New York Visa Requirements
Looking at the different types, what they require, and other immigration legal tipsBy Alison Macor | Last updated on September 29, 2022
Jennifer Oltarsh remembers a time when the process to obtain an immigrant visa for a family member went much faster. “When I started practicing 30 years ago, you applied for a visa for your child in Barbados, and in three months they’d be in the United States,” says Oltarsh. “Now, it takes two years.”
The process has changed, too. “You used to be able to apply for almost everything overseas,” says Oltarsh, an immigration attorney at Oltarsh & Associates in Manhattan. “Now you have to start in the United States and it’s transferred overseas. It’s a system that is largely designed to allow individual U.S. citizens or companies to petition for people.”
People who do not live in the United States and wish to obtain permanent residency will need to secure an immigrant visa, which allows the holder to be admitted into the U.S. It differs from a non-immigrant visa in that it provides permanent status.
“The two main areas for permanent visas are through family or through work,” says Oltarsh. The first step in pursuing a family-based visa is to file a petition to classify the person requesting the visa as a spouse or qualifying relative of a U.S. citizen or permanent resident. If the applicant has the right to be in the U.S., they can apply while here. Otherwise, the applicant must apply through the consulate of their home country.
Those eligible to request a family-based visa include the minor children, adult children, spouses, and parents of U.S. citizens. All but adult children are immediately eligible to receive permanent residence. But, says Oltarsh, “immediate eligibility is different than whether you are actually eligible. The applicant has to satisfy criteria to be eligible.” An applicant cannot have committed a crime, prior visa violations, or crossed the border illegally, for example.
Once eligibility is established, the applicant goes on a waitlist. The wait can be a year or more, although, says Oltarsh, “the waitlist for spouses of permanent residents is current as of summer 2022. Unless you’re Mexican; for them, it’s three years. And for adult children, it’s a 22-year wait.”
But don’t confuse the waitlist with processing times. “You can be eligible right now, and it can still take two years to get a visa,” she says.
Another path to pursue a permanent visa is through employment. “There are two main pathways for employment-based permanent visa applications,” says Aja Pardini of the Manhattan-based firm DeBellis Aviv Pardini. One involves the Program Electronic Review Management (PERM) application, which is processed through the Department of Labor. This type of application requires the DOL to seek a prevailing wage for the specific position requested and to advertise the job with the wage. “If there’s no U.S. person that fills the job requirement, including through education and experience, then the employer can move forward with a permanent application for the specific person.”
The other pathway is the employment-based petition process. “Our firm focuses on artists and entertainers, who often require EB-1A applications, and those are ‘extraordinary ability,’” Pardini says. These applications involve a slightly different process that includes documentation and casework that verifies that the client is in fact a person of extraordinary ability. Within this framework, there are specific visas that differentiate among people working in academia, business, the arts, and so on. “The same is true of green cards,” she adds.
Some may be surprised to learn that the length of processing times is not quickly affected by a change in presidential administrations. “There will be significant change on the ground in the day-to-day activities of these organizations, but it takes a long time for those changes to trickle down,” says Pardini. “With the Biden administration, we are seeing generally a more pro-immigrant approach to the entire process, but it has taken several years for any changes to go into effect and to be seen in policy.”
A permanent resident visa neither makes you a resident nor is permanent. It allows you to come into the U.S. and, once there, you are a permanent resident who can get a green card for 10 years—assuming you do this before the visa’s expiration date. If, however, you leave the United States for more than six months, says Oltarsh, “there is the presumption that you are intending to abandon your status. But the most common way that people lose their permanent resident status, other than by traveling abroad, is that they commit certain criminal acts.”
Whatever one’s status, the path to obtaining permanent resident status can be complicated. An experienced immigration attorney can help.
“My favorite type of visa is for someone who may have come here 25 years ago, and now I can help them get their residence,” says Oltarsh. “You impact people’s lives in ways that are so satisfying.”
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