Immigration Law Blog

The Canadian government is now mandating that all visa-exempt foreign nationals, including U.S. Legal Permanent Residents, who fly or transit to Canada must apply for and receive an Electronic Travel Authorization (eTA) prior to their trip. Exceptions include U.S.

Travelers can apply for an eTA online on the Canadian government’s official website. In order to apply, travelers will need: a valid passport from a visa-exempt country (U.S. Lawful Permanent Residents can also apply using a U.S. Refugee Travel Document (Form I-571) or a valid Permit to Reenter the U.S. (Form I-327)); a credit card (a regular or prepaid Visa, MasterCard, or American Express); and a valid email address. Applications cost $7 CAD and most applications are approved within minutes of applying. If a traveler’s application is not approved immediately, they will receive an email within seventy-two (72) hours advising them of next steps.

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Below is a list of all the various types of non-immigrant visas:

H-1B: Temporary professional workers for a specialty occupation

           with at least a 4 year bachelor’s degree. Maximum stay of 6 years,

           but can lead to permanent residency.

H-2B: Seasonal workers permitted to enter the country for a short time

           to fill a need when American labor is unavailable.

H-4: Spouses and children of H-1B and H-2B immigrants are permitted

        to enter the country under an H-4 visa but are not allowed to work.

K-1: For the fiancé[e] of a U.S. citizen where the marriage will occur within 90 days.

K-3: For the spouse of a U.S. citizen while the application for a green card is pending.

L-1A/B: An international company with an existing presence in the United States

              may transfer a foreign employee to a local office with one of these visas.

             The L-1A is for executives, and the L-1B is for individuals with specialized knowledge.

             Spouse and children of employee may enter the U.S. on an L-2 but may not work.

O-1: Limited to individuals with extraordinary ability in arts, science, education, business,

        or athletics, with a record of great achievement and indisputably at the top of their field.

O-2: Assistants to O-1 visa holders in artistic or athletic events.

O-3: For the spouses and children of an O-1 or O-2 visa holder.

R-1: Religious workers entering the country on a temporary basis

R-2: For spouses and children of those entering the country with an R-1 visa.

TN-1/2: For Canadian (TN-1) and Mexican (TN-2) nationals to work in specific occupations

              These visas have strict educational requirements. The spouses and dependents of these

              individuals must apply for TD visas to enter the country.

A-1/2/3: For diplomats, government officials, their families and attendants.

B-1: For individuals entering the United States who are briefly visiting for business purposes.

B-2: For individuals briefly visiting the United States for pleasure -- also called tourist visas.

C: For travelers passing through the United States who don’t intend to enter the United States.

F-1: For individuals engaged in a full course of study at a U.S. institution -- also called student

        visas. Individuals are not permitted to work when in the country on this visa. Spouses and

        children of F-1 visa recipients must apply for F-2 visas to enter the country.

J-1: For individuals participating in visitor exchange programs. Spouses and children of J-1

       recipients must apply for J-2 visas to enter the country.

Q-1: Participants in international cultural exchange programs apply for this visa.

T: A person who has been a victim of human trafficking who cooperates with law enforcement

    in the investigation and prosecution of human trafficking is eligible for this visa.

U: This visa is for victims of criminal activities who seek police protection from

     a qualifying crime.

On May 2, 2016, USCIS announced that it had completed data entry of all fiscal year 2017 H-1B cap-subject petitions that were selected in its computer-generated random process. USCIS will now commence the process of returning all H-1B cap-subject petitions that were not selected. Due to the high volume of filings, USCIS was unable to provide a definite time frame for returning these petitions and asked that petitioners not inquire about the status of submitted cap-subject petitions until they receive a receipt notice or an unselected petition is returned. USCIS has stated that it will issue an announcement once all the unselected petitions have been returned. For more information, please see Read more . . .

Effective May 10, 2016, new regulations impacting foreign national students studying at U.S. colleges and universities on F-1 visas will come into effect. Under the previous regulations, all F-1 students were eligible for a 12-month period of Optional Practical Training (OPT) following the completion of their degree program which allowed them to gain job experience in an area directly related to their field of study. Students whose degrees were in STEM (Science, Technology, Engineering, or Math) fields were eligible for an additional 17-month extension of their OPT following their initial 12-month OPT period.

The new regulations will increase the OPT extension period available to students with degrees in STEM fields from 17-months to 24-months (the 12-month initial OPT period for all students will remain the same). Students who are interested in taking advantage of this new provision should become familiar with the requirements for doing so prior to May 10, 2016 as many students will need to take immediate action in order to avoid missing important deadlines set by the regulations.

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The Immigration and Naturalization Act provides that children born outside the U.S. are automatically U.S. Citizens if one of their parents is a U.S. citizen.  There are, however, a number of exceptions.  

To transmit citizenship to a child, the parent must not only be a U.S. citizen but must also meet a physical presence requirement.  The parent must have resided in the U.S. or one of its possessions for at least five years, and for two of the five, the parent must have been at least 14 years old.

If a child is not eligible because a U.S. citizen parent failed to meet the physical presence requirement, the child can still receive citizenship through the physical presence of a grandparent.  There are three basic requirements:

1.  The child is the offspring of parent who is a U.S. citizen, whether by naturalization or birth.

2.  The child is under the age of 18 and in the custody of the U.S. citizen parent.

3.  The child's U.S. citizen grandparent was physically present in the U.S. or its possessions for at least five years, for two of which the grandparent was at least 14 years old.

As with the U.S. citizen parent, the calculation of the total time of physical presence can include periods when the grandparent was not a U.S. citizen.

If the grandparent is dead, the provision is still available.  All that is required is that the grandparent was a U.S. citizen and met the physical presence requirements at the time of his or her death.

Parents seeking to use the grandparent provision for a child must file a form N-600K with the United States Citizenship and Immigration Services prior to the child's eighteenth birthday and attend an appointment in person with the child.  If the parent has died, the child's grandparent or legal guardian can apply within five years of the parent's death.

If you or your loved one is trying to obtain U.S. citizenship through a grandparent, you should seek the advice of a seasoned immigration attorney to achieve the best possible result.

The U.S. Department of Homeland Security (DHS) has announced a new rule, effective May 10, 2016, allowing foreign national students with Science, Technology, Engineering or Mathematics (STEM) degrees to apply for an additional 24 months of Optional Practice Training (OPT) work authorization.

This new rule may be of particular value since the new 2017 Fiscal Year H-1B petitions, which are currently being prepared for the April 2016 filing, are expected to once again significantly exceed the number of available petition approvals.

For more information on this new rule, please see https://www.ice.gov/news/releases/sevp-stem-opt.

Public policy in the United States is to keep families together, and the rules of immigration are designed to encourage this to a great extent. Generally, the spouse of a person who is in the United States legally may stay in the country for as long as the spouse is permitted to stay. The spouse of a US citizen may apply for a green card upon marriage. Prior to marriage, a citizen’s fiancé may apply for a K-1 visa which is valid for 90 days before the wedding. A K-1 applicant’s children may also stay in the country under the K-2 designation.

Just about every type of non-immigrant visa has a counterpart for the individual’s spouse. An F-2 visa is designated for the spouse and children of an F-1 student visa holder. An H-4 visa is for the family of a person in the United States on an H-1B, H-2B, or H-3 foreign worker visa. Religious workers who enter the country on an R-1 visa can obtain permission for their dependent spouses and children to enter through the R-2 visa. The commonality among all these is that these visas are designed for non-immigrants who expect to stay in the United States for an extended period of time. These spousal visas do not exist for those who are traveling for a short-term stay. Both spouses must apply separately for B-2 tourist visas.

Simply because a spouse or dependent child is permitted into the country prior does not mean that the spouse or child can participate in every activity the spouse partakes of. Many temporary non-immigrant visas, for example, permit an individual to work. An O-1 visa holder is allowed into the country specifically to perform a specialized task for which he or she has extraordinary ability. The O-1 visa holder’s spouse may enter the country under an O-3 visa, but may not seek employment. This places a financial burden on the O-1 visa holder and makes it impractical for his or her spouse and children to come to the United States. Depending on the specific type of visa, other restrictions may exist on an applicant’s ability to travel or engage in a course of study. Only an experienced immigration attorney can confirm the restrictions on each specific visa.

On January 21, 2016, the United States commenced implementation of changes to the Visa Waiver Program ("VWP") pursuant to the "Terrorist Travel Prevention and Visa Waiver Program Reform" section of the omnibus spending bill (H.R. 2029) passed by Congress on December 18, 2015.

These changes will affect the ability of certain foreign nationals to travel to the United States using the VWP. The VWP is currently open to nationals of thirty-eight countries (https://travel.state.gov/content/visas/en/visit/visa-waiver-program.html) and is administered through the ESTA portal which allows travelers to seek advance approval to enter the U.S. from Customs and Border Protection.

Starting January 21, 2016, the following changes will apply to the VWP...

Read more . . .

The American Dream of starting your own business and pulling yourself up by your bootstraps is alive and well. In fact, it is the creation and growth of small businesses that is instrumental in helping America recover from the Great Recession. What many do not realize is that a significant percentage of new business ventures in this country are started by immigrants.  Despite their business startup prowess, Immigrants face a multitude of legal issues as they start new ventures in the United States.

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Since 1995, people hoping to move to the United States could opt to enter a lottery to receive an immigrant visa through the Diversity Visa program. Every year, 55,000 people are selected to receive immigrant visas by lottery. The list of countries whose citizens are eligible for the diversity visa lottery changes from year to year based on trends from the previous five years. The point of the lottery is to diversify the immigrant population in the United States by selecting applicants from countries with low immigration rates. Applicants from no single country may receive more than 7% of the visas distributed.

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For many people who were brought to this country as children, the United States is the only home they know but they are not citizens. Immigrants in this situation who meet certain eligibility requirements can apply for Deferred Action for Childhood Arrivals (DACA).  This program began in 2012 and was expanded in 2014 when President Obama took executive actions on immigration.

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