G. Wellington Smith|FAQ's

1. What is the difference between an immigrant and a nonimmigrant visa? An immigrant visa is the visa issued to persons wishing to live permanently in the United Sates. A nonimmigrant visa is the visa issued to persons with a permanent residence outside the U.S. but who wish to be in the U. S. on a temporary basis, for example, for the purpose of tourism, medical treatment, temporary business, work, or study. [Back to Top]

2. What is a priority date? The priority date, in the case of a relative immigrant visa petition, is the date the petition was filed. In the case of an employer-sponsored petition, the priority date is usually the date the labor certification was filed with the Department of Labor. The Visa Bulletin is a monthly publication which gives the changes in availability of priority dates. To check the current Visa Bulletin, click here. [Back to Top]

3. How can I get the Visa Bulletin? The Department of State's Bureau of Consular Affairs monthly Visa Bulletin can be accessed here. Individuals may also obtain the Visa Bulletin by calling (202) 663-1541. The recording is updated in the middle of each month with information on cut-off dates for the following month. [Back to Top]

4. How/Where do I contact my home country's embassy here in the United States or a United States embassy abroad? You can link to the Electronic Embassy here for information on foreign embassies in Washington, D.C. To obtain information about U.S. embassies abroad, click here. [Back to Top]

5. What are the employer and employee penalties under the law? Under the law there are two types of penalties: Civil and Criminal. There are three employee and employer civil penalties under the law:
1. Hiring or continuing to employ unauthorized aliens
2. Failing to comply with the employment verification form I-9 requirements
3. Not requiring identification
For additional detail click "General Immigration Facts". (Employer Sanctions section). [Back to Top]

CONSULAR PROCESSING and NATIONAL VISA CENTER

6. What is the process for obtaining an immigrant visa if the U.S. Citizenship and Immigration Services (USCIS) approves the petition? It is then forwarded to the National Visa Center in Portsmouth, New Hampshire. The National Visa Center then informs the beneficiary that an approved petition has been received. For immediate relative petitions or as soon as a visa number is available on a preference petition, the National Visa Center sends notice that the beneficiary can begin the visa application process. [Back to Top]

7. What foreign service post handles approved immigrant visa petitions for persons who last resided in a country where there is no American consular representation? Persons from countries that do not have an American embassy or consulate are considered "homeless" because they cannot return to their home country to be interviewed for the immigrant visa. When the National Visa Center receives an immigrant visa approved petition on a "homeless" case, it assigns the case to an embassy or consulate that has been determined is capable of handling the additional workload. The petitioner or beneficiary will be informed by the National Visa Center of the post that was chosen. [Back to Top]

8. What is the waiting time for an immigrant visa after the National Visa Center or the foreign service post receives the approved petition? Several factors influence how long the process may take. Immediate relative visas are not numerically limited by statute, so workload permitting, the post may begin processing the approved petition upon receipt. Preference visas are numerically limited; therefore, the post must wait until the priority date on the petition is available before starting to process the case. The major reason for lengthy waits on availability of a visa number for preference visas is the fact that each year many more people apply for immigrant visas than can be satisfied under the annual numerical limit set by law for preference cases. Certain categories, such as the family fourth preference, are heavily oversubscribed. [Back to Top]

9. What kind of police certificates are acceptable? Each country has its own requirements for obtaining police certificates or clearances. Specific information is available from the U.S. consulate processing the case or from the Department of State. [Back to Top]

10. What fees are involved in obtaining an immigrant visa? The cost of an immigrant visa at a U.S. Consulate is $400 (U.S.) for application and $70 (U.S.) for Affidavit of Support fee. There may also be consular fees to obtain required documents, for certifying or notarizing documents, and for the medical examination. The cost of the immigrant visa itself is the same at each consulate, but other fees vary from post to post. The fees are payable in U.S. currency and equivalent local currency. Cash is acceptable at all posts; other methods of payment must be determined by the processing post. [Back to Top]

11. How long is an immigrant visa valid? What if the applicant must delay arrival in the U.S.? The consul may issue an immigrant visa with a maximum validity of six months. If an applicant must delay travel to the U.S. beyond six months, the U.S. consulate should be contacted to request the interview be scheduled closer to his/her possible departure. If an immigrant visa has already been issued and circumstances force the alien to remain abroad longer, the applicant should contact the U.S. consulate and request an extension of the immigrant visa's validity. If the validity of an immigrant visa expires, a new one may be issued upon payment of the statutory application and issuance fees. [Back to Top]

12. How can an applicant learn why he/she was denied a visa at a post overseas? An applicant should always be told the reason for denial, orally or in writing, by the U.S. consulate which denied the application. If an applicant wants to offer further evidence to try and overcome the denial, the applicant will have to comply with that post's reapplication policy. [Back to Top]

13. What can an applicant do if he/she has been denied? Can he/she appeal? All denials are supposed to be reviewed by a senior consular officer. There is no "appeal" process per se on visa denials, but an applicant can reapply for a nonimmigrant visa if he/she can present new evidence to overcome the previous grounds for refusal. Some high-volume posts require that a significant period of time (six months to one year) elapse before reapplication with new qualifying evidence. By law, the U.S. Consul must be persuaded that the applicant has a permanent residence abroad to which he or she intends to return after a temporary stay in the U.S.; otherwise, the Consul must presume that the applicant is planning to remain in the U.S. permanently. Since a nonimmigrant visa is not intended for someone who plans to stay permanently, the consular officer must refuse the visa if the applicant cannot overcome the burden of this legal presumption. [Back to Top]

14. What is an advisory opinion? It is an opinion rendered by Visa Services Office of the U.S. Department of State when a consular officer has a question about the interpretation of immigration law and needs the State Department to make a determination on a point of that law. [Back to Top]

15. How can the applicant persuade the consul? This is generally done by showing evidence of family, social, employment, financial and other ties to the home country that will compel a return from the U.S. Having a permanent residence abroad is a requirement for tourist, business, student, exchange visitor and some temporary worker visas. [Back to Top]

NON-IMMIGRANT VISA

16. What must be done to invite someone for a visit to the United States? A guest of a U.S. host can be helped by sending him/her a letter of invitation. The letter should include the invitee's name, reason for visit, period of stay in the U.S., and method of payment of expenses. If the guest is paying his/her own expenses, he/she must be prepared to show the consular officer that sufficient funds are available for the trip. If the American host is paying the expenses, an affidavit of support may be included. The guest must show ties to his or her home country establishing intent to depart the United States after a temporary visit. [Back to Top]

17. What does an applicant need for a visitor visa? An applicant must have a passport valid for six months beyond duration of the proposed visit, one passport-sized photograph, and proof of social, family, economic, professional or other compelling ties to a residence outside the United States to which he/she will be expected to return after the visit. It is helpful for an applicant to have a letter of invitation and support, if he/she is visiting someone in the U.S. [Back to Top]

18. How does an alien obtain a student visa? The requirements are generally the same as for a visitor visa. However, in addition to the passport, photo, and proof of ties abroad, the applicant must also have an I-20 form issued by the school he/she wishes to attend. The I-20 form is proof that the applicant has been accepted for a program of study at an accredited institution. [Back to Top]

19. Can an alien in the U.S. change visa status, or extend the period of time he/she is allowed to remain in the U.S.? The alien must first submit an application for an extension or change of status to the U.S. Citizenship and Immigration Services (USCIS). If the alien is otherwise eligible, the USCIS must authorize any changes or extensions of current visa status when an alien is in the U.S. If denied, the USCIS will direct the alien to depart from the U.S. [Back to Top]

20. Can the holder of an expired visa, such as an "H" or "L" visa, in the U.S. be issued another nonimmigrant visa before leaving the U.S. for a temporary absence? The U.S. Department of State in Washington, D.C. no longer reissues visa stamps in the passport. To obtain a new visa stamp, the applicant will have to depart the United States and apply at a U.S. consulate abroad. [Back to Top]

21. How can I help my employee, friend or relative to obtain a visitor visa? Unfortunately, there is little a U.S. sponsor can do to help an applicant qualify for a visitor visa. The amount of money the U.S. sponsor has is not relevant; there is no way the U.S. sponsor can guarantee that the applicant will leave the U.S. at the end of his or her stay. It is up to the applicant to show that he or she meets the requirements. [Back to Top]

FAMILY-BASED IMMIGRANT VISA

22. What is the difference between an immediate relative petition and a preference petition? An immediate relative petition can be filed by a U.S. citizen on behalf of a spouse, parent, or child. A preference petition is filed by a U.S. citizen on behalf of an adult son or daughter, by a legal permanent resident on behalf of a spouse, unmarried adult son or daughter, or child, by a U.S. citizen on behalf of a brother or sister, or by an employer on behalf of an employee. [Back to Top]

23. How is a priority date established? The priority date, in the case of a relative immigrant visa petition, is the date the petition was filed. The Visa Bulletin is a monthly publication which gives the changes in availability of priority dates. To check the current Visa Bulletin, click here. [Back to Top]

24. How can I get the Visa Bulletin? The Department of State's Bureau of Consular Affairs monthly Visa Bulletin can be accessed here. Individuals may also obtain the Visa Bulletin by calling (202) 663-1541. The recording is updated in the middle of each month with information on cut-off dates for the following month. [Back to Top]

25. What documentation is required for a child born outside the U.S. of legal permanent residents? A child born abroad to legal permanent resident parents may enter the U.S. without a visa provided the child is accompanied by a parent upon that parent's initial return to the U.S. within two years of the child's birth with documentation showing the parent-child relationship. [Back to Top]

26. The legal permanent residents left the child abroad with family members and returned to the U.S. They now wish to bring the child to the U.S. What must they do? The child must have an immigrant visa to enter the U.S. Under certain circumstances, the child may benefit from the same priority date as the parents and process immigrant visa at the consulate abroad. In other situations, the legal permanent resident parent(s) may have to file a preference petition with the USCIS. [Back to Top]

27. Can a U.S. citizen or legal permanent resident petition be processed at any foreign service post for the immigration of a relative? The U.S. Citizenship and Immigration Services (USCIS) has determined that petitions must be filed in the petitioner's place of residence. Therefore, if the petitioner resides in the U.S., the petitioner must file at his/her local USCIS office. If the petition resides abroad, the petitioner may be able to file the petition at the U.S. embassy or consulate that has jurisdiction. [Back to Top]

28. What is necessary for an alien to enter the U.S. to marry a U.S. citizen? The U. S. citizen must first file and receive approval of a fiancé(e) petition from the USCIS. The USCIS will forward the approved petition to a U.S. embassy or consulate abroad. The post will then contact the alien with information and eventually schedule an interview for a fiancé(e) visa. The alien has 90 days from entry into the U.S. in which to marry the U.S. citizen. [Back to Top]

29. Does the fiancé(e) visa automatically change to an alien registration card (green card)? No. After the marriage takes place, the alien must apply to the USCIS for a change of status to legal permanent resident. [Back to Top]

CITIZENSHIP/NATURALIZATION

30. How do I apply for citizenship if I am a "Green Card" holder? Normally, if you have a "Green Card", are at least 18 years of age, and have lived in the United States as a lawful permanent resident for five years, or if you have been a "Green Card" holder and have been married to and residing with a United States citizen for three years, you may apply to become a United States citizen.

There are two educational requirements for becoming a U.S. citizen. First, you must show that you can read and write English. Second, you must show that you know basic facts about U.S. history and government by answering questions before an immigration officer at the time of your interview with an immigration officer.

There are ways in which the requirement to understand English can be waived. If, on the date of filing your application, you are fifty years of age or older, and you have been a lawful permanent resident of the United States for more than twenty years, you do not have to show that you can read and write simple English. However, you must still show that you have knowledge of U.S. history and government, and you may be tested in your native language. This is also true if you are a person who is fifty-five years of age or older who has resided in the United States as a lawful permanent resident for at least fifteen years.

If you are over sixty-five years of age or older, and you have been a lawful permanent resident of the United States for more than twenty years, you are exempt from the English test. You are still required to take the civics test in the language of your choice; however, you may take the simpler version of the test.

If you have a physical or developmental disability or a mental impairment so severe that it prevents you from acquiring or demonstrating the required knowledge of English and civics, you may be eligible for an exception to these requirements.

If you are applying for citizenship for a child who is under the age of eighteen, has a "Green Card", and has a least one U.S. citizen parent, but did not automatically become a United States citizen, the child may be eligible for a certificate of citizenship. In most cases the child must be living with the U.S. citizen parent. [Back to Top]

WARNING: All information contained herein is offered for the purpose of providing general information only and should not be construed as formal legal advice. The author disclaims any and all liability resulting from reliance upon such information. You are strongly encouraged to seek professional legal advice from a qualified immigration lawyer before relying upon any of the information contained herein.