MVP LAW GROUP – Immigration Q&A Forum, Friday, March 20, 2015

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Question #1 – General
What is the Visa Waiver Program? Is Portugal included in the VWP?

Answer #1
As provided on the Department of State website, The Visa Waiver Program (VWP) enables nationals of 36 participating countries to travel to the United States for tourism or business (visitor [B] visa purposes only) for stays of 90 days or less without obtaining a visa. The program was established to eliminate unnecessary barriers to travel, stimulating the tourism industry, and permitting the Department of State to focus consular resources in other areas. VWP eligible travelers may apply for a visa, if they prefer to do so. Nationals of VWP countries must meet eligibility requirements to travel without a visa on VWP, and therefore, some travelers from VWP countries are not eligible to use the program. VWP travelers are required to have a valid authorization through the Electronic System for Travel Authorization (ESTA) prior to travel, are screened at the port of entry into the United States, and are enrolled in the Department of Homeland Security’s US-VISIT program.

Yes, Portugal is a participating country in the Visa Waiver Program.

Question #2 – Employment Based Immigration
What is the difference between an EB-2 and an EB-3 classification for a Green Card?

Answer #2
The EB-2 preference classification is open to 3 types of foreign nationals: (1) Exceptional Ability in the Sciences, Arts or Business; (2) Advanced Degree Professionals; (3) Qualified Alien Physicians who will practice medicine in an area of the U.S., which is underserved.
The EB-3 classification includes aliens with at least two years of experience as skilled workers; professionals with a baccalaureate degree; and other workers with less skill who can contribute abilities unavailable in the U.S. Skilled workers should have at least two years’ experience, either through hands-on experience or through post-secondary education. Professionals should have either a U.S. bachelor’s degree or a foreign equivalent degree.

Question #3 – Family Based Immigration
I’ve read conflicting information on the internet; can you please clarify for me who is responsible for scheduling the Green Card Interview, my spouse or the Consulate itself?

Answer #3
The Consulate is responsible for scheduling the Interview and will send you notice of the date and time of the scheduled interview.

Question #4 – TN Visa
I am a Canadian citizen and wanted to work as a dentist in the US. Do I qualify for a TN Visa under the NAFTA regulations?

Answer #4
The position of Dentist is listed in Appendix 1603 of the NAFTA regulations. In order to be eligible, you would need the following: (i) present job offer from a U.S. employer; and proof that you have the following qualifications (ii) D.D.S., D.M.D., Doctor en Odontologia or Doctor en Cirugia Dental; or state/provincial license.

Question #5 – Employment Based Green Card
Can an employer file an I-140 for a beneficiary in multiple visa categories?

Answer #5
Yes, as long as there is a bona fide job offer behind each I-140 petition, and effective recruitment efforts were carried out to test the U.S. labor market for each case.

Question #6 – H-1B Nonimmigrant Visa
Can my spouse apply for an H-1B or does she have to apply for an H-4?

Answer #6
Your spouse may only apply for an H-1B if she has a U.S. employer willing to sponsor her H-1B temporary work visa. Otherwise, if she does not have a bona fide offer of employment from a U.S. employer willing to sponsor her, then, yes in order to accompany you and stay with you in the U.S., she would need to apply for an H4 visa. Individuals in H4 dependent visa status are NOT authorized for employment, they are NOT allowed to work.

Question #7 – H1B Nonimmigrant Visa
Can I still work if my H1B extension has been filed, but the USCIS still has not processed my application yet? My H1B visa has just expired.

Answer #7
Under regulation 8 C.F.R.§274a.12(b)(20), a person lawfully employed under A-3,E-1,E-2,E-3,G-5, H-1B, H-2A/B, H-3, I, J-1, L-1, O-1/O-2,P-1/P-2/P-3, R or TN status who timely files an application for extension consistent with 8 C.F.R.§214.1, is automatically given 240 days from the date of expiration.

Question #8 – General
I am from Jamaica and have always wanted to live and work in the United States. My friend and I thought about applying for work at Disney World. What kind of Visas would we need?

Answer #8
You would need to speak with a Representative at Disney World, as they have several international exchange programs available for international applicants. They have a J1 Cultural Exchange Program that may suit your needs.

Question #9 – Deferred Action for Childhood Arrivals (DACA)
I think I am eligible under DACA. Do you think given the potential risks, I should file my application with USCIS?

Answer #9
Only YOU can make the decision of whether or not to file your application. I would recommend that you speak with a qualified Immigration Attorney first to discuss your eligibility and the risks involved in submitting a DACA Application to the USCIS.

Question #10 – Temporary Nonimmigrant Work Visas
Can a Canadian native apply for an H-1B? Or do they only qualify for a TN Visa?

Answer #10
Anyone may apply for an H-1B nonimmigrant work visa so long as they meet the educational requirements. Only Canadians citizens and Mexican citizens may take advantage of the TN visa.

MVP Law Group would like to thank everyone who contributed a question or comment.

Our next “Immigration Q & A Forum” is scheduled for Friday, April 3, 2015!

Please remember to submit your questions/comments on our H1B Visa Lawyer blog!