Law Offices of Kendra Bunn



........................................................

 


Find out what our clients have to say about us. Click here to read some testimonials...

 

........................................................

 

Our office has over 12 years of exclusive experience in immigration and international law, allowing us to serve many international companies and individual interests.

Our staff is fluent in Serbo-Croatian, Macedonian, Russian and Italian

 

Law Offices of Kendra Bunn
Law Offices of Kendra Bunn

Who Qualifies for a Nonimmigrant (Temporary) Visa

Nonimmigrant visas, such as tourist and student visas, permit you to enter the U.S. for a short time.

If you're planning a short trip to the United States, you must, with certain exceptions, obtain a "nonimmigrant" (temporary) visa. Below we summarize who qualifies for the various types of visas. For details, including how to apply for a visa, see U.S. Immigration Made Easy, by Ilona Bray (Nolo).

 

Types of Nonimmigrant Visas

You must choose the specific purpose of your trip (such as tourism or going to school) and apply for a specialized visa that authorizes that activity and no other. Each type of nonimmigrant visa is identified by a letter-number combination. You may already be familiar with the more popular ones: B-2 (visitor), E-2 (investor), F-1 (student), and H-1B (specialty worker). See the chart below for a complete list of the most commonly used codes and descriptions.

 

 Summary List of Nonimmigrant Visas
A-1. Ambassadors, public ministers, or career diplomats, and their spouses and children.
A-2. Other accredited officials or employees of foreign governments, and their spouses and children.
A-3. Personal attendants, servants, and employees of A-1 and A-2 visa holders, and their spouses and children.
B-1. Business visitors.
B-2. Visitors for pleasure or medical treatment.
C-1. Foreign travelers in immediate and continuous transit through the U.S.
D-1. Crew members who need to land temporarily in the U.S. and who will depart aboard the same ship or plane on which they arrived.
D-2. Crew members who need to land temporarily in the U.S. and who will depart aboard a different ship or plane than the one on which they arrived.
E-1. Treaty traders working for a U.S. trading company that does 50% or more of its business with the trader's home country, and their spouses and children.
E-2. Treaty investors working for a U.S. company with 50% or more of its investment capital coming from the investor's home country, and their spouses and children.
E-3. Australian professionals coming to the United States to perform services in a specialty occupation (similar to an H-1B, but with a separate allotment of 10,500 visas). Spouses and children may accompany the E-3 visa holder.
F-1. Academic or language students.
F-2. Spouses and children of F-1 visa holders.
F-3. Citizens or residents of Mexico or Canada commuting to the U.S. to attend an academic school.
G-1. Designated principal resident representatives of foreign governments coming to the U.S. to work for an international organization, and their spouses and children.
G-2. Other accredited representatives of foreign governments coming to the U.S. to work for an international organization, and their spouses and children.
G-3. Representatives of foreign governments and their immediate family members who would ordinarily qualify for G-1 or G-2 visas except that their governments are not members of an international organization.
G-4. Officers or employees of international organizations, and their spouses and children.
G-5. Attendants, servants, and personal employees of G-1 through G-4 visa holders, and their spouses and children.
H-1B. Persons working in specialty occupations requiring at least a bachelor's degree or its equivalent in on-the-job experience, and distinguished fashion models.
H-1C. Nurses who will work for up to three years in areas of the U.S. where health professionals are recognized as being in short supply.
H-2A. Temporary agricultural workers coming to the U.S. to fill positions for which a temporary shortage of American workers has been recognized by the U.S. Department of Agriculture.
H-2B. Temporary workers of various kinds coming to the U.S. to perform temporary jobs for which there is a shortage of available, qualified U.S. workers.
H-3. Temporary trainees coming for on-the-job training unavailable in their home countries.
H-4. Spouses and children of H-1, H-2, or H-3 visa holders.
I-1. Bona fide representatives of the foreign press coming to the U.S. to work solely in that capacity, and their spouses and children.
J-1. Exchange visitors coming to the U.S. to study, work, or train as part of an exchange program officially recognized by the U.S. Department of State.
J-2. Spouses and children of J-1 visa holders.
K-1. Fiancés or fiancées of U.S. citizens coming to the U.S. for the purpose of getting married.
K-2. Minor, unmarried children of K-1 visa holders.
K-3. Spouses of U.S. citizen petitioners awaiting USCIS approval of their immigrant visa petition and the availability of an immigrant visa.
K-4. Unmarried children of K-3 visa holders.
L-1. Intracompany transferees who work as managers, executives, or persons with specialized knowledge.
L-2. Spouses and children of L-1 visa holders.
M-1. Vocational or other nonacademic students, other than language students.
M-2. Spouses and children of M-1 visa holders.
M-3. Citizens or residents of Mexico or Canada commuting to the U.S. to attend vocational school.
N-8. Parents of certain special immigrants.
N-9. Children of certain special immigrants or N-9 visa holders.
NATO-1, NATO-2, NATO-3, NATO-4, and NATO-5. Representatives, officials, and experts coming to the U.S. under applicable provisions of the NATO Treaty, and their immediate family members.
NATO-6. Civilians accompanying military forces on missions authorized under the NATO Treaty, and their immediate family members.
NATO-7. Attendants, servants, or personal employees of NATO-1 through NATO-6 visas holders, and their immediate family members.
O-1. Persons of extraordinary ability in the sciences, arts, education, business, or athletics.
O-2. Essential support staff of O-1 visa holders.
O-3. Spouses and children of O-1 and O-2 visa holders.
P-1. Internationally recognized athletes and entertainers, and their essential support staff.
P-2. Entertainers coming to perform in the U.S. through a government-recognized exchange program.
P-3. Artists and entertainers coming to the U.S. in a group to present culturally unique performances.
P-4. Spouses and children of P-1, P-2, and P-3 visa holders.
Q-1. Exchange visitors coming to the U.S. to participate in international cultural exchange programs.
Q-2. Participants in the Irish Peace Process Cultural and Training Program (Walsh visas)
Q-3. Spouses and children of Q-1 visa holders.
R-1. Ministers and other workers of recognized religions.
R-2. Spouses and children of R-1 visa holders.
S-5. People coming to the U.S. to supply information to about a criminal organization.
S-6. People coming to the U.S. to provide information about a terrorist organization.
T-1.  Victims of trafficking in persons.
T-2, T-3.  Spouses and children of victims of trafficking.
TN. Trade visas for Canadians and Mexicans.
U-1. People who have suffered "substantial physical or mental abuse" as a result of certain U.S. criminal violations including domestic violence and who are assisting law enforcement authorities.
U-2, U-3. Spouses and children of U-1 visa holders.

V. Spouses and children of U.S. lawful permanent resident petitioners who have already waited three years for the approval of their visa petition or for an immigrant visa to become available, so long as their visa petition was submitted on or before December 21, 2000.


Your next step is determining how and where to apply for your visa; for more information, see Nolo's article  get the book U.S. Immigration Made Easy, by Ilona Bray (Nolo).

Limits on Activities in the U.S.

Your visa allows you to enter the United States and to engage in certain activities while you're there. For example, if you receive a student visa, you're allowed to study in the United States -- but not to work off campus (unless you seek special permission) and not to stay permanently.

How Long Your Visa Will Last
Just as nonimmigrant visas vary in purpose, they also vary as to how long they last. Each nonimmigrant visa is given an expiration date according to what the law allows. Most can also be extended a certain number of times.

An important caution: The expiration date on your visa does not indicate how long you can stay in the U.S. once you arrive. It indicates only the period of time during which you have the right to enter the United States using that visa. How long you can stay is shown by the date on your "I-94 card," which is a small white or green card you'll be given when you enter the country.

If your visa is "multiple entry," however, you can use it to enter the United States again, as soon as you like. If it's not multiple entry, you can use it only once.

© 2010 Nolo



Applying for a Nonimmigrant (Temporary) Visa

Where and how to get the right to spend a limited amount of time in the United States.

Most visitors to the U.S. are required to apply for visas from their home countries, before arriving in the United States. If you haven't yet identified the type of visa you might qualify for, seeWho Qualifies for a Nonimmigrant (Temporary) Visa.

 

Where to Apply

You will have to locate the consulate nearest you that is authorized to issue the type of visa you want. The U.S. Department of State's website (www.state.gov) can help you find a consulate near you and provides other helpful immigration information. Also check your local consulate's own website. You'll find helpful information about hours and application procedures. For example, some consulates require certain applications to be submitted only by mail, not in person.

You must usually do all or part of the visa application process in the country where you live. U.S. embassies and consulates outside your home country will normally refuse to accept your application -- unless you can show a compelling reason why you are unable to apply at home. If, for example, the U.S. has no diplomatic relationship with the government of your homeland, another country's U.S. consulate may take your application. Check with the embassy or consulate where you want to apply.

 

How to Apply

For some types of visas, such as visitor visas, applying involves simply filling out a few application forms and attending an interview at the embassy or consulate (though the final decision may be delayed while security checks on you are completed).

For student visas, applying is a two-step process. First, you must find a school to admit you and send you a special form. Then you take that form and your own application to the U.S. consulate. This process is covered in Student and Tourist Visas: How to Come to the U.S., by Ilona Bray (Nolo).

For most work visas, applying is a three- or four-step process. First you must find a U.S. employer willing to sponsor you. Then, your employer must file paperwork with the U.S. Department of Labor (for H-1B and H-2B visas) and an office of U.S. Citizenship and Immigration Services (USCIS), requesting permission for you to apply for a visa. After your employer gets USCIS approval, the third step is for you to file an application for a visa at the U.S. embassy or consulate in your home country.

 

Personal Interviews Are Likely
Even if you submit your application by mail, you will later probably have to go to the embassy or consulate for a personal interview. (For security reasons, the U.S. government is requiring more personal interviews than ever before.) Contact the U.S. embassy or consulate in your country to learn its requirements.


How Long You'll Wait

Nothing happens as fast as it should in the world of visa applications. For example, while you used to be able to get tourist and student visas in as little as a day, this is rarely true anymore. Many embassies and consulates have switched to requirements that you mail in your application and then come in for a personal interview later. Also, you will not be approved until your name has been checked against various criminal and security-related databases -- which, if you have a common name, has been known to add weeks or months to the process.

For more help on applying for a visa, consult one of the following Nolo books:

  • U.S. Immigration Made Easy, by Ilona Bray
  • Student and Tourist Visas: How to Come to the U.S., by Ilona Bray.


© 2010 Nolo


Entering the U.S.: What to Expect at the Airport or Border

Entering the U.S. may not be easy, even when you have a valid visa in hand.

The first person you meet on arrival in the United States -- whether you come by air, land, or sea -- will be an officer of Customs and Border Protection, or CBP. The officer will inspect your passport and documents, looking for verification that you've been given permission to enter the U.S., as well as any information that might prevent you from doing so. Have all your visa paperwork ready.

CBP officers are trained to be skeptical. Security is their first concern, and you may encounter delays as your name is checked against various computer databases. The officers are also on the lookout for people who might be using a tourist or nonimmigrant visato gain entry to the United States for a permanent stay. Even if your visa and intentions are valid, if the officer finds a problem or believes you're lying, you can be refused entry at the border, returned to your home country, and prohibited from returning for five years.

 

Be Prepared for Questions

Here are the most likely questions you'll have to answer. However, the officer is free to ask you just about any question. You'll increase your chances of being treated with respect by remaining polite and calm.

Why are you visiting the United States? Your answer must match your visa. If, for example, you have a visitor visa but say that you're coming to find a job, you'll be put on the next flight or bus home. Your answer must also show that you don't plan to violate any U.S. laws.

Where will you be staying? The officer wants to know that you have clear plans for what you will be doing in the United States. If you have no previously arranged places to stay, the officer might question whether you should be allowed in.

Who will you be visiting? Again, the officer is looking to see that you have clear -- and legal -- plans.

How long will you be staying? The officer wants to know that you don't plan to stay longer than you should. Even if your visa says "multiple entry" or "one year," you may not be allowed to remain for that length of time -- the little I-94 card you're given by the officer will tell you the date by which you must leave.

How much money are you bringing? The officer wants to know that you will be able to cover your expenses in the United States.

Have you visited the United States before, and if so, did you remain longer than you were supposed to? If you have previously stayed in the United States for six months longer than you were allowed, you are not eligible to come to the United States again without special permission (unless you've waited outside the United States for at least three years). If your overstay lasted a full year, you're expected to remain outside the U.S. for ten years before trying to return.

How often do you come to the United States? The officer is looking to see whether you are using nonimmigrant visas as a way of living in the United States -- in which case you'll be accused of misusing your visa and be denied entry.

 

Know Your (Lack of) Rights

Foreign nationals attempting to come to the United States, either temporarily or permanently, have very few rights during the application and screening process. You cannot have a lawyer represent you when you attempt to enter the U.S., nor are you allowed to call one if problems occur during your interrogation. Your bags can be searched without your permission, and CBP officials can ask you almost any question.

Only in rare cases, such as if you feared persecution in your home country, will you be allowed to appear before an immigration judge to prove that you should be allowed into the United States.

 

Be Prepared for a Luggage Search

The border official may also check your suitcases and personal possessions, so:

Make sure nothing that you bring appears to contradict your visa status. If you are coming as a tourist, don't bring along a book on how to immigrate to the United States or a stack of résumés. You might have these things simply because you have future plans to apply for immigration, but the CBP won't see it that way.

Do not bring illegal or questionable items. It may be legal in your country to carry a firearm (a gun), but it is not legal to bring it into the United States -- and if you have one in your luggage, it could lead to your immediate removal. Make sure you are not carrying other illegal or questionable items, such as illegal drugs, pornography, or plants, fruits, and animals of types or species that are not allowed into the United States.

And for details on getting a visa, understanding the privileges and responsibilities it comes with, and successfully entering the United States, see U.S. Immigration Made Easy, by Ilona Bray (Nolo).

© 2010 Nolo


U.S. Immigration Basics

Whether you plan to come to the United States for a short visit or a permanent stay, your first step is probably to apply for a visa.

Many people think they can show up at a U.S. embassy or border post, describe why they’d make a good addition to U.S. society, and be welcomed in. Unfortunately, this is the exact opposite of how the U.S. immigration system works.

Instead, people who want to come to the U.S., whether temporarily or permanently, must determine whether they fit into eligibility categories for either "permanent residence" (a green card) or for a temporary stay ("nonimmigrant visa").

Then they must submit an application -- in fact, often a series of applications -- to one or more of the U.S. agencies responsible for carrying out the immigration laws. These include U.S. Citizenship and Immigration Services (USCIS), which has offices across the United States, and the U.S. Department of State (DOS), which manages consulates and embassies around the world.

 

What Permanent Residence (a Green Card) Is

If you want to be able to make your permanent home in the United States, you'll need what is called "permanent residence," or a "green card." Green card holders can live and work in the U.S. and travel in and out, with very few restrictions (though they can't vote, and can be deported if they abuse their status).

Family members of U.S. citizens make up the largest number of green cards issued each year. Others are issued to investors and workers who have been petitioned by U.S. employers or have special skills. Still other categories have a humanitarian basis, such as refugee or political asylum status (which can lead to a green card), for people who are fleeing persecution.

 

What a Temporary (Nonimmigrant) Visa Is

People who want to come to the United States for a limited time need what is called a "nonimmigrant” visa. This lets them participate in specified activities (such as studying, visiting, or working) until their visa runs out. Students and businesspeople make up the largest groups of nonimmigrant visa holders. Nonimmigrant visas are also issued for tourists, exchange visitors, and workers with some kind of specialty that is lacking in the U.S. workforce. For more information, see

 

Exception: Visa Waiver Program

A visa is not necessary for short-term visitors from one of the Visa Waiver Program countries listed at http://travel.state.gov. You can come to the U.S. for up to 90 days for business or pleasure purposes if you're from one of these countries. You will, however, need to present a machine-readable passport. Also, beware: The ease of your entry is balanced by the ease with which you can be kicked out -- you automatically give up many rights and benefits when traveling without a visa.

To enter on a visa waiver, simply present yourself, your passport, and your ticket home to the officers you'll meet upon your U.S. arrival. If you come by land through Canada or Mexico, you'll also be asked for proof of sufficient funds to pay for your stay.

 

Applying for Immigration Rights

After figuring out what type of visa or green card you’re eligible for, you'll need to figure out how to get it. Most people (with the occasional exception of Mexicans and Canadians or those traveling with a visa waiver) must obtain a visa at a U.S. consulate before departing for the United States. If you’re already in the United States legally, you may be able to apply to “adjust" your status to permanent resident, or "change” your status to another type of visa.

Where to Find the U.S. Immigration Laws

Your possibilities for a visa or green card are set out under U.S. federal law. Being "federal," the law is the same across the United States. If you want to read the U.S. immigration laws -- which very few people actually want to do -- they’re found in Title 8 of the U.S. Code, or in the Immigration and Nationality Act (I.N.A.) In addition, information on how USCIS intends to carry out these laws is found at Title 8 of the Code of Federal Regulations (C.F.R.). The DOS regulations are at Title 22 of the C.F.R. The CFR can be searched at theGovernment Printing Office website.

The trouble is that even lawyers have trouble researching the U.S. immigration laws -- they're considered to be the most convoluted and easily misunderstood portions of all U.S. law. But if you have a specific reference to a section that you'd like to read for yourself, by all means look it up, then seek professional help if you need it.

Your best bet for getting any professional help with your immigration situation is to hire an experienced immigration lawyer. Ask friends for referrals, go to the website of the American Immigration Lawyers Association (AILA), or go straight to Nolo’s Lawyer Directory for a list of immigration attorneys in your geographical area (click on the “Types of Cases” and “Work History” tabs to learn about a particular lawyer’s experience).

Whatever you do, don't go straight to USCIS for advice. The people who staff their front desk are not all well trained, and if they give you wrong information, they take no responsibility, even if it causes your deportation or destroys your chances of immigrating. This happens!

Many of these immigration laws are described in U.S. Immigration Made Easy, by Ilona Bray (Nolo). This book discusses how to obtain many different visas, including the K-1 visa for fiancés, the B-1 and B-2 business and tourist visas, the H-1B, H-2B, and H-3 visas for temporary specialty or agricultural workers, the L-1 visa for intracompany transferees, the E-1 and E-2 visas for treaty traders and investors, the F-1 and M-1 visas for students, the J-1 visa for exchange visitors and scholars, or the O, P, or R visas for temporary workers, and how to get a green card through a family member, through the Diversity Visa Lottery, or as an asylee or refugee.

 

The Risks of Lying to the U.S. Government

One of the worst things you can do to your chances of getting a visa or green card is to lie, either on paper or during an interview with a U.S. border or other immigration inspector. Lies can have both immediate consequences, such as not being able to enter the U.S., and long-term consequences, such as not being able to get a green card -- ever.

 

Example One:
Francois, a French citizen, applies at the U.S. embassy in Paris for a tourist visa. He fears he will not be allowed to enter the U.S. as a tourist if he reveals that he has a girlfriend in New York. He states in his application that he will be visiting various friends. When he arrives at JFK Airport in New York, an immigration inspector finds a letter in his luggage from his girlfriend, in which she says she is looking forward to his long visit. Francois is put on the next flight home, and not allowed to return for five years

 

Example Two:
Assume that Francois's immigration inspector does not find the letter from his girlfriend and allows him to enter the country. After he arrives, Francois and his girlfriend decide to marry. He files an application for permanent residence with USCIS. It forwards his application to the U.S. consulate in Paris for review. This reveals that he lied about his plans. To obtain permanent residence, Francois will have to argue that USCIS should overlook his previous lie and allow him to stay. If he loses, he can be denied permanent residence and forced to leave the country.

 
Who Can Be Kept Out

No matter what eligibility category you fall into -- whether you’ve married a U.S. citizen, received a job offer, or been accepted to a school -- the U.S. has the right to say no. And not just because there’s something wrong with your application. The immigration law contains a list of things, like crimes and certain diseases, that makes someone "inadmissible.” For more information, seeWhen the U.S. Can Keep You Out.

© 2010 Nolo


When the U.S. Can Keep You Out

Learn why you may be denied entry to the United States and how to avoid being turned away.

For the protection of the United States, people with histories of criminal or terrorist activities, drug abuse, infectious medical problems, or certain other characteristics or behavior will never be allowed a visa, green card, or U.S. entry. In immigration law terms, these characteristics are known as the grounds of inadmissibility. Following is a summary list of the major categories of inadmissibility.

 

 Major Grounds of Inadmissibility
Classes of Inadmissibility
Waivers Available?
People with communicable diseases like tuberculosis and AIDS
Yes
People with physical or mental disorders
Yes
Drug abusers or addicts No
Drug traffickers
No
People without proper vaccinations
Yes
People with convictions for crimes involving moral turpitude
Yes
Prostitutes
Yes
People with multiple criminal convictions
Yes
Spies
No
Terrorists
No
Nazis
No
People likely to become dependent on welfare
No



Everyone who applies to enter or stay in the United States, no matter how long the person plans to be there or whether the person already has a green card, is checked to see whether he or she is inadmissible.

 

What Happens If You're Found Inadmissible

The various agencies handling your immigration-related applications may decide you are inadmissible any time you ask for permission to enter or stay in the United States. These agencies include the U.S. State Department and the Department of Homeland Security, through its subagencies Customs and Border Protection (CBP) and U.S. Citizenship and Immigration Services (USCIS, formerly the Immigration and Naturalization Service, or INS).

These agencies can use your inadmissibility to block you any time you try to cross the border, apply for a green card, or apply for any other type of visa or immigration status. If you're at a U.S. border when this occurs, you will be turned around and sent home. If you're in the United States, you will, if you have no other visa or status, be sent to immigration court for removal from the United States.

Even a permanent resident (green card holder) isn't safe from being found inadmissible. If a permanent resident departs the United States for more than 180 days, it's possible for him or her to be found inadmissible upon return. This situation might arise, for example, if the person had committed a crime, had developed tuberculosis, or had begun receiving public assistance since receiving the green card.

If you hold a green card, one way to avoid this problem is to apply for U.S. citizenship as soon as you're eligible. For more information on applying for citizenship, see Becoming a U.S. Citizen: A Guide to the Law, Exam, and Interview, by Ilona Bray, J.D. (Nolo).

 

Overcoming a Finding of Inadmissibility

Even if you fall into one of the categories of inadmissibility, you may not be absolutely barred from getting a green card or otherwise entering the United States. You may be able to get around the problem, for example if your illness can be cured or the doctor diagnosed you wrong, or the U.S. government made a mistake in your case and you aren't really inadmissible. If all of these fail, you may be able to apply for a waiver, meaning you ask the U.S. immigration authorities to overlook the problem and admit you anyway.

There are many technical factors that control whether you can overcome a finding of inadmissibility. For more on the grounds of inadmissibility and how to overcome them, see U.S. Immigration Made Easy, by Ilona Bray, J.D. (Nolo). You may ultimately need to hire a good immigration lawyer.

© 2010 Nolo


U.S. Immigration: Top Ten Tips for Avoiding Trouble
by Ilona Bray

Keep your status secure and your visa and green card applications moving along smoothly by following these immigration tips.

1. Plan for delays. If you are in the United States and your work permit or status needs to be renewed, realize that U.S. Citizenship and Immigration Services (USCIS, formerly called the INS) is extremely backed up. Cope by turning in your application far in advance. This is particularly important if your legal status has an expiration date on it. If you fall out of status, the immigration authorities could arrest you.

2. Consider U.S. citizenship. If you have a green card, file for U.S. citizenship as soon as legally possible. This will not only protect you from deportation, but will also help you get a more secure status for your close family members. Most people have to wait five years after their green card approval before applying, but some people can apply sooner. For more information, see the USCIS website atwww.uscis.gov or the book Becoming a U.S. Citizen: A Guide to the Law, Exam & Interview, by Ilona Bray (Nolo).

3. Avoid summary removal. When arriving in the U.S. from overseas, be ready to convince the border official that you deserve your entry visa. These officials have a lot of power and they can send you back if they think you are a security risk or that you lied in order to get the visa. Tourists should be careful not to pack anything that looks like they're planning a permanent stay, such as a résumé or a wedding dress.

4. Notify USCIS of address changes. If you're spending more than 30 days in the U.S., you must notify USCIS of your changes of address, within ten days. You and every member of your family must send separate notifications. You can do so either by mailing in Form AR-11 (available on the USCIS website), or better yet, through USCIS's online change of address service. Also, be sure to send written word of your new address to every USCIS office that's handling an application of yours -- otherwise, the office might not hear of the change.

5. File multiple visa petitions. If you plan to get a green card through a family member, see if more than one member of your family is eligible to submit the visa petition for you. For example, a brother and a sister who are U.S. citizens could both file for you, as could a U.S. citizen spouse or parent. That way if the waiting list in one category gets especially long, or if one person dies, you'll have another option.

6. Don't be late. Be extremely careful to arrive on time for any scheduled appointment with the USCIS, a U.S. embassy or consulate, or the U.S. immigration court. Arriving late -- or not at all -- can result in months of delays at best, and deportation from the U.S. at worst.

7. Avoid visa violations. Make sure you understand the fine print surrounding your visa, work permit, or green card, and follow the rules carefully. Violating even minor terms of your visa or green card -- for example, working while you're here as a tourist or helping to smuggle a family member over the border -- can result in your visa being canceled or you being deported. For more information on the various visas and green cards available, see U.S. Immigration Made Easy, by Ilona Bray (Nolo).

8. Copy and track paperwork. USCIS is famous for losing paperwork. Send all applications and other material by certified mail, with a return receipt, and keep a copy. They're not only your proof of filing, but may become the main copies in the USCIS files if the original is never found.

9. Do your research. Be careful who you accept advice from. Rumors and friends can't be relied on -- everyone's legal situation is different. Even USCIS employees sometimes give out wrong advice, for which you pay the consequences. Do your own research where possible, and if necessary take your unanswered questions to an immigration attorney or accredited representative whose reputation you've checked out.

10. Get help from above. If nothing else is working, contact your U.S. congressperson. They can usually make an inquiry for you, which often encourages the USCIS or consulate into taking appropriate action.

© 2010 Nolo


Who Qualifies for a Green Card (Permanent Residence)

Categories of people who can apply for a green card, to make their home in the U.S.

A green card identifies its holder as a U.S. permanent resident, with rights to enter, exit, work, and live here for their entire life. But before you think about applying, make sure you're eligible under one of the following categories.

 

1. Immediate Relatives of U.S. Citizens

Immediate relatives include:

  • spouses of U.S. citizens, including recent widows and widowers
  • unmarried people under age 21 with at least one U.S. citizen parent
  • parents of U.S. citizens, if the U.S. citizen child is at least age 21
  • stepchildren and stepparents of U.S. citizens, if the marriage creating the stepparent/stepchild relationship took place before the child's 18th birthday, and
  • adopted children of U.S, if the adoption took place before the child reached age 16

 

An unlimited number of green cards are available for immediate relatives whose U.S. citizen relatives petition for them -- applicants can get a green card as soon as they get through the paperwork and application process. Also see the book Fiancé & Marriage Visas: A Couple's Guide to U.S. Immigration, by Ilona Bray (Nolo).

 

2. Other Family Members

Certain family members of U.S. citizens or permanent residents are also eligible for green cards -- but not right away. They fall into the "preference categories" listed below, meaning that only a certain number of them will receive green cards each year (480,000). The system is first come, first served -- the earlier the U.S. citizen or permanent resident turns in a visa petition, the sooner the immigrant can apply for a green card. The waits range from approximately three to 24 years in the family preference categories, which include:

  • Family First Preference. Unmarried adults, age 21 or older, who have at least one U.S. citizen parent.
  • Family Second Preference. Section 2A: Spouses and unmarried children of a green card holder, so long as the children are younger than age 21. Section 2B: Unmarried children age 21 or older of a green card holder.
  • Family Third Preference. Married people, any age, who have at least one U.S. citizen parent.
  • Family Fourth Preference. Sisters and brothers of U.S. citizens, where the citizen is age 21 or older.


Also see the book How to Get a Green Card, by Ilona Bray (Nolo).

 

3. Preferred Employees and Workers

A total of 140,000 green cards are offered each year to people whose job skills are needed in the U.S. market. In most cases, a job offer is also required, and the employer must prove that it has recruited for the job and not found any willing, able, qualified U.S. citizens or residents to hire instead of the immigrant. Because of annual limits, this is a "preference category," and applicants often wait years for an available green card. Here are the subcategories:

Employment First Preference. Priority workers, including:

  • persons of extraordinary ability in the arts, the sciences, education, business, or athletics
  • outstanding professors and researchers, and
  • managers and executives of multinational companies.


Employment Second Preference. Professionals with advanced degrees or exceptional ability.

Employment Third Preference. Professionals and skilled or unskilled workers.

Employment Fourth Preference. Religious workers and miscellaneous categories of workers and other "special immigrants" (described below)

Employment Fifth Preference. Investors willing to put $1 million into a U.S. business -- or $500,000 if the business is in an economically depressed area. The business must employ at least ten workers.

Or get the book U.S. Immigration Made Easy, by Ilona Bray (Nolo).

 

4. Green Card Lotteries: Ethnic Diversity

A certain number of green cards (currently 50,000) are made available to people from countries that in recent years have sent the fewest immigrants to the United States. Also see the book U.S. Immigration Made Easy, by Ilona Bray (Nolo).

 

5. Special Immigrants

Occasionally, laws are passed making green cards available to people in special situations. The current special immigrant categories are:

  • clergy and other religious workers for legitimate religious organizations
  • foreign medical graduates who have been in the United States since 1978
  • former employees of the Panama Canal Zone
  • foreign workers who were longtime employees of the U.S. government
  • retired officers or employees of certain international organizations who have lived in the United States for a certain time
  • foreign workers who were employees of the U.S. consulate in Hong Kong for at least three years
  • foreign children who have been declared dependent in juvenile courts in the United States
  • international broadcasting employees, and
  • certain members of the U.S. Armed Forces who enlisted overseas and served 12 years.

 

6. Refuge and Political Asylum

The U.S. government offers refuge to people who fear, or have experienced, persecution in their home country. A person still outside the United States would apply to be a refugee; a person already here would apply for asylum.

The persecution must be based on the person's race, religion, nationality, political opinion, or membership in a particular social group. If you are fleeing only poverty or random violence, you do not qualify in either category.

For more information, see either How to Get a Green Card or U.S. Immigration Made Easy, both by Ilona Bray (Nolo).

 

7. Amnesty and Special Agricultural Worker Status

Years ago, a green card based on "amnesty" was offered to people who had been living in the United States illegally since January 1, 1982. There was a similar amnesty for laborers who worked in the fields for at least 90 days between May 1, 1985 and May 1, 1986. Although the application deadlines have long passed, certain class action lawsuits mean that some applications haven't yet been decided on. See an attorney if you should have qualified.

In 1997, Congress added an amnesty for Nicaraguans and Cubans, called the Nicaraguan Adjustment and Central American Relief Act (NACARA). Some provisions also benefit Salvadorans, Guatemalans, and Eastern Europeans. The deadline for filing applications has passed.

 

8. Long-Time Residents

The law allows certain people who have lived illegally in the United States for more than ten years to request permanent residence, usually as a defense in immigration court proceedings. You must also show that your spouse, parent, or children -- who must be U.S. citizens or permanent residents -- would face "extraordinary and exceptionally unusual hardship" if you were forced to leave. Consult a lawyer if you think you qualify. Do not go straight to USCIS -- you could cause your own deportation.

Another remedy called "registry" allows people who have lived in the United States continuously since January 1, 1972 to apply for a green card. You'll need to show that you have good moral character and are not inadmissible. Your stay in the United States need not have been illegal -- time spent on a visa counts. For more information, see the book  How to Get a Green Card, by Ilona Bray (Nolo).

 

9. Special Cases

Individual members of the U.S. Congress have, on occasion, intervened for humanitarian reasons in extraordinary cases, helping someone get permanent residence even if the law would not allow it.

© 2010 Nolo


Sponsoring a Family Member for a Green Card
by Ilona Bray

Can relatives come to the U.S.? It depends on how the family member is related.

Many people in the United States have family members living in other countries, and wonder whether they can bring them here. It's a myth that if one immigrant settles in the United States, that one can bring in the whole extended family, and so on. The truth is both more limited and more complex.

 

Who You Can Help Immigrate

You can petition to bring family members to the United States only if you are a U.S. citizen or a permanent resident (green card holder). Even then, you can bring in only those family members listed on the chart below. Before reading the chart, click the links explaining the meanings of "immediate relative" and "preference relative."

 

Who Can Sponsor Who
Who You Are
Immigrants You Can Petition
The Immigrant's Category
U.S. citizen
Parents
Immediate relative
U.S. citizenSpouseImmediate relative
U.S. citizenMinor, unmarried children
Immediate relative
U.S. citizenMarried children or adult children
Preference relative
U.S. citizenBrothers & sisters
Preference relative
U.S. permanent resident
Unmarried children
Preference relative
U.S. permanent residentSpouse
Preference relative

 

Notice who is not on this list: grandparents, cousins, aunts, uncles, parents-in-law, and other extended family members.

However, if allowed to immigrate to the United States, most of the people on the above list will be permitted to bring their own spouses and children with them. And it is true that once someone has a green card, they can sponsor other people on the list.

 

How Long Must Relatives Wait?

Immediate relatives can get green cards without worrying about waiting periods or numerical limits. Preference relatives may have to wait between approximately one and 23 years before being allowed to apply for their visa or green card.

Also, only a certain percentage of the green cards go to any one country each year. That means if a particularly high number of people from certain countries submit petitions -- as is often the case with India, Mexico, China, and the Philippines -- their family members end up waiting even longer than others.

Because of the annual limits on how many green cards (immigrant visas) are given out, and the unpredictability of how many people submit petitions each year, no one can say exactly how long each applicant will wait.

As a general rule, applicants in higher preference categories wait less time. The average wait these days from most countries (excluding India, Mexico, China, and the Philippines) is as follows:

 

Current Average Waiting Period
Type of Preference Relative
Preference Category
Average Wait
Adult, unmarried children of U.S. citizens
First preference
Six years
Spouses or children of permanent residents
Second preference
Five years for spouses & for minor children; nine years for adult children
Married children of U.S. citizens
Third preference
Nine years
Brothers & sisters of U.S. citizens
Fourth preference
Eleven years

 

The longest waits are endured by siblings of U.S. citizens from the Philippines -- currently a staggering 23 years.

 

How to Start the Application Process

The family member who you will sponsor will have to go through a multi-step application process. It's your job as a U.S. citizen or green card holder to start the process, by submitting a visa petition. Your family member can't enter the U.S. until both the petition and subsequent applications have been approved.

 

Sponsor vs. Petitioner
Although the term commonly used to describe a U.S. citizen or resident who helps someone immigrate is "sponsor," this isn't the technical term. You "petition" for your family member, so you're a "petitioner." Your incoming family member is called a "beneficiary."

 

Strategies for Success

There are some important steps you can take to speed up your family member's progress toward a green card.

 

Apply for U.S. Citizenship

If you are a U.S. permanent resident, not a citizen, you can help by applying for citizenship as soon as you're eligible. That's usually five years after getting your green card.

As soon as you're a citizen, your family members can move to a speedier immigration category. For example, your spouse would become an "immediate relative," and could apply for a green card right away. Your parents would go from having no immigration rights to being immediate relatives, and your children would become immediate relatives or move to higher preference categories, depending on their age and whether they are married.

 

Warn Your Waiting Children Not to Marry

Children who marry have it tough when it comes to immigrating. If you're a permanent resident and you have petitioned for an unmarried child, that child's marriage will destroy the right to immigrate under your petition. If you're a U.S. citizen and your child marries, that will drop the child down into the third preference category, meaning a long wait.

Make sure your children know these risks before they marry. It won't matter that they were unmarried when you started the immigration process for them; they have to be unmarried when they pick up their immigrant visa or green card.

 

Have Multiple U.S. Family Members Sponsor the Same Immigrant

Hopeful immigrants (beneficiaries) shouldn't pin all of their hopes on one petitioner. If something goes wrong -- for example, the petitioner dies or divorces the beneficiary before the beneficiary gets a green card -- the opportunity is, in most cases, lost.

There is no harm in having more than one U.S. citizen or resident file visa petitions for a waiting immigrant. For instance, both parents could file for a child, to insure against the death of one parent. Or a person married to a permanent resident could have both the resident and their U.S. citizen parent file a visa petition for them.

For more information, see How to Get a Green Card, by Ilona Bray (Nolo).

© 2010 Nolo


Sponsoring a Worker for a Green Card: Employer's Tasks

Obtain U.S. residency for foreign workers by getting a labor certification.

Foreign workers may obtain green cards to come to the United States only if their potential U.S. employer can prove that no American worker is qualified, willing, and available to take the job. The process of proving this to the U.S. government is called "labor certification." (The requirements are much less for foreign workers seeking to enter the U.S. on temporary, nonimmigrant visas, such as H-1Bs and H-2Bs, which are not covered here.)

 

Step-by-Step Procedures for Labor Certification

The procedures for obtaining labor certification were radically changed in 2005, in an effort to streamline and shorten the application process.

 

1. Employer Requests Prevailing Wage Determination

Under the new procedures, the first step is for the employer to approach the state workforce agency (SWA) serving the state where its office is located. The employer must request what's called a "prevailing wage determination" (PWD), which will indicate how much is normally paid to people in jobs equivalent to the one being offered. This information is important because the employer must offer the immigrating worker 100% or more of the prevailing wage.

 

2. Employer Recruits in the U.S.

Next, the employer can begin recruiting for the job in the United States. (Actually, the employer can start recruiting before this, but must make sure to offer a salary that’s at least as high as the prevailing wage.)

The Department of Labor (DOL) regulations spell out strict rules for recruiting. For starters, the employer must announce the job in a statewide computer databank and in newspapers or other journals of general circulation, with ads appearing on two different Sundays. If the application is for a professional, the employer must conduct three additional steps chosen from a list published in the DOL regulations.

 

3. Employer Files Labor Certification Application Form

If, after the recruiting is done, the employer has not found a qualified, willing, available, and able American to take the job, it can submit the labor certification application to the U.S. Department of Labor (DOL). The application involves completing a ten-page DOL form (ETA-9089), available on the DOL website at www.foreignlaborcert.doleta.gov. No supporting documents need be submitted, though they must be available in case DOL requests them.

The DOL is supposed to make a decision on the labor certification within 45 to 60 days, but often fails to meet this deadline.

 

Further Resources
For detailed information on applying for the labor certification and employment-based green cards, as well as nonimmigrant work visas, such as the H-1B visa, see U.S. Immigration Made Easy, by Ilona Bray (Nolo).

 

Next Steps Toward a Green Card

Only after the labor certification is approved can the employer and immigrant proceed forward. First, the employer must file a visa petition on USCIS Form I-140. After the visa petition has been approved, the immigrant must apply for a green card, either through a procedure called adjustment of status (if the immigrant is legally in the U.S.) or consular processing (if the immigrant is overseas). For more information, seeHow to File a Green Card Application.

 

Exceptions to Labor Certification Requirement

For workers in the following categories, no labor certification needs to be filed before the worker applies for a green card. These exceptions include:

  • workers in what is called the "employment first preference" category, including persons of extraordinary ability in the arts, sciences, education, business, or athletics; outstanding professors and researchers; and managers and executives of multinational companies
  • millionaire entrepreneur immigrants ("employment fifth preference")
  • religious workers coming as "special immigrants" ("employment fourth preference"), and
  • people whose occupations are listed on "Schedule A," meaning that the U.S. government recognizes there is a shortage of such workers.


© 2010 Nolo


Keeping Your Green Card After You Get It

Follow these rules and you won't lose your status as a permanent resident of the U.S.

Once you receive a green card, you must meet a few conditions if you want to keep it for life. For one thing, you must not violate certain criminal or immigration laws -- including one law that requires you to advise the immigration authorities within ten days if you change addresses. For another, you must not abandon the United States as your permanent residence.

For detailed information on protecting and making the most of your status as a permanent resident, see U.S. Immigration Made Easy, by Ilona Bray, J.D.

 

If You Violate the Law

The most common way that people lose their right to a green card is by committing a crime. Unlike what is commonly believed, it doesn’t have to be a major crime or a felony. For example, a person can be deported for helping someone enter the United States illegally, for committing domestic violence, for possessing even a small amount of drugs, or for any crime that’s considered morally wrong (such as fraud, theft, a crime with the intent of doing great bodily harm, or a sex offense). Some of these crimes are misdemeanors that may not be punishable with time in jail.

However, there is no set list that tells you which crimes make you deportable. If you are arrested for anything at all, consult not only a criminal lawyer, but also an immigration lawyer to find out whether and how you can avoid deportation. Very few criminal lawyers understand the immigration laws -- and many of them encourage you to plead guilty to something as a way of avoiding jail time, not realizing that your guilty plea may get you deported.

In addition, a person can be deported for certain violations that don’t fall under the criminal laws. For example, if U.S. Citizenship and Immigration Services (USCIS) discovers that you got your green card through a fraudulent (sham) marriage, or any other type of fraud, you can be deported.

An immigrant can even be deported for failing to advise USCIS of a change of address within ten days of moving. In the past, USCIS almost never did anything about this. However, with increased security concerns, USCIS has begun using this rule against people it wishes to remove from the United States. You can now useUSCIS's online service to notify it of your change of address.

 

If You Live Outside the U.S.

Many people wrongly believe that to keep your green card all you need to do is enter the U.S. at least once a year. The fact is that if you ever leave the U.S. with the intention of making some other country your permanent home, you give up your U.S. residency when you go. The border officials will look at your behavior for signals that your real place of residence is not the United States.

As a general rule, if you have a green card and leave the United States for more than one year, you may have difficulty reentering the country. That is because the U.S. government feels that an absence of longer than one year indicates a possible abandonment of U.S. residence. Even if you do return before one year, you may run into trouble. To avoid a full-scale inspection, return within six months.

On the other hand, remaining outside the U.S. for more than one year does not mean you automatically lose your green card. If your absence was intended from the start to be only temporary -- for example, you left for vacation, but had a head injury and forget who you were for a year -- you may be able to argue to keep your permanent resident status. However, you may no longer use your green card as a U.S. entry document. You must have what is known as a reentry permit, or you must apply at a U.S. consulate for a special immigrant visa as a returning resident.

 

The Commuter Exception
Green card holders who commute to work in the U.S. from Canada or Mexico on a daily or seasonal basis may keep their cards even while actually living outside the country. USCIS will grant you commuter status if you advise them of your intention to live on the other side of the U.S. border.


Returning Resident Visas

If you stay outside the United States for more than one year and do not get a reentry permit (described below) before leaving, you must apply at a U.S. consulate abroad for a special immigrant visa as a returning resident. You must convince the consular officer that your absence was temporary and you never planned to abandon your U.S. residence.

You will have to show evidence that you were kept away longer than one year due to unforeseen circumstances. Such evidence might be a letter from a doctor showing that you or a family member had a medical problem.

 

Reentry Permits

If you hold a green card and know in advance that you must be outside the United States for more than one year, it's worth applying to USCIS for a reentry permit. This lets you to stay away for up to two years.

You should send in your application before leaving. Use Form I-131, available on the USCIS website (www.uscis.gov). Your reentry permit will serve as an entry document when you are ready to return.

Reentry permits cannot be renewed and can be applied for only inside the United States. If you want to stay away for more than two years, you must return briefly and apply for another reentry permit.

 

File for Citizenship to Avoid These Problems

You can lower the chances of losing your residence in the United States by applying for citizenship as soon as you are eligible. The waiting time for eligibility is usually five years after you get a green card, but there are exceptions: For example, the wait essentially drops to four years if you received political asylum (because your first year as an asylee counts), and to three years if, at the time you got your green card, you were married to a U.S. citizen and you're still married and living together.

© 2010 Nolo


When Visa or Green Card Holders Must Pay U.S. Taxes

If the U.S. government considers you a tax resident, you must file a U.S. tax return. Here's how to determine your status.

Even if you are not a U.S. citizen, you may be required to pay taxes in the United States. Whether or not you must file a U.S. tax return depends upon whether the U.S. government considers you a "tax resident." All permanent residents (green card holders) are tax residents, but only some holders of nonimmigrant visas are tax residents (see below). Still, filing a tax return can be a good thing if you've been working for an employer who's been withholding taxes from your paycheck -- you may get a refund!

Tax residents must report their entire worldwide income to the U.S. Internal Revenue Service (IRS). It doesn't matter if a portion or all of that income was earned from investments or business activities carried on outside the United States; a tax resident must report it all. But becoming a tax resident does not necessarily mean that the U.S. government will tax all of your worldwide income. International treaties control whether or not you must pay U.S. taxes on income earned elsewhere.

 

If You Have a Green Card

Once you get a green card, you automatically become a U.S. tax resident and you must declare your entire income to the U.S. government.

You may have heard that the number of days you spend in the United States each year has some effect on whether or not you are a tax resident. But this is true only for people who have nonimmigrant visas, discussed below. It is not true for green card holders. Even if you remain outside the U.S. for an entire year, you'll still need to report your entire worldwide income.

As a green card holder, you must file U.S. tax return Form 1040 each year by April 15th. Failure to follow U.S. tax laws will hurt your ability to qualify for U.S. citizenship. It may also be considered a crime -- and if you are found guilty, your green card can be revoked and you may be deported. To find out exactly how to follow U.S. tax laws, consult an accountant or a tax attorney, or visit the IRS website atwww.irs.gov.

 

If You Have a Nonimmigrant Visa

Though holders of nonimmigrant visas are, by definition, not permanent residents of the United States, they may become tax residents simply by spending a certain amount of time in America each year. If you have been present in the United States for at least 183 days of the current year, you are considered a tax resident for that year.

You are also considered a tax resident if you have been in the United States for a "weighted" total of at least 183 days during the previous three years -- unless you spend fewer than 30 days in the United States in the current year. To determine the weighted total number of days, each day in the current year counts as one, each day in the previous year counts as only 1/3 of a day, and each day in the year before that counts as only 1/6 of a day. This latter rule does not apply to certain foreign government employees, teachers, students, and professional athletes.

If you spend fewer than 183 days of the current year in the United States and have a tax home in another country, you will avoid being classified as a tax resident. If you have no other tax home, however, the IRS might decide that your tax home is the United States and that you are attempting to hide that fact by living there fewer than 183 days per year.

There are other exceptions to these tax rules based on tax treaties between the U.S. and your home country. If you are unsure of your situation, consult a tax accountant or lawyer. Also see IRS Publication 519, U.S. Tax Guide for Aliens, available at www.irs.gov.

If you are a tax resident, you must file U.S. tax return Form 1040 each year by April 15th, and pay tax on all income earned in the United States. (Unlike green card holders, you don't pay tax on your worldwide income.)

Failure to follow U.S. tax laws may be considered a criminal offense, leading to punishment, revocation of your nonimmigrant visa, and deportation. Failure to comply with U.S. tax laws can also make it more difficult for you to obtain permanent residency (a "green card") should you ever want it. To find out exactly how to comply with U.S. tax laws, consult a tax professional or visit the IRS website atwww.irs.gov.

© 2010 Nolo


U.S. Citizenship by Birth or Through Parents

You may already be a U.S. citizen by birth or naturalization and not know it.

U.S. citizenship can be obtained in one of four ways:

  • birth in the United States or its territories
  • birth to U.S. citizen parents (called "acquisition" of citizenship)
  • naturalization (obtaining citizenship after an application and exam), or
  • naturalization of one's parents (called "derivation" of citizenship).


Some people are already U.S. citizens and don't know it. Most of these people fall into one of three groups:

People born in the United States who have lived most of their lives in other countries. If you fall into this category, you may mistakenly believe that your long absence from the country, plus voting or military activities elsewhere, have stripped you of U.S. citizenship. This is not the case.

People who have U.S. citizens in their direct line of ancestry. If your parents or grandparents were U.S. citizens, you may not realize that U.S. citizenship has been passed down the line, even if you were born elsewhere and your parents or grandparents haven't lived in the United States for a long time.

Children of naturalized U.S. citizens. When parents become naturalized U.S. citizens, their minor children with green cards gain U.S. citizenship automatically. (Children under the age of 18 cannot normally apply to become naturalized U.S. citizens.)

You will, however, need to do some research to establish your rights. Here, we'll explore each of the above three possibilities in turn.

 

Birth in the United States

A child born on American soil automatically gets U.S. citizenship, unless the child is born to a foreign government official who is in the United States as a recognized diplomat. Children born in certain U.S. territories -- Puerto Rico, the Virgin Islands, and Guam -- may also acquire U.S. citizenship. For details, see Title 8 of the U.S. Code, available atwww.law.cornell.edu/uscode/html/uscode08.

Anyone born with U.S. citizenship retains it for life unless he or she deliberately gives it up -- for example, by filing an oath of renunciation.

 

Birth to U.S. Citizen Parents ("Acquisition")

In many circumstances, even though a child is born outside the United States, if at least one parent was a U.S. citizen at the time of the child's birth, the child automatically "acquires" citizenship. When this child marries and has children, those children may also acquire U.S. citizenship at birth.

The laws governing whether or not a child born outside of the United States acquires U.S. citizenship from parents have changed several times. You'll need to look at the law that was in effect on the date of the child's birth (and the parents' birth, if grandparents were U.S. citizens) for guidance. These laws differ for the following time periods:

  • prior to May 24, 1934
  • May 25, 1934 to January 12, 1941
  • January 13, 1941 to December 23, 1952
  • December 24, 1952 to November 13, 1986, and
  • November 14, 1986 to present.


To read about the law that was in effect at the time of your birth, see U.S. Immigration Made Easy, by Ilona Bray (Nolo).

 

Naturalization of Parents ("Derivation")

When a parent naturalizes, his or her children may "derive" U.S. citizenship automatically, provided they have green cards and are under age 18 and living with the parent at the time. Becoming a U.S. citizen in this way has a special benefit: A child who gets U.S. citizenship through the naturalization of either or both parents does not have to participate in a naturalization ceremony.

The laws on the automatic naturalization of children have varied over the years. Whether or not you are a U.S. citizen is determined by the laws that existed when your parent's naturalization took place. These laws differ for the following time periods:

  • parents who naturalized before May 24, 1934
  • parents who naturalized between May 24, 1934 and January 12, 1941
  • parents who naturalized between January 13, 1941 and December 23, 1952
  • parents who naturalized between December 24, 1952 and October 4, 1978
  • parents who naturalized between October 5, 1978 and February 26, 2001, and
  • parents who naturalized between February 27, 2001 and the present.


To read about what law was in effect at the time of your parents' naturalization, see U.S. Immigration Made Easy, by Ilona Bray (Nolo).

 

Proving Your U.S. Citizenship

If you have a claim to U.S. citizenship based on one of the laws discussed in this article, you should acquire a passport or other document to prove it.

© 2010 Nolo


Applying for U.S. Citizenship

Find out who is eligible for U.S. citizenship and how to apply.

U.S. citizenship gives a person as many rights as the U.S. has to offer; for example, the right to vote, petition for family members to immigrate, and live abroad without losing your right to return. For these reasons, citizenship is not easily obtained.

To become a U.S. citizen, you must first have a green card (permanent residence) and then meet other requirements, listed below. There are only a few rare exceptions in which a person goes straight from having no U.S. status to getting U.S. citizenship; some are

 

The Eligibility Criteria

If you are interested in applying for U.S. citizenship, first make sure that all of the following apply to you:

  • you have lived in the United States as a lawful permanent resident for at least five years (with exceptions for refugees, people who get their green card through political asylum, spouses of U.S. citizens, and U.S. military personnel)
  • you have been physically present in the United States for at least half of the last five years
  • you have lived in the district or state where you are filing your application for at least three months
  • you have not spent more than a year outside the United States
  • you have not made your primary home in another country
  • you are at least 18 years old
  • you have good moral character
  • you are able to speak, read, and write in English
  • you are able to pass a test covering U.S. history and government, and
  • you are willing to swear that you believe in the principles of the U.S. Constitution and will be loyal to the United States.


Applying for citizenship opens your whole immigration history to review. U.S. Citizenship and Immigration Services (USCIS) will carefully investigate your background. If it discovers something wrong -- for example, that you used fraud to get your green card or abandoned your residency by making your home outside the United States -- it can strip you of your green card and send you out of the country.

 

Further Resources
For more on the eligibility and application requirements for citizenship, including important exceptions, the rights of disabled persons, and the details of how to apply, see Becoming a U.S. Citizen: A Guide to the Law, Exam & Interview, by Attorney Ilona Bray.



The Application Process

You'll need to complete a citizenship application and send it in with a copy of your green card, the required photos, and the appropriate fee. After filing your application, you will probably wait for many months, depending on your local USCIS office. Then you will be called in for a fingerprint appointment, and later an interview appointment.

At the interview, a USCIS officer will test your English language ability (unless you are over 50 and fit within an exception) and your knowledge of U.S. history and government. Applicants who are disabled can ask for accommodations at the interview, such as a sign language interpreter or wheelchair accessibility.

If all goes well at the interview, you'll receive an appointment for your swearing-in ceremony. At that time, you actually become a citizen, and receive a certificate of naturalization to prove it. As a citizen, you can petition to have close family members join you in the United States.

© 2010 Nolo


Obtaining Proof of U.S. Citizenship

If you have a right to U.S. citizenship, what's next?

If you believe you are a U.S. citizen, you'll want a document to prove it.

If you were born on U.S. soil and there is a record of your birth, a standard U.S. birth certificate issued by a state government is your primary proof of U.S. citizenship. (Birth certificates issued by hospitals are not official records and do not serve as proof of citizenship.)

If you were naturalized in the United States, you will have a naturalization certificate.

However, if your birth took place outside the territorial United States and you have a right to U.S. citizenship through your parents, you will not have either of these documents. () In this case, you will have to apply for either a U.S. passport or a certificate of citizenship.

 

U.S. Passports

If you were born abroad to U.S. citizen parents, you can apply for a U.S. passport in the same way as someone born in the United States. However, you will have the added requirement of establishing your citizenship claim. The evidence you'll need to have on hand may include:

  • proof of your parents' U.S. citizenship
  • evidence that your parents complied with any applicable U.S. residency requirements, and
  • evidence that you fulfilled any necessary residency requirements, or that you were excused from doing so because you didn't know about the law.


Evidence may take the form of birth or citizenship records, work or tax records, or affidavits from you (and perhaps even from your parents or grandparents), for example, explaining why you were unaware of your claim to U.S. citizenship.

Passports are available from passport offices in the United States or at U.S. consulates abroad, but experience shows that you have a better chance of succeeding by applying to a U.S. consulate.

 

Certificates of Citizenship

You can also get proof of your citizenship by applying for a certificate of citizenship from U.S. Citizenship and Immigration Services (USCIS, formerly called the INS). Anyone with a claim to U.S. citizenship can apply for a certificate of citizenship. Citizenship certificates are issued only by offices of USCIS located inside the United States.

In most cases it is more difficult to prove your citizenship through a certificate of citizenship application than by applying for a U.S. passport, mostly because it takes more time. (In some of the busier USCIS offices, it can take over a year to obtain a certificate of citizenship.) However, if your U.S. citizenship was obtained automatically through the naturalization of a parent, a certificate of citizenship application is your easiest and best choice, because the evidence needed to prove your claim is usually obvious and easy to acquire.

Evidence of your claim to U.S. citizenship should include your parents' birth certificates, marriage certificates, and naturalization certificates. You will also need your birth certificate, marriage certificate, or divorce decree to prove what your name is and to document any changes to your name.

 

Certificates of Consular Registration of Birth

If you were born outside the United States and your parents were U.S. citizens at the time, they may have registered your birth with a U.S. consulate. If they did so within five years of your birth, they would have been issued what is called a Consular Registration of Birth Abroad. The consular registration is conclusive proof of U.S. citizenship.

But, if your parents did not take the steps to register your birth with the consulate before you turned five years of age, there is no way of obtaining one now. Also, there is no way to obtain duplicates if your parents lost the original and any copies they received at the time of your birth. You will have to apply for a passport or certificate of citizenship using the procedures outlined above.

For help applying for a passport or certificate of citizenship, see U.S. Immigration Made Easy, by Attorney Ilona Bray (Nolo).

© 2010 Nolo


Q & A

 

Can I have a lawyer attend my citizenship interview with me?

QUESTION:

Can I have a lawyer attend my citizenship interview with me? I've already mailed my application in, and I didn't mention that I wanted to bring a lawyer.

ANSWER:

Immigrants' rights always seem to be shrinking, but they haven't disappeared entirely. You can have a lawyer accompany you to any interview at USCIS (U.S. Citizenship and Immigration Services, formerly called the INS). It doesn't matter that you've never told USCIS that you'll be bringing an extra guest. On the day of the interview, the lawyer should simply hand the USCIS officer a form called a G-28 to show that he or she now represents you.

Then the question is, do you want a lawyer with you? If it's just because you're not sure you're ready for your interview, you might do just as well studying up on your English language and American civics. The lawyer can't stop USCIS from asking any of these questions, and he or she can't answer them for you. In fact, you'll find that the lawyer has to sit quietly through much of the interview.

It's a different matter if there's a legal issue in your case that you don't know how to deal with -- such as if you've spent more than a year outside the United States, have had a run-in with the police, were quickly divorced from the spouse that got you your green card, or have a disability that prevents you from being able to learn English. For more information, see Becoming a U.S. Citizen: A Guide to the Law, Exam & Interview. If you still feel the issue could be a problem, definitely consult with a lawyer. If your income is low, check with local nonprofit organizations to see if they can help you at a reduced rate or can recommend low-fee attorneys.

© 2010 Nolo


All articles reprinted with permission from the publisher, Nolo
© 2010, http://www.nolo.com

HomeAbout�Our�FirmMeet�the�AttorneysOur�Services�/�Recent�CasesClient�CommentsImmigrant�VisasNon-Immigrant�VisasHelpful�LinksMore�ArticlesNew�Client�InformationOffice�Directions�/�MapPhones,�Emails,�Contacts