i) as a permanent law, but periodically will pass temporary periods of validity.

Consult with immigration attorney Cynthia Irvine to determine if the law has been enacted recently and if you are eligible.

If you file an application and it turns out you were not eligible under the law, the INS will initiate deportation proceedings if you are in the country unlawfully.

After the adjustment of status application is filed with the local INS office, there will be an interview at the local office. In this interview, the petitioner and beneficiary must establish their relationship and the petitioner must demonstrate that he or she can economically support the alien beneficiary through the filing of an Affidavit of Support.

The petitioner must meet minimum income requirements in order to sponsor the alien but if they do not meet the requirements, they may require a co-sponsor.

If petitioner and beneficiary are spouses they must demonstrate the validity of their marriage through the presentation of various economic documents such as joint bank statements, joint income tax returns, apartment lease or home mortgage together, or joint credit card statements.

Spouses of U.S. citizens who were married within 2 years of filing the application for lawful permanent residence will be granted “conditional permanent residence” for a period of two years.

After two years, the couple must file another application to remove the conditions on the residency demonstrating evidence of their continued marital relationship.

If the couple is no longer married, the alien spouse must file a waiver application demonstrating that the marriage was entered into in good faith.

These provisions were enacted by Congress to prevent sham marriages.

B-1 Visa: Temporary Visitors for Business

The B-1 Visa allows for travel to the United States for the purpose of conducting temporary business activities.

The B-1 visa does not allow for employment while in the United States. Acceptable temporary business activities include attending sales meetings, contract negotiations, or trade shows, acting as a purchasing agent for a foreign employer to procure U.S. goods, or consulting with U.S. business associates or observing U.S. business operations.

In addition, Canadians and Mexicans may engage in additional activities listed under NAFTA. The principal benefit of the business activity must accrue to the foreign national or corporate entity abroad.

Furthermore, there can be no direct remuneration or salary payment from a U.S. source.

The business visitor must also demonstrate a limited stay in the U.S., a foreign residence abroad that has not been abandoned, and nonimmigrant intent.

An application for a B-1 visa is made directly with the U.S. consulate in the home country of the foreign national.

However, Canadians and Mexicans may apply for B-1 status on the intended day of entry at any “Class A” Port of Entry or International Airport.

Applicants should show specific and realistic plans as well as credible support arrangements for their time in the United States.

The duration of the B-1 visa is limited to the time required to conduct the business activity, up to an initial grant of one year.

The United States has agreements with over 25 countries that allow foreign visitors to enter the United States for up to 90 days under the Visa Waiver Program.

Nationals from these countries are not required to make a formal visa application before attempting to enter the United States.

For a list of these countries, please see the following table:

Countries under the Visa Waiver Program

Andorra Argentina Australia

Austria Belgium Brunei

Denmark Finland France

Germany Iceland Ireland

Italy Japan Liechtenstein

Luxembourg Monaco Netherlands

New Zealand Norway Portugal

San Marino Singapore Slovenia

Spain Sweden Switzerland

United Kingdom Uruguay

Misdemeanor convictions and immigration status

There are three types of misdemeanor charges that can potentially result in serious immigration consequences for a lawful permanent resident trying to renew a Green Card: Crime Involving Moral Turpitude (CIMT), crimes of violence, and drug offenses. Many misdemeanors that make a person inadmissible fall under the immigration law concept of CIMT. The CIMT is one of the oldest reasons of removal from the United States.

The CIMT are grouped into three main categories:

Crimes against property (blackmail, arson, robbery, burglary, receipt of stolen property);
Crimes committed against governmental authority (tax evasion , corruption, fraud against the government);
Crimes committed against individuals, family and sexual morality (statutory rape, murder, second or third degree assault, disorderly conduct, child abuse or pornography).
Under the INA, the conviction of a crime that corresponds to this list can make a person ineligible to enter the United States and to obtain a visa. If the person is already present in the United States, the acquisition of a Green Card or the naturalization process can be denied. On the other side, a conviction of just one misdemeanor CIMT when a state statute provides for a maximum sentence of one year or less is not grounds for the DHS to initiate removal proceedings.

Section 212(a)(2)(A) of the INA states that any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of a CIMT or an attempt or conspiracy to commit such a crime, is inadmissible to the U.S.

If the person is already present in the United States, the acquisition of a Green Card or the naturalization process can be denied. In addition, conspiracy, attempt, or acting as an accessory to a CIMT, are themselves considered CIMT, and are punished and penalized as such. If the crime was committed before you turned 18, was at least 5 years before your application, or did not carry a maximum penalty of more than one year and you were not sentenced to more than six months, you will not be found inadmissible.

While the criminal act being committed is the same, multiple violations can result in a felony charge that carries harsher punishments. A number of substance violation related misdemeanors lead to a finding that the applicant is a drug abuser or addict or a drug trafficker. Those are grounds of inadmissibility.

Investor Visas

An investor who wishes to run a business in the U.S. can obtain visas or green cards. The available visas are L1, E1, and E2. You can also follow a different application method for a green card.

Green Cards

Investors fall into the 5th Preference Green Card category. If more than one million dollars is invested in the company and 10 U.S. workers are employed for a period of 2 years, you may obtain a Green Card. A complication of this process is that if your investment fails, you have to leave the country.

L-1 Visa

An L1 visa can only be used by those who already owned or worked for a company in another country. They must also have done so for 1 year out of the past 3 years. A person who holds an L1 visa can apply for a Green Card.

E Visas

People who apply for E category visas must come from a treaty country. This is a country which bears a treaty of friendship, commerce, and navigation, a bilateral investment treaty, or any other treaty the country has negotiated such as NAFTA.


An applicant for an E-1 visa is coming to the U.S. to carry on significant trade between the U.S. and their home country. Trade includes goods, services, monies, banking, insurance, tourism, transportation, and other services.


An applicant for an E-2 visa is for an investment-oriented enterprise. You must own at least half of your enterprise. Your money or personal assets must be placed at risk by your investment.

Green Card through employment

For those foreign nationals who do not have a close relative as a U.S. citizen or permanent resident, permanent resident status (a “green card”) is possible through employment. The process usually must be completed through an employer sponsor who has a full-time job available and who can pay the usual salary for the job. There are normally three steps in the process to obtain a green card based on employment. The first step is called a labor certification, which is filed with the Department of Labor, in order to prove that there are no qualified U.S. workers available for the job. The second step is the visa petition, in which the INS determines that the foreign national qualifies for the job certified by the labor certification. The third step provides for the adjustment to permanent residence status.

The first step of labor certification is the most time consuming and difficult part of the process. The application is made to the Department of Labor in which the employer must prove that there are no qualified or available U.S. workers to perform the job of the foreign national. The employer proves that there are no U.S. workers available by performing a full recruitment for the position, including advertising in the local paper, posting a job notice at the worksite and possibly posting the job on the company website or employer participation in job fairs or on-campus recruiting. The labor certification process seeks to ascertain the availability of any minimally qualified U.S. workers for the job. If such an applicant is found during the recruitment process, the labor certification application will not be approved. Whether a candidate is the best qualified for the job is irrelevant. Furthermore, the employer must pay the “prevailing wage” which is the wage determined by the Department of Labor to be the average wage paid for the position in a particular geographic area. The entire labor certification process can take over a year to complete.

There are certain preferred types of workers who are exempt from the labor certification requirement. These are foreign nationals of “extraordinary ability”, “outstanding professors and researchers”, or workers whose continued employment in the United States is in the “national interest.” Certain executive and managers of multinational corporation, as well as nurses and physical therapists are also eligible for an exemption from the labor certification process. Additionally college and university professors and aliens possessing “exceptional ability in the performing arts” are eligible for a reduced form of labor certification called “special handling.”

Once the labor certification is approved or if one is exempted from the requirement, an employer can apply for the immigrant visa petition within one of several employment- based preference categories. The first preference consists of priority workers who do not require a labor certification. The second preference consists of professionals holding advanced degrees and persons with exceptional ability. Foreign nationals with either advanced degrees or bachelor’s degrees plus at least five years of progressive experience will fit into the second preference category. The third preference consists of professionals, skilled workers, and other workers. A professional is defined as someone with a Bachelor’s degree while a skilled worker is defined as someone with at least two years of training or experience, including associate degree holders. Each category is subject to annual visa number and per country limitations, which means that there may be waiting lists in several of the categories. If there is a waiting list in a particular category, the foreign national cannot file the immigrant visa petition until their “priority date”, which is the date of the filing of the labor certification, is current.

While the primary focus of the labor certification is on the job itself, the primary focus of the immigrant visa petition is on the foreign national’s qualifications for the position and for one of the employment based categories. In the immigrant visa petition, the employer must describe those qualifications for the position in addition to the employer’s business and the position’s place within the business. It usually takes a few months to obtain approval of the petition with the INS.

After the immigrant visa petition is approved, the foreign national may apply for the final step in the process, the adjustment of status or “green card” application. If the foreign national has a spouse and/or minor children, they may obtain green cards with the foreign national as dependents. This application focuses on personal and health information as well as the immigration history of the foreign national. An interview is conducted with the local INS office if the foreign national is already in the United States or with a U.S. consular office in the home country if the foreign national is abroad.

The entire process can take up to two years if your situation requires a labor certification or even longer if your visa category is subject to a backlog. The foreign national must remain with the sponsoring employer throughout the process although a new law allows for the individual to change jobs if the application for adjustment of status has been pending for over 180 days. The new job must be within a similar occupation as the job for which the petition was initially filed. Once the green card is obtained, the foreign national may live and work anywhere in the United States.

How does the H-1B Visa work?

The H-1B Visa is for persons in specialty occupations or certain models, or people providing a service to the Department of Defense. Our site will only focus on the first category.

The H-1B, like all visas, requires that you have a temporary intent to remain in the U.S on a temporary basis.

However, a person in the U.S. can apply for a Green Card. One of the steps involved in obtaining a Green Card (depending on how you file and of course what you qualify for) is called Labor Certification.

If you are here on an H1 (I use H1 and H1B interchangeably) and receive approval for Labor Certification that will not automatically cause an application for an H1 case or extension to be denied.

The reason is that the H-1B Visa allows for a dual intent; you can simultaneously have the intent of remaining permanently, as well as temporarily. If you are planning on working here you will be happy to know that you do not have to keep a foreign residence to demonstrate the fact that you are here temporarily.

The law defines a specialty occupation as one that requires: 1) Theoretical and practical application of a body of highly specialized knowledge and 2) Attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the U.S. Explained, you need a bachelor’s or better.

If you do not have a bachelor’s however, you can qualify through your experience; three years in the field are equivalent to one year of schooling. Ideally however you will have some training.

I have a liberal arts degree and my employer just wants someone with a degree, but the job itself doesn’t need one; do I qualify? No. The job itself must be of the nature that it needs a degree in order to be properly fulfilled. However if you had a business degree for example and then went on to work for a firm that added specialized experience to a general degree, then you would have something more to work with.
I originally came to the U.S on a J1 and have the 212(e) requirement (I have to live outside the U.S. for 2 years). Would an approved H1 allow me to get around that requirement? No. You will still have to satisfy the 2-year bar.
How do I prove I am only coming to the U.S. for a temporary period? Do I have to still keep real estate or a job abroad? No. The fact that you state it is enough. Of course, your contract of employment should also evidence the fact that it is a temporary position you are coming to work at. The types of jobs that qualify include: Accountant, Business Executive, Computer Programmer, Electronics Specialist, Engineer, Fashion Designer, General Manager (if the business is of a complex nature), Graphic Designer, Journalist, Management Consultant, Pharmacist, Scientist and Researcher, and Technical Publications Writer. There are many other jobs that qualify, and a list is never a limiting factor. Factors to examine include the obvious, is a degree required to satisfactorily execute the functions of the job? What are the requirements, duties and operations of the job on a daily basis? Is theoretical knowledge necessary? What are the requirements for the job according to the industry? Is there a highly specialized body of knowledge the person would be drawing from? What is the pay? Is there a licensing or membership requirement to practice in that area?
When you have used our job board (someone else’s), located an employer, and received a job offer, you are ready to start the case.

The employer will most likely refer you to their lawyer who will begin the paperwork.

If they do not have one, you can find one of your own on our home page and they can prepare everything for you via e-mail if you like. The first step is the attestation.

The form used is the ETA 9035 and it is filed with the nearest office of the Employment and Training Administration (hence ETA form) of the DOL (Department of Labor). The purpose of this form is to ascertain the employer is paying you a fair wage.

In other words, people in the same geographical area working in a position of similar duties will all be paid the same. Sometimes the employer will pay less than the prevailing wage.

This will not be accepted unless the employer can demonstrate why. The prevailing wage must have been obtained within 90 days of filing the LCA. Your employer can use SESA (State Employment Security Agency), Federal prevailing wage laws, or another source such as a private company.

Wages include anything that is taxable to you, however it does not include fringe benefits. In order to file the attestation, your employer will need a tax I.D. number and also attest to the fact that there is no strike or lockout taking place.

The attestation can be filed for full or part-time employees. If your position keeps you mobile (ie consultant) then the attestation must be filed in the office nearest to the first location in which you will be working.

The ETA will be returned to the lawyer and will be valid for a certain timeframe, not to exceed 3 years. LCAs are approved within 7 days of filing. Your family members (spouse and children) will come to this country as H4s (H2s are workers without degrees, and H3s are trainees).

There is also an interesting provision in the law that states if an employer dismisses you before the end of the term (an H1B is temporary so it must have a fixed term) then he or she must pay for your airfare back.

The government cannot help you enforce it however as it has been deemed a contractual term and so you must go to court.

While you are waiting of the employer to make the arrangements, you may want to assemble some of the many exhibits that will help you win the case.

Your degree, the contract of employment (remember, only temporary positions qualify for an H-1B Visa), if your credentials were obtained abroad you must have a company evaluate them (not expensive, the lawyer will recommend his or her favorite), a license if one is required (to perform the job in the state you work in the U.S.), and any letters of recommendation dealing with the specialization of your background; photocopies of all these are accepted.

The employer can be a person, partnership, contractor, corporation, LLC, or any organization with a tax ID number.

If there is a new employer, a new petition must be filed. If you are in the same company but work for a different division, a new or amended one must be filed, depending on the circumstance.

Likewise, if you move to a different city with the same employer, the old LCA will no longer be valid as the pay was based on that geographical region. Any material change will need a new or amended petition. As our site does not attempt to encourage you to file your own case, you may wonder why this information is being included.

For lack of a better way of explaining it, this is your life. You should take an active role, as the consequences are severe. For example, if you move to a different position altogether in another city for the same employer you may invalidate your previous H1.

Working there and receiving your checks you assume that all is well.

However, if you are caught working without a visa (make no mistake, that’s what this would be), you will not only have to leave the country, but could impede your chances of reentering any time soon. For this reason, we will try to provide you with all information we feel relevant for management of your legal status.

You will be happy to know that if your company changes name or is under different ownership, you will not have to file anything, as your position is identical in the same location. Any new or amended petition requires a new LCA.

The lawyer will then file the I-129, H Supplement, and Form I-907 for premium processing. The forms are sent in with the required exhibits and filing fees. Now you wait patiently.

I worked for a software firm and then decided to move to another one. The new one filed for my H1 and the stay I received on the new one was longer than what I had with my old employer. Which is the correct date? The date on your new employer’s case will control.
I work part time for a company but another one offered me more hours. Can I work for both? Do I need two H1s? You can work for more than two, but each one must file another H1.
I worked for a consulting firm in L.A. under an H1. I decided to work for a dot-com for a while and the dot-com (name withheld) received an H1 for me. Well, I didn’t like the long hours so I went back to the consulting firm where the hours were long but at least I traveled. Does the consulting firm have to apply for a new H1? No. As long as the date on the original H1 has not expired, you can go back to work for them.
Before the date on your H1 expires you will want to apply for an extension. You can receive another H1 for up to 3 years duration, but in no case will you receive more than 6 years in total; you will receive this on a form I797 (a personal favorite..notice of approval). In order to apply for the extension you will need the old I797, a letter from your employer explaining why your extension is required, and the LCA. If the LCA is no longer valid, you will need a new one before you apply.

Beginning January of 1995, LCA could not be valid for more than 3 years, so you can count on having to file a new one. You will also need your I94 card (the white card with your stamp) so always have it handy (you wouldn’t believe how many lawyers’ clients misplace them).

If you are in the United States, you will not have to leave the country; the extension can be completed by mail. There is a separate procedure for this and your lawyer can help you with it.

United States Citizenship

Naturalization is the procedure by which a lawful permanent resident of the United States becomes a U.S. citizen. In order to naturalize, an applicant must establish that he or she:

– has been a lawful permanent resident for the past five years (or three years if married to a U.S. citizen);
– has been physically present in the United States for at least half of that time;
– can speak, read, and write the English language;
is knowledgeable about U.S. government and history;
is a person of good moral character; and
– upholds the principles of the Constitution and the government of the United States.

In addition, an applicant must have resided in the state where he or she is filing the naturalization application for at least three months. Children under 18 years of age can acquire derivative citizenship when one or both permanent resident parents naturalize.

There are exceptions to the English language and American history requirements. A naturalization applicant over 50 years old, who has been a lawful permanent resident for 20 years is not subject to the English literacy requirement.

An applicant over 55 years of age is exempt from the requirement if they have been a lawful permanent resident for 15 years. Persons eligible for these waivers are still required to pass the history and government exam, but they may take the test in their own native language through an interpreter.

Furthermore, persons with physical or mental disabilities who are unable to learn English or history are exempt from both requirements upon filing a disability waiver with attestations from a licensed medical doctor or psychologist.

There is no definition for good moral character, however it is generally interpreted as character that measures up to the standard of average citizens in the community.

An applicant is deemed not to have good moral character if during the preceding statutory five-year period he or she was convicted of an aggravated felony or a crime involving moral turpitude.

Applicants with criminal convictions should always consult with an attorney before filing a naturalization application because many crimes, including relatively minor crimes and even misdemeanors, can now render a lawful permanent resident deportable under current laws.

Additionally, applicants who during the preceding five years were a habitual drunkard, a polygamist, an adulterer, or who failed to register for selective service or failed to file their income tax are likely to be denied based on lack of good moral character.

Once approved for naturalization, an applicant must swear allegiance to the United States. U.S. citizenship, however, does not preclude dual citizenship as long as the U.S. citizen does not make explicit statements of intent to relinquish U.S. citizenship.