Frequently Asked Questions About The U.S. Immigration Process

More than ever, immigrating to the U.S, is a challenging process. When it comes to obtaining a visa there are many questions people have but often find answers difficult to come by. To help you understand what to look for and which aspects to keep in mind, Pasricha & Patel has answered some of the most frequently asked questions about U.S.A. immigration.

1. How to change to a non-immigrant F-1 student status?

For foreign nationals who are presently on nonimmigrant status in the U.S., not all of them are eligible to pursue academic studies in the U.S.

Those on B-1 business visitor or B-2 tourist/visitor status are not allowed to enroll directly in school to pursue academic studies.

• Those foreign nationals whose statuses prohibit them from direct school enrollment will have to first file for change of status to F-1 academic student (or M-1 vocational student) status. If they enroll in school without applying for the change of status first, then the USCIS will regard them to be violating their visa status. Such violation will prohibit them from extending or changing their status to F-1 (or M-1) status.
• In order to be eligible to apply for change of status to a student status while still in the U.S., the applicant needs to show that he/she is:
  • Lawfully admitted to the U.S. in a nonimmigrant status.
  • The nonimmigrant status must still be valid/unexpired.
  • No violation of the conditions of his/her status. (i.e., did not engage in any unauthorized study or employment)
  • Has not committed any crimes.
• Before submitting the change of status petition with the USCIS, the applicant should also:
  • Apply, and receive acceptance from a U.S. Student and Exchange Visitor Program (SEVP)-certified school.
  • Obtain a form I-20 (certificate of eligibility for nonimmigrant student status) from the SEVP-certified school.
  • Paid the I-901 SEVIS fee.
  • Submit all these proofs together with the I-539 change of status petition to the USCIS.
• Also, if the applicant’s current status does not allow him/her to enroll in classes, make sure to not enroll in classes or start the studies until USCIS has approved the change of status application.
  • If the USCIS processing time takes too long, and if the USCIS has not decided on the change of status petition at least fifteen (15) days before the academic program start date shown on the form I-20, the applicant must contact the school’s Designated School Official (DSO) and they can advise further on this situation. (note: they may even agree to defer attendance and wait until the next term in order for the applicant to begin studies at the school)
  • At the same time, the applicant still must make sure to maintain a valid nonimmigrant status while the change of status petition is pending with the USCIS.
• Make sure that there is no ‘gap’ in status:

If the applicant’s current nonimmigrant status will expire more than thirty (30) days before the F-1 (or M-1) program’s start date, and the applicants wants to stay in the U.S. until that start date, then the applicant must make sure to obtain status all the way up to the date that is thirty days before the program start date. (you have to ‘bridge the gap’)

• That usually means the applicant has to file a separate form I-539 extension of a current status petition with the USCIS. (in addition to the already pending form I-539 petition to change your status to F-1 status)
• This is vital because if the applicant does not file this separate form I-539 to extend his/her current status prior to the expiration of his/her current status, the USCIS will also deny the form I-539 change of status petition too.
• In fact, if the USCIS processing time takes so long that your form I-539 petition to ‘bridge the gap’ is also about to expire before the 30-days before the new program start date (due to deferment by the school to the next term), then the applicant has to file yet another form I-539 to ‘bridge the new gap.’ This also requires submitting a new filing fee too.
• The key is to make sure there is no gap in status.

Do note that if the applicant is not eligible to change status in the U.S., or if the applicant is not ready to start a program right away, he/she can always apply for a F-1 (or M-1) visa at the U.S. consulate abroad. The filing procedure is slightly different for those applying from abroad.

• Apply for, and receive acceptance from the SEVP-certified school.
• Receive a new form I-20 from the designated school official. (DSO)
• Pay the I-901 SEVIS fee.
• Apply for F-1 (or M-1) visa at the U.S. consulate or embassy, so that the applicant can gain entry into the U.S. as a student.
• Please note that for some applicants who do not require visas (i.e., Canada), the applicant can even travel directly to his/her port of entry, or U.S. pre-clearance/pre-flight inspection point and apply for admission to the U.S. as an F-1 (or M-1) student directly.
• Upon entry into the U.S., the applicant can start his/her studies in the U.S.

2. How to be eligible for B-1 temporary business visitor visa?

B-1 temporary business visitor visa is suitable for foreign nationals who may be participating in business activities that are either commercial or professional related here in the U.S.

Examples include, but are not limited to:

• Consulting with business associates.
• Traveling to the U.S. to attend scientific, educational, professional, or business convention or conference on specified dates.
• Negotiating a contract.
• Participating in short-term training.
• Transiting through the U.S. to another country or territory. (if applicable)
• Setting up an estate.
• In order to be eligible for such a visa, the applicant has to be able to demonstrate the following:
  • The purpose of the U.S. trip is for business or other genuine reason.
  • Plan to remain in the U.S. must have a specific end date.
  • Possess enough funds to cover the cost of travel and stay in the U.S.
  • Must prove that you have a foreign residence that you have no intentions of abandoning + any other additional binding ties that shows that you will truly return to your home country after the short-term visit to the U.S.
  • Must be otherwise admissible to the U.S. (for example, no bars of entry)
• Almost all B-1 visitor visas have to be applied at the nearest U.S. consulate or embassy abroad to where the foreign national resides.
• There are qualified visitors from specific countries where a B-1 visitor visa is not required. Usually, those exemptions are for nationals who belong to Visa Waiver Countries.
• For those foreign nationals who are already in the U.S. on a different nonimmigrant visa than the B-1 visa, the foreign national may be eligible to file for change of status from that status to the B-1 status. This means submitting the form I-539 to the USCIS, with the request of change of status (provided they are otherwise eligible to do so).
• For B-1 business visitor visa holders, they can initially stay in the U.S. on B-1 visa between one to six months maximum. And they may also file for an extension of stay and request up to six months of extension at one time. But note that the maximum total amount of time allowed in a B-1 status on any one (1) visit is usually one year.
• At the port of entry, the Customs and Border Protection (CBP) officer has to authorize admission to the U.S. for the B-1 visitor. And the CBP officer decides how long the B-1 applicant can remain in the U.S., at least initially.
  • Any extension of stay requests beyond what the CBP officer gives the international visitor, and he/she will have to file for form I-539 extension of status & stay, plus include requisite supporting documentation, all to the USCIS.
• If the B-1 business visitor is traveling with dependent family members (i.e., spouse and children), then the dependents must apply for their individual B-2 visitor visas at the nearest U.S. consulate or embassy.
• In addition, certain groups of B-1 business visitors would require formal employment authorization from the USCIS, before they are eligible to work in the US. Those examples include:
  • Personal or domestic servant who is accompanying, or following to join an employer who is either seeking admission into, or is already present, in the U.S. in a B, E, H, I, J, L, or TN nonimmigrant statuses.
  • A domestic servant of a US citizen accompanying or following to join his/her US citizen employer, who has a permanent home or is stationed in a foreign country, and who is temporarily visiting the U.S.
    • In order to gain admission as a domestic worker on a B-1 business visitor visa, the applicant should show that:
      • He/she has a foreign residence outside the US, and they have no intention of abandoning it.
      • Must show at least one year of experience as a personal or domestic servant.
      • He/she must have been working abroad for the employer for at least one year before the employer was admitted into the US.
      • If the applicant has not been working for the employer abroad for more than one year, then the employer has to show that while abroad, he/she has regularly employed a domestic servant in the same capacity as that intended for the B-1 domestic worker.
    • An employee of a foreign airline who may otherwise be allowed an E-1 treaty trader visa status, but is not because the employee is the national of a country that does not have the requisite treaty signed with the US for this matter.

3. How can an F-1 student work in the US?

Because F-1 students must first prove that they have the financial ability to pay for their tuition and living expense in the U.S. while they are studying, the F-1 student cannot automatically start to work in the U.S., at least not until he/she is given proper authorization to do so by his/her school’s Designated School Official (DSO).

It is essential that the F-1 student does not engage in any unauthorized employment. In fact, if the DSO learns that the F-1 student is engaged in unauthorized employment, they have to report this to the SEVIS (Student and Exchange Visitor Information System), and the F-1 student’s SEVIS record will be terminated. This triggers automatic departure requirement for the foreign national, and this may also result in future prohibition for the foreign national to return to the U.S.

F-1 students may be authorized to work on-campus or off-campus:

• On-campus:
  • The F-1 student must be an active student, and it is specifically related to work that takes place on campus or at an off-campus location that is affiliated with the school (for example, university bookstore, or at university cafeteria).
  • The Designated School Official must authorize this employment and issue the F-1 student a letter of approval. Then, the F-1 student must carry this DSO letter + the letter of approval from the employer, and then he/she has to apply for a social security number. (SSN) All students who want to work must apply for a social security number.
  • Also, note that for employment taking place on-campus, the F-1 student may not work more than twenty hours per week while the school is in session.
• Off-campus:
  • Off-campus employment takes place outside of the school, and it is available only to F-1 students who have completed at least one (1) full academic year of their program of study, and who can prove that they have an economic hardship that falls within Department of Homeland Security guidelines for ‘emergent circumstances.’
  • In order to apply, the F-1 student has to explain the economic hardship scenario to the school’s Designated School Official, and once the DSO agrees, then the DSO will recommend that the F-1 student may work, and the DSO will issue an updated Form I-20 Certificate of Eligibility for Nonimmigrant Status and update the SEVIS record as well.
  • With the new Form I-20 in hand, the F-1 student then must apply for employment authorization with the USCIS by completing and submitting the form I-765 employment authorization application.

This must be filed within thirty days of receiving the DSO recommendation to work.

• If the USCIS approves this I-765 application, it will issue an I-766 Employment Authorization Document (EAD) that sets the dates that the F-1 student may work off-campus.
• It is important to note that the F-1 student cannot start work while waiting for the I-766 EAD card to be issued by the USCIS.
• Once approved, the F-1 student may work up to twenty hours per week while the school is in session.
• While the school is not in session, there are no work hour restrictions.
• The F-1 student must also apply for social security number right after he/she is issued the Employment Authorization Document. (EAD)

4. How to renew a green card?

• Lawful Permanent Residents now are issued ‘green cards’ with 10-year validity periods.
• But if their green cards are the older editions (with no expiration dates), or their ‘green cards’ have expired, or will expire within the next six months, then they should apply for renewal.
• It is important to note that even if your ‘green card’ has expired, you are still a lawful permanent resident. However, if your ‘green card’ has expired, it may unnecessarily impact your travel plans abroad, or it may affect your I-9 verification (if you have found a new job). So, it is best to file for renewal as soon as they can while here in the U.S.
• Also note that those with two-year conditional ‘green cards,’ they must file for I-751 removal of conditional permanent resident status before their card expires. But that is a different process than a ‘regular’ green card renewal process.
• ‘Green cards’ can be renewed either via online filing at the USCIS’s website, or it can be filed via mail with the USCIS by using the form I-90.
• If the lawful permanent resident is outside the U.S. and his/her ‘green card’ will expire within six months (but he/she will return within one year of their departure from the U.S. and before the card expires), he/she should file for renewal of the green card as soon as they are back in the U.S.
• If the lawful permanent resident is outside the U.S. when the ‘green card’ expires, and he/she has not yet applied for the renewal before the departure, then the lawful permanent resident should contact his/her nearest U.S. consulate or USCIS office, or U.S. port of entry first, before submitting the I-90 application with the USCIS.
• Once filed, the USCIS will take about eight to twelve months to process the I-90 application. And note that when the applicant appears for the in-person biometric/fingerprinting appointment that is a mandatory part of the I-90 post-filing process, the USCIS application support center usually will give the I-90 applicant a stamp that will automatically extend the validity of the expiring/expired ‘green card’ for a period of one year from the date of expiration.

5. How to qualify for Treaty Trader (E-1) and Treaty Investor (E-2) visas?

• E-1 and E-2 visas are special visas for citizens of countries with which the U.S. maintains treaties of commerce and navigation.
• The foreign national is using one of these one visas to come to the U.S. to either engage in substantial trade, including trade in services or technology, in qualifying activities, principally between the U.S. and the treaty country, or
• Develop and direct the operations of an enterprise in which the foreign national has invested a substantial amount of capital.
• Some examples of these activities include international banking, insurance, transportation, tourism, and communications.
• For Treaty Trader (E-1) Visa:
  • Must be a citizen of a treaty country.
  • The trading firm that the foreign national plans to come to the U.S. needs to have the nationality of the treaty country (persons with the treaty country’s nationality must own at least fifty percent of the enterprise).
  • The international trade must be substantial (there must be a sizable and continuing volume of trade).
  • More than fifty percent of the international trade involved must be between the U.S. and the treaty country.
  • “Trade” means the international exchange of goods, services, and technology (the title of the trade items must pass from one party to the other).
  • The foreign national coming to the U.S. must be an essential employee, employed in a supervisory or executive capacity, or possess highly specialized skills essential to the efficient operation of the firm. Ordinary skilled or unskilled workers do not qualify.
• For Treaty Investor (E-2) Visa:
  • The investor, either a person, partnership, or a corporate entity, must have the citizenship of a treaty country.
  • If a business, then at least fifty percent of the business must be owned by persons with the treaty country’s nationality.
  • The investment must be substantial with investment funds or assets committed and irrevocable. It must be sufficient to ensure the successful operation of the enterprise.
  • The investment must be a real operating enterprise, an active commercial or entrepreneurial undertaking. “Paper organization,” speculative or idle investment does not qualify.

Uncommitted funds in a bank account or similar security are not considered an investment.

• It must generate significantly more income than just provide a living to the foreign national and family, or it must have a significant economic impact in the U.S.
• The foreign applicant must have control over the funds, and the investment must be at risk in the commercial sense. Loans secured with the assets of the investment enterprise are not allowed.
• The foreign applicant must be coming to the U.S. to develop and direct the enterprise. If the applicant is not the applicant investor, he/she must be considered an essential employee, employed in a supervisory, executive, or highly specialized skill capacity. Ordinary skilled and unskilled workers do not qualify.
• E-1 & E-2 visas are usually applied at the U.S. consulate/embassy abroad.
  • General documents required for visa application:
    • Valid passport. (with at least six months validity beyond the intended period of stay in the U.S.)
    • Fill out the form DS-160 Nonimmigrant Visa Application online.
    • Application fee payment receipt.
    • (uploaded to the online system when preparing and filing the form DS-160 online)
    • Follow the Nonimmigrant Treaty Trader/Treaty Investor Application, form DS-156E
      • Needed for all E-1 treaty trader visa applicants, and
      • E-2 treaty investor visa applicants (if the applicant is an Executive/Manager/Essential Employee).
• Additional documents required for visa application:
  • The consular officer may provide the applicant with special forms to complete for this purpose.
  • Expect the consular officer to request for additional documentation in order to determine the applicant’s eligibility for a treaty trader or treaty investor visa. Usually, they would provide a document checklist for the visa applicant to follow.
• Attend the visa interview, and the consular officer will determine whether the applicant is qualified to receive the E-1/E-2 visa.
  • The file may also need additional administrative processing, which can take anywhere from a few days to a few months. There is no set time frame.
  • If the visa is approved, then the foreign national would pay a visa issuance fee (if applicable to the specific nationality who is applying for the visa), and then the stamped passport with the new visa will be returned to the applicant.
  • The spouse and children (under twenty-one years old) may also apply for visas to accompany the applicant or join the applicant later to reside temporarily in the U.S.
• Extending Stay in the U.S.:
  • Extensions of the E-1/E-2 visa status can be filed with the USCIS; once approved, the USCIS would issue an I-797 E-1/E-2 approval notice, which includes a valid I-94 card attached to the bottom of the I-797 approval notice. This card extends the expiring I-94 card’s validity period.
• Change of Status in the U.S.:
  • If the applicant is here in the U.S. already and wishes to change status to E-1/E-2, then the applicant must file his/her petition with the USCIS.

6. What can I expect when applying for naturalization to become a U.S. citizen?

1. In order to qualify, the applicant must prove that they have continuously resided in the U.S. for at least five (5) years before filing the N-400 naturalization application with the USCIS.
   1. Traveling to another country while the applicant is still a permanent resident is not a problem. However, if the foreign trip lasts more than one-hundred-and-eighty days, then USCIS may consider that the applicant has not continuously resided in the U.S. and the applicant may be ineligible for naturalization.
      1. The applicant must overcome that by showing continuous ties to the U.S. (i.e., filing U.S. tax returns, maintaining U.S. residence, working in the U.S.)
   2. The applicant must also be mindful of the frequency of his/her travels. In order to qualify for naturalization, the applicant must have spent at least half of his/her time in the U.S. This is the ‘physical presence’ requirement. This is a problem also for an applicant who takes many short trips abroad and those short trips add up to more than one-half of the time spent outside the U.S. That would make the applicant ineligible to naturalize too.

1.Study for the test which is made up of civics, reading, and writing by reviewing the USCIS’s free educational resources that help applicants prepare for the test.

2.USCIS publishes a list of one-hundred civics questions and answers for the naturalization test on its website, along with study guides and materials.

3.These questions are available online and in a variety of languages for study.

4.As part of the test, the USCIS officer will ask the applicant any ten of these one-hundred civic questions. The civic questions will come from this list only.

1. The applicant must be able to answer six of the ten questions in order to pass the civics test.

5.The questions on the naturalization test do not change. But be mindful that some of the answers will change (because of change in elected officials or appointments in government or the Supreme Court).

So, the best way to be prepared is to keep up to date with the current answers of the test questions.

1. If the applicant were to fail a portion of the naturalization test, the applicant is given two (2) chances to meet the English and civics requirement:
   1. In that situation, the applicant will be retested in a new interview on the portion of the test that the applicant had failed; the new interview date is re-scheduled for the applicant to allow time to study up.
   2. There is an exception to the English or civics requirement – the applicant can seek this exception if the applicant can show he/she has a physical or developmental disability or mental impairment.

The form N-648 Medical Certificate for Disability Exception (which has to be filled out by a licensed medical profession) should be submitted concurrently at the same time that the applicant submits the N-400 naturalization application with the USCIS. But USCIS does understand that sometimes this is not possible. Therefore, the USCIS may submit this form N-648 any time during the naturalization process, including after the initial application is filed but before the first interview, during the first interview, or during the re-interview, or even during the rehearing of a denied naturalization petition.

1.The USCIS interview officer will decide on the N-648 application at the time of the naturalization interview.

1. If the interviewing officer deems the information on this form to be sufficient, then the officer will ask the applicant questions in the applicant’s native language; the applicant may bring an interpreter along. The officer will not test the applicant on the educational requirements.
2. If the interviewing officer believes the form N-648 is complete, but the licensed medical professional who filled out the report states that the applicant is not able to comply with some of the educational requirements, the USCIS officer will go ahead and still give the test but test for other requirements.
3. If the applicant’s form N-648 is determined by the USCIS officer to be not sufficient, then the officer has to begin the test in English and ask the applicant all the English and civics questions.

1.Technically, there are no restrictions on how many times an applicant can apply for naturalization.

2.Even after passing the reading, writing, and civics portions of the naturalization test, the applicant must still pass the speaking portion of the test:

1. USCIS will review the submitted N-400 application by the applicant, and the USCIS officer will ask questions of the applicant to verify the answers given on the N-400 application are correct.
2. This is where the applicant must be able to understand the USCIS’s officer’s questions and also respond to the USCIS’s officer’s questions.
   1. It is okay for the applicant to ask the USCIS officer to repeat or rephrase questions during the interview.

• And for some applicants, due to age or time being in permanent resident, they are exempt from the English requirements, and they can even take the civics test in the language of their choosing.
• The applicant is also allowed to change his/her name as part of the naturalization process. By including the necessary information on the N-400 application, the USCIS officer at the time of the interview and take note of the name change request and ask the applicant to sign a ‘name change petition.’ The USCIS then files this with the court right before the judge administers the oath ceremony for the applicant (note: name change requests have to be done in a judicial ceremony setting, rather than an administrative setting).
• During the naturalization interview, the applicant should still bring original documents (such as any birth certificate, marriage certificate(s), divorce decrees, adoption papers, court orders/decrees, any child support payments, any police arrest reports, probation/parole records, etc.) to the naturalization interview. Copies of these types of documents should have also been included in the initial N-400 petition to start.
• For any lawful permanent resident who has already applied for naturalization and his/her I-551 lawful permanent resident/ ‘green card’ is expiring, the USCIS does usually ask the applicant to still apply for renewal of the expiring ‘green card.’ However, the actual enforcement/requirement of this policy may differ from district to district; some USCIS field offices may not be as strict on this point, while other USCIS field offices may be stricter on this. It is best to either check with the USCIS field office via Info pass appointment or seek consultation with immigration legal counsel to find out more about each district’s specific requirements.

For any questions about the U.S. immigration process, or anything else regarding immigration law, get in touch with our legal team at Pasricha & Patel. As expert U.S. immigration attorneys, we have been helping corporate clients and individuals fulfill their United States immigration needs since 1995. Our services cover the entire country with a focus in New York, New Jersey, North Virginia, Texas, and California.

To learn more about how we can help you, please click here or contact us by clicking here.