Frequently Asked Questions About Immigration Law
The attorneys at the Law Offices of Paul Herzog have decades of experience helping professionals, students, faculty and married couples find the answers they need to immigration questions. Here are some common questions our Los Angeles office receives from clients throughout the United States:
I am a U.S. citizen and have just married a wonderful lady from Germany. She is a student at the local university. How can I sponsor my wife for a green card?
Yes, it is certainly possible to sponsor your wife. However, you should be aware that the whole process can take approximately one year. At the end of the year, there is an interview with the two of you and the Citizenship and Immigration Services officer. You would have to establish at the interview, through presentation of documents, that the two of you reside together and will remain together. Documents such as a joint lease, bank accounts, driver’s license indicating the same address, cell phone and utility bills would be submitted. Perhaps your employer can confirm that it is aware of your marriage and her name. Also, either you, or your wife, or a close family member or friend must submit an Affidavit of Support and copy of his/her federal income taxes for the last three years. In other words, it is not enough just to present a marriage certificate. The immigration agent must be satisfied that the documents that you present convince the person that you two actually reside together.
I am a U.S. citizen married to a foreign national, and we live together. How long does it take before s/he gets a work permit and green card?
The processing times from the initial filing with CIS until the actual green card interview vary depending on where you live. While waiting for the interview CIS will issue you a work or travel permit. But, check with your attorney to make sure that it is safe for you to travel during the processing period. Please contact our office to determine the processing times in your city and the procedure to obtain your green card based upon marriage.
If I am approved the day of the interview, do I immediately get the green card?
If you have been married less than two years at the time of the green card approval, then you are granted what is called, “conditional permanent residence.” The green card is valid for two years. Two years after you are granted this status you must submit through the mail Form I-751 and documents to CIS that establish that you are still residing together. You can apply up to three months prior to your two year anniversary of the approval of conditional permanent residence. Assuming that CIS has no other questions, it will approve the “removal of the condition” and grant you permanent residence. Then one year later you may apply to become a U.S. citizen. If you are divorced or separated there will probably be an interview at CIS to establish whether or not the marriage was entered into for “bona fide” reasons.
I am a foreign student on an F-1 visa and my spouse is on an F-2. Can you tell me what options I have to work after graduation and can my spouse work?
First, a spouse in F-2 may not be employed. However, your spouse might also qualify for a work visa such as the H-1B. After you graduate in F-1 status you are eligible for up to 12 months of optional practical training. This is a wonderful work permit as it only costs you the $380 CIS filing fee and takes about 3-4 months to obtain. You may work anywhere in America in your field and do not need permission from CIS each time you switch employers. Some students in the sciences, technology, engineering and mathematics disciplines (STEM majors) might qualify for an additional 17 months of optional practical training (OPT). I highly recommend discussing this option with your foreign student adviser.
Can I work for an H-1B cap-subject and cap-exempt employer at the same time?
Yes. A person in H-1B status who is concurrently employed with an exempt and nonexempt employer will not be counted towards the H-1B quota. However, if the person ceases to be employed in the cap-exempt position, the H-1B petition with the private employer will end.
I have recently obtained a Ph.D. and been offered a position as an assistant professor. The school is obtaining the H-1B for me but they told me I was responsible for the green card. What can I do? And, can you provide me with a typical timeline for this type of green card?
Faculty may be sponsored either as an outstanding professor/researcher or through what is termed, “Faculty Special Handling Labor Certification.” Typically, CIS likes to see that you have had your Ph.D. for at least three years before they will consider approving you as an outstanding professor/researcher. In fact, at this time the winning outstanding professor/researcher has normally obtained his/her Ph.D. at least 5-10 years earlier and has many articles in print.
If you recently defended your dissertation successfully, I would probably recommend the faculty labor certification. This is a perfect avenue for new faculty. This type of labor certification only requires that you were chosen as the “most qualified” applicant for the job. In other words, as long as you “won” the recruitment and were offered the job then you will obtain the green card. This is established by a letter from the recruitment committee detailing the recruitment and why you were more qualified than the other applicants. We file many of these types of cases all over the U.S. for new faculty and the beauty is that you just have to be more qualified than the other applicants. This is dramatically different from the normal, non-faculty, labor certification.
As long as your university performed a national recruitment for your position, then our office can go ahead and seek the prevailing wage determination from the Department of Labor. This takes between 2-3 months. Meanwhile, we will collect all the documents needed for the labor certification. Once we receive the prevailing wage approval from the Department of Labor, then we can usually file the labor certification shortly after. At this time, the labor certification takes approximately four to eight months to be approved.
The next step is the I-140. We will work with your university to file the I-140 on your behalf. Your Adjustment of Status (I-485) can oftentimes be filed simultaneously, or soon after the I-140 is filed. However, if your country of birth is India or China, you will have to wait to file your Adjustment of Status (please refer to the U.S. Department of State’s Visa Bulletin). We estimate that from the time we start with a “Faculty Special Handling Labor Certification” case to the time you obtain your green card is typically 12 to 18 months (except for India & China).
Is there a time limit to file the labor certification with the Labor Department?
Yes, the labor certification forms must be submitted within 18 months of the date of your “selection” as a faculty member. Please be aware that the “selection” date is not the date that you commence your academic employment. If you have already missed the 18-month filing deadline please call to discuss your options.
I want to set up a company in the U.S. and do business here. How can I get the E or L visa?
If you are planning to set up a business in the U.S. and work here, you may be eligible for an “E” or “L” visa.
The “E” visa is available to citizens of certain countries that have treaties with the U.S. It allows individuals investing in a U.S. business or setting up a business to be employed by that business or you may be employed by a company that is owned by nationals of your treaty country. Qualifying for the “E” visa is quite difficult, as numerous criteria must be met. My associate or I will be happy to discuss with you whether you qualify.
The “L” visa is available for citizens of any country who are being transferred by a company in one country to work for a related business (such as a subsidiary) in the United States. To qualify, you must have been employed outside the U.S. by the company for at least one year. Also, you must be coming to work either as an executive, manager or in a “specialized knowledge” capacity. Finally, you must have been employed in one of these capacities by the company overseas.