Q. How can my architect friend in Latvia get a visa to work in the United States?
Roy Mosny, N.Y.
A. Your friend’s best hope is to try to get H-1B temporary professional worker status. To qualify, he’ll need an employer to petition for him.
The employer must offer a job that he qualifies for by virtue of his having attained at least a four-year college degree or the equivalent in education and experience.
The job must require a degree in a certain field. So if he has a degree in architecture, he could qualify for H-1B status as an architect, an editor of an architectural book or teaching architecture. If the job requires just any college degree, that job would not qualify him for H-1B employment.
Even if your friend finds an employer to petition for him, that employer can’t file the petition until April 1, 2009, for employment to begin Oct. 1, 2009. April 1 is when the U.S. Citizenship and Immigration Services (USCIS) will next accept petitions for new H-1B workers. The reason for the wait is that the USCIS already has reached the 85,000 annual cap (20,000 of which are reserved for workers with a U.S. master’s degree or higher) for new H-1B petitions.
If an employer petitions for your friend and his petition is selected and approved, he can begin work in the U.S. on Oct. 1, 2009. Note that your friend will be exempt from the cap if his petitioning employer is a college or university, a nonprofit institution associated with a college or university, or a nonprofit or governmental research institution.
One piece of good news is that an H-1B employer need not prove the unavailability of a U.S. worker to get your friend H-1B status. That’s different from the rule that applies in most employment-based permanent residence cases.
However, the employer must pay an H-1B worker either the prevailing wage (the typical wage for that position in the area), or the wage received by other workers performing similar tasks, whichever is higher.
If your friend gets H-1B status, he can work in the U.S. for at least six years in three year intervals. Sometimes, the USCIS will extend H-1B status beyond six years.
Q. Should I renew my green card or can I apply now for U.S. citizenship? I have had my green card since I was 4. I am now 28. My green card expired. I would like to become a U.S. citizen.
Giselle Morell, New York
A. You can apply for U.S. citizenship without first getting a new permanent resident card. You can naturalize despite your card having expired. Even permanent residents who have lost their cards can naturalize without replacing them.
If you think you’ll need proof that you are a lawful permanent resident while your citizenship application is pending, you may want to apply for a new card. You’ll get the new card within 90 days. Naturalization is taking about a year.
If you decide to apply for citizenship but not for a new card and you have a genuine emergency need to travel, you may be able to get temporary proof by visiting the USCIS office at 26 Federal Plaza in downtown Manhattan. You make an appointment online at https://infopass.uscis.gov/.
Q. My wife has been waiting for more than a year to hear about her permanent residence application. What can I do to move the case along?
I am a U.S. citizen married to a Dominican since September 2004. The USCIS interviewed us in September 2007. The interviewing examiner said he needed to check information from an old immigration file. We expected to get a new interview in six months. We are still waiting. Do we have any legal recourse?
Name Withheld, Brooklyn
A. The USCIS has no right to sit on these cases forever. Your legal recourse is to sue the agency in federal court. In what is called a mandamus action, you would ask a federal judge to order the USCIS to act on your case.
You aren’t asking the judge to order the USCIS to approve your application, just for a decision.
Filing a mandamus action is a last resort. Sometimes, however, it’s the only way to get the USCIS to decide the case. It usually works.
Prof. Wernick’s Web site: www.allanwernick.com
Allan Wernick’s Immigration column is reprinted from the Thursday, August 7 editions of the New York Daily News.
