Category Government visitors

Words Commonly Used in Immigration Law

Immigration law is full of words and terms whose meanings are not obvious. We’ve used many of these words in this book and you may encounter others as you use additional resources. For help in unpacking their meanings, see the plain-English definitions below.

Accompanying relative. In most cases, a person who is eligible to receive some type of visa or green card can also obtain green cards or similar visas for immediate members of his or her family. These family members are called accompanying relatives, and may include only your spouse and unmarried children under the age of 21.

Advance Parole. See Parole, below.

Alien Registration Receipt Card. The

official name used in immigration law for a green card. The USCIS calls this document the I-551.

Asylum status. See Refugee and political asylee, below. People seeking political asylum status are in a different situation

from refugees, even though the basis for eligibility is very similar. Those applying for refugee status apply from outside the U. S., while potential asylees apply for asylum after having arrived in the united States (for example, on a tourist visa or after illegally crossing the U. S. border).

Attestation. Sworn statements that employers must make to the u. S. Department of Labor before they may petition to bring foreign workers to the United States. Attestations may include statements that the employer is trying to hire more U. S. workers, or that foreign workers will be paid the same as u. S. workers. Attestations are required only for certain types of employment-based visas.

Beneficiary. If your relative or employer files a petition on your behalf, you are a beneficiary. Almost all green cards as well as certain types of nonimmigrant visas require petitioners, and whenever there is a petitioner there is also a beneficiary. The word “beneficiary” comes from the

fact that you benefit from the petition by becoming qualified to apply for a green card or visa.

Border Patrol. The informal name for an agency called Customs and Border Protection (CBP), which, like usCIs, is part of the Department of Homeland security (DHs). Its primary functions include keeping the borders secure from illegal crossers and meeting legal entrants at airports and border posts to check their visas and to decide whether they should be allowed into the united states.

Citizen (U. S.). A person who owes allegiance to the u. s. government, is entitled to its protection, and enjoys the highest level of rights due to members of u. s. society. People become u. s. citizens through birth in the united states or its territories, through their parents, or through naturalization (after applying for citizenship and passing the citizenship exam). Citizens cannot have their status taken away except for certain extraordinary reasons.

Consular processing. The green card application process for immigrants whose final interview and visa decision will happen at a u. s. embassy or consulate in another country (outside the u. s.).

Consulate. An office of the u. s. Department of state located in a country other than the united states and affiliated with a u. s. embassy in that country’s capital city. The consulate’s responsibilities usually include processing visa applications.

Customs and Border Protection (CBP).

see Border Patrol, above.

Department of Homeland Security (DHS). A huge government agency created in 2003 to handle immigration and other security-related issues. Nearly all immigration-related departments and functions (including usCIs, CBP, and ICE) are under DHs control.

Department of Labor. (DOL) A u. s.

government agency involved with many types of job-related visas. It is the DOL that receives applications for labor certifications and decides whether or not there is a shortage of u. s. workers available to fill a particular position in a u. s. company.

Department of State. u. s. embassies and consulates are operated by the branch of the u. s. government called the Department of state (Dos). Generally, the DOs determines who is entitled to a visa or green card when the application is filed outside the u. s. at a u. s. embassy or consulate, while usCIs, under the Department of Homeland security, regulates immigration processing inside the united states.

Deportable. An immigrant who falls into one of the grounds listed at I. N.A. § 237, 8 u. s.C. § 1227, is said to be removable, or in the older legal

lingo, deportable. Such a person can be removed from the U. S. after a hearing in immigration court. Even a permanent resident can be removed or deported.

District office. one of 33 usCIs offices in the u. s. that serve the public in a specific geographical area. District offices are where most usCIs field staff are located. They usually have an information desk, provide usCIs forms, and accept and make decisions on some—but not all—applications for immigration benefits.

Diversity visa (the Lottery). A green card lottery program is held for persons born in certain countries. Every year (more or less), the Department of state determines which countries have sent the fewest number of immigrants to the u. s., relative to the size of the country’s population. A certain number of persons from those countries are then permitted to apply for green cards. Lottery winners are selected at random from qualifying persons who register for that year’s lottery. To enter, you must meet certain minimum educational and other requirements.

EAD. See Employment Authorization Document, below.

Embassy. The chief U. S. consulate within a given country, usually located in a capital city. The embassy is where the ambassador stays. Most embassies handle applications for visas to the united states.

Employment Authorization Document.

More commonly called a work permit, this is a card with a person’s photo on that indicates that he or she has the right to work in the united states. Green card holders no longer need to have an EAD.

Executive office of Immigration Review (eoir). see Immigration Court, below.

Expedited removal. The procedures by which officers at u. s. borders and ports of entry may decide that a person cannot enter the United States. (See I. N.A. § 235(b), 8 U. S.C. § 1225 (b).)

The officer can refuse entry when he or she believes the person has used fraud or is carrying improper documents. People removed this way are barred from reentering the U. S. for five years.

Fraud interview. A specialized USCIS interview in which one or both members of an engaged or married couple are examined to see whether their marriage is real, or just a sham to get the foreign-born person a green card.

Green card. Actually a slang name for an Alien Registration Receipt Card or I-551. We use the term green card throughout this book because it is familiar to most people. At one time, the card was actually green in color. Currently, the card is pink. Nevertheless, people all over the world continue to refer to it as a green card.

This plastic photo identification card is given to individuals who successfully become legal permanent residents of the United states. It serves as a u. s. entry document in place of a visa, enabling permanent residents to return to the u. s. after temporary absences. The key characteristic of a green card is its permanence. unless you abandon your u. s. residence or commit certain types of crimes or immigration violations, your green card can never be taken away. Possession of a green card also allows you to work in the u. s. legally.

You can apply for a green card while you are in the u. s. or while you are elsewhere, but you can actually receive the green card only inside u. s. borders. If you apply for your green card outside the u. s., you will first be issued an immigrant visa. only after you use the immigrant visa to enter the u. s. can you get a green card.

Those who hold green cards for a certain length of time may apply to become u. s. citizens. Green cards have an expiration date of ten years from issuance. This does not mean that the permanent resident status itself expires, only that the resident must apply for a new card.

I-94 card. A small green or white card given to all nonimmigrants when they enter the united states. (The green ones are given to people who enter on a visa waiver.) The I-94 card serves as evidence that a nonimmigrant has entered the country legally. Before the I-94 card is handed out, it is stamped with a date indicating how long the nonimmigrant may stay for that particular trip. It is this date and not the expiration date of the visa that controls how long a nonimmigrant can remain in the united states. A nonimmigrant receives a new I-94 card with a new date each time he or she legally enters the united states. Canadian visitors are not normally issued I-94 cards.

Immediate relative. If you are an immediate relative of a u. s. citizen, you are eligible to receive a green card. The government does not limit the number of immediate relatives who may receive green cards. The list of those who are considered immediate relatives is as follows:

• spouses of u. s. citizens. This also includes widows and widowers who apply for green cards within two years of the u. s. citizen spouse’s death.

• unmarried people under the age of 21 who have at least one u. s. citizen parent.

• parents of u. s. citizens, if the u. s. citizen child is over the age of 21.

Immigrant. Though the general public usually calls any foreign-born newcomer to the united states an immigrant, the u. s. government prefers to think of immigrants as only including those people who have attained permanent residence or a green card. Nearly everyone else is called a nonimmigrant, even if they are in the United States.

Immigrant visa. If you are approved for a green card at a u. s. consulate or u. s. embassy, you will not receive your green card until after you enter the united states. In order to enter the u. s., you must have a visa. Therefore, when you are granted the right to a green card, you will receive an immigrant visa. An immigrant visa enables you to enter the u. s., take up permanent residence, and receive a green card.

Immigration and Customs Enforcement (ICE). This agency of the Department of Homeland security handles enforcement of the immigration laws within the u. s. borders.

Immigration and Naturalization Service (INS). The name of the former u. s. government agency that had primary responsibility for most immigration matters. however, in 2003, the INs was absorbed into the Department of homeland security, and its functions divided between u. s. Citizenship and Immigration services (usCIs), Customs and Border Protection (CBP), and Immigration and Customs Enforcement (ICE).

Immigration Court. More formally known as the Executive office for Immigration Review or EoIR, this is the first court that will hear your case if you’re placed in immigration proceedings. Cases are heard by an immigration judge, who doesn’t hear any other type of case. usCIs has its own crew of trial attorneys who represent the agency in court.

Inadmissible. Potential immigrants who are disqualified from obtaining visas or green cards because they are judged by the u. s. government to be in some way undesirable are called inadmissible (formerly, excludable). The grounds of inadmissibility are found at I. N.A. § 212, 8 u. s.C. § 1182. Green card holders who leave the united states for six months or more can also be found inadmissible upon attempting to return. In general, most people are found inadmissible because they have criminal records, have certain health problems, commit certain criminal acts, are thought to be subversives or terrorists, or are unable to support themselves financially. In some cases, there are legal ways to overcome inadmissibility.

Labor certification. To get a green card through a job offer from a u. s. employer, you must first prove that there are no qualified u. s. workers available and willing to take the job. The u. s. agency to which you must prove this is the u. s. Department of Labor and the procedure for proving it is called labor certification.

Lawful permanent resident. see
Permanent resident, below.

Lottery. See Diversity visa, above.

National Visa Center (NVC). Located in Portsmouth, New Hampshire, and run by a private company under contract with the Dos for the purpose of carrying out certain immigration functions. The NVC receives approved green card petitions directly from usCIs or the Dos. In some cases, the NVC may hold onto these files for years, while the immigrant is on the waiting list for a visa. The NVC initiates the final green card application process by sending forms and instructions to the applicant and forwarding the file to the appropriate u. s. consulate abroad.

Naturalization. When a foreign person takes legal action to become a u. s. citizen. Almost everyone who goes through naturalization must first have held a green card for several years before becoming eligible for u. s. citizenship. They must then submit an application and pass an exam. A naturalized u. s. citizen has virtually the same rights as a native-born u. s. citizen.

Nonimmigrant. People who come to the u. s. temporarily for some particular purpose but do not remain permanently. The main difference between a permanent resident who holds a green card and a nonimmigrant is that all nonimmigrants must intend to be in the u. s. only on a temporary basis. There are many types of nonimmigrants. students, temporary workers, and visitors are some of the most common.

Nonimmigrant visa. nonimmigrants enter the u. s. by obtaining nonimmigrant visas. Each nonimmigrant visa comes with a different set of privileges, such as the right to work or study.

In addition to a descriptive name, each type of nonimmigrant visa is identified by a letter of the alphabet and a number. student visas, for example, are F-1, and treaty investors are E-2. nonimmigrant visas also vary according to how long they enable you to stay in the united states. For example, on an investor visa, you can remain for many years, but on a visitor’s visa, you can stay for only up to six months at a time.

Parole. This term has a special meaning in immigration law. It allows a person to enter the u. s. for humanitarian purposes, even when he or she does not meet the technical visa requirements. Those who are allowed to come to the U. s. without a visa in this manner are known as parolees. Advance Parole may be granted to a person who is already in the U. s., but needs to leave temporarily and return without a visa. This is most common when someone has a green card application in process and wants to leave the U. s. for a trip.

Permanent resident. A non-U. s. citizen who has been given permission to live permanently in the United states. If you acquire permanent residence, you will be issued a green card to prove it. The terms “permanent resident” and “green card holder” refer to exactly the same thing. Both words in the phrase “permanent resident” are important.

As a permanent resident, you may travel as much as you like, but your place of residence must be the u. s., and you must keep that residence on a permanent basis.

Petition. A petition is a formal request to usCIs that you be legally recognized as qualified for a green card or for some type of nonimmigrant visa. It is usually filed by an employer or family member (the petitioner) on behalf of an intending immigrant or visa applicant, to start off the application process. Paper proof that you do indeed qualify must always be submitted with the petition.

Petitioner. A u. s. person or business who makes the formal request that you be legally recognized as qualified for a green card or nonimmigrant visa. The petitioner must be your u. s. citizen relative, green card holder relative, or u. s. employer. No one else may act as your petitioner, though some categories of people may self-petition. Almost all green card categories and some types of nonimmigrant visa categories require you to have a petitioner.

Preference categories. Certain groups of people who fall into categories known as “preferences” are eligible for green cards only as they become available year by year, subject to annual numerical limits. The preferences are broken into two broad groups: family preferences and employment preferences. The number of green cards available each year to the family preferences is around 480,000 and the number available in the employment preferences is 140,000. The categories are:

• Family first preference. unmarried children (including divorced), any age, of u. s. citizens.

• Family second preference. 2A:

spouses and unmarried children under 21 years, of green card holders; and 2B: unmarried sons and daughters (over 21 years) of green-card holders.

• Family third preference. Married children, any age, of u. s. citizens.

• Family fourth preference. brothers and sisters of u. s. citizens where the u. s. citizen is at least 21 years old.

• Employment first preference.

Priority workers, including persons of extraordinary ability, outstanding professors and researchers, and multinational executives and managers.

• Employment second preference.

Persons with advanced degrees and persons of exceptional ability, coming to the u. s. to accept jobs with u. s. employers for which u. s. workers are in short supply or where it would serve the national interest.

• Employment third preference.

skilled and unskilled workers coming to the u. s. to accept jobs with u. s. employers for which u. s. workers are in short supply.

• Employment fourth preference. Religious workers and various miscellaneous categories of workers and other individuals.

• Employment fifth preference. Individual investors willing to invest $1,000,000 in a u. s. business (or $500,000 if the business is in an economically depressed area).

Preference relatives. A general term for a foreign relative of a u. s. citizen or green card holder as defined in the preference categories listed above. Preference relatives and immediate relatives are the only foreign family members of u. s. citizens or green-card holders who are eligible for green cards on the basis of their family relationships.

Priority Date. If you are applying for a green card in a preference category, your application is controlled by a quota. since only a limited number of green cards are issued each year, you must wait your turn behind the others who have filed before you.

The date on which you first entered the immigration application process is called the Priority Date. Your Priority Date marks your place in the waiting line. Each month, the u. s. Department of state makes green cards available to all those who applied on or before a certain Priority Date. You can get a green card only when your date comes up on the Dos list.

Public charge. This term is used in immigration law to refer to an immigrant who has insufficient financial resources and goes on welfare or other government assistance.

Qualifying relative. A general term for either an immediate relative or a preference relative. A qualifying relative is any person whose familial relationship to a u. s. citizen or green-card holder is legally close enough to qualify that person for a green card or other immigrant benefit, such as a waiver.

Refugee and political asylee. Persons who have been allowed to live in the u. s. indefinitely to protect them from persecution in their home countries. The difference between these two terms is that refugees receive their status before coming to the u. s., while political asylees apply for their status after arriving in the united states by some other means. Both may eventually apply for green cards.

Removal proceeding. Formerly deportation, carried on before an immigration judge to decide whether or not an immigrant will be allowed to enter or remain in the country. While, generally speaking, a person cannot be expelled without first going through a removal hearing, someone arriving at the border or a port of entry can be forced to leave without a hearing or ever seeing a judge. If an immigrant is found removable, he or she can be deported, or forced to leave the united states.

Service center. A usCIs office responsible for accepting and making decisions on particular applications from people in specified geographic areas. unlike usCIs district offices, the service centers are not open to the public; all communication must be by letter, with limited telephone or email access.

Special immigrant. Laws are occasionally passed directing that green cards be given to special groups of people. When it comes to visa allocation, special immigrants are considered a subcategory of employment – based visas, and receive 7.1% of the yearly allotment of 140,000 such visas. Common categories of special immigrants are workers for recognized religions, former u. s. government workers, and children dependent on a juvenile court.

Sponsor. When refered to for immigration purposes, usually means a petitioner. see Petitioner above.

Status. The name of the group of privileges you are given when you receive immigration benefits, either as a permanent resident or a nonimmigrant. Nonimmigrant statuses have exactly the same names and privileges as the corresponding nonimmigrant visas. A green-card holder has the status of permanent resident. Visas and green cards are things you can see. A status is not.

While you must be given a status with each visa, the reverse is not true.

If you want nonimmigrant privileges, you can get a nonimmigrant status by applying in the u. s., and you can keep that status for as long as you remain on u. s. soil. You will not, however, get a physical visa at the same time because visas can be issued only outside the united states. The theory is that since a visa is an entry document, persons already in the u. s. do not need them. This is important for nonimmigrants, because they can travel in and out of the u. s. on visas, but not with a status. Those with permanent resident status do not have the same problem, of course, because they have green cards.

If you have nonimmigrant status, but not a corresponding visa, you will lose your status as soon as you leave the united states. You can regain your privileges only by getting a proper nonimmigrant visa from a U. S. consulate before returning.

Temporary Protected Status (TPS). A

temporary status for persons already in the u. s. who came from certain countries experiencing conditions of war or natural disaster. TPs allows someone to live and work in the u. s. for a specific time period, but it does not lead to a green card.

U. S. consulates. simply branch offices of u. s. embassies. They are located all over the world. The u. s. government frequently operates both consulates and embassies in a single foreign country. Many consulates accept and process green card and visa applications.

U. S. embassies. Agencies that represent the u. s. government in other countries. The u. s. has embassies located in many countries around the world. Most u. s. embassies accept and process green card and visa applications.

Visa. A stamp placed in your passport by a u. s. consulate outside of the united states. All visas serve as u. s. entry documents. Visas can be designated as either immigrant or nonimmigrant.

Immigrant visas are issued to those who will live in the u. s. permanently and get green cards. Everyone else gets nonimmigrant visas. Except for a few types of visa renewals, visas cannot be issued inside u. s. borders, and so you must be outside the u. s. to get a visa.

Visa Waiver Program. Nationals from certain countries may come to the u. s. without a visa as tourists for 90 days. They can do so under what is known as the Visa Waiver Program. These countries currently include Andorra, Australia, Austria, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy,

Japan, Liechtenstein, Luxembourg, Monaco, the Netherlands, New Zealand, Norway, Portugal, san Marino, singapore, slovenia, spain, sweden, switzerland, and the united Kingdom. Persons coming to the u. s. on this program receive green-colored I-94 cards. They are not permitted to extend their stay or change their statuses, with very limited exceptions.

Work permit. see Employment Authorization Document, above. ■

image234

When You can Work Without Special Permission

Exchange visitors are permitted to work in the u. s. if the job is part of the par­ticular exchange program in which they are participating. Many J-1 programs, such as those for college and university professors or graduate medical students, are specifically created to engage the exchange visitor in employment. Others, like those for graduate students, often involve part-time employment in the form of teaching or research assistantships. The job may be located on or off the school premises. As long as the employ­ment is part of the program, no special work permission is required.

1. When You need Special Permission to Work

Working outside the bounds of your pro­gram often requires special permission, as described in the following subsections.

a. Practical Training

If your J-1 visa was issued for a study program, you may accept work that is not specifically part of the program but is related to the subject matter of your studies. This can include work that begins after your program is com­pleted (but no more than 30 days after) with an 18-month aggregate limit. Such employment is called practical training. You must have written permission from the responsible officer of your exchange visitor program to accept a practical training position. USCIS plays no role in granting permission for practical training.

b. Economic necessity

Remember that in order to get a J-1 visa, you must show that you have sufficient financial resources to support yourself while participating in an exchange visitor program. As we discussed earlier, such resources may be in the form of scholar­ships or salary earned for work that is part of or related to the program. However, if unforeseen financial problems arise after you arrive in the U. S., you may get work permission for employment that is unre­lated to your exchange visitor program if the employment will not adversely affect your ability to be a full-time participant in the program. There is no special applica­tion, but you must have written approval from the responsible officer of your ex­change visitor program.

Simultaneous change of Status If You’re already in the U. S

If you’re already in the U. S. in lawful status, such as on a student or other tem­porary visa, the petition can be used to ask your status the immediately changed to H-1B worker. (Part 2, Question 5 of Form I-129 offers choices addressing this issue.) You can’t, however, take advan­tage of this option if you entered the U. S. on a visa waiver, or using a C (alien in transit), TWOV (alien in transit without a visa), D (crewman), K-1 (fiance), K-2 (dependent of a fiance), J-1 (exchange visitor), or M-1 (vocational student) visa. You must have:

• entered the u. s. legally

• never worked in u. s. illegally, and

• not passed the expiration date on your I-94 card.

There is another problem that comes up only in u. s. filings. It is the issue of what is called “preconceived intent.” To approve a change of status, usCIs must believe that at the time you originally entered the u. s. as a visitor or with some other nonimmigrant visa, you did not intend to apply for a different status. If usCIs thinks you had a preconceived plan to use one visa to enter the u. s. with an eye to applying for a different status after getting there, it may deny your application. (You can get around the preconceived intent issue by leaving the u. s. and applying for your H-1B visa at a u. s. consulate in another country.)

Your spouse and children, if they are also in the u. s. with you, can’t change their status by being mentioned on your Form I-129, but must submit separate Forms I-539. They can submit these either at the same time your employer submits Form I-129, or afterward. (If they submit them afterward, however, they will need to include either a copy of the usCis receipt notice indicating that your petition is pending, or a copy of the peti­tion approval notice.)

О

Your eligibility to apply in the U. S.

has nothing to do with your overall eligibility for an H-1B visa. Many appli­cants who are barred from filing in the U. S., but otherwise qualify for H-1B status, may still apply successfully for an H-1B visa at a U. S. consulate in another country.

If you decide to apply for a change of status within the u. s., realize that you still don’t have the H-1B visa that you’ll need if you ever leave the u. s.—a change of status only gives you H-1B status. Visas are never given inside the united states. They are issued exclusively by u. s. consulates in other countries.

If you file in the u. s. and you are suc­cessful, you will get to remain in the u. s. with H-1B privileges until the status expires. But should you leave the coun­try for any reason before that time, you will have to apply for the visa itself at a u. s. consulate before returning to the united states. Moreover, the fact that your H-1B status has been approved in the u. s. does not guarantee that the con­sulate will also approve your visa. For these reasons, some people simply file through a consulate.

Employment for Accompanying relatives

Your accompanying spouse or minor children may apply to USCIS for permis­sion to work. However, they cannot get work permission if the money earned helps to support you, or is needed to support you. They are expected to use the money for such things as recreational and cultural activities and related travel.

If your accompanying spouse or chil­dren want to work, they must file separate applications for employment authorization. This can be done by completing the items on the checklist below and filing them with the usCIs service center nearest to where your program in the u. s. is being carried out (the address is on the usCIs website and the instructions to the form).

It is very important to keep the fee receipt usCIs will send so your family members can prove that the I-765 was filed (in case usCIs loses it).

usCIs is required to make a decision on employment authorization applications within 90 days. If the decision is in your accompanying relative’s favor, he or she will receive a work authorization card.

If the decision is not made within 90 days, your relative will, at his or her re­quest, be granted an interim employment authorization which will last for 240 days. To receive an interim card, your relative must visit a local usCIs district office and show the fee receipt. Then an interim work authorization card will be issued.

Once approved, the work permit will be valid for the duration of your (the J-1 principal’s), authorized stay as indicated on your Form I-94 or a period of four years, whichever is shorter.

Family Member Work Permit application checklist □ Form I-765 (Answer Question 16 "(c)(5)") □ Copies of I-94 cards. □ Two photos. □ Filing fee (currently $180). □ Biometrics fee if you haven't yet been fingerprinted for another immigration benefit (currently $70). □ Written statement explaining why the employment is for purposes other than supporting the J-1 visa holder, plus any supporting evidence regarding what's said in the statement. □ A monthly budget, detailing your sources of income and your expenses.

L. Annual Reports for Foreign medical Graduates

All foreign medical graduates training in the U. S. on J-1 visas are required to file annual reports with the usCIs lo­cal office having jurisdiction over their places of training. The reports are filed on Form I-644, which is self-explanatory. A copy of this form can be obtained from your program sponsor. Failure to file this report each year will result in the cancellation of your visa. ■

Assembling the Visa Petition

The checklist below will help you and your employer assemble the necessary items for the visa petition.

checklist

A few items on this checklist require some extra explanation:

Form I-129 and H Supplement. The

basic form for the visa petition is immi­gration Form I-129 and its H supplement. The I-129 form is used for many different nonimmigrant visas. In addition to the basic part of the form that applies to all types of visas, it comes with several sup­plements for each specific nonimmigrant category. simply use the supplement that applies to you.

The employer may choose to list more than one foreign employee on a single I-129 petition. This is appropriate if the employer has more than one opening to be filled for the same type of job. supplement-1, which is also part of Form I-129, should be completed for each additional employee.

Proof of specialty occupation. sometimes, as with positions for physi­cians, accountants, and similarly recog­nized professions, the highly specialized nature of the work is common knowl­edge. In such cases, the employment agreement will serve to prove both the existence and the level of the job. Where it is not evident that the position is a spe­cialty occupation, additional documents are required. Your employer should write out and submit a detailed description of all job functions, with an explanation of how advanced knowledge and educa­tion are essential to their performance. If it remains unclear that the job requires a high-level employee, your employer might need to get written affidavits from experts, such as educators in the field or other employers in similar businesses, stating that jobs of this kind are normally held by highly qualified and degreed in­dividuals.

Proof of employer’s ability to pay your salary. Your employer must be able to prove its existence and financial viability. If the employer is large and well known, it is usually enough to state the annual gross receipts or income, in the letter it submits describing the job oppor­tunity and duties. If the employer is very small, usCIs may request documents to verify the existence and financial sol­vency of the employer’s business. In that case, usCIs will specifically advise your employer of the documents it wishes to see, including tax returns, profit and loss statements, and the like.

Publicly held companies do not have to produce tax returns, accounting records, or bank statements. For them, annual reports of the past two years are accepted to prove ability to pay wages. Again, the larger the company, the less evidence the usCIs demands of its ability to pay additional salaries.

Special documents for physicians. Graduates of medical schools outside the U. S. or Canada may not get H-1B visas as practicing physicians unless they have passed the USMLE licensing exam or an equivalent exam and satisfy the state licensing requirements if they will provide direct patient care services. If
patient care will be provided, the phy­sician must also have an unrestricted license to practice in a foreign state, or have graduated from a u. s. medical school. Passing the exam, however, is not required of foreign medical graduates who come to the u. s. to work solely in teaching or research positions at a public or nonprofit institution. In those cases, any patient care activities must be inci­dental to the teaching or research func­tions.

Therefore, in addition to all other docu­ments required from members of the pro­fessions, the petitioning employer must submit either a certificate showing you have passed the usMLE or an equivalent exam, or a statement certifying that you will be employed as either a teacher or researcher and that any patient care will be undertaken only as part of the teach­ing or research. This written statement does not have to be in any special form but simply in the petitioner’s own words.

Foreign medical students attending medical school abroad may petition to be classified as H-3 trainees if the hospi­tal is approved by the American Medical Association or American Osteopathic Association. A hospital submits the peti­tion, for either a residency or internship, if the alien will engage in employment as an extern during his or her medical school training.