FAQ U.S. Immigration Law
Disclaimer Notice: This information is provided as a public service to highlight matters of current interest and does not imply an attorney-client relationship. You should not act upon any such information without first seeking qualified professional counsel on your specific matter.
What is a green card?
Green card is the colloquial term for the U.S. permanent residence card (which in fact is green in color). A green card holder is entitled to live and work in the United States permanently (both as an employee or self-employed) and to even sponsor, in turn, his or her immediate non-U.S. citizen relatives for separate green cards.
What is the difference between a green card and a nonimmigrant visa?
Green cards are permanent, nonimmigrant visas are temporary. A green card holder can apply for U.S. citizenship after he or she has held the green card for a certain length of time (generally 5 years). However, a nonimmigrant visa will never directly open the path to U.S. citizenship.
I would like to spend six months per year in the United States and six months per year in my home country. Therefore, a green card suits me perfectly. Right?
No, once you hold a green card, you are expected to live in the United States permanently. That doesn’t mean that your freedom to travel in and out of the United States is restricted. However, your fixed domicile must be in the USA. If you spend too much time outside of the United States, this might be considered an abandonment of your permanent U.S. residency, and your green card may be revoked. It is usually not wise to spend more than six months at a time outside the United States.
Does a green card holder have to file a tax return in the United States?
Yes, a green card older is considered a U.S. tax resident. Therefore, he or she is required to file an annual U.S. federal tax return and declare the entire worldwide (!) income to the U.S. government. However, he or she may claim a foreign tax credit for income tax paid in a foreign country.
Can I get a green card through employment?
Yes. 140,000 green cards annually are available to workers with certain job skills. There are 5 sub-categories within the employment-based green card category:
1. The employment first preference category (EB-1) includes persons of extraordinary ability in the arts, sciences, business, education, or athletics; outstanding professors and researchers; and managers or executives of multinational companies (priority workers).
2. The employment second preference category (EB-2) includes professionals with advanced degrees or exceptional abilities in the sciences, arts, or business.
3. The employment third preference category (EB-3) includes professionals and skilled or unskilled workers.
4. The employment fourth preference category (EB-4) includes, inter alia, religious workers and ministers and former U.S. government workers (special immigrants).
5. The employment fifth preference category (EB-5) includes investors investing $1.9 million in a U.S. business or $900,000 if the business is in an economically underdeveloped area.
Green card through employment: Is a job offer from a U.S. employer required?
Yes. However, there are two (rare) exceptions to this requirement:
Persons of extraordinary ability in the arts, sciences, business, education, or athletics in the employment first preference category (EB-1) don’t need a job offer.
Workers in the second preference category (EB-2: Professionals with advanced degrees or exceptional abilities in the sciences, arts, or business) don’t need a job offer (only) if their employment is in the national interest.
What is a labor certification?
Workers who want to obtain a green card through employment need a job offer from a U.S. employer (subject to limited exceptions, see above). However, before such an offer can be made to a foreigner in the first place, the law requires the U.S. employer to complete a procedure called labor certification. Labor certification involves proving to the U.S. Department of Labor that the employer was unable to fill the position with an equally qualified U.S. worker in the region where the job is offered. Therefore, the U.S. employer is required to advertise the job, evaluate the job applications, and to conduct interviews. There are, however, exceptions from the labor certification requirement for certain jobs for which there is a shortage of U.S. workers. The U.S. Department of Labor regularly publishes a list of these jobs, called Schedule A. Schedule A jobs include certain medical occupations such as physical therapists and professional nurses.
Does the validity period of my temporary nonimmigrant visa tell me how long I can stay in the United States?
No, a visa is often incorrectly equated with a residence permit. However, a visa is merely a travel document authorizing its holder to ask for entry into the United States at the respective point of entry. Thus, the validity period of a visa does not tell you how long you can stay in the USA. Instead, the length of stay recorded in the (electronic) I-94 document is decisive.
What are the most common types of temporary U.S. work visas?
B-1 Temporary Business Visitor Visa
If you are coming to the USA as a visitor for business purposes, such as negotiating a contract, attending seminars, buying goods, participating in short-term training, or performing other work-related activities for an employer located outside the USA, you qualify for a B-1 visa. However, you must demonstrate that you have a residence outside the United States that you have no intention of abandoning, as well as other binding ties that will ensure your return abroad at the end of the visit. Additionally, you may not be paid by a source inside the United States. A B-1 Visa is initially issued for a maximum of six months and can be extended up to another 6 months. Therefore, the maximum period of time you are permitted in B-1 status is generally one year.
E-1/E-2 Visa for Treaty Traders and Treaty Investors
The United States has entered into trade treaties with several countries and established the temporary E-Visa for treaty traders (E-1) and treaty investors (E-2). Nationals of member countries are authorized to work for a qualifying U.S. employer as a supervisor, manager, or key employee and bring their spouses and children under the age of 21. There is no annual limit on the number of E-Visas that can be issued. They are generally granted for an initial stay of two years and may be followed by an extension of another two years. There is no limit to the number of extensions.
- E-1 Treaty Trader Visa
Currently, there are 53 designated E-1 visa treaty countries. The E-1 visa allows nationals from treaty countries to work for a qualifying U.S. business engaging in substantial international trade. The visa requirements are as follows:
(1) The treaty trader must be a citizen of a treaty country.
(2) At least 50% of the U.S. business must be owned by citizens of the treaty trader’s home country.
(3) The treaty trader must work for the U.S. business as supervisor, manager, or key employee.
(4) At least 50% of the trade volume carried out must be between the United States and the designated treaty country.
(5) The trade must be substantial. Regarding this, there is no strict definition. A specific sum is not written into the law. However, as a rule of thumb, the annual monetary value of the trading volume should be at least $100,000.
(6) The treaty trader must intend to leave the country once the business in the U.S. is completed
- E-2 Treaty Investor Visa
An E-2 visa allows investors from treaty countries to work in the United States for an active, for-profit business in which people from their country have invested. Currently, there are approximately 80 designated E-2 visa treaty countries. The visa requirements are as follows:
1) The treaty investor must be a citizen of a treaty country.
(2) At least 50% of the U.S. business must be owned by citizens of the treaty investor’s home country.
(3) The treaty investor must work for the U.S. business as supervisor, manager, or key employee.
(4) The treaty investor must have made a substantial investment in the U.S. business. Regarding this, there is no strict definition. A specific sum is not written into the law. However, experience shows that the invested sum should by no means be less than $100,000.
(5) The treaty trader must intend to leave the country once the business in the U.S. is completed.
L-1 Intracompany Transferee Visa
The L-1 visa allows managers, executives, or other employees with specialized knowledge who work outside of the United States for a company to work for an entity in the United States that is affiliated with the foreign company in a qualifying manner. There is no annual limit on the number of L-1 visas which can be issued. The L-1 visa is divided into two subcategories, namely L-1A for executives or managers and L-1B for employees with specialized knowledge. The transferring employee may bring their spouse and unmarried children under the age of 21. The L-1 visa has the following requirements:
(1) The transferring employee must have been employed by the qualifying company outside the United States for one continuous year within the three years immediately preceding the visa application.
(2) The transferring employee must be working for a U.S. employer that is a parent, branch, subsidiary, or a joint venture partner of the company that currently employs him or her outside the United States.
(3) The transferring employee must be coming to the United States to either work in an executive or managerial capacity (L-1A) or in a specialized knowledge capacity (L-1B).
The transferring employee will be allowed a maximum initial stay of three years. Thereafter, extensions will be granted in increments of up to an additional two years for a maximum of seven years for L-1A visa holders or five years for L-1B visa holders.
Transferring employees who come to the United States to establish a new office will be allowed a maximum initial stay of one year.
H-1B Visa for Specialty Workers
The H-1B visa are made available to workers entering the United States to perform services in specialty occupations requiring a bachelor’s degree or higher or its equivalent in work experience. This visa is utilized, inter alia, by IT professionals, accountants, attorneys, architects, chemists, scientists, and medical doctors. The specialty worker may bring their spouse and unmarried children under the age of 21.
The H-1B visa has the following requirements:
(1) The specialty worker must have a job offer from a U.S. employer.
(2) The job itself must require a bachelor’s degree or higher in this occupation or its equivalent in specialized work experience. Specialty workers who don’t have a bachelor’s degree must typically have 12 years of specialized work experience.
(3) The specialty worker must have been offered at least the prevailing wage that is paid in the same geographic area or no less than the wage paid to similar workers at the U.S. employer, whichever is greater.
(4) The petitioning U.S. employer must have obtained a Labor Condition Application (LCA) from the Department of Labor (DOL) that the employment will comply with certain labor requirements.
The specialty worker will be allowed a maximum initial stay of three years. This time period may be extended but in general my not go beyond a total of six years. There is no limit on the H-1B visas that can be issued annually for specialty workers who will work for institutions of higher education, nonprofit research organizations, or government research organizations. All other applicants, however, are subject to a numerical cap of 85,000 visas. Within that number, 20,000 visas are reserved for people holding a Master’s degree or higher from an accredited U.S. academic institution. Of the remaining 65,000 visas available, however, a total of 6,800 is reserved for nationals from Chile and Singapore.