Immigration Visas: Green Cards, H1b, EB5 and Political Asylum

by Andrew J. Thompson on Nov. 27, 2017

 General Practice 

Summary: The major immigration issues are as follows: green cards, H1b and EB5 visas, and political asylum.

The major immigration issues are as follows: green cards, H1b and EB5 visas, and political asylum.

Green Cards (Family Visas): to obtain a green card in the US today takes time. Almost everyone knows this. It can be difficult to continue to remain in America while you obtain such a visa. Sponsorship by a close family member – a spouse typically, or a loved one with dire health and financial circumstances, by an employer (usually H1b status), material investment in American business (EB5 visas) winning the diversity lottery (which may be ended soon), and political asylum.

The process can be lengthy, and it depends very much on which type of visa you’re seeking. If the permanent residence you seek is via family sponsorship, the family member must:

  1. be a legal, permanent resident of the US (either as a citizen or green card holder him/herself;
  2. have a qualified relationship with you, which generally means a spouse, parent or child, or if he/she is a US citizen, a brother or sister;
  3. sponsor you by filing your immigration petition; and
  4. demonstrate they can support you at 125% of the poverty line in doing so.

“Dreamer” visas under the DACA

H1B Visas (Employment Visas): The H1b worker visa is initiated by an employer. It begins with three steps:

First, an employer must file the labor condition application required by the Secretary of Labor for labor certification.

Second, the employer then files a petition for a nonimmigrant (or resident) worker using Form I-129.

Third, if the petition is approved –

• but the worker remains outside the U.S., he or she must go through the nonimmigrant visa process, and then come to the US as an H-1B worker;

• if the worker is already present in the US and that was indicated on the petition, the worker may begin work for the employer in the manner described in the employer’s petition.

If the worker was not indicated to be in the US on the petition, he or she will have to leave, complete the documents for application and then return. Thus, it is a significant mistake to fail to show the worker’s status as outside the US if he or she is here already, if here illegally. Deportation is less likely than it is to be required to meet the terms for non-resident entry to comply with the visa requirements.

The labor conditions themselves can be tricky.  Whatever the limits that are placed on the initial application, the worker is generally confined to. This can act as a form of government regulated, non-compete clause is the worker is not careful to show how he or she can fit into the terms described in spite of finding other employment.H1b visas have tremendous benefits to employers that may or may not be as beneficial to the worker himself.  For this reason, every worker obtaining an H1b visa should seek the advice of an attorney before the application is first submitted.

EB5 (Investor Visas): The EB5 program was designed to be a narrow program to enable major investors to come to the United States due to the positive economic impact they create. Instead, it’s become a wide open loophole for foreign investment in American real estate, that is often the easiest means of entry into the US. In short, it generally allows for investors in American business to place more than $1,000,000 into an American business to come to the United States without a sponsor for immigration.

The concept is a good one in itself. Unfortunately it’s often been used to buy up high value real estate on the coasts and elsewhere and increase the premiums on the costs of land for American families and businesses. For IT, biotech, service and manufacturing companies, however, the program is an excellent means for startups, entrepreneurs and other American businesses to attract capital from around the globe.

Political Asylum

The last broad, general category of visa and immigration is for political asylum. Some think this should be the first priority of American immigration in present times, others feel as though asylum offers another loophole that endangers the lives of Americans live peacefully here already. The challenge is creating a balance that works for the safety of our citizens at the same time we honor American traditions of welcoming “the poor, the tired, the huddled masses…” as no country before or after has ever done.

The catchword of the moment is “vetting”. The vetting process is designed to make sure those who come to the US are not a threat, particularly with terrorist connections or affinity. However, the filter of vetting can be a problematic one for many people here and in danger of their home country’s political prosecution.

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