Path to U.S. Citizenship

For foreign national who wishes to gain legal status and eventually citizenship in the United States, this may be achieved in a number of ways. Among the most common methods for a foreign national to achieve citizenship are either through employment or through family, including by marriage. Depending on the foreign national’s circumstances, other methods are also available.

The first step on the road to citizenship is gaining legal entry to the U.S. While foreign national may eventually become a citizen despite illegal entry, the illegality of the entry will make gaining citizenship much more difficult, not to mention having to face possible detention and removal from this country, civil or perhaps even criminal penalties if the reentry was made following an existing removal order.  One can gain entry in different ways, oftentimes using either immigrant or nonimmigrant visa categories; however, some non-immigrant visa categories may not translate to citizenship.

Next, in most cases a foreign national residing in the U.S. would have to first get permanent residency. Permanent residency, or a Green Card, can be awarded following entry with an immigrant visa or can be applied for from within the United States. A permanent resident can travel, re-enter, and work in the U.S. with fewer restrictions than someone with a non-immigrant visa.

Once permanent residence is obtained, the foreign national must live in the United States for five consecutive years before applying for citizenship, or three years if married to a U.S. citizen spouse.  In addition, a foreign national must be able to demonstrate they are of good moral character and take a U.S. history and civics test in English, unless otherwise exempted.

The remainder of this article is dedicated to the various ways one can enter and obtain permanent residency: First, the various possible visas available for temporary entry into the United States, or non-immigrant visas, which require further application for permanent residency; second, the various permanent visas foreign nationals can apply for directly; finally, special categories based on family relations and other unique situations.

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Foreign citizens come to the U.S. for a myriad of reasons – to study, to be with family, to work, to escape persecution, or to share their culture. For every reason, there is generally a corresponding visa category. The U.S. has categories of visas for both immigrants and non-immigrants. Among the most common immigrant visas are family and employment-sponsored ones. In the non-immigrant category, there are temporary visas for those who visit for business or pleasure, treaty investors/traders, students, temporary workers, exchange visitors, those who are engaged to a U.S. citizen, intracompany transferees, those with extraordinary abilities or who are artists or entertainers, persons in religious occupations, and victims of trafficking and criminal activity. In addition, certain people may be eligible for the visa waiver program, which allows individuals from approved countries to gain entry into the U.S. without applying for a visa from their consulate, so long as they have a valid passport and pass the border inspection.

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Do’s & Don’ts in H-1B Filing Season

Each year prior to April employers and their prospective employees vying for the much coveted H-1B status, of which currently only 85,000 visas are available every year, work to file their cases with U.S. Citizenship & Immigration Services (USCIS) and hope that they will actually have their H-1B applications approved.  Because so much can be at stake in these filings, potentially resulting in loss of job and business opportunities, not to mention potentially displaced foreign nationals who would not be able to be in or continue to stay in the United States absent other viable immigration options, paying attention to details and making sure that a filing is done correctly may make all the difference.

For a comprehensive overview of the H-1B process, read my article Basic Overview of the H-1B Visa Qualifications and Procedures.

Here are some basic guidelines that should always be observed in H-1B filing season:

  • DO start early in the planning process and DON’T wait until the last minute to begin an H-1B case.  The process of gathering the required information and documents in each case can take a few days to several weeks or longer, depending on the size of the employer and the unique situation of each prospective employee.  Additionally, before an H-1B application can be submitted to USCIS, an employer also needs to file a Labor Condition Application (LCA) with the U.S. Department of Labor, which can take up to 7 working days to certify.  Filing an H-1B application without a certified LCA is counterproductive as USCIS will simply reject and return the entire filing, therefore it is important to allow enough time before April 1st to plan, stay organized and make sure that the LCA is in hand.
  • DO expect that the employer or the H-1B petitioner will remain actively involved throughout the entire process.  DON’T rely on the prospective H-1B employee to do all the legwork.  The H-1B is an employment-based process, and the petitioning employer must be aware of what is involved and have a keen understanding of the process itself.  Having the prospective employee “take care of things” generally would not benefit anybody, including the H-1B employer.
  • DO have a clear understanding of the proposed H-1B position, its duties as well as the wage requirements.  DO make sure that the proposed position is a good match for the prospective employee’s skills and qualifications.  DO check that the H-1B candidate has the necessary documentation to demonstrate that he/she is qualified for the proposed position.  DON’T rush through this process as USCIS may very well come back and challenge the merits of this H-1B filing later.
  • DO have a backup plan.  DON’T put all eggs in one basket, as the expression goes.  If the prospective employee was not fortunate enough to have his/her H-1B application selected for review by USCIS, he or she might need to go back to school, apply for another work visa, or return to his/her home country.  Whatever the option may be, it is important to think through these less desirable but possible scenarios ahead of time.  A good strategy is to prepare for the worst and hope for the best!

For more information about this process schedule an appointment with our office today.

Students & Cap-Gap Protection

Since 2008 an F-1 student who has a pending H-1B application at the United States Citizenship & Immigration Services (USCIS) to change status from a student to a professionally skilled worker will be able to automatically extend his/her lawful status until October 1 of the fiscal year for which H-1B status is being requested.  The same is true for students who have been granted optional practical training (OPT) and may continue to remain in the United States and work should their OPT expire before October 1.  Those students who have not been granted OPT will have lawful status to remain in the United States but will not be able to work until their H-1B application has been approved.

For this rule to apply the H-1B application must have been properly filed with USCIS, which means the change of status application was filed during the H-1B acceptance period, while the student’s authorized duration of status (D/S) admission was still in effect (including any period of time during the academic course of study, any authorized periods of post-completion OPT, and the 60-day departure preparation period, commonly known as the “grace period”).  An application is generally considered “filed” once it is accepted by USCIS. In the context of the H-1B lottery, the petition may have been submitted on April 1, but it will not be accepted for processing until after the H-1B lottery has been conducted some weeks later. If the H-1B petition is rejected, denied, or revoked, the automatic extension of status and work authorization will immediately terminate.