1.1 GENERAL

Every year U.S.A. receives 7,00,000 legal immigrants, 1,20,000 refugees and 2,75,000 illegal immigrants. Three out of eleven immigrants enter U.S.A. illegally. 1.9% of the total population of USA are unlawful immigrants. 60% of the illegal immigrants in USA arrive by crossing the Mexican or Canadian Border and 40% arrive legally on short-term visas and there after overstay. The largest groups of immigrants who over stay are the Ecuadorians, the Italians and the Pols. Out of the total number of 7,00,000 legal immigrants each year about 5,60,000 are close family members i.e. spouses, children, parents and siblings of USA citizens and spouses and unmarried children of US residents.

Immigrant workers do not have a bad effect on the US economy. On the contrary they keep the US industries competitive, increase employment through higher rates of self-employment and increase wages and mobility opportunities for many groups of US workers.

The Welfare Law signed by President Clinton in August 1996 has deprived legal residents of social benefits that they had been entitled to in the past. Whilst making an attack on illegal immigrants, it has limited many long standing rights of legal immigrants and US citizens to obtain lawful immigrant status for their family members.

1.2 GREEN CARD

The term green card is a nickname for a plastic card. It signifies that the holder is a permanent resident of United States. Its official name is "Alien Registration Receipt Card". Until September 1989 a green card used to last forever. Since September 1989, the life span of the green card is 10 years. The expiry date of a green card is always printed on it and before it expires, the card holder must file an application to replace the card. If a person plans to remain in the US permanently, then it would be advantageous for him to become a naturalized citizen as soon as he is eligible to do so. This would bring him important benefits and responsibilities. The holder of a green card can permanently remain in the US and can take up any job and work in the US. Until August 1996 a green card holder was also entitled to a few public benefits but the 1996 Welfare Reform Law has withdrawn these benefits. A green card holder can be deported if he commits a serious crime in the US. Likewise, he can also be prohibited from entering the US after his trip abroad if he had committed certain crimes in the US. The date of the green card is very important since depending upon the circumstances, 3 or 5 years from that date the holder of the card is eligible to apply to be naturalized as a US citizen.

Among the different ways of obtaining a green card the principle ones are:

(1) Through a petition filed by US citizen or legal resident for a close family member;

(2) Through a petition filed by an employer preceded by an application through the department of labour;

(3) Through a successful application for political asylum followed by an application of what is called adjustment status one year later.

A green card holder is not entitled to file a petition for a married child of any age or for his parents or for his brother or sister.

If the INS or an Immigration Judge determines that a person has abandoned his/her US residence or has given false information to obtain the green card or has committed a serious crime, the green card can be taken away and in some cases it may never be returned. The new immigration law suggests that a green card will expire and the holder will not be able to use it to re-enter into US if the holder remains abroad for more than 180 days. However, for an extraordinary urgency a green card holder can, after obtaining special permission and getting a re-entry permit, remain out of USA for more than six months. Such a permit will be valid for re-entry to US within two years after the departure from US. One can also request such permit to be sent to his/her home country.

1.3 VISA APPLICATION

Contrary to the popular belief, getting a non-immigrant visa is not always easier than getting a permanent residence. The Counsel will consider mainly the following:

1. Are you travelling alone? Are you young? Are you single? Do you have a family who will remain behind?

2. Do you have properties?

3. Do you have money or other investments?

4. Do you have a job to which you would be returning?

If the answers to these questions are mainly no, chances are that you will not get a visa to United States. If it is suspected that you will not be returning to your country the Counsel will conclude that you are an authentic visitor as mentioned in your non-immigrant visa but you are an intended immigrant. Failure to provide proper and necessary documents is often the reason for refusal of non-immigrant visa application. You should be ready with the documents to back up all your visa application and to prove your eligibility in the category in which you apply. There is no limit to the number of non-immigrant visas that can be issued in a year.

1.4 THE NON-IMMIGRANT VISA CATEGORIES

People coming to the United States on short term business trips during which they will be paid need B-1 Visas and those visiting United States on vacation in which they may not legally work and look for work need B-2 visas. E-1, E-2, H-1a, H-1b, H-2a, H-2b, I, L-1, O-1, O-2, P-1, P-2, P-3 and R-1 are all employment based non-immigrant visas.

1.5 H-1 VISAS

These visas are available exclusively for professional foreign nursing staff employed by hospitals and other medical institutions. This category was created by the Immigration Nursing Relief Act of 1989 and for this visa the employer organisation has to attest to the department of labour, among other things, a substantial disruption if they do not employ foreign nurses. The said 1989 Act made it possible for licensed professional nurses employed in US in H-1 Status for three years on the date of the enactment of the said act, to adjust their status to permanent residence. Family members of those nurses however do not get an automatic entry. They have to apply for immigration through the family-linked channels.

1.6 H-1B VISAS

The most popular amongst this is the visas under the category H-1B which are meant for professionals in speciality occupations. Computer professionals fall under this speciality occupations and they qualify for H-1B visas. (For clarification of the different categories of visas for different types of employment, please check the visa numbers at the end of this chapter).

Professionals in speciality occupations who come to the US to work in their field of expertise are eligible for H-1B visa. They need a minimum of a bachelor’s degree in the specific field in which they would be working. In addition to theoretical and practical knowledge, absence of a degree can be compensated by experience as well as professional recognition in the field of expertise. Normally one year of education equivalent to three years of experience is counted. So if a 5 year college education is needed to qualify in the speciality occupation the person will be eligible if he has 15 years practical experience. The University degree of an Indian University is required to be eval-uated in US by an organization which is qualified to do so. Before an application for H-1B visa can be made the employer must file a labour condition application or labour attestation with the department of labour and the employer must guarantee that the immigrant will be paid the higher of the actual or prevailing wage for the post and that other non-immigrant employed in the similar position will be paid at the same rate. The employer is also required to undertake that the working condition will be the same for both foreign and United States workers. In the event of the employer failing to comply with the labour condition application, he is liable to be fined up to US$ 1000 for each violation and may be prevented from recruiting foreign employees for 12 months or more. The H-1B visa only allows a person to work for the employer who has petitioned on his behalf.

1.7 K-1 VISA

This visa is for foreign future spouses of United States citizens. If someone is coming to the US to marry a US citizen and the wedding is to take place within 90 days of arrival, he/she is eligible for a K-1 Visa. After the Immigration Marriage Fraud Amendment Act was passed in the year 1986, it has become necessary that you should have met the person with whom you intend to marry within two years of applying for K-1 Visa, unless for religious or cultural reasons, such a person would be meeting his/her prospective bride/bridegroom on arrival in USA in accordance with their custom. In such a case, this should be specified to the State Department and the Attorney General may in its/his discretion waive the requirement of prior meeting within two years. The intention to marry should be bonafide and not to circumvent immigration laws. Otherwise one is liable to be fined upto US$ 2,50,000 or given a prison sentence upto 5 years or both.

1.8 MISCELLANEOUS