Wednesday, February 23, 2011

DOMA declared unconstitutional: Can binational gay partners benefit from this?

If you are a U.S. citizen, should you go and file a green card application for your foreign same-sex spouse, whom you married in Massachusetts, or in any other state or country allowing same-sex marriages? Although Obama’s announcement is a step forward for gay rights, getting full immigration benefits for you and your spouse will still require much legal fighting.

If, today, you submit a green card application for your foreign-born same-sex spouse, USCIS will deny the application. Your only recourse is to appeal the decision, most likely all the way to the Supreme Court. Interestingly, keeping immigration issues out of a DOMA challenge is a deliberate strategy of LGBT rights organizations. The thinking there is that, because the federal government has complete authority over immigration matters, it is almost impossible for courts to find a law unconstitutional when it involves immigration. This strategy, therefore, tries to increase the likelihood that a judge will decide that DOMA is unconstitutional.

For the moment, the USCIS will unquestionably deny your same-sex partner's application, until Congress repeals the law or the Supreme Court concludes that it is unconstitutional. While bringing your spouse to the U.S. is not yet possible, the Obama Administration’s decision to pull back its defense of DOMA is a sign of hope and a move in the right direction.

Monday, February 21, 2011

How to work in the U.S.

People often ask how they can get a temporary work permit in order to work legally in the U.S. They wonder whether there is a simple “work permit” application that they can complete, send to immigration and get permission to work for anyone, doing anything. Unfortunately, there is no such easy system of obtaining permission to work legally in the U.S.
The laws regarding foreigners working in the U.S. are complex and confusing. Generally, if you are not married or engaged to a citizen of the U.S., you must have a sponsor or an employer, who is required to ask permission from the USCIS for you to work or train with them. USCIS will not give authorization to you to do just any job or training with your sponsor or employer. The job or training your sponsor offers to you must be the type of job or training that matches a visa category. You must also prove that you have the necessarily education or experience to do the job or training offered to you. Take a look at the list below to see a sample of these types of visas, and the kind of work you can do with the visa.

Sample Visa Types

E-1 - Treaty Trader visa

You must perform managerial, supervisory or highly skilled work for a foreign company having significant trade with the U.S.

E-2 - Treaty Investor visa

You must be an investor coming to the U.S. to direct and develop the investment business. You can also be an employee of the investment company coming to the U.S. to manage, supervise or perform highly skilled work.

E-3 - Professional worker visa for Australians

You must be from Australia and have a bachelor’s degree or its equivalent, and she must be doing a job that requires a bachelor’s degree.

F-1 - Student visa

Generally, you may only work in a job directly related to your studies. If you are studying English, you may not work.

H-1B - Professional worker visa

The person must have a bachelor’s degree or its equivalent and she must be doing a job that requires a bachelor’s degree.

H-1B1 - Professional worker visa for Singaporeans and Chileans

The person must be from Singapore or Chile and have a bachelor’s degree or its equivalent, and she must be doing a job that requires a bachelor’s degree.

H-2A - Temporary agricultural workers

The worker must perform agricultural labor or services during a limited and temporary period.

H-2B - Other temporary workers

The worker may only work in a job that has been proven as temporary.

H-3 - Trainees

You must be coming to the U.S. to receive training that is not available in your home country and that you will apply in your home country.

J-1 - Exchange visitors

You can work or train as a professor, scholar, teacher, doctor, au pair, intern, trainee, camp counselor, or student in work/travel program.

L - Intra-company transferees

You must be an employee of a foreign company that has an office in the U.S. You may only perform managerial, executive or work requiring specialized knowledge.

M-1 - Vocational or nonacademic students

You may not work but you may receive practical training directly related to the vocation you studied.

O-1 - Extraordinary ability visa

You may work in the fields of science, arts, business, athletics, or education, but you must prove that you are known nationally or internationally for that kind of work.

P-1 - Athletes and group entertainers

You may work as an athlete or as a member of an entertainment group, but you must prove that you or your group’s work is internationally known.

P-3 - Performers of unique cultural programs

You may perform, teach or coach a culturally unique program.

Q - International cultural exchange visitors

You may train or perform work that shares the culture, custom and traditions of the country you are from.

R – Religious Workers

You may perform work in a religious occupation or vocation.

TN – Canadian and Mexican NAFTA Professional Workers

As a Canadian or Mexican, you may work as:

Accountant, architect, computer systems analyst, disaster relief insurance claims instructor, economist, engineer, forester, graphic designer, hotel manager, industrial designer, interior designer, land surveyor, landscape architect, lawyer, librarian, management consultant, mathematician/statistician, range manager/conservationist, research assistant, scientific technician/technologist, social worker, sylviculturalist, technical publications writer, urban planner/geographer, vocational counselor.

Dentist, dietician, medical laboratory technologist, nutritionist, occupational therapist, pharmacist, teaching/research physician, physical therapist, psychologist, recreational therapist, veterinarian,

Agriculturalist, animal breeder, animal scientist, apiculturalist, astronomer, biochemist, biologist, chemist, dairy scientist, entomologist, epidemiologist, geneticist, geologist, geochemist, geophysicist, horticulturalist, meteorologist, pharmacologist, physicist, poultry scientist, soil scientist, zoologist.

College teacher, seminary teacher, university teacher.