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Archives: August 2010

Students Visas: The Passage of the Young to the United States

student visas

Student visas, one of the visas granted in a large quantities, is one of the most used passages by young people from other countries to the United States. Currently, this visa is granted with great care after the September 11, 2001 incident. However, compared to many other types of visas, it is still the visas granted in large quantities.

The visa falls in the non-immigrant category. This means that a person comes to the United States with the expectation of leaving at the end of his course of study. There are two ways a student visa is acquired. A person already in the US can apply for it. But to do so, he must be in status. If granted, he then changes his status to a student visa holder. If not in status at application, he may have to leave the US to be able to apply. If he leaves, he must make sure that he has not overstayed to the point where he may not be eligible to re-enter the US for three or ten years, depending on how long he had overstayed. The person may also apply from outside the US. If granted he can then come to engage in his course of study.

In general, there are four types of visas for study. They are the F, M, H-3 and J visas.

The F

The principal holder has the F1 visa, and his spouse or child that accompanies him has the F2. To qualify, among others, the applicant must have a foreign residence, which he has no intention of abandoning, pursue a full course of study, and have sufficient financial support. The applicant does not have to possess the funds to meet the financial support requirement, but must show that the funds are available.

To obtain the visas, the applicant must identify a school in the US, and get admission. After the admission, he will be given an I 20, with which he applies for the F visa. If he is outside the country, the American Embassy of his country processes the visa. But if in the US, the I 20 and supporting documents is filed on an extension or change of status form to the INS. In either case, if the INS approves the visa, the student can then start his course of study.

In school, the student may have work opportunities. In the first academic year, and during the entire course of study, he can only work on campus. He could work off campus in the case of a severe economic hardship or for practical training. Practical training can be one required by the course of study of the student’s choice. The student may also transfer from one school to the other. But he needs a completed I 20 from the school he intends to transfer and must inform his current school of the transfer. Additionally, he must be pursuing a full course of study and not engaged in unauthorized work

An F student visa holder may run into immigration problems if not careful. These include running out of status or into problems with the law. A student is out of status if he engages in employment without authorization, not pursuing a full course of study, transfers without permission or fails to complete a course of study on time fails to extend his I 20, and ineligible for resintatement when due. When a student is out of status, he is deportable.

Sometimes, an out-of status student may be reinstated if the out of status was due to circumstances beyond his control or it would result in extreme hardship if deported, currently pursing or intends to pursue a full course of study, not engaged in unauthorized employment and not deportable at the time of the reinstatement petition. The student must prove the cases above with supporting documents.

If an F1 visa holder loses his visa, his derivative beneficiaries automatically lose their statuses.

Vocational Students

These carry the M visas. They must meet all the requirements of the F visa holder, except that they must be admitted at a vocational or nonacademic institution.

J Visas

These are visas for trainees or professors or short-term scholars, who come to the US to participate in an exchange visitor program. Many of them are subject to the requirement of returning to their home country or country of last residence upon completion of their two years. Some are not. Sometimes, the two-year residence requirement is waived if the J visa holder can prove possible persecution in his home country, exceptional hardship to his U S citizen or Permanent Resident spouse or child or the holder’s country does not object t his going back home.

H-3 Visas

An H-3 visa applicant must meet the following requirements: He must have a foreign residence to return after the training; will not be placed in a position in which citizens and resident workers are regularly employed; and will not engage in productive employment unless incidental and necessary to the training and will benefit outside the US.

Divorce Rate Amongst African Immigrants

american flagAfrican immigrants are all Africans from the African continent who come to the United States to reside permanently. Many of them eventually become US citizens. Some come as a family i.e. with their wives and children. Some come as single individuals. Many of these eventually meet women in the United States and get married to them. They may deliberately marry someone from their home countries. Many of those who do so told me that the cultural and regional similarities make the relationship easier. Many of them also marry women of other races and cultures in the United States.

Compared to their countries of origin, divorce among African families in the United States is very high. The average span of an African married couple in the United States is, unfortunately, only about seven years.

Why is the divorce rate so high? One factor is the impact of the new American culture. Africans in America stumble on the American culture of rights, and, in many cases, do not know how to handle it. In Africa, women are inferior to men, and men have more rights than women. In a typical family, women play domestic roles, while the men are the bread winners. Women do household chores, raise the kids and serve the husband. In America, the women find that they have rights just like, if not, more than men. They hold important non-domestic jobs and are financially strong just like the men. They have equal say on issues in the home, and can financially contribute. They also find that household chores and raising kids should be shared with the men.

The men resent some of these rights, and deem it unacceptable. They see them as challenges to their masculinity. In most cases, their reactions lead to frictions, which in turn, cause marital problems, and many of the marital problems lead to divorce.

Domestic abuse incidents are very high in African families. In Africa, it is normal for a husband to physically or verbally abuse his wife when the wife does something wrong. Wrong things may include extra-marital activity, not treating the kids very well, breaking something in the house, refusing to have intercourse or saying something disrespectful to the husband. The beating is an exercise of the man’s masculinity and punishment of the woman for the wrongful act. The beating does not subject the man to any punishment. There are rare cases, such as if the beating results in murder, where the man is prosecuted.

In the United States, domestic abuse is, fortunately, a crime that goes with serious consequences. If a man is charged with domestic abuse or assault of his wife, and is found guilty, he is subjected to a serious punishment. If the man is an immigrant, who has not become a citizen, he is also subject to deportation. Sometimes African wives take advantage of the consequences, and frequently lie to the police that their husbands have beaten them. There are instances when a wife that is offended by a dispute between herself and her husband, calls the police to lie that her husband has beaten her to cause the police to arrest the husband. Many marriages do not survive instances of domestic abuse.

The highest number of divorces occur in African cross-culture and or racial marriages i.e. an African married to a Caucasian or Mexican or Asian or African American etc. Some of the divorces are simply rooted in the desire of a party to get an immigration “Green Card”, and deserting the marriage once the desire is achieved. Many are rooted in deep different cultural and racial problems. The spouses usually accept their racial differences. They have to look beyond it to get married. Their cultural problems are, however, tougher to overcome. They initially suppress their cultural identities and feelings during courtship. But the differences get out of control in the marriage. The differences come across in daily communication, likes and dislikes, relationships with friends, and most especially their extended family members.

The African initially absorbs everything but eventually reacts against cultural traits that he dislikes. Both at some point do not understand that their different cultural experiences are subverting their relationship, and before they know, the marriage is mired in an acute difficulty. Frictions between the spouses and the African and his or her American spouses’ extended family members are rife, the solution to which becomes divorce.

When divorce occurs, the American domestic relations law governs. Issues of custody, child support, visitation (if there are children), property division (if there is property) and liability allocation (if any) are decided. The divorce leaves behind deep relationship cleavages and sometimes fatal animosities. For a while, the African’s quest for happiness, a strong component of his American dream is lost.

The author of this article is an attorney who does general practice that includes family, immigration and criminal law. No portion should be deemed as legal advice. If you need legal advice on issues raised in the article, see a family, criminal or immigration attorney. If you need advice or legal assistance from the author, call his office at 763-549-0670, or write to him at the Law Offices of Swaray & Associates, Golden Valley Corporate Center, 1710 Douglas Drive, Suite 107, Golden Valley, MN 55422.

H-1B Employment Visa

american flagThe H-1B is one of the most used employment visas in the United States. Big and small companies, including banks, manufacturing, medical, educational institutions, and the like, have frequently used it to obtain visa statuses for qualified and experienced employees from overseas countries or here in the US, but happen to be non-citizens or non-permanent residents.

To be eligible, the position to be occupied must be a specialty occupation, and the potential beneficiary must have the required qualifications. To be a specialty occupation, the position should require a theoretical and practical application of a body of specialized knowledge, and the potential employee must have attained, as a minimum, a bachelors or higher degree (or its foreign equivalent) in the field.

The position must satisfy one of the following two factors:

1. A bachelors or higher degree or its equivalent; or
2. The industry, for example engineering, medicine etc, commonly requires a degree for the position. An employer may also attempt to show that the duties of the position are so complex and unique that only an individual with a degree can perform them.
See, 8 CFR, Section 214.2(h) (4) (iii) (A); Tapis v. INS, 94 Federal Supplement 2d 175 (D. Mass 2000)

In addition, the potential employee must be qualified to perform services in the specialty occupation. To be qualified, the employee must meet one of the following requirements:

a. Have a bachelor’s or higher degree that the specialty occupation requires from an accredited college or university; or
b. Have a foreign degree that is equivalent to a US bachelors or higher degree from an accredited college or university; or
c. Have an unrestricted state license, registration or certification, which authorizes her to fully participate in the specialty occupation and be immediately engaged in that profession in the state of intended employment; or
d. Have an education, specialized training, and or progressively responsible experience equivalent to the completion of a US bachelors degree in the specialty occupation.
See, Shanti v. Reno, 36 F. Supplement 2d 1154 (D. Minn. 1999).

When these two requirements are met, the United States based employer (petitioner) can file a Labor Condition Application (LCA) with the Department of Labor (DOL) When it is approved, the employer then files a Form I 129 Petition for a Nonimmigrant Worker together with the approved LCA and supporting documents with the Department of Homeland Security (DHS). If the DHS approves the application, the issued visa is initially for three years, which can be extended for an additional three years since its full life span is six years.

Examples of professions that may qualify for a specialty occupation position are law, medicine, dentistry, accounting, acupuncture, chiropractic, computer programming, dieticians, electronics, fashion designing, complex general managerial work, graphic designing, interior designing, nursing, journalism, library science, medical technology, ministers, orthopedists, pharmacists, social workers, technical publications, writers, vocational counselors, etc.

H-1B visas for fiscal year 2004, with a quota of 65,000 available visas, have reached its cap, and applications for this fiscal year are no longer being processed. However, prepared applications can be re-submitted for fiscal year 2005 beginning April 1, 2004.

This article is not intended to be legal advice. If you need legal advice, contact, The Law Offices of Swaray and Associates, which specializes, among others, in processing H-1Bs for companies and individuals. If you are interested in benefiting from our services, call us at 612-481-1865. An immigration attorney should be available to assist you.

Visa for People of The Faith

America is so sensitive to diversity that it affords immigration opportunities to even religious workers. Religious workers include persons of all faiths, such as Buddhists, Christians, Muslims, Judaists etc. Perhaps, Congress must have been seriously thinking about enriching the religious foundation of the country when it created this opportunity. After all, a significant number of the very first wave of immigrants came to America in search of religious freedom. People of faith can enter the country with religious worker non-immigrant and immigrant visas.

Religious Worker Non-immigrant Visas

Immigration and Nationality Act Section 101 (a) (15) ® provides for non-immigrant or R visas. They are non-immigrant because the holder can reside in the US and work only for a temporary period not to exceed five years. The initial grant is for three years, and it can be extended for an additional two years. After the expiration of the five years, the holder would have to leave the country for one year before she can be eligible to apply again. A spouse or child of the holder is entitled to the derivative R-2 status.

To qualify, the applicant must be either a minister or a person working in a professional capacity in a religious vocation or occupation or working for a religious organization. The minister must have a proof of ordination. deacons, practitioners of Christian Science, officers of the Salvation Army and ordained persons of other religious faiths may be deemed ministers. A person working in a professional capacity must have a Bachelors degree or foreign equivalent. Religious occupation is any religious activity of a traditional religious brand. Examples are cantors, liturgical workers, translators, religious broadcasters, workers in religious hospitals etc. They do not, however, include clerks, persons performing lay work like nurses, fundraiser or maintenance workers.

A religious organization is one that is non-profit and tax-exempt and dedicated to the propagation of the divine faith. It should be a group or community of believers with some form of ecclesiastical government, creed, statement of faith, some form of worship, discipline, services and ceremonies or the like. The applicant must be a member of the religious organization for at least two years immediately before she files the application for the visa with either the State Department or the Department of Homeland Security.

Religious Worker Immigrant Visas

Immigration and Nationality Act Section 101 (a) (27) (C) provides for religious worker immigrant visas. It is immigrant because the recipient comes as “Green Card” holder, and can permanently reside and work in a religious capacity in the United States. If the applicant is outside the United States at the time of the application, the processing of her documents is done at a nearby consulate or embassy of the United States. But if she is already in the US in another visa status, the processing can be done here. She will first have to file the I 360 religious worker petition, and when approved, file the I 485 petition for adjustment of status with the Department of Homeland Security.

What qualifies a person for a religious worker immigrant visa? First, she must be a member of the religious organization for at least two years immediately before filing the I 360 application. The religious organization must be non-profit and tax-exempt. Second, she must be entering the US solely to carry out her vocation as a minister or to work in a professional capacity in a religious vocation or occupation or in a religious organization. Third, she has been carrying on the vocation, professional work or other work continuously for at least a two year period. The spouses and children accompanying or following are entitled to derivative status.

The information in this article is not a legal advice. If you need legal advice and information on forms and documentary support for applying for this visa, contact the Law Offices of Swaray & Associates at either 763-549-0670 or Golden Valley Corporate Center, 1710 Douglas Drive, Suite 107, Golden Valley, MN 5422. An immigration attorney will be available to assist you.

Getting a Green Card Through Employment in the United States

An alien, in the United States under a visa program, or outside the border in another country, can get a Green Card through employment to live and work in the country. Congress enacted the law that created this opportunity to resolve labor market problems and attract diligent, intelligent and sophisticated workers to the country. This law has drawn geniuses and helped nourish creativity in all industry spheres in the country, and has given the US a leading edge amongst its international competitors.

The seven types of employment-based green cards are as follows:

1. Persons of Extraordinary Ability

Aliens with extraordinary ability in the sciences, arts, education, businesses or athletics, and are known nationally or internationally, and their achievements are extensively documented, may be granted a green card to live and work in the US. They must be entering the US to continue to work in the acclaimed area. The alien does not need an offer of employment to be granted the green card.

2. OUTSTANDING PROFESSORS AND RESEARCHERS

Outstanding professors and researchers with an international standing in a specific academic area may be granted a green card. They must have three years experience in teaching or research in the academic area.

3. MULTINATIONAL EXECUTIVES AND MANAGERS

A multinational executive or a manager may be granted a green card. The executive or manager must be employed for one year in the last three years by a firm or corporation or other legal entity or an affiliate or subsidiary in the US.

4. ALIENS WITH ADVANCED DEGREES OR WITH EXCEPTIONAL ABILITY

Aliens with advanced degrees or foreign equivalent or with an exceptional ability in the sciences, arts or business may be granted a green card. The exceptional ability should be in an area that can substantially benefit the United States’ economy, culture, educational interests, or welfare. The services of the person should be sought by the US employer. The advanced degree should be a BA or BS or a foreign academic equivalent plus five years of continuous experience equal to an MA degree. A person of exceptional ability is one with an expertise significantly above the ordinary in the area.

5. SKILLED WORKERS AND PROFESSIONALS

These may also be granted a green card. The professional must have at least a Baccalaureate degree or foreign equivalent. The skilled worker must have a full time job requiring at least two years of training or experience.
Professionals include architects, engineers, lawyers, physicians, surgeons and teachers in elementary or secondary schools, colleges, academics or seminaries, journalists, and sometimes administrators. They should have a degree, but sometimes knowledge or experience is considered.

6. RELIGIOUS WORKERS

Religious workers may also be granted a green card. See article “Visas for People of the Faith” for more.

7. INVESTORS

A person may get a green card through his investment employment creation in the United States. She must invest at least $500,000.00 in the US, and must employ ten United States citizens or authorized immigrant workers full time and also manage the business or formulate its policies on a day-to-day basis.
With the exception of persons of extraordinary ability and investors, petitions for employment-based green cards are filed by the employer. A petition is initially filed with the Department of Labor to obtain a labor certification. When the certification is granted, another petition is filed with the Department of Homeland Security for the Green Card. If a beneficiary is outside the United States, the application is by consular processing. But if in the United States, the beneficiary adjusts her status after the labor certification grant.

DISCLAIMER

This article is not intended to be a legal advice. Go to the contact page of this site to submit your request to speak to one of our immigration officers or call us at 763-549-0670 763-549-0670 or email us at Swarayassociates@cs.com

Visa Through a Company Transfer

american flagThe L visa can permit an alien into the United States on transfer from a company abroad. Congress created the visa in April of 1970 to allow workers of companies of overseas countries and to transfer their skills to the US. Like other employment visas and Green Card, the creation of this visa us an enormous benefit to the United States economy.

The company to which the alien is transferred must be a branch of the parent, affiliate or subsidiary of the company from which the alien is transferred. The transfer is temporary with a maximum initial stay period of three years, but with a total stay period of up to five to seven years.

There are two types of L visas. There is the L-1A, which is for executives and managers of companies. It has a total stay period of seven years. Then, there is the L-1B visa for alien employees with ‘specialized knowledge’. Specialized knowledge means knowledge possessed by the employee of the company’s product, service, research etc. It permits the alien a total stay period of five years. Spouses and children of either types are accorded derivative L visa statuses.

To qualify for the visa, the employee must have worked abroad in either a managerial or executive position or performing services involving ‘specialized knowledge’. She must also be coming to work in the US in one of these capacities. In addition, she must have worked for that company for one continuous year in the three year period immediately preceding the L visa petition.

If you are interested in applying for this visa, and seek legal assistance, contact us at 763-549-0670 763-549-0670 or our address or email to schedule an appointment to speak with an immigration attorney. Note that this article is not legal advice.