245(i) Section of the immigration law enabling qualifying persons to file for adjustment of status in the U.S., despite certain problems with their immigration status. Though expired, Section 245(i) has a “grandfather clause” which continues 245(i) benefits for persons who had employment or family-based petitions or labor certifications filed on or before a specified deadline. [Please search “Section 245″ on MurthyDotCom for relevant details. Note: Section 245(i) does not permit one to remain in the U.S. in expired status. However, for those who qualify, 245(i) provides the opportunity to retroactively cure the status problem at the time of filing for adjustment of status. Also, 245(i) is not an amnesty; it merely allows the final paperwork for the normal green card procedure to be submitted within the U.S. instead of abroad.
AC21 (also, ACTA) The American Competitiveness in the Twenty-First Century Act. Enacted in October 2000, AC21 introduced many changes, including but not limited to (a) H1B portability allowing certain H1B workers to begin work for the new employer upon filing the petition, rather than waiting for approval; (b) ability to extend the H1B beyond 6 years if the employment-based green card process began at least a year before the end of the 6th year and is currently ongoing; (c) ability to have the I-485 approved for a new employer if job is similar and I-485 has been pending 180 days.
Adjustment of Status (also, AOS or I-485) One of two possible final stages of the green card process involving the filing of paperwork with the USCIS in the U.S.; the other possible final stage being CP. In most immediate relative FB cases, the I-130 immigrant petition is filed simultaneously with the I-485 adjustment of status; sometimes attorneys refer to this procedure as a “one-step.” In contrast, most EB cases have three stages: labor certification, I-140, immigrant petition, and adjustment of status. [More information on USCIS forms, such as the I-485, I-130, and I-140, can be found on the USCIS WebSite, accessible through our Forms page.] Note: Some people may be legally precluded from AOS, but are still eligible for CP. Others may have issues that prevent them from traveling, or that may be more difficult to resolve from abroad, making AOS the better choice in such situations. Every case is different and there are many factors to consider. AC21 has also created additional AOS-related benefits.
Admission Being allowed into the country in a particular status following inspection by a CBP inspector at a port of entry. Admission is one of two forms of legal entry to the U.S., the other being parole. For nonimmigrants, that status and the expiration date of one’s authorized stay are indicated on the I-94 card. A person admitted as an immigrant (permanent resident) does not normally get an I-94 card but does get an entry stamp in his/her passport. (See also, parole and advance parole.)
Advance Parole (also, AP) A travel document authorizing one, in certain situations, to return to the U.S. from a trip abroad – most commonly, when one has an AOS application pending. Advance parole can also be granted in some circumstances to a person who is going abroad to a third country in order to process an immigrant visa, and in other special situations. (See also, parole.)
Affidavit of Support Term used to describe two USCIS forms that have the purpose of pledging financial support to the foreign national. Form I-864 is used in FB green card cases and those EB cases in which the company is owned by the beneficiary’s relative. For other situations, Form I-134 is used; e.g. for the derivative spouse in an EB case or for a visitor visa <see Visit USA section on MurthyDotCom> applicant.
Allied Health Care Professional (AHCP) Term used for the class of health care workers subject to the requirement of VisaScreen Certification. The USCIS, in consultation with the Department of Health and Human Services, has designated seven categories of such health care workers: nurses; physical therapists; occupational therapists; speech language pathologists & audiologists; medical technologists (also known as clinical laboratory scientists); medical technicians (also known as clinical laboratory technicians) and physician assistants.
Amnesty A relatively generous program to forgive a violation of law, in general legal terms. For example, tax amnesties enable persons who have failed to pay taxes to come forward and pay back taxes without penalty. In the immigration context, most resembling amnesty has been the 1986 legalization program. People qualified based upon specific eligibility criteria, including having been present in the U.S. as of a certain date. Note: Some opponents of immigration, have incorrectly characterized 245(i) as an amnesty. However, 245(i) does not protect one from removal. Instead, it provides an opportunity to cure a status problem after-the-fact. It requires one complete the usual, employment-based or family-based green card process. Conversely, an amnesty would only involve an application from the individual, similar to the legalization program.
Appeal The official process of requesting one’s case be reviewed again if the application or petition is denied. An appeal may be of either an administrative or judicial decision. However, some administrative decisions are not eligible for appeal, although it may be possible to file a Motion to Reconsider or Motion to Reopen.
Application The paperwork itself or the act of submitting the formal request filed by a person on his or her own behalf. In contrast, a petition is filed by a person or a company on behalf of someone else.
Asylum A safe haven provided for one who cannot return to the home country because of a “well-founded fear of persecution” based upon race, religion, ethnicity, political opinion, or membership to a particular social group. While it is not permanent residency, a person who is granted asylum may be able to file for adjustment of status after one year. The asylum application process is complex, and there are time limits for applying.
Beneficiary One for whom a petition is filed. A beneficiary can either be the principal (direct) beneficiary, or a derivative (dependent of the principal).
BCIS Renamed the USCIS. See U.S. Citizenship and Immigration Services.
Bureau of Citizenship and Immigration Services (CIS) Government agency later renamed the U.S. Citizenship and Immigration Services (USCIS), which falls under the U.S. Department of Homeland Security. USCIS is responsible for determining eligibility for immigration benefits inside the United States.
Bureau of Immigration and Customs Enforcement (ICE) Renamed the U.S. Immigration and Customs Enforcement.
Cancellation of Removal (also, cancellation) A form of relief for one facing removal proceedings to either retain current lawful permanent resident status or obtain permission to remain in the United States and, ultimately, become a lawful permanent resident. Cancellation of Removal (formerly Suspension of Deportation) is based on highly stringent criteria that vary according to whether one is already a permanent resident. There is also a special program for battered spouses and children. Note: General criteria for a person who is not a permanent resident are: (a) must have been in the U.S. for ten years, (b) must be a person of good moral character, and (c) must show that removal from the U.S. would cause exceptional and extremely unusual hardship to a USC or LPR spouse, parent, or child. Establishing exceptional and extremely unusual hardship is very difficult. Note also that hardship to the applicant him- or herself is not considered. The decision is made by an Immigration Judge after careful review of all the facts in a trial-type hearing.
CBP See U.S. Customs and Border Patrol
CGFNS (Commission on Graduates of Foreign Nursing Schools) A non-profit, independent credentialing organization established to ensure that the credentials of foreign-born health care professionals meet the professional standards required to practice in the U.S. The CGFNS offers fee-based services for the purpose of evaluating the equivalency of academic credentials and the validity of professional licenses issued to foreign-born health care professionals.
CGFNS Certificate A documentation awarded after the successful completion of the CGFNS Certification Program. The Program is designed specifically for first-level, general nurses educated and licensed outside the United States who wish to assess their chances of passing the U.S. registered nurse licensing exam, the NCLEX-RN® examination, and attaining licensure to practice as registered nurses within the United States. The program is comprised of three parts: a credentials review of the nurse’s education, registration and licensure; the CGFNS Qualifying Exam, a one-day qualifying exam testing nursing knowledge; and an English language proficiency exam.
Change of Status (COS) Application by an individual to USCIS for a change from one nonimmigrant status to a different nonimmigrant status.
Child Status Protection Act (CSPA) In limited circumstances this provision of the law permits an unmarried individual to remain classified as a child, despite her/his turning 21 years old. In general, the length of time that the immigrant petition of the child’s parent was pending is subtracted from the age of the child at the time when the parent’s visa number becomes available. Note: The CSPA formula does not apply to every person and there are different requirements depending on whether the case is employment or family based and whether the parents and child are inside or outside of the United States during the process. Every case is different and an attorney should be consulted to determine if the child is protected.
CIS See U.S. Citizenship and Immigration Services
Citizenship See Naturalization
Concurrent Filing Allows the filing of an I-485 Adjustment of Status application at the same time as an immigrant petition or to join an already pending immigrant petition that has not been approved. Concurrent filing is available for I-130 petitions for immediate relatives of U.S. citizens and I-140 immigrant petitions where the priority date is current.
Conditional Permanent Resident (PR) Status Provisional approval for the green card based upon a marriage of less than two years to a U.S. citizen, or based upon the EB5 investor category. Two years afterward, it is necessary to file further paperwork with USCIS to “remove the condition.” Note: In the marriage-based situation, that documentation needs to show that the parties had a good-faith intent to establish a life together when they married. If the couple is still together, generally the case is considered based upon documentation alone and without an interview. If there has been a divorce, or there is an abuse situation, it may be possible for the foreign spouse to apply individually to remove the condition, and s/he will be questioned in detail at an interview. For EB5 investors to remove the condition, it is necessary to show that one has followed through on the required investment and establishment of the company, the hiring of U.S. workers, etc.
Consular Processing (CP) Occurs when the final processing of an immigrant or nonimmigrant visa takes place at a U.S. consulate abroad. For persons with certain types of status problems, consular processing has significant risks imposed by the 1996 immigration law, mainly the prospect of being barred for three or ten years from reentering the United States.
Credentials Evaluation Service Report (CES) A document required by some state boards of nursing in order to receive a state registered nursing license. The CES Report, prepared by the CGFNS, analyzes the academic credentials and licenses of foreign-born health care professionals.
Deferred Inspection The process of allowing a person into the U.S. on a provisional basis, requiring him/her to return to the Port of Entry (POE) at a later date with specific additional documentation demonstrating admissibility. This process is invoked if it is unclear to the Inspector at the POE whether the individual is eligible to enter the U.S. but it is believed the necessary information could be obtained after s/he reaches the U.S.
Deportation Generally refers to the removal of a foreign national from a country after a hearing before an Immigration Judge. After the enactment of the Illegal Immigration and Immigrant Responsibility Act of 1996, deportation was replaced with removal proceedings.
Derivative Beneficiary See beneficiary.
Derivative Citizenship Generally grants U.S. citizenship to the LPR child of a U.S. citizen parent (by birth or naturalization), in a case where the child resides in the U.S. under the legal and physical custody of the U.S. citizen parent. Note: Different criteria can apply depending on the specific situation. One should consult an attorney to determine eligibility for derivative citizenship.
DHS See U.S. Department of Homeland Security
Diversity Visa (Lottery) A U.S. immigration program the purpose of which is to increase the proportion of immigrants from countries with low rates of emigration to the U.S. People from high admission countries are therefore ineligible. Applications are submitted to the U.S. Department of State (DOS) according to guidelines and winners are chosen by random selection. Lottery winners then apply for AOS or CP to obtain the green card. However, the lottery is only valid for the fiscal year in which the selection is made, and applicants may run into problems if the USCIS or the consulates are unable to approve these applications before the end of the fiscal year, rendering the Diversity Visas no longer available.
DOL See U.S. Department of Labor.
DOS See U.S. Department of State.
Dual Citizenship Condition under which an individual is recognized as citizen by more than one country. While the U.S. generally does not recognize dual citizenship, there may be various situations in which another country considers a U.S. citizen to also be a citizen of that country. For example, a child born in the U.S. is a U.S. citizen until s/he voluntarily renounces that citizenship upon reaching the age of majority. But the country of his/her parents’ citizenship may also consider him/her to be their citizen, and s/he may have obtained a passport or other documentation from that country. Under that country’s law, there may also be particular requirements as to how to retain or renounce that citizenship.
Dual Intent A doctrine that permits a nonimmigrant to have both the intent to leave (nonimmigrant) and the intent to remain permanently (immigrant) at the same time, allowing extension of nonimmigrant status even after the filing of AOS. USCIS currently only recognizes dual intent for certain visa categories. Note: Although the dual intent doctrine permits extension of status, it does not necessarily permit travel while the AOS application is pending. AOS applicants should always consult their attorneys to determine whether they are permitted to travel.
Duration of Status (D/S) Indication on the I-94 card for an F-1 or J-1 visa holder instead of a fixed expiration date. The USCIS regulations define duration of status for F-1s as the period of study (as indicated on the I-20) plus any authorized optional practical training period (as indicated on the employment authorization document) plus a 60-day grace period. For J-1s, it is the duration of the program as indicated on the DS 2019 (formerly IAP-66), plus a 30-day grace period.
Employment-Based (EB) Immigration General term for the permanent residency (green card) process in any category that relates to employment. It includes the usual employer-sponsored process as well as special categories, such as Extraordinary Ability, that are based upon the individual beneficiary’s achievements. Also included is the special immigrant category (i.e. religious workers, EB4), and persons obtaining the green card through investment in and creation of a business in the U.S. (EB5). EB1, EB2, and EB3 are most common preference categories.
E-1/E-2 Treaty Trader / Investor These two visa categories are based upon the existence of a commercial treaty between the U.S. and the applicant’s country of nationality. Some of the treaties allow for both E-1 and E-2, while others allow for only one of the two. E-1 is for those conducting substantial trade in goods and/or services between the U.S. and the country of nationality. E-2 is for a person who has invested in an active business in the U.S. Note that the person as an individual can be carrying out trade or investment activities, or the person can be a key employee of a company that is engaged in such activities. Note: There are specific definitions for such terms as “substantial trade,” and specific requirements for the nature and source of the investment, the nationality of a company, etc. Generally detailed financial information must be disclosed when applying for an E visa. (The list of participating countries changes often as new treaties enter into force. There are about 70 qualifying countries, – India not being among them.)
E-3 Visa Although grouped in the same category as the E-1 and E-2 visas, and carrying the same conditions of stay, the E-3 has very different requirements. The E-3 is a nonimmigrant work visa limited to Australian citizens for employment in specialty occupations. The E-3, in many respects, is similar to the H1B visa, however, the E-3 permits dependents and spouses to work.
EB1 (also Priority Workers) Employment-based permanent residency category consisting of three distinct subcategories: persons of extraordinary ability (EA); outstanding professors and researchers (OPR); and multinational executives and managers. EA does not require sponsorship, but is limited to persons considered internationally to be at the top of their respective fields. OPR also requires international recognition and an employment sponsor. The criteria for both EA and OPR are quite high. The regulations set forth various types of evidence that can be used as proof of one’s high standing. The multinational executives and managers category is similar to the L-1 nonimmigrant category.
EB2 Employment-based permanent residency category requiring either an advanced degree (master’s degree or equivalent) or what is known as “exceptional ability.” EB2 is utilized for two distinct types of cases. The more common type is that of professionals in jobs requiring advanced degrees, who are being sponsored through the usual employer-sponsored process requiring Labor Certification. The other type is the National Interest Waiver (NIW), which involves requesting a waiver of the labor certification requirement based upon the person’s significant contributions to his/her field of expertise.
EB3 Employment-based permanent residency category consisting of three distinct subcategories: professionals in jobs requiring Bachelor’s degrees; skilled workers in jobs requiring at least 2 years of experience; and “other workers” (also referred to as unskilled workers). All of these categories require Labor Certification. At the time of this writing, there is an annual limit of 10,000 for other worker visa numbers that has created a severe backlog in that category.
EB5 Investor green card enabling a person who invests one million U.S. dollars ($500,000 in certain low-employment areas targeted for development) in creating or reorganizing an active U.S. business that will employ ten U.S. workers. The criteria for qualifying are quite strict, very detailed, and one is initially granted the green card only on a conditional basis. Note: There are specific requirements for the source and nature of the investment. Since about 2000, USCIS has been scrutinizing these applications extremely carefully. Owing to the difficulty in qualifying, not many people apply.
Employer Sanctions Civil and possible criminal penalties for knowingly employing, continuing to employ, or referring for a fee, persons who are unauthorized to work as established under the 1986 Immigration Reform and Control Act (IRCA). For all employees, it is necessary for the employer to comply with employment verification procedures by completing USCIS Form I-9.
Employment Authorization Document (EAD) A work permit issued by USCIS to qualifying individuals after application. Employment authorization can only be granted if there is a relevant provision of law for that category, i.e. individuals with pending AOS or asylum applications, students who have been authorized for practical training, certain dependent visa (J-2, L-2) holders, persons granted temporary protected status (TPS), etc.
Employment Verification Process required of employers to confirm the legal employment status of all hires within three business days. In order to comply with this requirement, it is necessary to complete USCIS Form I-9 and to require the employee to show the documentation listed on the I-9. There are various documents, or combinations of documents, that may qualify according to the instructions on the form. Employers may not express a preference for one type of qualifying document over another; such a practice may constitute unlawful discrimination.
Entry Without Inspection (EWI) The act of illegally entering the United States without inspection (examination of passport and entry document / visa by an immigration officer). All time spent in the U.S. after EWI is unlawful presence and an EWI foreign national generally is inadmissible unless s/he qualifies for a specific form of relief, such as §245(i).
EOIR See Executive Office for Immigration Review.
Exchange Visitor Category of J-1 visa holder sponsored by U.S. Department of State (DOS)
Exchange Visitors Skills List The U.S. Department of State (DOS) has identified specific fields that involve skills and knowledge that certain countries require. If a J-1 program involves one of those identified fields for an individual’s home country, s/he will be subject to the two-year home residency requirement.
Executive Office for Immigration Review (EOIR) Agency within the Department of Justice that incorporates both Immigration Judges presiding over removal proceedings and the Board of Immigration Appeals (BIA).
Foreign Residency Requirement See Home Residency Requirement.
Family-Based (FB) Immigration Permanent residency (green card) process that is based on the relationship to a relative who is a U.S. citizen (USC) or lawful permanent resident (LPR). USCs can petition for their spouses, children of any age whether married or unmarried, siblings, or parents. LPRs can petition for their spouses and their unmarried children of any age. Family-based beneficiaries, other than immediate relatives, are subject to an annual quota or limit that can require them to wait many years, depending upon the category. (See also, Priority Date.)
Fiancé/e Visa (K-1) Special visa for one who is engaged-to-be-married to a U.S. citizen (USC). The USC first files a petition with a USCIS Service Center in the U.S. and the beneficiary is then interviewed at the consulate abroad. Though a nonimmigrant visa, the K-1 visa acts as an immigrant visa in that it enables one to enter and settle in the U.S. The process at the consulate is similar to that used for an immigrant visa, including medical exam. Within 90 days of the K-1 visa holder’s arrival, s/he is required to marry the USC. S/he can then file the remaining paperwork for the green card. If, for any reason, the marriage does not happen, the K-1 visa holder must leave the U.S.
Green Card Synonym for the lawful permanent resident card, which is evidence of lawful permanent resident (LPR) status. The term comes from the former practice of issuing cards that were green in color. If one files for adjustment of status (I-485), then s/he becomes an LPR upon approval of that application. If one goes through consular processing, then s/he becomes an LPR from the time when s/he enters the U.S. with the immigrant visa from the consulate. <See Green Card Section on MurthyDotCom.>
H1B The most commonly used type of temporary work visa. To qualify for the H1B, the position must require at least a bachelor’s degree in a related field and one must have earned that degree or its equivalent. Although there is no list of specific occupations, the H1B is intended for professional positions, i.e. teachers, accountants, computer professionals, physicians, therapists, market research analysts, financial analysts, and architects. The employer files a petition on the individual’s behalf and, on that basis, the individual is either granted the H1B status or issued an approval for Consular Processing. <See also, H1B Status Issues article on MurthyDotCom.>
H1B Cap An annual limit on the number of new H1B visas that can be granted in each fiscal year. There are certain types of sponsors that are exempt from the annual cap and the first 20,000 (at the time of this writing) beneficiaries who have earned masters’ (or higher) degrees from U.S. institutions are exempt from the cap.
Home Residency Requirement (HRR) The requirement for certain J visa holders to return to the last previous country of residence for a minimum of two years before eligibility (with certain exceptions) to change status, adjust status, or apply for an immigrant visa as stipulated under section 212(e) of the Immigration and Nationality Act. This requirement applies to any individual whose program was funded, at least in part, by a U.S. government agency or the home country of the individual; to any individual participating in graduate medical training; and to programs involving a filed of study listed in the Exchange Visitor’s Skill List for her/his home country. Note: If one is subject to the HRR, a waiver may be possible under certain circumstances.
ICE See U.S. Immigration and Customs Enforcement
ICHP (International Commission on Healthcare Professions) A division of CGFNS that administers the VisaScreen Certification Program
IELTS (International English Language Testing System) An examination which provides a complete assessment of English reading, writing, and speaking proficiency. The IELTS is jointly administered by the University of Cambridge ESOL (English as a Second Language) Examinations, the British Council, and IDP Education Australia, and is offered throughout most regions of the world. The IELTS is one of the approved exams that satisfies the spoken and written English language proficiency requirements for obtaining a CGFNS Certificate and VisaScreen Certification.
Illegal Immigration and Immigrant Responsibility Act of 1996 (IIRIRA) Legislation that created a series of major changes in immigration law, including the shift from deportation proceedings to removal proceedings.
Immediate Relative The parent, spouse, or child (under 21) of a U.S. citizen. Immediate Relatives are not subject to any immigration quotas. In contrast, other relatives such as adult children of citizens or relatives of permanent residents may have to wait many years for their priority dates to become current.
Immigrant Visa (IV) A permanent visa issued at a consulate. Upon entering the U.S. with the IV packet from the consulate, one is admitted as a Lawful Permanent Resident (LPR).
Immigrant Intent All visitors to the U.S. are presumed to have the intention to remain permanently, unless they demonstrate otherwise.
Immigration Information Officer (also, IIO) The person one reaches by phone when calling a USCIS Service Center. Those at the information counter at a local District Office of the USCIS may also be known as IIOs.
Immigration and Naturalization Service (INS) The federal government agency with the primary responsibility for immigration issues until March 1, 2003. Now referred to as Legacy INS, all duties formerly performed by this agency are now carried out by government agencies under the U.S. Department of Homeland Security (DHS), including but not limited to the U.S. Citizenship and Immigration Services (USCIS), U.S. Customs & Border Protection (CBP), and Immigration and U.S. Customs Enforcement (ICE). The U.S. Department of State (DOS) and the U.S. Department of Labor (DOL) also have key immigration-related responsibilities.
Immigration Judge (also, IJ) Administrative judges who make decisions in immigration proceedings, including bond determinations and removal proceedings.
Inspection The process by which a person is questioned, and his or her documents are examined, at a Port of Entry (POE) to the U.S. In order to enter the U.S. legally, one must be inspected and either admitted or paroled. (See also definitions of Admission, Deferred Inspection, Inspector, and, Parole.)
Inspector The CBP officer conducting the check or Inspection. One encounters inspectors at airports as well as at land borders.
Interfiling Procedure allowing an applicant to change the I-140 petition upon which the I-485 is based in order to proceed through a new or different I-140 petition for the same beneficiary.
I-94 Card (also, Arrival / Departure Record) Official record indicating the date of entry / extension / change, the status in which one is admitted and the expiration date of that status. The I-94 can either be the small card, generally white, that was issued at the Port of Entry (POE) or, if the person changed or extended status in the U.S., the latest I-94 would be attached to the bottom of a USCIS Approval Notice (I-797). Visa Waiver Program travelers obtain a green I-94W. Lawful Permanent Residents (LPRs) and U.S. citizens receive stamps in their passports, but are not issued I-94s.
I-797 A USCIS notice that can be a Receipt Notice, an Approval Notice or a Request for Evidence (RFE), though people typically use the term to refer to the Approval Notice, specifically.
J-1 Exchange Visitor nonimmigrant visa. J-2 is the dependent classification.
K-1 Fiancé/e visa. K-2 is the dependent classification.
K-3 Nonimmigrant visa permitting the spouse of a U.S. citizen who is the beneficiary of a currently-pending I-130 immigrant petition to come to the United States.
Labor Certification (LC) (now commonly referred to as PERM) A competitive recruitment process for determining that there are not enough able, willing, and qualified U.S. workers for a specific position. Labor Certification is the necessary the first step for most Employment-Based permanent residency cases.
Labor Condition Application (LCA) A form filed by the H1B employer with the U.S. Department of Labor (DOL) as part of the H1B petition process, making several attestations or promises. The employer agrees to pay the H1B employee the greater of (a) the actual wage paid to U.S. workers in the same position with the employer or (b) the prevailing wage for the position in that local area. The employer promises to provide the same working conditions to H1B workers as to U.S. workers, that there is no strike or work stoppage, and that notice of the LCA has been posted at the worksite. A copy of the LCA must also be given to the H1B worker. For employers defined as “H1B dependent” there are additional attestations with regard to recruitment and displacement of U.S. workers.
Lawful Permanent Resident (LPR; also, green card holder) One having the right to reside permanently and work in the U.S. Unlike a U.S. citizen, however, an LPR does not have the right to vote and can be removed (deported) if, for example, convicted of certain crimes.
Legacy INS Term used in reference to the Immigration and Naturalization Service (INS), prior to its being replaced by the United States Citizenship and Immigration Services (USCIS), following the enactment of the Homeland Security Act of 2002.
Mandamus A command (writ) from a court having jurisdiction requiring and entity take action where the court has determined that the entity has a duty to act in some manner.
Motion to Reconsider Formal request that the relevant decision maker take another look at a case if an application or petition, or relief in immigration proceedings is denied with a legal error in the decision. In the Motion to Reconsider it is necessary to explain why one believes that the decision to deny the case was incorrect under the law.
Motion to Reopen Formal request that the relevant decision maker take another look at a case if an application or petition, or relief in immigration proceedings is denied with a legal error in the decision. The Motion to Reopen is requested based upon additional evidence or information that was not available previously. In the Motion it is necessary to explain why one believes that the new information should change the outcome of the case.
Multinational Manager / Executive Transfer Available as both a nonimmigrant (L1A) and immigrant (EB1) visa for an individual who was a manager / executive overseas and is coming to the United States to work in a manager / executive position for a parent, subsidiary, or affiliate of that overseas employer.
NCLEX-RN® Examination (National Council Licensure Examination for Registered Nurses) A national licensure examination that tests the knowledge, skills, and abilities required for the safe and effective practice of nursing at the entry level. The NCLEX-RN® Examination is one of the components used by state boards of nursing to make decisions about licensure. The exam is only administered in the United States and its territories.
National Council Licensure Examination for Registered Nurses See NCLEX-RN® Examination.
National Interest Waiver (NIW) A green card category that requests a waiver of the Labor Certification (LC) requirement, based upon the beneficiary’s significant contributions to her/his field of expertise. The NIW comes under the EB2 category of employment-based immigration, and therefore it requires an advanced degree or exceptional ability. In addition, there must be extensive proof as to why the person’s presence in the U.S. is in the national interest, based upon the importance of her/his contributions to U.S. society. The NIW is one of two categories allowing one to self-petition for the employment-based green card. Note: The NIW criteria became more strict in 1998, but the Murthy Law Firm continues to obtain approvals for clients in this category.
Naturalization The application process by which one not a citizen by birth may become a U.S. citizen (USC). The basic criteria for naturalization are (a) Lawful Permanent Resident (LPR) status for 5 years (3 years if married to USC); (b) at least 18 years old; (c) physically present for half of the 5-year (or 3- year) period; (d) maintenance of U.S. residence with no lengthy trips abroad; and (e) good moral character.
Nonimmigrant A person who legally enters the United States on a temporary basis in a specific class (i.e. visitor, student, worker). Many categories, such as visitor and student (not H1B or L-1), require one to show s/he has nonimmigrant intent. Under the law, one is presumed to be an immigrant unless s/he proves otherwise. It is this rule that makes it difficult to obtain tourist and student visas at consulates.
Nonimmigrant Visa (NIV) A visa stamp in the passport authorizing one to come to the U.S. on a temporary basis. The particular nonimmigrant category is specified on the visa. Please note that a visa is not a guarantee that one will be permitted to enter. At the time of entry, the foreign national is inspected by a CBP officer who determines the applicant’s eligibility for admission in the visa category.
No Objection Letter A possible waiver available to certain J-1s subject to the Home Residency Requirement (HRR) if the home country does not object to their remaining in the U.S. The “no objection” waiver is not available to persons in the U.S. for graduate medical training. The no objection type of waiver is the least complex of all the HRR waivers. One contacts his/her home country consulate in the U.S. to request the no objection letter, which will be submitted directly to the Department of State by that consulate. (See also, Waiver.)
Notice to Appear (also, NTA) Document that places a person in removal proceedings. Once the USCIS files this document with the Immigration Court, one is officially in proceedings. The NTA is the equivalent of what used to be called an Order to Show Cause (OSC).
nunc pro tunc (sometimes, NPT) Legal term in Latin, meaning “now for then.” Requests to change or extend status are supposed to be filed before expiration of the current nonimmigrant status, usually reflected on the foreign national’s I-94 card. Through mistakes, misunderstanding, or illnesses, however, this does not always happen as it should. In such an event, it is sometimes possible to request forgiveness and file for a backdated, nunc pro tunc, approval. Nunc pro tunc (NPT) is a discretionary remedy by which the USCIS permits a late filed request to change or extend status, based on the facts and extenuating circumstances presented.
O-1 visa Nonimmigrant visa classification for individuals of extraordinary ability in sciences, arts, education, business, or athletics. The O-2 visa is designed for support personnel of the O-1 visa holder and O-3 is the dependent classification for spouses and children.
O*NET Created in 1995 to convert the information of the detailed Dictionary of Occupational Titles (DOT) into a simpler and more user-friendly format. Effective March 28, 2005, PERM regulations require the use of the O*Net classification, rather than the DOT, to determine industry-norm for education, training, and experience in particular occupations. The O*Net system uses five job zones for Special Vocational Preparation (SVP) classification that are published on www.flcdatacenter.com.
Optional Practical Training (also, OPT) Type of authorized student employment. Curricular Practical Training (CPT) is another type. May be available during annual vacations, during the school year (generally after the first full academic year) and after completion of the study program. OPT must be authorized by the school and an Employment Authorization Document (EAD) must be obtained from the USCIS before the individual begins the employment.
Out of Status An imprecise term used loosely to describe a variety of very different situations in which a foreign national has failed to maintain valid nonimmigrant status, including overstay, entry without inspection, as well as the status of an H1B worker who has lost his or her job.
Overstay The act of remaining in the United States past the expiration date on one’s I-94 card. For an F-1 or J-1 visa holder with an I-94 card marked D/S, an overstay occurs at the expiration of that program, including any practical training. An individual with D/S marked on the I-94 card does not begin to accrue unlawful presence until an official determination is made by the USCIS that s/he is no longer in status.
Parole An accommodation for special circumstances as opposed to Admission. Most common is Advance Parole. There are also other types of parole. Some examples are (1) being paroled into the United States to appear at an immigration hearing; (2) humanitarian parole, which can be granted on a case-by-case basis in truly urgent humanitarian circumstances, usually applied for when one is still in the home country. When paroled into the U.S., one is given an I-94 card with an expiration date, but is not given a particular nonimmigrant status. Rather, her/his status is parolee. Despite the date listed on the I-94 card, I-485 applicants with Advance Parole are allowed to remain in the U.S. in a period of authorized stay for the duration of the application process.
Parolee One who has been paroled into the U.S. (See also, Parole.)
Passport A travel document issued by one’s country of citizenship. It can be used for identification purposes as well as for visa applications or entry to other countries.
PERM – (Program Electronic Review Management System) (See also, labor certification) As of March 28, 2005, all labor certifications are filed under the PERM system of rules and regulations. PERM is an attestation and audit-based system designed to streamline the process for obtaining an alien employment certification (labor certification). PERM requires the employer to engage in set recruitment efforts in advance of filing the labor certification, to attest to the fact that the employer has been unable to find an able, willing, and qualified U.S. worker for that position, and that the employer maintain documentation of the recruitment and its results for five years.
Petition The paperwork itself or the act of submitting the formal request filed by a person or a company on behalf of someone else. In contrast, an application is filed on one’s own behalf. A petition type can either be nonimmigrant (temporary) or immigrant (permanent). Petitions for nonimmigrant workers are filed on Form I-129. The most common immigrant petitions are the I-130 for FB and the I-140 for EB. There are also other special types of petition forms for certain situations. Note: There are some situations where a person can also self-petition (file a petition for him/herself). These include the NIW and Extraordinary Ability (EB1) immigrant petitions, as well as special situations such as battered spouse petitions.
Petitioner The individual or organization filing a formal request or petition to benefit another person. Examples of more specific terminology are “petitioning employer” or “petitioning relative.”
Portability Regulatory provisions established by AC21 permitting increased job mobility in both nonimmigrant and immigrant cases. For example, an H1B holder may begin work for a new H1B employer as soon as the new H1B petition is filed with the USCIS and an individual whose I-485 application has been pending for at least 180 days may move to a position that is the “same or similar” to the one that was originally sponsored, even with a different employer, without having to restart the green card process.
Preconceived Intent Determination that an individual has entered the United States in a manner not consistent with his or her visa. One is prohibited from entering the U.S. for a purpose other than that permitted under the visa, i.e. entering on a B-1 visa in order to file a change of status to F-1 or an I-485 application, rather than go through consular processing. A finding of preconceived intent can render an individual inadmissible under INA 212(a)(6)(c) (fraud / misrepresentation). The U.S. Department of State applies a 30- or 60-day rule in evaluating intent. If a foreign national takes action contrary to the intent of that visa (i.e. applies for change of status or begins employment) within 30 days of entry, there is a presumption of misrepresentation at the time of entry. If the action occurs between 30 days and 60 days of entry to the U.S., that presumption is rebuttable, and if the action occurs 60 days after entry to the U.S., there is no presumption, although the government has the discretion to raise the intent issue.
Prevailing Wage The average wage for similarly-employed workers in a specific geographic location. For H1Bs, the employer is required to pay the greater of the prevailing wage or the actual wage paid to other workers in similar jobs at the company. For labor certification, the employer-offered wage must be at least equal to the prevailing wage rate, as determined by the State Workforce Agency (SWA). The SWA relies primarily on its online wage library in making the prevailing wage determination (PWD). However, an employer may submit an alternative wage that meets the requirements of U.S. Department of Labor (DOL) regulations, and request that the alternative be the prevailing wage.
Private Bill Bill that restricts applicability, usually to only one or a very small group of individuals. If it is passed, it becomes a private law.
Port of Entry (POE) The location in the U.S., where one applies for entry and shows his/her documents to the CBP Inspector. It can be at an airport, sea port, or a land border.
Priority Date (PD) – <see DOS Visa Bulletin on MurthyDotCom> Date that sets one’s place in the queue for a permanent residency case in a category subject to a quota. In a case that requires labor certification (LC), the priority date is the officially acknowledged date that the case was filed with the U.S. Department of Labor. For an employment-based case not requiring the LC, or for a family-based case (other than Immediate Relatives), the PD is the date the petition was filed with the USCIS. The law provides a quota or limit on the number of people who can receive the permanent residency status in a given year in the various categories. Note: Monthly, the U.S. Department of State publishes the Visa Bulletin, containing a chart that indicates the waiting period, if any, to file the final stage of the application (AOS or CP). A “C” on the Visa Bulletin indicates that the numbers are all current in that specific category and that there is no waiting period for filing. If the numbers are backlogged, as indicated on the Visa Bulletin, there will be a date mentioned from which one may determine when s/he is able to file the papers for his/her AOS or CP. One may file the AOS application if the priority date is BEFORE the date indicated on the Visa Bulletin chart.
Public Charge One who is dependent upon government assistance. Public charge is one of the grounds for inadmissibility.
Public Law A public bill or joint resolution that is enacted into law. Public laws have general applicability.
PWD Prevailing wage determination (See prevailing wage.)
Reduction in Recruitment (RIR) Formerly, this was one of two types of labor certification (LC). For the RIR the employer advertised prior to filing the LC application. It was also necessary to show a shortage of qualified workers in the local area. A case that was denied as RIR would then be processed as a regular LC case.
Reentry Permit A document issued for the purpose of maintaining one’s LPR status, despite a lengthy trip abroad. If an LPR is going abroad for up to two years, it is possible to apply for this permit while still in the U.S. and use it when returning to facilitate reentry. Without a reentry permit, a trip abroad of over six months can lead to problems at reentry and one may be called upon to prove continuous U.S. residence. Note: While a Reentry Permit can help to maintain the LPR status, the long trip abroad can still result in a longer wait to qualify for U.S. citizenship. For maintaining residence for naturalization purposes, there is another type of application that can be filed only in limited circumstances.
Refugee By legal definition, one who is unable or unwilling to return to the home country due to persecution, past persecution, or a well-founded fear of future persecution, based upon race, religion, nationality, political opinion, or membership in a particular social group. While often used to define one who flees his or her country, this is the definition under international convention / treaties. One may apply for refugee status from abroad to be admitted to the United States in that status, or, if in the U.S., one would apply for Asylum. In order to qualify for Asylum, one must meet the definition of refugee. (See also, Asylum.)
Refugee Travel Document Authorization that can be used instead of a passport by a refugee or asylee. One who has fled the home country may not have obtained a passport before leaving and it may be impossible or impractical to obtain one later, since the application would need to be made to the government of the persecuting country. In lieu of the passport, it is possible to apply to the U.S. government for the refugee travel document. A United Nations travel document may be another possibility.
Removal Formerly referred to as deportation. The Illegal Immigration and Immigrant Responsibility Act of 1996 (IIRIRA) introduced “removal” instead of the former term. Deportation and removal are still frequently used interchangeably, despite the significant legal differences between the two terms. Under IIRIRA, persons seeking admission to the United States, or persons who were admitted but are removable (i.e. overstay, or for certain criminal convictions) are placed in removal proceedings. Removal proceedings are conducted by immigration judges under the auspices of the Executive Office for Immigration Review (EOIR).
Request for Evidence (RFE) A notice from USCIS requesting more information or clarification with respect to an application or petition that was filed.
Retrogression The movement of the availability of priority dates backward in time, so that a case that is current one month is not current the next. The U.S. Department of State (DOS) visa bulletin lists the priority dates for which visa numbers are available on a month-to-month basis. If an individual’s priority date is on or before the date listed in the visa bulletin for the category in which s/he is eligible to pursue permanent residence through either the I-485 or consular processing for an immigrant visa during that month.
SEVIS (Student and Exchange Visitor Information System) It is an internet-based system used by the Department of Homeland Security (DHS) to record all significant events in the educational careers of international students while they are in the United States. Designated school officials (DSOs), consular officers of the U.S. Department of State, and officials of the DHS have access to the database. SEVIS collects information such as biographical data, academic status, dates of entry, employment, completion of studies, transfers and other information and significant events that transpire during the course of an international student’s academic career.
State Workforce Agency (SWA) Division of the U.S. Department of Labor with jurisdiction over a specific state. An H2B labor certification is filed with the local SWA. For PERM labor certifications, a Prevailing Wage Determination (PWD) must be requested from the SWA and a job order must be placed with the SWA.
Status Controlled by the I-94 card and given by the CBP officer at the port of entry when one arrives in the United States. One’s status can also be changed or extended, in appropriate circumstances, by the USCIS from within the U.S. The terms visa and status are sometimes used interchangeably but the two concepts are very different, a visa controls one’s ability to enter the United States, while one’s status controls his/her ability to remain inside the U.S. Note: There are many nonimmigrant visa statuses, from A through V, and there are also lawful permanent resident (LPR) status, conditional permanent resident status, asylee or refugee status, temporary protected status, etc. See About Visas and Statuses for more detail.
Successor-in-Interest A person or entity assuming the rights and responsibilities of another. For example, if a corporate merger creates a new entity, that new company may be a successor-in-interest. If a company is sponsoring employees, such as for the H1B or the green card, the successor employer is required to assume all immigration-related responsibilities / liabilities, even if it does not assume all corporate responsibilities. Note: The determination of whether a company is a successor-in-interest can have a significant impact upon an individual’s current nonimmigrant status and ability to continue the green card process. If one’s company is about to undergo a corporate restructuring of some kind, be it a simple name change or a merger / acquisition, an attorney should be consulted regarding all potential immigration ramifications of the change.
Temporary Protected Status (TPS) Special program protecting nationals of certain designated countries from removal (or deportation) from the U.S. in emergency situations. TPS also enables these persons to obtain authorization to work in the U.S. TPS is not a program for admitting people from abroad, as one must be in the U.S. There is a set procedure for designating a particular country, based upon a determination by the Attorney General (AG) of the U.S. For each country, there are set requirements as to proving one was present in the U.S. on a certain date. TPS is for a limited duration, but if the circumstances warranting the initial designation of TPS are still in existence in the particular country, the AG can extend the designation and the beneficiaries can then reregister.
TPS See Temporary Protected Status.
U.S. citizen (USC) One who is born in or naturalized to the United States of America (U.S.) and is subject to U.S. jurisdiction, owes allegiance to the U.S., and is entitled to full civil rights under U.S. law. Significant examples of those rights include the right to vote, the right to be a candidate in elections, the right to hold a U.S. passport, and eligibility to be considered for U.S. government jobs that may require U.S. citizenship. Note: One born in the U.S. to parents holding diplomatic status as representatives of a foreign government is not subject to U.S. jurisdiction. Such a person would not be a USC at birth.
U.S. Citizenship and Immigration Services (USCIS) Government agency under the U.S. Department of Homeland Security, resulting from the Homeland Security Act of 2002, responsible for the processing of all immigration-related benefits.
U.S. Customs and Border Patrol (CBP) Office under the U.S. Department of Homeland Security, that assumed Legacy INS’s Port of Entry (POE) duties on March 1, 2003. (formerly, Bureau of Customs and Border Patrol or BCBP)
U.S. Department of Homeland Security (DHS) Agency created to protect the United States against terrorism. The DHS encompasses the U.S. Citizenship and Immigration Services (USCIS), the U.S. Immigration and Customs Enforcement (ICE), and the U.S. Customs and Border Patrol (CBP).
U.S. Department of Labor (DOL) The government agency (at both the federal and state levels) in charge of the Labor Certification process for the green card, which also processes the LCA form for the H1B.
U.S. Department of State (DOS) The federal agency in charge of the U.S. Embassies and Consulates worldwide. Overseas, DOS issues visas to foreign nationals, and assists U.S. citizens abroad. The DOS can reissue visas within the U.S. in some instances. Also, in the U.S., the DOS is in charge of administering J-1 programs, including HRR issues and waivers.
U.S. Immigration and Customs Enforcement (ICE) The government agency under the U.S. Department of Homeland Security that began on March 1, 2003, to perform the functions of the former U.S. Customs Service, Federal Protective Service, and enforcement duties of Legacy INS.
Unlawful Presence Most commonly, being in the U.S. after entering without inspection or after staying past the expiration date on an I-94 card, though there are other, special situations of unlawful presence as well. As defined under the Illegal Immigration and Immigrant Responsibility Act (IIRAIRA) of 1996, unlawful presence is very complex with at least two Legacy INS memos about it. It is also known as a period of stay not authorized by the Attorney General. (See also, overstay.) Note: One who was unlawfully present for 180 days and then leaves voluntarily, before being placed into removal proceedings, is subject to a three-year bar on returning to the U.S. If the period of unlawful presence is a year or more, then the bar is for ten years. A Duration of Status overstay does not qualify as unlawful presence unless an actual determination is made by the USCIS or IJ.
USC See U.S. Citizen.
USCIS See U.S. Citizenship and Immigration Services.
Visa A stamp in one’s passport indicating authorization to come to the U.S., either in a particular nonimmigrant status or as an immigrant (LPR). Note: A visa is not a guarantee that one will be permitted to enter.
Visa Bulletin Published monthly by the U.S. Department of State (DOS) Visa Bulletin to show the movement of priority dates for the various family and employment preferences. When a case that is current one month is not current the next month, this is said to have retrogressed.
Visa Lottery See Diversity Visa.
VisaScreen Certificate A document that can be presented to a consular office or, in the case of adjustment of status, the attorney general, as part of a visa application. The VisaScreen Certificate evidences that the holder has completed a required screening program for health care professionals, other than physicians, in order to qualify for certain occupational visas. Screening includes an assessment of the applicant’s education to ensure it is comparable to a U.S. graduate in that same profession; verification that licenses are valid and unencumbered; English language proficiency; and, in the case of nurses, verification that the nurse has either earned a CGFNS Certificate or passed the NCLEX-RN® Examination.
Visa Waiver Program (VWP) Program enabling travelers from certain countries to visit the U.S. for business or pleasure for up to 90 days without a visa. The list of countries changes from time to time. A VWP traveler is not allowed to extend her/his stay or change statuses in the U.S.
Voluntary Departure 1) as granted in removal / deportation proceedings, the lowest level form of relief, allowing one to leave the U.S. voluntarily, at his/her own expense, by a particular date. If a person fails to depart by the date specified, then the voluntary departure order would generally become a removal order. Leaving, or being expelled, after a removal order has been issued carries a bar on returning to the U.S., and it is difficult to have that bar waived. In contrast, leaving under a grant of voluntary departure is more favorable, though there may still be legal and practical problems in returning to the U.S. Each case is different, depending upon the particular facts. 2) administrative voluntary departure is a second type, which can be applied for in appropriate circumstances for a person who has not been placed into proceedings from the local District Director at USCIS.
Waiver An exception to a rule, granted on a case-by-case basis. Waivers are discretionary and most types are very difficult to obtain. Particular waivers are set forth in various sections of the immigration law and each has its own criteria. An example of a complex waiver is if a person would otherwise be inadmissible to the U.S. but requests an exception to avoid family hardship. In contrast, the visa waiver is quite simple.
Withdrawal The process of reversing a filed application when the applicant changes his/her mind. Generally withdrawal requires only a letter requesting that the case be withdrawn from consideration. Note that the government filing fees are not returned.
Work Permit An informal term for what is more properly known as an Employment Authorization Document (EAD).