Publications

September, 2008

EXTENSIONS OF TEMPORARY STATUS

GREEN CARD EXTENSIONS (REPLACEMENTS)

For a replacement of a permanent resident card (green card) that expires every 10 years, the application passport photographs must be submitted. Even though a permanent resident seeks to enter the U.S. with an expired card, the Immigration Service will admit the applicant. While an application for a replacement is pending, the receipt of the application will serve as a replacement.

EMPLOYMENT AUTHORIZATION EXTENSIONS

If an authorization for work is about to expire, an application for extension made prior to the expiration date will enable the applicant to enjoy a 240 day extension for the following categories:
A-3, E.1/E.2, G-5, H.1, H.2A/B, H.3, I, J-1, L-1, 0-1/02, P.2-P.3.
A specialist (H-1) may change jobs by filing a new petition with a new employer provided the H-1B has not engaged in unauthorized employment

REENTRY PERMITS AND TRAVEL DOCUMENT

These permits are needed for permanent residents when they must stay outside the U.S. for more than one year or if they require a travel document. They must be applied for before departure and they are issued for 2 years. The Reentry Permit creates the presumption in favor of the holder that he/she has not abandoned residence in the U.S.
The 2 year permits cannot be renewed. However, the holder may return to the U.S. and apply for a new permit for another 2 years.

B VISAS

The B-1, B-2 visas need to have a foreign residence without an intent to abandon it to visit temporarily for business or pleasure. The normal admission is for 6 months with the right to apply for a 6 month extension. If a visitor visits the U.S. and immediately returns, an Immigration Officer may presume that the visitor intends to stay permanently, and as a result
may deny entry.

E VISAS

An E-1 is for an individual coming to do substantial trade between the U.S. and the individual’s treaty country. Trade consists of goods and services of which more than 51% must be between the U.S. and the person’s country.

An E-2 is for an investor who has invested or is actively in process of investing funds under the investor’s possession or control and that will be at risk. The investment may not be a passive investment: the investor must actively develop and direct the business. Spouses and children may have E visas if they are accompanying or following to join the principal alien.

The maximum time for an E visa is 5 years, but it may be less depending upon the treaty country’s reciprocity with the U.S. Renewals are continuous provided the principal alien is in compliance with the terms of admission.

F VISAS

This visa is for academic students who have a foreign residence without an intent to abandon their country, and who seek to enter temporarily to study at an established institution. The course of study must be full time.

The student is usually admitted 30 days before the course starts, but for need may be granted for 90 days before. Duration of stay is granted normally for the period required to complete the educational program. When the program ends, the student has 60 days to prepare for departure or to transfer to another school. If the student changes status to an H-1 and the numerical cap has been reached, the Commissioner may extend duration of status until the next fiscal year.
For practical training, a full time student completing at least one academic year, may receive one full year of optional practical training after completion of a Bachelor’s, Master’s or Doctoral program.

H-1s - SPECIALTY OCCUPATIONS

A specialty occupation requires a theoretical and practical application of specialized knowledge plus at least a Bachelor’s Degree in the specialty or its equivalent. The visa may first be granted for 9 three years. An extension of three additional years may be obtained at the maximum. The rule does not apply where the H-1 resides fewer than 6 months a year in the U.S. The H-1 may also be extended beyond the six year limit if a labor certification, a preference petition (I-140), or an adjustment application has been filed and 365 days or more have elapsed since the filing. Then the H visa may be extended in one year increments.

L-1 INTRACOMPANY TRANSFEREES

The L-1 must have been employed continuously abroad for one of the past three years by a parent, branch, affiliate, or subsidiary of a U.S. company before admission. The employment must be temporary, in a capacity that is managerial, executive or that requires specialized knowledge. The petition is approved for three years. If the company is newly formed in the U.S. the approval may be only for one year. For an extension of the L-1, in a newly formed company, it must be shown that the business can support a manager or executive, and that the company can demonstrate significant growth over the previous year. Extensions may be granted for managers or executives for a maximum of seven years and a maximum of five years for persons with specialized knowledge. If an employee with specialized knowledge becomes a manager or executive at least 6 months before the 5 years expires and the Immigration has approved the change, the employee may enjoy the benefit of the seven years. If an H or L qualifies for E status, a transfer to E status may be made and then the 5/7 years do not apply.

O VISAS

Aliens with extraordinary ability in the sciences, arts, education, business or athletics may be granted for a specified period but not for more than 3 years.

P VISAS - GROUP ENTERTAINERS & ATHLETES

This category is for an athlete individually or as part of a team that is internationally recognized or a person who performs with or is an integral or essential member of an entertainment group that is recognized internationally as outstanding for a sustained period of time and if a performer has had a sustained and substantial relationship with the group for at least one year.

Athletes may receive up to 5 years with an extension of up to 5 more. Petitions for a team may only be for one year. For an entertainment group, only a maximum of one year is granted.

R VISAS - MINISTER OR A PERSON WORKING IN A PROFESSIONAL
CAPACITY IN A RELIGIOUS VOCATION OR OCCUPATION

To obtain this status an applicant must have been a member of the religious denomination having a bona fide non-profit religious organization in the U.S.

Entry is available for a 5 year temporary status. The initial period is for 3 years and extensions may be granted for 2 more. After the 5 years, the R category requires that the person reside outside the U.S. for one year to be eligible again.

TPS TEMPORARY PROTECTED STATUS

TPS is available for foreign nationals if the Attorney General determines the applicant’s country is in an ongoing armed conflict and whose safety would be threatened if he/she returned there. A temporary protected status (TPS) applicant may apply for work authorization for one year and thereafter for annual extensions. A TPS holder may also be granted parole for foreign travel.

GREEN CARD EXTENSIONS (REPLACEMENTS

For a replacement of a permanent resident card (green card) that expires every 10 years, the application passport photographs must be submitted. Even though a permanent resident seeks to enter the U.S. with an expired card, the Immigration Service will admit the applicant. While an application for a replacement is pending, the receipt of the application will serve as a replacement.

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New York Immigration Lawyers > Immigration Publications > September 2008