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Death of Petitioner
After the death of a petitioner, the immigration petition beneficiaries have certain options depending on the specific circumstances and type of case. For example, there are occasions when a US citizen or permanent resident dies during the process of filing a family-based I-130 green card petition for his/her relatives. The death of the petitioner brings not only sorrow to the relatives, but also issues for the immigration petition beneficiary. If an I-130 visa petitioner dies before USCIS acts on the Form I-130, on the basis of precedence, USCIS must deny the Form I-130. However, recent changes to the Immigration and Nationality Act (INA) bring potential resolutions to such an issue. Click here for more details about legal issues regarding the death of a petitioner.
Death of Sponsor
Aliens who apply for certain immigrant visas or adjustment of status under certain categories must have a sponsor sign an Affidavit of Support on their behalf. If the sponsor dies, the obligation to support the alien terminates with the sponsor’s death, but the sponsor’s estate would still be obligated to repay any obligations accrued before the sponsor’s death. If there were a joint sponsor and only one of the sponsors died, the remaining sponsor would remain liable under the affidavit of support. For deportation purposes, if a sponsor has died and there is no joint sponsor, there is no legal obligation under the affidavit of support to repay any means-tested benefits. This means that the first prong of the test for deportation would not be met and the sponsored alien would not become deportable based on the affidavit of support.
Declaration under Penalty of Perjury
Declaration under Penalty of Perjury, also known as a sworn declaration or sworn statement, is a statement by a person in which the person states that the information is true, to support his or her request or application. For example, a declaration may list the facts and then state: l declare under penalty of perjury (under the laws of the United States of America) that the foregoing is true and correct." This statement should be followed by the date, signature, and printed name of the person signing.
There are three types of inspection primary, secondary and deferred. A primary inspection is the initial inspection at the port of entry. A secondary inspection occurs when someone is pulled from the line at the port of entry for further questioning. Deferred inspection is a form of parole status. Deferred inspections are issued when, upon inspection of documentation at the port of entry, questions still remain regarding an alien’s status. Deferred inspection may also be requested by the applicant in certain situations such as when they may have to answer questions regarding visa purpose that arises at the initial inspection, or if a green card holder needs to retrieve documentation of ties to the United States after a prolonged absence. On a case-by-case basis, the port of entry may schedule the alien to report to a Deferred Inspection Site in order to provide additional documentation and/or information. The alien will be provided with an Order to Appear-Deferred Inspection (Form I-546) detailing the documentation and/or information required to resolve the outstanding discrepancy. The factors considered in a decision to grant deferred inspection include:
At the deferred inspection, the U.S. Customs and Border Protection (CBP) officer will review the information requested in the Order to Appear-Deferred Inspection (Form I-546). The officer may then make one of four decisions: Formal admission; continuation parole status; to allow the withdrawal of the application for admission; or to issue you a Notice to Appear, which initiates removal proceedings. Unlike the other two forms of inspection, representation is allowed to be present at a deferred inspection as per regulation: 8 C.F.R. §292.5(b). The alien must appear for a deferred inspection. Failure to appear will result in a Notice to Appear, and being posted to the National Automated Immigration Lookout System.
Departure from the U.S.
For nonimmigrant visitors entering the United States with a visa, the visitor receives a Form I-94 upon arrival in the United States. The bottom section of the I-94 is a departure record and must be returned to U.S. officials upon exiting the United States. The departure of an alien from the United States without an order of removal is known as “voluntary departure.” The departure may or may not have been preceded by a hearing before an immigration judge. An alien allowed to voluntarily depart concedes removability but does not have a bar to seeking admission at a port-of-entry at any time.
Dependent H-1B employers
See H-1B dependent employer.
A deportable alien is an alien in and admitted to the United States subject to any grounds of removal specified in the Immigration and Nationality Act in 8 USC § 1227. This includes any alien illegally in the United States, regardless of whether the alien entered the country by fraud or misrepresentation or entered legally but subsequently violated the terms of his or her nonimmigrant classification or status. For acts subject to deportation, click Unlawful activities subject to deportation.
The formal removal of an alien from the United States when the alien has been found removable for violating any of the grounds for removal as specified in 8 USC § 1227. Deportation is ordered by an immigration judge without any punishment being imposed or contemplated. Prior to April 1997 deportation and exclusion were separate removal procedures. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 consolidated these procedures. After April 1, 1997, aliens in and admitted to the United States may be subject to removal based on deportability. Now called Removal, this function is managed by U.S. Immigration and Customs Enforcement. Removal proceedings vary based on the reason for deportation. An alien may challenge the deportation order either in the courts of appeal or in the federal district courts. It is crucial to consult attorneys immediately and file an appeal as soon as possible. For acts subject to deportation, click Unlawful activities subject to deportation.
The various grounds for deportation under U.S. law are detailed in 8 USC § 1227. An alien in the U.S. has the constitutional right of due process. An alien may challenge the deportation order either in a court of appeals or in federal district court. However, Congress has decided review by federal courts will not be available with regards to certain categories of removal such as expedited removal orders, crime-related removals, discretionary determinations, and matters involving prosecutorial discretion. Deportation is ordered by an immigration judge without any punishment being imposed or contemplated. Prior to April 1997 deportation and exclusion were separate removal procedures. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 consolidated these procedures. After April 1, 1997, aliens in and admitted to the United States may be subject to removal based on deportability. Now called Removal, this function is managed by U.S. Immigration and Customs Enforcement. For acts subject to deportation, click Unlawful activities subject to deportation.
Deportation is the formal removal of an alien from the United States when the alien has been found removable for violating immigration laws. Deportation is ordered by an immigration judge without any punishment being imposed or contemplated. Prior to April 1997 deportation and exclusion were separate removal procedures. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 consolidated these procedures. After April 1, 1997, aliens in and admitted to the United States may be subject to removal based on deportability. Now called Removal, this function is managed by U.S. Immigration and Customs Enforcement. Removal proceedings vary based on the reason for deportation. While legal immigration into the United States is handled by USCIS, the Executive Office for Immigration Review (EOIR), a division of the Department of Justice, oversees court procedures brought before an immigration judge. Removal proceedings begin when the Department of Homeland Security (DHS) files a “Notice to Appear” (Form I-862) with an immigration judge after it has been served on the alien. Removal proceedings are generally decided by whether the alien is eligible for relief from removal. Immigration law provides relief for removal to those who meet certain qualifications. An alien may challenge the deportation order either in a court of appeals or in federal district court. However, Congress has decided review by federal courts will not be available with regards to certain categories of removal; such as expedited removal orders, crime-related removals, discretionary determinations, and matters involving prosecutorial discretion. It is crucial to consult attorneys immediately and file an appeal as soon as possible.
Derivative beneficiary is a status afforded to the spouse or child, usually minor child, of a principal beneficiary who has received permanent resident status under either a family-based petition (Form I-130) or an employment based petition (Form I-140). The derivative beneficiary may gain derivative status by either accompanying or following to join. In both instances, the spouse and minor child gain the same priority date as the principal beneficiary. A spouse or minor child may accompany the principal beneficiary during his/her admission into the United States as a lawful permanent resident, or must be issued a visa within 6 months of:
A separate petition for alien relative (Form I-130) is not required. A spouse acquired after the principal beneficiary has been admitted as a lawful permanent resident cannot accompany or follow to join, but must instead files a separate petition (Form I-130). However, a spouse or minor child acquired after the immigration visa has been issued but before admission into the US may still be afforded derivative status. After 6 months the spouse or child can no longer be considered “accompanying” the principal beneficiary, but must instead qualify as “following to join” as defined in INA 101(a)(27)(C) and INA 203(d). There is no statutory window. In order to qualify as “following to join,” the following conditions must apply: (a) prospective derivative beneficiary must be the spouse or child of the principle beneficiary prior to the principle beneficiary’s entry into the US as a lawful permanent resident or the I-485 approval for the principle beneficiary; and (b) spouse or child of the principle beneficiary did not precede the principle beneficiary in his entry to the US as a lawful permanent resident. However, an accompanying or following to join beneficiary may adjust status (Form I-485) to lawful permanent resident if they had preceded the principal as a nonimmigrant who had maintained status.
Unusually, derivative beneficiary status is not available to those ineligible as a potential beneficiary. For example, if you are a US citizen and your brother or sister is eligible for a green card as principal beneficiaries under family-based immigration, they cannot be derivative beneficiaries in another relationship. However, their spouse or child would still qualify as derivative beneficiaries.
For more information about the petitioner and beneficiary in immigration petitions, please click Immigration Petition. For more information about the petitioner and beneficiary in H-1B petitions, please click H-1B Visa.
Derivative citizenship is citizenship conveyed to children through the naturalization of parents or, under certain circumstances, to foreign-born children adopted by U.S. citizen parents, provided certain conditions are met. The Child Citizenship Act of 2000, which took effect on February 27, 2001, amended Section 320(a) of the Immigration and Nationality Act (INA) and accords derivative citizenship to children if the following conditions are met:
The US citizen parent has presumed legal custody when the biological child resides with both biological parents who are married and living together. A divorced US citizen parent has legal custody of a child if he/she possesses joint custody. Section 320(a) of the INA applies to adopted children with a final adoption order decree, but not the step-children. The application for derivative citizenship for a child is Form N-600, and N-643 for adopted children. For more information, see our page on the Definition of a Child.
Designated State Health Agency Request
Certain classes of J-1 "Exchange Visitor" require that the alien return to his/her home country or country of last permanent residency for a period of two (2) years after completion of J-1 status. However, a designated State Health Agency or its equivalent may request a waiver on behalf of medical doctors who have been offered a full-time job with a health care facility serving an area with a shortage of medical professionals. This means the Department of Health and Human Services have designated the area a Mental Health or Primary Care Health Professional Shortage Area (HPSA), a Medically Underserved Area (MUA), or a Medically Underserved Area (MUA). In order to qualify for the waiver, the person must agree in writing to work at the facility forty hours per week, for a minimum of three years, and must begin work at the health care facility within ninety days of the approval of the waiver. For more information about J-1 Waiver, please click J-1 Waiver.
Immigration detention involves holding individuals suspected of visa violations, illegal entry, or unauthorized arrival. Individuals may also be subject to detention if they are awaiting a decision by immigration authorities regarding deportation and removal. Mandatory detention is the practice of compulsorily detaining or imprisoning people seeking political asylum, or who are considered to be illegal immigrants or unauthorized arrivals into a country. Mandatory detention was officially authorized by the US Government with the Antiterrorism and Effective Death Penalty Act (AEDPA) in 1996, and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA).
DHS stands for the Department of Homeland Security, a federal agency created by the National Strategy for Homeland Security and the Homeland Security Act of 2002. The U.S. Citizenship and Immigration Services (USCIS), previously known as Immigration and Naturalization Services (INS), is now within the Department of Homeland Security (DHS). For more information on DHS, please click Department of Homeland Security.
Dictionary of Occupational Title(DOT)
The Dictionary of Occupational Titles refers to the publication previously produced by the US Department of Labor that contains thousands of occupational definitions to help matched job seekers to jobs. In the 1990s it was replaced by the online database, Occupational Information Network or O*NET, which serves the same function.
O*NET is being developed under the sponsorship of the US Department of Labor/Employment and Training Administration (USDOL/ETA) through a grant to the North Carolina Employment Security Commission. Every occupation requires a unique set of knowledge, skills, and abilities, and is performed using a variety of activities and tasks. The O*NET content model breaks down these key features into standardized and measurable variables called “descriptors.” Users can explore and search this database at no cost. In addition, the database provides “Career Exploration Tools,” which provide assessment instruments to workers or students looking to find or change careers. For more information on O*NET, please click here.
A diplomat is a public officer commissioned, according to law, to supervise and transact the affairs of the government that has employed them in a foreign country. A diplomat may be eligible for an (A) visa. United States diplomatic applicants must meet specific requirements to qualify for a diplomatic (A) visa under immigration law. The consular officer will determine eligibility for the visa. See “A visa” or “Visas for Diplomats and Foreign Government Officials” for more information.
USCIS is committed to providing those with disabilities the same access to its programs, activities, and facilities as those without disabilities. Accommodations vary depending on the individual’s disability and involve modifications to practices or procedures that allow applicants with disabilities to participate in immigration processes. Significantly, a disabled person applying for U.S. citizenship may seek an exception to the English and civics testing requirements for naturalization "because of physical or developmental disability or mental impairment" through Form N-684, Medical Certification for Disability Exceptions.Please see the related USCIS website for more information.
Discipline of Attorneys
According to 8 CFR 292.3, “An adjudicating official or the Board of Immigration Appeals (BIA) may impose disciplinary sanctions against any practitioner if it finds it to be in the public interest to do so. It will be in the public interest to impose disciplinary sanctions against a practitioner who is authorized to practice before DHS when such person has engaged in criminal, unethical, or unprofessional conduct, or in frivolous behavior, as set forth in 8 CFR 1003.102.” A practitioner is any attorney as defined in 8 CFR 1.1(f) who does not represent the federal government, or any representative as defined in 8 CFR 1.1(j). Attorneys employed by DHS will be subject to discipline pursuant to 8 CFR 292.3(i).
Discretionary Decisions Reviewed
According to USCIS’s Adjudicator’s Field Manual, discretionary decisions require both an application of law and a consideration of the specific facts relevant to the case. Regulations can provide guidelines for many factors that are appropriate for consideration but a regulation cannot dictate the outcome of a discretionary application. Case law and regulatory guidelines provide a framework to assist in arriving at discretionary decisions. In particularly difficult or unusual cases, the decision may be certified for review to the Administrative Appeals Office. Such certifications may ultimately result in expansion of the body of precedent case law.
Discrimination Against Aliens
According to USCIS, discrimination is “unfair treatment because of your race, color, religion, sex (including pregnancy), citizenship or immigration status, national origin, disability, age (age 40 or older) or genetic information in the workplace or other protected characteristic or activity.” Immigrants are protected from employment discrimination by laws enforced by the Equal Employment Opportunity Commission (EEOC). Employers cannot discriminate against individuals on the basis of national origin, citizenship, or immigration status. For example, employers must treat employees in a non-discriminatory manner when recruiting, hiring, firing, and verifying their identity and authorization to work on Form I-9 for Employment Eligibility Verification. For more information, consult the related EEOC website.
Also known as the visa lottery, the program was created to foster new “seed immigrants” from nations that have low rates of immigration to the United States. By way of a lottery, the State Department annually makes a total of 50,000 immigrant visas available to such aliens. Every year, the National Visa Center holds this lottery and chooses winners randomly from all qualified applicants. If an alien is selected by the random draw, s/he will have an opportunity to apply for permanent residency either through consular processing or adjustment of status. For details of visa lottery, please click Diversity Visa Lottery Program.
A divorce is the legal termination of a marriage. For immigration law purposes, whether the termination of a marriage is deemed legal, and as a result effective, depends on the law of the state or country in which the divorce took place. Generally speaking, if state law recognizes an action to terminate marriage as a divorce, then the marriage no longer exists between the affected parties for immigration law purposes. Ordinarily, physical or legal separation (i.e. separation formalized by a court) of married parties does not constitute a legal termination of a marriage. This is the case even in circumstances in which each party of the marriage has no intention of residing with each other again. However, in some instances, a legal separation may be considered a legal termination of a marriage for immigration law purposes. This occurs when the law of a state or country converts legal separations automatically into divorces after a specified period of time. For details of divorce under immigration law, please seeDivorce defined for USCIS purposes.
DNA testing, also known as genetic testing, involves direct examination of the DNA molecule. Regarding immigration, DNA testing can be used to determine paternity. A prospective adoptive parent or prospective adoptive parents filing a Petition to Classify an Orphan as an Immediate Relative (Form I-600) may be required to submit a DNA test in order to establish a relationship between the prospective adoptive child and his or her birth parent(s). USCIS cannot require DNA testing to establish a claimed biological relationship. However, in instances where credible evidence is lacking to prove a claimed biological relationship, USCIS officers may suggest and consider DNA testing results.
In the US, the term “doctor” describes all medical practitioners holding a professional medical degree. Regarding required Immigration Medical Examinations, for example for adjustment of status cases (Form I-539) and requests for V nonimmigrant status (Form I-485), the medical examination must be conducted by a medical doctor who has been designated by USCIS as a civil surgeon. Please see the related USCIS webpage for specific information. Please note that you cannot go to your personal doctor to have a medical exam for immigration purposes, unless your doctor is a designated civil surgeon. When applying for a visa from outside of the US, the Department of State will instruct you to have a medical exam conducted by a Panel Physician overseas prior to receiving your visa. Doctors who are foreign citizens can qualify for certain nonimmigrant visas, such as H-1B visas, based on their occupation.
Document fraud is an act that can affect an alien’s admission, adjustment of status, or naturalization in the US. It may also be an act that makes an alien subject to removal proceedings, or might be a valid reason for denial of admission. Immigration law under 8 U.S.C. § 1324c details the penalties for document fraud under the Immigration and Nationality Act. For more information on the impact of unlawful acts on applications and petitions, please see Unlawful activities and their impacts on a visa application.
Documents, or documentation, must be provided to apply for certain nonimmigrant visas or immigration. For example, an alien employee must show documentation to his or her employer to show their identity and authorization to work. The types of documentation required, and the standards for documentation, depend on the visa, petition, or application type.
A domicile is a person’s principal or actual dwelling place. For certain types of immigration, one may need to fulfill a “domicile” requirement. For example, to qualify as a co-sponsor for family-based immigration, U.S. immigration law requires that a co-sponsor must domicile in the U.S., i.e. must have a principal or actual dwelling place in the U.S.
DOL (Department of Labor)
DOL stands for the Department of Labor. As a government agency, the Department of Labor is actively involved in Labor Certification (PERM) processing and passively involved in H-1B applications by issuing Labor Certification Applications (LCAs). For more information about the DOL, please click Department of Labor.
DOS (Department of State)
DOS stands for the Department of State, which was the first executive branch agency created and the lead federal agency responsible for U.S. foreign affairs, including issuing visas through its consulates located in foreign countries. For more information about DOS, please click Department of State.
Aliens can use a driver’s license for various immigration-related purposes. For example, maintaining a valid, United States state-issued driver's license throughout the period when he/she is absent from the U.S. can help a long-term permanent resident of the U.S. establish their intent to remain a permanent residence in the U.S., even while traveling or working abroad. In May 2008 the Department of Homeland Security established minimum standards for State-issued driver's licenses and identification cards that Federal agencies would accept for official purposes on or after May 11, 2008, in accordance with the REAL ID Act of 2005.
A drug offense under U.S. immigration law is broader than ordinary criminal charges in all aspects. It includes violations of any law or regulation relating to a controlled substance, no matter whether it is federal, state or foreign, and the definition of an illegal drug may be broader than the one designated by the Attorney General. It covers persons with a past conviction or admission of an offense. It may include a person a USCIS officer knows or has reason to believe is a drug trafficker or who may assist in illicit trafficking. Spouses and children of such persons may also be inadmissible if they have benefited from a drug offense within the past 5 years. Even expungement of the criminal record in court will not bar the use of underlying facts to deny admission. An alien with a drug offense will generally be considered ineligible for admission. Please see Unlawful Activities and their impacts on admission for more detailed information.
Formerly known as IAP-66, it is the “Certificate of Eligibility for Exchange Visitor Status” provided to an applicant for an exchange visitor visa by their program sponsor after the sponsor has entered their information in the SEVIS system. The document is to be submitted to a US Embassy or Consular Office, generally in the country of permanent residence, along with their application for a J Exchange Visitor visa. If the alien is already in the U.S. on another non-immigrant status, he or she may change his or her nonimmigrant status to J-1 status by submitting the SEVIS Form DS-2019 and other required documents to the USCIS service center that has jurisdiction over his or her application. For details of J visa and status, please click J-1 & J-2 Frequently Asked Questions.
Duration of Status (D/S)
In contrast to most other non-immigrants who receive a specific period of time to remain in the U.S. indicated on his or her I-94 card, an alien who obtains F-1 or J-1 status is allowed to remain in the U.S. for the duration of status as indicated by the notation “D/S.” Duration of status for F-1 and M-1 students is defined as the course of study indicated on the I-20, which may extend after the F-1 visa within the passport expires, plus any authorized post-completion practical training period as indicated on the employment authorization card. An M-1 student may receive extensions up to three years for the total program. For example, if you have a visa that is valid for five years that will expire on January 1, 2013, and you are admitted to the U.S. for the duration of studies, you may remain within the US as long as you are a full-time student. Even after January 1, 2013 passes and your visa has expired, you will be in legal student status. However, if you depart the United States with an expired visa, you will have to obtain a new one, before being able to return to the US and resume your studies. For more information about D/S for F-1 students, please click F-1 duration. For more informational about D/S for J-1 visitors, please click J-1 & J-2 FAQ.
According to the U.S. State Department Services, dual nationality “means that a person is a citizen of two countries at the same time.” Citizenship laws regarding dual citizenship vary by country. Persons may have dual nationality by automatic operation of law rather than by choice. For example, a child born in a foreign country to US citizen parents may qualify as a citizen of the U.S. and that foreign country. Dual nationals owe allegiance to both the United States and the foreign country. They are required to obey the laws of both countries. 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. The law requires that U.S. citizenship be lost only when the person voluntarily applies for foreign citizenship or intends to renounce US citizenship. U.S. citizens can renounce U.S. citizenship in the proper form at U.S. embassies and consulates abroad.
United States immigration law, in a majority of cases, requires a nonimmigrant to: (a) maintain an unabandoned residence abroad; and (b) not intend to permanently remain in the United States. The “dual-intent doctrine” codified by the Immigration Act of 1990, which amended the Immigration and Nationalization Act (INA), created exceptions to this rule. In essence, this doctrine allows that, although the nonimmigrant would like to reside permanently within the U.S. in the future, at present, he or she wishes to reside within the US on a temporary basis.
Immigration law under 8 U.S.C. § 1184(h) is interpreted to uphold a “dual intent doctrine” that holds that, even though a nonimmigrant visa applicant has previously expressed a desire to enter the United States as an immigrant and may still have such a desire, expressing interest to enter the United States as an immigrant does not of itself preclude the issuance of a nonimmigrant visa to the applicant nor preclude the applicant’s status as being a bona fide nonimmigrant. Visa categories applicable for dual-intent include H-1B, L-1. O-1; and certain K and V visa classifications.
E visa category is intended for those coming into the U.S. for an indefinite amount of time under a commerce or navigation treaty between their country of citizenship or nationalization and the United States. Among other criteria, persons applying for an E visa must carry out substantial trade which is international in nature, be a key employee involved in developing or directing of an enterprise in which they are invested, or act as a principal employer. E visas include three categories:
The E-3 category applies to Australian specialty occupation workers who perform services in a specialty occupation. Please refer to our website for more information about E visas.
The E-1 (“Treaty Trader”) nonimmigrant classification allows a citizen or national of a treaty country to be admitted into the United States to engage in international trade on his or her own behalf. Certain employees and dependents of E-1 holders are also eligible to receive E-1 visas. Lawful immigrants conducting trade in the United States may also file to change their status to E-1. For more information about E-1, please click REQUIREMENTS: E-1 & E-2
The E-2 (“Treaty Investor”) nonimmigrant categorization allows foreign citizens or nationals to be admitted into the United States when investing a substantial amount of capital into a U.S. business. The investor must direct and develop the operation of the enterprise in which he or she is invested and must establish ownership of at least 50% of the business, or otherwise be employed in a specialized, executive, or supervisory position by the company.For more information about E-2 application, please click E-2 Treaty Investor Information.
E-Filing (Electronic Filing)
Electronic filing, or E-Filing, is the filing and submission of an online electronic petition or application for immigration benefits done through the USCIS website. Not all applications can be submitted online; the USCIS keeps a list of applications it currently accepts in the online electronic format. E-filing allows for the immediate e-mail confirmation of form submission and the setting of priority dates when a form is filed electronically. Remember that the USCIS website is the ONLY place to e-file and that applicants must first create an account through the USCIS website before filing online. E-filing is not available when applying for a filing fee waiver or when requesting an expedited case.
An E-Notification is a way for certain applicants to stay up to date with the status of their case via email or text-message. Petitioners filing in one of the three USCIS lockbox facilities in Chicago, Phoenix, or Lewisville, TX, can submit Form G-1145 along with the rest of their application to receive E-Notifications. The USCIS lockbox facilities accept certain applications and petitions, which can be found on the USCIS website.
The E-Verify program is a service offered by the Department of Homeland Security in partnership with the Social Security Administration. It allows participating employers to verify that newly hired employees are eligible for employment by checking the information on their Form I-9s against Department of Homeland Security and Social Security Administration databases. E-Verify is a free service but employers must register for it in advance. U.S. law requires companies to employ only individuals who may legally work in the United States – either U.S. citizens, or foreign citizens who have the necessary authorization.OPT STEM extension employees must be enrolled in e-verify.
EAD (Employment Authorization Document)
An Employment Authorization Document, or EAD, is a document that functions as proof that the document holder is authorized to work in the United States for a specified amount of time under a specific immigration status. Among those eligible for an EAD are F-1 OPT students and certain asylees. EAD cards generally expire after one year and have the card holder’s relevant information and photograph. Not all immigrant workers are required to have an EAD. Those seeking an EAD must fill out Form I-1765. For more information about EAD, please click Employment Authorization Document (EAD).
EB-1 visas are reserved for persons of extraordinary ability, outstanding professors or researchers, or company transferees in the fields of science, art, education, business, or athletics who wish to continue work in the area of extraordinary ability in the United States. Those filing under this category must provide evidence of their extraordinary ability. The categories of EB-1 petitions include:
For details of Eb-1 petitions, please click EB-1 Visa
A person of extraordinary ability may apply to work in the United States under the EB-1(a) classification. This category is intended for the small percentage of individuals who have risen to the very top of their field of endeavor and intend on continuing their work in the U.S., though they do not need an employer. EB-1(a) petitioners must provide evidence of sustained and international acclaim depending on their area of ability, which can include science, art, education, business, or athletics and must also demonstrate how their work will benefit the United States. For details of EB-1(a) petition, please click Alien of Extraordinary Ability (EB-1A) and Extraordinary Ability.
An EB-1(B) is an immigration petition (Form I-140) and requires a permanent job offer performing research or instructing. Professors and researchers under this category must be internationally recognized as outstanding in their specific academic area after at least 3 years of experience in teaching or research in the academic area. Petitioners must also seek entry into the Unites States for tenure or a tenure track position or a comparable research position within an institution for higher education. This petition does not require a labor certification. For details of Eb-1(b) petition, please click Outstanding Researcher or Professor (EB-1B)
An EB-1(c), known as the Multinational Managerial or Executive petition, is an immigration petition (Form I-140) which requires a permanent job offer and sponsorship from a U.S. employer. This petition does not need a labor certification and is directed toward multinational executives and managers who seek to enter the U.S. to render services to the same employer, subsidiary, or affiliate in a managerial or executive capacity. Petitioning employers must be U.S. employers and have been doing business with the executive or manager for at least one year. The petitioner must also have spent at least one year in the past three years working abroad employed by a firm or corporation. For details of EB-1(c) petition, please click Managers and Executive Transferees (EB-1C)
EB-2 or Second Preference is reserved for members of professions holding advanced degrees, aliens of exceptional ability, or aliens applying for a National Interest Waiver (NIW). There are two subcategories of EB-2: 1) An employer may apply for a Labor Certification for an alien beneficiary and after its approval by the Department of Labor, apply for an immigration petition (I-140) under the EB-2 category; and 2) An alien may apply for a National Interest Waiver. EB-2 petitioners may also petition under EB-3, though this is inadvisable due to the amount of backlog for EB-3 applicants. Applicants under the EB-2 category (except for NIW cases) must have a job offer and labor certification. For more information about EB-23 petitions, please see our Employment-Based Immigration page. For more information about the national interest waiver, please clickNational Interest Waiver (NIW).
The Third Preference Immigration Petition (EB-3) is reserved for skilled workers (those with a full-time occupation requiring at least 2 years training or work experience), professionals (positions requiring at least a bachelor’s degree), and other workers, a category which includes foreign nationals with less than two years of training and work experience. These workers must have a petition filed by their employers and must have an approved Labor Certification. For more information about EB-3 petitions, please click Employment-Based Immigration For information about labor certification, please click PERM Labor Certification.
Special immigrants may be eligible to apply under the Fourth Preference Immigration Petition (EB-4). EB-4 employment-based visas are reserved for the following special immigrants:
EB-4 visas are generally petitioned by employers and allow for the spouse and children of the employee to be admitted into the United States. For more information about EB-4 petitions, please click Employment-Based Immigration
The EB-5 Fifth Preference Immigration Petition is reserved for immigrant investors. To qualify, investors must invest at least $1,000,000 into a new commercial enterprise that creates at least 10 full-time jobs for qualifying United States citizens or lawful immigrants, not including the investor or his or her family. If the immigrant investor invests in a Targeted Employment Area, only $500,000 in capital is required. The capital may not be borrowed but must come from the investor. For more information about EB-5 petition, please click EB-5 Immigrant Investor Program Visa
The effective date is the date on which a statute or contractual obligation commences. New rulings, for example, often set effective dates, meaning the new ruling becomes effective on that date. For certain visas and statuses such as H-1B and L, the approval date is usually earlier than the effective date. For such cases, the last action by USCIS that determines a person’s status is the effective date of the approved case. However, with other types of visas such as F-1 and J-1, the effective date can be the same or earlier than the approval date.
Electronic Filing is also known as E-Filing. Please see “E-Filing.”
Employ American Workers Act
The Employ American Workers Act (EAWA) prevents a company from displacing U.S. workers when hiring H-1B specialty occupation workers if the company received funds through the Troubled Asset Relief Program. The U.S. workers must be equally or more qualified than the H-1B specialty occupation workers. EAWA was a part of the American Recovery and Reinvestment Act (the “stimulus bill”) and took effect on Feb 17, 2009 and expired on Feb 17, 2011. Companies subject to EAWA then needed to make new statements regarding recruitment and hiring of U.S. workers. Under EAWA, any company that received covered funding and seeks to hire H-1B workers was considered to be an “H-1B dependent employer.”
The employer sanctions provision of the Immigration Reform and Control Act of 1986 prohibits employers from hiring, recruiting, or referring for a fee aliens known to be unauthorized to work in the United States. Violators of the law are subject to a series of civil fines for violations or criminal penalties when there is a pattern or practice of violations. Employers must comply with the employment verification procedures outlined in the USCIS Form I-9. For details of employer sanction, please see Employer Compliance
Please see EAD.
Employment Creation Visas
Also known as the EB-5 immigrant visa classification. Please see EB-5 for more information.
Employment-Based Immigration Petition
Employment based immigration petitions are submitted by a petitioning employer (except for EB-1(a) and EB-2 National Interest Waiver cases) to demonstrate that an alien beneficiary is a foreign national qualified for permanent residency in the United States. These petitions are separated into five preferential categories and generally require the completion of USCIS Form I-140. EB-1(a) and Nonimmigrant Worker visas may be applied for by beneficiaries without an employer’s sponsorship. For details of the five preference categories of employment-based immigration petitions, please click Employment-Based Immigration
All employees are guaranteed certain rights under US law. Mainly, employers must treat employees in a non-discriminatory manner when recruiting, hiring, firing, and verifying their identity and authorization to work on Form I-9 (for all citizens and noncitizens). Employers must provide employees with a complete I-9 Form and may not require specific documents or refuse reasonable documentation. If you feel your employer did not hire you, treated you differently during the hiring or Form I-9 process, terminated you because of your national origin or immigration or citizenship status, you can file a complaint with the Office of Special Counsel. For more information about specific employee rights, visit the related USCIS and the Office of Special Counsel.
United States law requires employers to complete Form I-9 for all newly hired employees to verify their identity and authorization to work in the United States within 3 business days of the new hire. Employers are responsible for defects in the I-9 Form and cannot require specific documents from the list of list of acceptable documents required for employment. For details of employment verification, please click Employer Compliance
An alien desiring to enter the US must apply for admission at the border of the U.S at a point of entry. A visa is not a guarantee of entry into the United States and works much like an invitation. When at the border, the alien must present his or her visa and passport to the border officer. The USCIS border officer will inspect the alien's visa and passport to determine the status of the alien’s entry. If admitted, the alien will be issued an I-94, and a date will be stamped on it to indicate the authorized period of the alien's stay in the United States, giving the alien legal status to stay in the United States. Admission to the United States at a point of entry can be denied for several reasons, including reasonable suspicion of the misuse of a visa. For more detailed information about entry into the U.S., see: Entry into the U.S.
Entry Without Inspection
Entry without inspection, also known as illegal entry into the United States, bans the person who entered illegally from filing an adjustment of status. An adjustment of status is only possible under Section 245(i) Provision of the Legal Immigrant Family Equity (LIFE) Act. The provision calls for aliens to be present in the United States, eligible for a visa classification, not be inadmissible from the United States, file form I-485, and pay a $1000 penalty. Certain other special conditions are required for this exception. Illegal entry into the United States carries with it a permanent bar on AOS or change of status. More information on 245(i) can be found in this article.
When applying for an EB-2 employment-based visa, exceptional ability means “a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.” Petitioners must prove exceptional ability by meeting certain criteria, which includes: providing official records of degrees from institutions of higher learning, listing documents showing at least 10 years of experience in a chosen field of exceptional ability, providing evidence of membership to professional associations, proving a salary for services that demonstrate exceptional ability, etc. People with advanced degrees do not have to prove exceptional ability. For more information, please reference our article on EB-2 visas.
Exceptional and Extremely Unusual Hardship
Determination of exceptional and extremely unusual hardship can impact various immigration and non-immigration circumstances, such as application for suspension of deportation or special rule cancellation of removal. The determination of exceptional and extremely unusual hardship does not follow a set test and depends on the particular circumstances of each case. Generally speaking, exceptional is defined as “forming an exception; not ordinary; uncommon; rare,” while extremely unusual indicates circumstances in which the exception to the norm is very uncommon. In these cases, only hardship to the alien’s United States citizen or lawful permanent resident spouse, parent, or child is considered, not that of the alien.
The J-1 exchange visitors classification is authorized for those who intend to participate in a program approved by the Department of State which promotes the interchange of persons, knowledge, and skills in the fields of education, art, and science. Examples of those who qualify for the J-1 classification include:
The purpose of the approved program should be to teach, instruct or lecture, study, observe, conduct research, consult, demonstrate special skills, receive training, or to receive graduate medical education or training. Petitioners must be fluent in English, have sufficient funds, have medical insurance for accidents and illnesses, and have a residence abroad. For more information, please see our page on J-1 Visas.
Prior to the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, exclusion was the formal term for denial of an alien’s entry into the United States. The decision to exclude an alien was made by an immigration judge after an exclusion hearing. Since April 1, 1997, the process of adjudicating inadmissibility may take place in either an expedited removal process or in removal proceedings before an immigration judge. An example of a ground for exclusion could be a CBP officer discovering that a nonimmigrant visa holder intended on attaining permanent residency or citizenship. Please see Asylum and Withholding for more information.
An executive generally refers to an individual who has the ability to make decisions of wide latitude without much oversight and directs the management of a business or organization or a major component of the operation. Executives have several options when petitioning to gain admission into the United States. The EB-1(c) category allows international companies to transfer overseas high level managers or executives to their U.S. entities to take a permanent high level managerial or executive position. The L-1A visa allows for intra-company executive transferees to work in the United States if they meet certain requirements. Please note that the L-1A visa allows a company which does not currently have a U.S. office to send an executive or manager to the United States in order to establish one. See our website for more information about EB-1C and L-1A.
Exemption of Two-year Residence and Legal Custody
Orphan adoptions outside of the Hague Convention are exempt from the regular two-year residence and legal custody requirement for immigration. Those seeking to adopt orphans abroad must first make sure that the child meets the United States definition of orphan since not all adopted children are orphans as defined by United States immigration law. For more information of Exemption of Two-year Residence and Legal Custody of Orphan Adoption, please click Adoption of Foreign-Born Orphans
Existence of Marriage
In order to take advantage of the immigration benefits associated with matrimony, two parties of a valid and viable marriage shall keep the marriage in existence. The existence of a marriage does not require a couple to live together or share a household. However, a marriage can remain viable despite separation depending on the individual state marriage laws. For more information about marriage and immigration, please click Marriage and Immigration
Extension of Status
All holders of non-immigrant visas are eligible to apply for a status extension before the expiration of his or her legal status. Exceptions to this rule include: visa waiver entrants, C-1, C-2, C-3, D-1, D-2, K1, K-2, D/S except F-1, students not completing a course of study (f) beyond 3 years, Q-2 beyond 3 years. For information about extension of status in H, please click H-1B Visa For information about extension of Jstatus, please click How do I extend my J-1 Status? For information about extension of O status, please click Duration and Extension of Status
When petitioning for an EB-1(a) visa or an O-1 nonimmigrant visa, petitioners must prove they are aliens of extraordinary ability in order to prove their eligibility to receive the document and its benefits. Extraordinary ability in the fields of science, education, business or athletics means a level of expertise indicating that the person is one of the small percentage who has risen to the very top of the field of endeavor. Proving extraordinary ability requires a preponderance of evidence, but can include: the reception of nationally or internationally recognized prize or awards for excellence in the field of endeavor, original scientific, scholarly, or business-related contributions of major significance in the field, or employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation. For more information, please see our article on the EB-1(a) visa and O-1 visa.
Please see Exceptional and Extremely Unusual Hardship.