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Frequently Asked Questions
How can someone come to the United States?
A person is allowed to enter the United States for a variety of reasons. These are usually based upon a person’s work, family, studies or training, or travels as a visitor. One can come to stay permanently or for a temporary stay. There are a variety of temporary non-immigrant visas that may be available depending on the person’s situation and permanent residency which may allow the applicant to stay for an indefinite period of time. These visas and permanent residency applications are prepared by a United States attorney for clients anywhere in the world and filed so that a foreign consulate or local USCIS office will complete the process.
Can a person enter the United States with one kind of status and change or adjust her status after she is in the United States?
If a person has legally entered the United States and met all the requirements of her particular visa, she can then change her status to a different non-immigrant visa, i.e. temporary visa, or adjust to an immigrant visa without leaving the United States. This can be accomplished if her new application for this change or adjustment meets all specifications for the change.
Does a person have to maintain lawful status after he has entered the United States in order to change or adjust his status?
A person must maintain lawful status in the United States to be allowed to change, adjust, or extend his status without leaving the United States. One exception to this is where the person has married a United States citizen and has entered lawfully. The United States citizen spouse may typically sponsor him for permanent residency even if he overstayed his visa in the United States and worked without authorization. Another exception is where the person has lawfully filed under the 245(i) before April 30, 2001. If this is true, he may be allowed to finish processing his application even if he changes sponsors for permanent residency. There are also waivers which may apply to certain very specific situations.
How can a United States citizen bring someone she wishes to marry to the United States?
There are two ways which are usually available for a U.S. citizen to bring a potential spouse into the United States. One way is to file for a fiancee visa, and once that person comes into the United States, marry that person within 90 days. Then the United States citizen can sponsor that individual for permanent residency. The person who enters with this type of visa may not be able to change or adjust status except based on marriage to the United States citizen who sponsored the visa. One requirement for the fiancee visa is to provide proof to the United States Citizen Immigration Service (“USCIS”) that the United States citizen and the alien have met in person before they filed for the visa. Another way to bring someone to the United States through marriage is to be married in the alien’s home country. After marriage the United States citizen files for a visa that allows the alien to enter the United States and finish processing for permanent residency once they arrive as a U.S. citizen spouse.
What visa do you recommend for a student who wishes to remain in the United States after graduation from college?
If the student can qualify, the H-1B is often the preferred visa. This visa requires that the student has completed a four year degree at an approved university or college. The student’s academic credentials must be comparable to what would be available to that person at a United States university. The student must have an offer of employment from a United States company for a position that would typically be “a speciality occupation”. Once this is established, the attorney will file for the LCA and then with the USCIS. This visa can be filed requesting premium processing in which the USCIS will provide a response within 2 weeks. One of the concerns regarding this particular visa is that the yearly quota allowed for the visa can be met before the fiscal year opens. Timing the filing for this visa is critical. Although the fiscal year of 2005 the visa quota was reopened for a limited time for a limited group of individuals, it is difficult to predict whether or when this might occur.
What is PERM?
PERM is a new process being employed by the United States Department of Labor and the USCIS for processing permanent residency applications based on employment. This process utilized some of the same principles as Reduction in Recruitment in that the employer does the recruitment before filing with the Department of Labor. The employer is required to keep records of all recruitment on file. The most significant change that this new process offers is that the employer goes on line and registers the attorney as an agent. Then the attorney can complete the required Department of Labor application over the internet. If there is no random audit done on that particular application, the current regulations suggest that the Department of Labor portion of the application should be completed within 60 to 90 days. This is substantially sooner than with previous filings.
How do I apply for a student visa?
The best way to apply for a student visa from outside of the United States is through the particular university or college which has accepted the student. Universities and colleges in the United States routinely assist students in immigration matters with no charge. The student should contact an attorney if unforeseen circumstances arise regarding this application, or if the individual is currently in the United States and needs to change from one status to another to attend school.
How do nurses enter the United States to work?
Nurses are allowed to enter the United States as a permanent resident. Nurses do not usually qualify for an H-1B visa. An exception may apply where the nurse position with the United States facility routinely requires a four year degree for that particular job, but this is not the norm. Nurses are on what is called Schedule A and are allowed to bypass many of the requirements other permanent residency applicants must meet. If outside of the United States, nurses must also obtain CFGNS certification prior to their application to enter the United States. Although this process can be complicated and there can be a limited number of available visas, nurses can come to the United States if they are properly guided through the maze of requirements.
Can I apply for asylum if I have been in the United States for longer than one year?
As you may be aware, the asylum regulations require that the applicant file for asylum within one year of entering the United States. One particular exception may be helpful if the asylum applicant fails to file within that time period. The applicant may file under changed circumstances. For example, a change of status may be considered changed circumstances that allow a late filing. The USCIS in the past has allowed an application to be processed which is untimely, if the delay is caused by the fact that the applicant had entered into the United States with a valid visa and applied for asylum in a timely manner after the visa had expired. The USCIS will also consider if the applicant had serious health issues which interfered with the filing of the application.
The Law Firm of
Katherine T. Waller
Established in 1991
5801 East 41st Street, Suite 801 Tulsa, Oklahoma 74135-5630 United States
Phone: (918) 665-2225 Fax: (918) 665-1068
Office Hours: Monday through Friday, 9 a.m. to 5 p.m.
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