| |
Q1 |
|
I would like to know what will be the status if someone (on h1 or f1)gets married to an American citizen, what will be the immigration status, and what is required to do further to get permanent residency |
|
A1 |
|
A person who gets married to a U.S. citizen becomes immediately eligible to receive their green card (not subject to waiting quotas). As a practical matter, it takes 4-12 months for the paper work to be processed, but you would receive your employment authorization immediately upon filing the I-485 (Adjustment of Status). The first step is to file Form I-130 and Forms G-325a (available from USCIS (INS)). If your USCIS (INS) office permits simultaneous filing of I-485 package, do that. Otherwise file I-485 when the I-130 approval comes through
[Index]
[Compiled by Law Offices of Rajiv S Khanna]
|
| |
Q2 |
|
Like you suggest that getting an H1-B visa would be safest approach but if I get a H1-B visa and later on my wife obtains her citizenship, and then she applies for my GC or work permit --- will I have to leave the country for some period of time ?
I have heard from friends and lawyers that if one is on H1-B visa and gets a change of status via family (in my case it's via my wife) then the person has to leave the country for a minimum period of 6-months for the status to take effect. Is this true ? Please advice... |
|
A2 |
|
Utterly false. You will NOT have to leave.
[Index]
[Compiled by Law Offices of Rajiv S Khanna]
|
| |
Q3 |
|
I am writing to ask about my soon-to-be spouse immigrating to the US. I am a US born citizen. We plan to get married in Montreal, Quebec at the end of August of this year. She will then move down here to the US.
I understand that we can apply for a family-based immigration visa under the first category of immediate relatives of U.S. citizens. I also understand that her permanent residence is conditional for two years and that we must apply for a change in the status of her residence within 90 days of the two year date.
My questions for now are as follows:
1) Do I file the I-130 form from the US before or after she moves to the US? To which office do we submit the form?
2) Is the I-130 form the only form needed for her immigration to the US?
3) Once we have filed the I-130 form, is she allowed to work in the US?
4) If not, what steps must be taken in order for her to be allowed to work in the US and what is the approximate time frame before she can begin to work?
5) Do we need to get married in the US in order for our marriage to be legal in the US/Maryland?
6) Are there any special laws related to a legal contract of marriage in the US/Maryland (ie. laws governing the rights of each party if we should ever split up... everything split 50/50,etc.)? |
|
A3 |
|
1) Either. If in Canada, apply to the U.S. consulate having jurisdiction over her place of residence. If in U.S., apply to the USCIS (INS) office having jurisdiction over your place of residence.
2) The second set of Forms is I-485 package.
3) No. Only when she files I-485 (which in most states can be done at the same time as filing the I-130), you can apply for her work authorization on Form I-765.
4) 15-90 days.
5) No. If marriage is legal in the country where it was performed, U.S. laws will recognize it as a valid marriage in most cases.
6) Not my area of expertise, but you probably are trying to find out if Maryland is a community property state. Check with a family law (domestic relations) practitioner.
[Index]
[Compiled by Law Offices of Rajiv S Khanna]
|
| |
Q4 |
|
What is the time-frame to get U.S. citizenship if the spouse is
an U.S. citizen?
|
|
A4 |
|
The spouse of a US citizen gets a CONDITIONAL green card "immediately"
after marriage. After 2 years, the 'conditionality' of this green card
is removed (after successfully proving to USCIS (INS) that the marriage is
legitimate). The spouse is eligible for his/her citizenship after
3 years of receiving the CONDITIONAL green card.
In a nutshell,3 years after obtaining one's green card(including the CONDITIONAL one)
For more legal information:
(a) Any person whose spouse is a citizen of the United States may be
naturalized upon compliance with all the requirement of this title
except the provisions of paragraph (1) of section 316(a) if such
person immediately preceding the date of filing his application for
naturalization has resided continuously, after being lawfully admitted
for permanent residence, within the United States for at least three
years, and during the three years immediately preceding the date of
filing his application has been living in marital union with the
citizen spouse, who has been a United States citizen during all of
such period, and has been physically present in the United States
for periods totaling at least half of that time and has resided
within the State or the district of the Service in the United States
in which the applicant filed his application for at least three months.
[Index]
[Compiled by Law Offices of Rajiv S Khanna]
|
| |
Q5 |
|
Who can apply for U.S. citizenship? |
|
A5 |
|
Persons who are 18 years of age or older, who are lawfully
admitted permanent resident aliens and who meet certain
requirements may apply for citizenship.
Aliens who have served in the armed forces of the U.S. are
eligible for citizenship under special provisions.
[Index]
[Compiled by Law Offices of Rajiv S Khanna]
|
| |
Q6 |
|
When can I apply for U.S. citizenship? |
|
A6 |
|
Five years from the date of entry as a lawful permanent resident.
If married to and living with citizen spouse in marital union for
at least 3 years before filing the application, the residence period
is shortened to 3 years. You can file the application 90 days
before the residence requirement is met. Also, you have to be a
resident for 3 months in the state or USCIS (INS) district where you
are filing the application.
[Index]
[Compiled by Law Offices of Rajiv S Khanna]
|
| |
Q7 |
|
What are
the requirements for U.S. Citizenship? |
|
A7 |
|
There
are four main requirements that must be met by every
applicant.
(a) Basic literacy in
the English language.
(b)
Knowledge of U.S. history.
(c)
Five years of residency in the U.S.
(d) Good moral character.
[Index] [Compiled
by Law Offices of Rajiv S
Khanna] |
| |
Q8 |
|
Under what
conditions can I be denied U.S.
citizenship? |
|
A8 |
|
(a) If
you advocate or if you are a member of any
organization
that is opposed to
organized government (i.e., if you preach
and practice anarchy).
(b) Membership in communist
organizations.
(c) If you
advocate the overthrow of the U.S. Government by
force,
sabotage, violence or
terrorism.
(d) If you publish
any material advocating the methods of item (c).
(e) Exemption from services in the
armed forces of the U.S.
(unless
the alien status does not permit the individual to
serve on the armed forces or if the
alien had served in the
armed
forces of his/her own country).
(f) Desertion from military forces
and draft evasion results in
permanent ineligibility for
citizenship.
[Index] [Compiled
by Law Offices of Rajiv S
Khanna] |
| |
Q10 |
|
Under what
conditions can my citizenship be
revoked? |
|
A10 |
|
If your
behavior is not well disposed to the good order and
happiness
of the U.S. or if you
concealed your wartime activities when applying
for visas to enter the U.S. after
World War II. Also, for example you do
one of the following:
(a) Refusal to testify before a
congressional committee regarding
alleged subversive activities
within 10 years after becoming a
U.S. citizen.
(b) Establish permanent foreign
residence within 1 year after becoming
a U.S. citizen
Note from Rich Wales,
richw@yank.kitchener.on.ca
This
provision was repealed on October 25, 1994, by
Public Law 103-416 (108 Stat.
4305). The old require-
ment
that candidates for US citizenship must intend to
reside permanently in the US
following naturalization
was
also repealed by this same law.
(c) Membership in an outlawed
organization within 5 years after becoming
a citizen.
Denaturalization proceedings may be
instituted against you for (a)-(c).
REFERENCES:
[1] Nancy-Jo Merritt,
"Understanding Immigration Law," Makai Publishing
group,
Scottsdale, Arizona,
1993.
[Index] [Compiled
by Law Offices of Rajiv S
Khanna] |
| |
Q11 |
|
Where can I
get some information on dual citizenship? |
|
A11 |
|
http://yank.kitchener.on.ca/~richw/dualcit.html
Using FTP
Connect to yank.kitchener.on.ca
get the two files
/home/richw/dualcit.txt and
/home/richw/dualcit2.txt
Using E-Mail
Send a message to
richw@yank.kitchener.on.ca with the
subject "send dualcit". The body of
the message can be
blank, but
you must type the subject line as indicated.
We have retireved the following
information:
DUAL NATIONALITY
The concept of dual nationality
means that a person is a citizen of two
countries at the same time. Each
country has its own citizenship laws
based on its own policy. Persons
may have dual nationality by automatic
operation of different laws rather
than by choice. For example, a child
born in a foreign country to U.S.
citizen parents may be both a U.S.
citizen and a citizen of the
country of birth. A U.S. citizen may acquire
foreign citizenship by marriage, or
a person naturalized as a U.S citizen
may not lose the citizenship of the
country of birth. U.S law does not
mention dual nationality or require
a person to choose one citizenship
or another. Also, a person who is
automatically granted another citizenship
does not risk losing U.S.
citizenship. However, a person who acquires a
foreign citizenship by applying for
it may lose U.S. citizenship.
In
order to lose U.S. citizenship, the law requires that
the person must
apply for the
foreign citizenship voluntarily, by free choice, and
with
the intention to give up
U.S. citizenship. Intent can be shown by the
person's statements or conduct. The
U.S. Government recognizes that dual
nationality exists but does not
encourage it as a matter of policy because
of the problems it may cause.
Claims of other countries on dual national
U.S. citizens may conflict with
U.S. law, and dual nationality may limit
U.S. Government efforts to assist
citizens abroad. The country where a
dual national is located generally
has a stronger claim to that person's
allegiance. However, dual nationals
owe allegiance to both the United
States and the foreign country.
They are required to obey the laws of both
countries. Either country has the
right to enforce its laws, particularly
if the person, travels there after
sometime. Most U.S. citizens, including dual
nationals, must use a U.S. passport
to enter and leave the United States.
Dual nationals may also be required
by the foreign country to use its
passport to enter and leave that
country. Use of the foreign passport
does not endanger U.S. citizenship.
Most countries permit a person to
renounce or otherwise lose
citizenship. Information on losing foreign
citizenship can be obtained from
the foreign country's embassy and
consulates in the United States.
Americans can renounce U.S. citizenship
in the proper form at U.S.
embassies and consulates abroad.
-------------------------------------------------------------
RULES AND REGULATIONS PERTAINING TO
THE EMPLOYMENT BASED IMMIGRATION
CLASSIFICATIONS
FAM09-42.32(a) FIRST PREFERENCE -
PRIORITY WORKERS
(1) Entitlement
to Status
(TL:VISA-48;
10-1-91)
An alien shall be
classifiable as an employment-based first preference
immigrant under INA 203(b)(1) if
the consular office has received
from USCIS (INS) a Petition for
Immigrant Worker approved in accordance with
INA 204 to accord the alien such
preference status, or official
notification of such an approval,
and the consular officer is satisfied
that the alien is within one of the
classes described in INA 203(b)(1).
(2) Entitlement to Derivative
Status
(TL:VISA-48; 10-1-91)
Pursuant to INA 203(d), and whether
or not named in the petition, the
child or spouse of a
employment-based first preference immigrant, if not
otherwise entitled to an immigrant
status and the immediate issuance of a
visa, is entitled to a derivative
status corresponding to the
classification and priority date of
the beneficiary of the petition.
RELATED STATUTORY PROVISIONS
INA 203(b), in part
(TL:VISA-55; 3-13-92)
(1) PRIORITY WORKERS.--Visas shall
first be made available in a number
not to exceed 28.6 percent of such
worldwide level, plus any visas not
required for the classes specified
in paragraphs (4) and (5), to qualified
immigrants who are aliens described
in any of the following paragraphs (A)
through (C):
(A) ALIENS WITH EXTRAORDINARY
ABILITY.--An alien is described in this
subparagraph if-
(i) the alien has extraordinary
ability in the sciences, arts, education,
business, or athletics which has
been demonstrated by sustained national
or international acclaim and whose
achievements have been recognized in
the field through extensive
documentation,
(ii) the alien
seeks to enter the United States to continue work in
the
area of extraordinary
ability, and
(iii) the alien's
entry into the United States will substantially
benefit
prospectively the United
States.
(B) OUTSTANDING
PROFESSORS AND RESEARCHERS.--An alien is described in
this subparagraph if-
(i) the alien is recognized
internationally as outstanding in a specific
academic area,
(ii) the alien has at least 3 years
of experience in teaching or research
in the academic area, and
(iii) the alien seeks to enter the
United States-
(I) for a tenured
position (or tenure-track position) within a
university
or institution of
higher education to teach in the academic area,
(II) for a comparable position with
a university or institution of higher
education to conduct research in
the area, or
(III) for a
comparable position to conduct research in the area with
a
department, division, or
institute of a private employer, if the
department, division, or institute
employs at least 3 persons full-time in
research activities and has
achieved documented accomplishments in an
academic field.
(C) CERTAIN MULTINATIONAL
EXECUTIVES AND MANAGERS.--An alien is described
in this subparagraph if the alien,
in the 3 years preceding the time of
the alien's application for
classification and admission into the United
States under this subparagraph, has
been employed for at least 1 year by a
firm or corporation or other legal
entity or an affiliate or subsidiary
thereof and the alien seeks to
enter the United States in order to
continue to render services to the
same employer or to a subsidiary or
affiliate thereof in a capacity
that is managerial or executive.
(TL:VISA-48; 10-1-91)
For the provisions of INA 203(d),
see section 42.31 (Related Statutory
Provisions).
-------------------- ***
----------------
FAM09-42.32(a)
- NOTES EMPLOYMENT-BASED FIRST PREFERENCE IMMIGRANTS
N1 Defining "Priority Workers"
(TL:VISA-54; 2-28-92)
a. The
statute designates the following aliens as "priority
workers" who
may be entitled to
status as employment-based first preference
applicants:
(1) Aliens with
extraordinary ability [see N1.1 below];
(2) Outstanding professors and
researchers [see N1.2 below]; and
(3) Certain multinational
executives and managers [see N1.3 below].
b. The Bureau of Citizenship and
Immigration Services must approve petitions in
all of the above categories. [See
N2 below.]
N1.1 Aliens With
Extraordinary Ability (TL:VISA-54; 2-28-92)
To be considered as an alien with
extraordinary ability, the alien must
have sustained national or
international acclaim. The alien's
ccomplishments in the field of
science, art, education, business or
athletics must be recognized in the
form of extensive documentation. The
alien must be seeking to enter the
United States to continue work in the
field, and the entry of such alien
must substantially benefit
prospectively the United States.
N1.1-1 Defining "Extraordinary
Ability" (TL:VISA-54; 2-28-92)
8
CFR section 204.5(h)(2) defines "extraordinary ability"
as follows:
"Extraordinary
ability means a level of expertise indicating that
the
individual is one of that
small percentage who have risen to the top of
the field of endeavor."
N1.1-2 Evidence of Extraordinary
Ability (TL:VISA-54; 2-28-92)
a.
The Bureau of Citizenship and Immigration Services
regulations (8 CFR
204.5(h)(3))
state the documentary evidence that is to be submitted
along
with the petition. Such
evidence shall include:
(1)
Evidence of a one-time achievement (that is a major,
internationally
recognized
award) or
(2) At least three of
the following:
(a) Evidence of
receipt of a lesser nationally or internationally
recognized prize or award for
excellence in the field of endeavor;
(b) Evidence of membership in
associations which require outstanding
achievements of their members, as
judged by recognized experts;
(c) Published material in
professional or major trade publications or
major media about the alien's
work;
(d) Evidence of
participation on a panel, or individually, as a judge
of
the work of others in the
field;
(e) Evidence of original
scientific, scholarly, artistic, or
business-related contributions of
major significance;
(f) Evidence
of authorship of scholarly articles in professional
journals
or other major
media;
(g) Evidence of the
display of the alien's work in exhibitions or
showcases;
(h) Evidence that the alien has
performed in a leading or critical role
for organizations or establishments
having a distinguished reputation; and
(i) Evidence of high salary or high
remuneration in relation to others in
the field; or
(j) Evidence of commercial
successes in the performing arts, as shown by
box office receipts or record,
cassette, compact disk or video sales.
b. If the above standards do not
readily apply, the petitioner may submit
comparable evidence to establish
eligibility.
N1.1-3 Labor
Certification/Job Offer (TL:VISA-54; 2-28-92)
Although no offer of employment
(including a labor certification) is
required, the alien must include
with the petition convincing evidence
that he or she is coming to
continue work in the area of expertise.
Evidence may include letter(s) from
prospective employer(s), evidence of
prearranged commitments, such as
contracts, or a statement from the
beneficiary detailing plans for
continuing work in the United States.
N1.2 Outstanding Professors and
Researchers (TL:VISA-54; 2-28-92)
An alien may qualify as a priority
worker outstanding professor or
researcher if the alien:
(1) Is recognized internationally
as outstanding in a specific academic
area;
(2)
Has at least 3 years of experience in teaching or
research in the
academic area;
and
(3) Has the required offer
of employment. [See N1.2-3 below.]
N1.2-1 Evidence of Outstanding
Achievement (TL:VISA-54; 2-28-92)
The Bureau of Citizenship and
Immigration Services regulations (8 CFR 204.5(h)(3))
indicate the evidence required in
submitting a petition for classification
as an outstanding professor or
researcher. Such evidence shall include
evidence of international
recognition as outstanding in the specific
academic area. This evidence shall
consist of at least two of the
following:
(1) Documentation of receipt of
major international prizes or awards for
outstanding achievement in the
academic area;
(2) Documentation
of the alien's membership in associations in the
academic field, which require
outstanding achievements of their members;
(3) Published material in
professional publications written by others
about the alien's work;
(4) Evidence of participation on a
panel, or individually, as the judge
of the work of others in the same,
or an allied, academic field;
(5) Evidence of original scientific
or scholarly research contributions;
or
(6)
Evidence of authorship of scholarly books or articles
(in scholarly
journals with
international circulation) in the academic field.
N1.2-2 Labor Certification/Job
Offer (TL:VISA-54; 2-28-92)
Aliens coming to the United States
as outstanding researchers or
professors do not require labor
certification. However, such aliens must
have a letter from a(n):
(1) U. S. university or institution
of higher learning offering the alien
a tenured or tenure-track teaching
or research position in the academic
field; or
(2) Department, division, or
institute of a private or non-profit
employer offering the alien a
comparable research position in the academic
field. The department must
demonstrate that it employs at least three
persons full-time in research
positions, and that it has achieved
ocumented accomplishments in the
academic field.
N1.3 Certain
Multinational Executives and Managers
(TL:VISA-54;2-28-92)
An alien
may qualify as a priority worker multinational executive
or
manager if:
(1) During the 3 year period
preceding the time of the alien's
application for classification and
admission into the United States, the
alien has been employed for at
least 1 year by a firm or corporation or
other legal entity or an affiliate
or subsidiary thereof; and
(2)
The alien seeks to enter the United States in order to
continue to
render services to
the same employer or to a subsidiary or affiliate
thereof in a capacity that is
managerial or executive.
N1.3-1
Defining "Affiliate" (TL:VISA-54; 2-28-92)
The term "affiliate" as used in
this section means:
(1) One of
two subsidiaries both of which are owned and controlled
by the
same parent or
individual.
(2) One of two legal
entities entirely owned and controlled by the same
group of individuals, each
individual owning and controlling approximately
the same share or proportion of
each entity; or
(3) In the case
of a partnership that is organized in the United
States
to provide accounting
services, along with managerial and/or consulting
services, and markets its
accounting services under an internationally
recognized name under an agreement
with a worldwide coordinating
organization that is owned and
controlled by the member accounting firms,
a partnership (or similar
organization) that is organized outside the
United States to provide accounting
services shall be considered to be an
affiliate of the U. S. partnership
if it markets its accounting services
under the same internationally
recognized name under the agreement with
the worldwide coordinating
organization of which the U. S. partnership is
also a member.
N1.3-2 Defining "Doing Business"
(TL:VISA-54; 2-28-92)
"Doing
business" means the regular, systematic, and continuous
provision
of goods and/or
services by a firm, corporation, or other entity and
does
not include the mere
presence of an agent or office.
N1.3-3 Defining "Executive
Capacity" (TL:VISA-54; 2-28-92)
The term "executive capacity" as
defined in INA 101(a)(44)(B) of the
Immigration and Nationality Act,
means an assignment within an
organization in which the employee
primarily:
(1) Directs the
management of the organization or a major component
or
function of the
organization;
(2) Establishes
the goals and policies of the organization, component,
or
function;
(3) Exercises wide latitude in
discretionary decision-making; and
(4) Receives only general
supervision or direction from higher level
executives, the board of directors,
or stockholders of the organization.
N1.3-4 Defining "Managerial
Capacity" (TL:VISA-54; 2-28-92)
a. "Managerial capacity" as defined
in INA 101(a)(44)(A) means an
assignment within an organization
in which the employee primarily:
(1) Manages the organization, or a
department, subdivision, function, or
component of the organization;
(2) Supervises and controls the
work of other supervisory, professional,
or managerial employees, or manages
an essential function within the
organization, or a department or
subdivision of the organization;
(3) If another employee or other
employees are directly supervised, has
the authority to hire and fire or
recommend those as well as other
personnel actions (such as
promotion and leave authorization) or, if no
other employee is directly
supervised, functions at a senior level within
the organization hierarchy or with
respect to the function managed; and
(4) Exercises discretion over the
day-to-day operations of the activity
or function for which the employee
has authority.
b. A first-line
supervisor is not considered to be acting in a
managerial
capacity merely by
virtue of supervisory responsibilities unless the
employees supervised are
professional.
N1.3-5 Defining
"Multinational" (TL:VISA-54; 2-28-92)
"Multinational" means that the
qualifying entity, or its affiliate or
subsidiary conducts business in two
or more countries, one of which is the
United States.
N1.3-6 Defining "Subsidiary"
(TL:VISA-54; 2-28-92)
"Subsidiary" is defined as a firm,
corporation, or other legal entity of
which a parent owns, directly or
indirectly, 50 percent of a 50-50 joint
venture and has equal control and
veto power over the entity; or owns,
directly or indirectly, less than
half of the entity, but in fact controls
the entity.
N1.3-6 Labor Certification/Job
Offer (TL:VISA-54; 2-28-92)
No
labor certification is required for aliens in this
classification.
However, the
prospective U.S. employer must furnish a job offer in
the
form of a statement which
indicates that the alien will be employed in the
United States in a managerial or
executive capacity. The letter must
clearly describe the duties to be
performed.
N2 Petitions
(TL:VISA-54; 2-28-92)
Aliens of
extraordinary ability may file petitions with the Bureau
of Citizenship and Immigration Services on their own
behalf. Other employer-sponsored
immigrants must be beneficiaries of
approved petitions filed by the
employer.
N3 Spouse and Children (TL:VISA-54;
2-28-92)
The spouse, or the
child of a marriage which existed at the time of the
principal alien's admission into
the United States, is entitled to
derivative status and may accompany
or follow to join the principal
applicant. A spouse or child
acquired subsequent to the principal alien's
admission is not entitled to
derivative status.
-------------- **************
--------------
FAM09-42.32(b)
SECOND PREFERENCE - PROFESSIONALS WITH ADVANCED DEGREES
OR
PERSONS OF EXCEPTIONAL
ABILITY
(1) Entitlement to
Status
(TL:VISA-48; 10-1-91)
An alien shall be classifiable as
an employment-based second preference
immigrant under INA 203(b)(2) if
the consular officer has received from
USCIS (INS) a Petition for Immigrant
Worker approved in accordance with INA 204 to
accord the alien such preference
status, or official notification of such
an approval, and the consular
officer is satisfied that the alien is
within one of the classes described
in INA 203(b)(2).
(2)
Entitlement to Derivative Status
(TL:VISA-48; 10-1-91)
Pursuant to INA 203(d), and whether
or not named in the petition, the
child or spouse of a
employment-based second preference immigrant, if not
otherwise entitled to an immigrant
status and the immediate issuance of a
visa, is entitled to a derivative
status corresponding to the
classification and priority date of
the beneficiary of the petition.
RELATED STATUTORY PROVISIONS
INA 203(b), in part
(TL:VISA-55; 3-13-92)
(2) ALIENS WHO ARE MEMBERS OF THE
PROFESSIONS HOLDING ADVANCED DEGREES OR
ALIENS OF EXCEPTIONAL ABILITY.--
(A) IN GENERAL.--Visas shall be
made available, in a number not to exceed
28.6 percent of such worldwide
level, plus any visas not required for the
classes specified in paragraph (1),
to qualified immigrants who are
members of the professions holding
advanced degrees or their equivalent or
who because of their exceptional
ability in the sciences, arts, or
business, will substantially
benefit prospectively the national economy,
cultural or educational interests,
or welfare of the United States, and
whose services in the sciences,
arts, professions, or business are sought
by an employer in the United
States.
(B) WAIVER OF JOB
OFFER.--The Attorney General may, when he deems it to
be in the national interest, waive
the requirement of subparagraph (A)
that an alien's services in the
sciences, arts, professions, or business
be sought by an employer in the
United States.
(C) DETERMINATION
OF EXCEPTIONAL ABILITY.--In determining under
subparagraph (A) whether an
immigrant has exceptional ability, the
possession of a degree, diploma,
certificate, or similar award from a
college, university, school, or
other institution of learning or a license
to practice or certification for a
particular profession or occupation
shall not by itself be considered
sufficient evidence of such exceptional
ability.
(TL:VISA-48; 10-1-91)
For the provisions of INA 203(d),
see section 42.31 (Related Statutory
Provisions).
----------------------------------------------------------------------
FAM09-42.32(b) - NOTES
EMPLOYMENT-BASED SECOND PREFERENCE IMMIGRANTS
N1 Professionals Holding Advanced
Degrees (TL:VISA-54; 2-28-92)
An
alien may qualify as an employment-based second
preference immigrant if
the
alien is a member of the professions holding an advanced
degree or the
equivalent. The
alien must be the beneficiary of a petition approved
by
the Bureau of Citizenship and
Immigration Services . [See N4 below.]
N1.1 Definitions
N1.1-1 Defining "Advanced Degree"
(TL:VISA-54; 2-28-92)
"Advanced
degree" means any U.S. academic or professional degree
(or
foreign equivalent degree)
above that of baccalaureate.
N1.1-2 Master's Degree Equivalent
(TL:VISA-54; 2-28-92)
The
conference committee report (H.R. Rep. No. 101-955)
states that a
bachelor degree
plus five years of progressive experience in the
professions should be considered as
the equivalent of a master's degree.
N1.1-3 Doctorate Degree Equivalent
(TL:VISA-54; 2-28-92)
Although
the Bureau of Citizenship and Immigration Services (USCIS
(INS)) will not
evaluate the
equivalence of education and experience to a doctorate,
if a
doctorate (or a foreign
equivalent degree) is normally required by the
specialty, the alien must possess
such a degree.
N1.1-4 Defining
"Profession " (TL:VISA-54; 2-28-92)
INA 101(a)(32) defines "profession"
as including but not limited to
architects, engineers, lawyers,
physicians, surgeons, and teachers in
elementary or secondary schools,
colleges, academies, or seminaries. USCIS (INS)
regulations also include any
occupation for which a U.S. baccalaureate
degree (or foreign equivalent) is
the minimum requirement for entry into
the occupation.
N1.2 Determining Professional
Status (TL:VISA-54; 2-28-92)
Evidence to establish an alien as a
member of the professions holding an
advanced degree should be in the
form of the following:
(1) An
official academic record showing possession of an
advanced degree
(or foreign
equivalent); or
(2) An official
academic record showing possession of a baccalaureate
degree (or foreign equivalent) and
a letter from current or former
employer(s) showing at least five
years of progressive post-baccalaureate
experience in the specialty.
N2 Aliens of Exceptional Ability
(TL:VISA-54; 2-28-92)
An alien
may qualify as an employment based-second preference
immigrant if
the alien has
exceptional ability in the sciences, arts, or
business,
which will
substantially benefit prospectively the national
economy,
cultural or educational
interests, or welfare of the United States, and
the alien's services in the
sciences, arts, or business are sought by an
employer in the United States.
N2.1 Determining Exceptional
Ability (TL:VISA-54; 2-28-92)
a.
The possession of a degree, diploma, certificate, or
similar award
from a college,
university, school, or other institution of learning; or
a
license to practice, or
certification for a particular profession or
occupation, shall not by itself be
considered sufficient evidence of such
exceptional ability.
b. "Exceptional ability" has been
defined as something more than what is
usual, ordinary, or common, and
requires some rare or unusual talent, or
unique or extraordinary ability in
a calling which, of itself, requires
that talent or skill. Individuals
must have attained a stat | |
