Much ink has been spilled in recent months regarding the H1B visa, which is an employment-based non-immigrant visa that allows specialized professionals to work in the U.S. if sponsored by the relevant company. The current administration has made it clear that a reduced flow of such visas is a priority and, as such, there is a significant amount of misinformation surrounding the H1B visa as of this writing. If you are in a situation where you may apply for or receive one, it is important to understand the truth.

H1Bs Are Limited

Unlike many other visas, the H1B category is perpetually limited and oversubscribed, with demand far exceeding the cumulative 85,000 visas available each fiscal year. It is specifically limited to “specialty occupations,” the criteria for which is specified in the visa manual. A very small number of H1Bs are exempt from the cap, but not enough to make any substantive difference in the years-long queue.

United States immigration law is an extremely diverse and complex body of regulations that changes without warning. It is understandable that some visa or green card applicants might conceivably be left without options if their circumstances abruptly change. To help those that might be caught in this kind of situation, Congress passed the Legal Immigration Family Equity Act (LIFE Act) in 2000. While it may not fit the facts of your situation, it is worth investigating to see if it might.

Passage & Criteria

The LIFE Act was signed into law in December 2000, and its provisions allow some who might normally be ineligible to apply for a green card (referred to in official documents as lawful permanent resident or LPR status) to do so if the appropriate petition or labor certification has been filed for them before April 30, 2001. While this may seem outdated or irrelevant, in reality it still has quite a bit of relevance for potential immigrants from specific countries. For example, the priority date (the number that must come up before your visa may be granted) for certain categories of immigrants from India or Mexico is still listed as being in the 1990s—in other words, the queue to obtain a U.S. visa or green card is more than 20 years long.

It is often believed that if a foreign national marries a U.S. citizen, or if he or she establishes a business in the country, that any green card application he or she makes will automatically be approved with no strings. This is not the case, nor has it been the case in recent years, for everyone.

While some marriage-based green cards are approved with little difficulty, some are only granted with conditions attached. If you are faced with this situation, it is imperative to know what a conditional green card is, and what it is not.

The Initial Conditional Card

Generally, a card granting lawful permanent resident (LPR) status, or a “green card,” is granted with conditions when an immigration official suspects that a marriage (or a business, in the rare case of entrepreneurs) is a sham.

Between 2007 and 2009, over 600 marriages were found to be fraudulent, which is a significant increase from past figures. In response, United States Citizenship and Immigration Services (USCIS) has turned up the proverbial heat, and a conditional green card is a way to do it. It allows a sort of testing period to see if a marriage is truthful and legal.

For example, consider a situation in which a U.S. citizen legally marries a national of Mexico. This is a common scenario for foreign nationals to obtain a green card, which entitles them to live and work in the United States. Many such marriages pass muster immediately. For those that do not, the foreign national may be granted a green card on a ‘conditional’ basis. Hence, a green card will be granted, with all the benefits and responsibilities of an unconditional card; but, at the end of two years, the person must be in a position to apply to remove the conditions and pass the test. During the two years in the meantime, the couple will be monitored, though not invasively, to help prove their marriage is genuine. If fraud is discovered at any time, the foreign national can be detained or deported.

Removing the Conditions

When the two-year period is nearing its end, the foreign national spouse must be able to meet certain requirements in order to apply for the conditions on his or her LPR status to be removed. The spouse must meet one of four criteria:

• Still be married to the U.S. citizen to whom the spouse was married at the time of the original application;

• No longer being married due to divorce or annulment, but entered into the marriage in good faith;

If you are interested in emigrating permanently to the United States, there are certain actions you must take. You must file a petition with all of the appropriate supporting documentation, including proof of identification. However, even after you have submitted your information and received a favorable outcome, you may still have to wait before your petition can be granted. Only so many green cards can be issued in any given year, and in order to keep track, a system of dates has been created. It can be confusing, and sometimes an expert’s assistance is a boon.

Preference Categories

Immigrant visas for immediate relatives of U.S. citizens are always unlimited. But if you are not a spouse, parent, or minor child of a U.S. citizen, your petition likely falls into what United States Citizenship and Immigration Services (USCIS) calls a preference category. Preference categories are capped at 226,000 visas or green cards per year (not per category). Because of this cap, individuals who apply for a visa generally will not receive it within the same year.