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Any Native Indian who was born in Canada and is at least 50% American Indian blood can enter the United States without a visa or green card. To do so, you must inform a customs officer at a port of entry that you are an American Indian born in Canada and provide the appropriate documents to support your status.

Native Indians may also qualify for permanent residence (known as a Green Card) if they meet the following criteria:

• Possess 50% or more American Indian blood
• Born in Canada
• Proof of ancestry (as determined by blood relationship to parents, grandparents, or great grandparents who were registered members of a formally registered Canadian Indian Band or U.S. Indian tribe)
• State to a customs officer of your intent to permanently reside in the United States

Note that you are not eligible for a green card if you became a member of a tribe through adoption or marriage. Rather, your status must be based on your blood and race. Further, a Native Indian’s spouse and children cannot obtain permanent residency by virtue of the primary applicant’s status. However, the primary applicant can sponsor a spouse and children for green cards after becoming a permanent resident first.

To find out if you are a member of a federally recognized Canadian Indian Band, click HERE.

To find out if you are a member of a recognized U.S. Indian Tribe, click HERE.

U.S. citizens sponsoring a foreign spouse, parent, or unmarried child under 21 usually get green cards approved because the beneficiaries are classified as immediate relatives and their Priority Dates are always current. But what happens when you are sponsoring other family members?

In addition to the aforementioned immediate relatives, U.S. citizens can also sponsor siblings as well as sons and daughters over 21. Permanent residents (green card holders) can sponsor spouses, children under 21, and unmarried sons and daughters over 21.

The first step in sponsoring a non-immediate relative is for the U.S. citizen to file a petition, which sets the Priority Date. Once the petition is approved, the petitioner or beneficiary should monitor the Visa Bulletin, which is updated every month. Once the Priority Date becomes “current,” the beneficiary will be able to apply for a green card either through adjustment of status or at the consulate in Montreal.

Example: Assume that Henry, a U.S. permanent resident, filed a petition to sponsor his wife Wendy, an Indian citizen, on August 15, 2015. This means that the Priority Date is August 15, 2015. The petition was approved and they monitor the Visa Bulletin on a regular basis. The family-based category is “F2A” (spouse of a permanent resident) and Wendy’s country of chargeability is India. Based on this, they can see that Priority Date for them is not yet current. When the Visa Bulletin finally shows 15AUG15 (August 15, 2015) for her category, Wendy can then apply for her green card either through adjustment of status if she is in the United States at that time, or through the U.S. consulate in her home country.

The process can be analogized to the experience of going to a very busy butcher shop. Filing the petition is the first step – it’s like taking a number and waiting your turn. The Priority Date becomes current when the butcher calls out your number and asks for your order. At that time, you can “order” your green card and take it to go!

U.S. employers with employees in H-1B status have an obligation to ensure that they meet the USCIS and Department of Labor requirements for employing a foreign worker. Generally, this includes paying the prevailing wage and ensuring that the employee continues to carry out the same duties and responsibilities that they were initially approved for.

Example: XYZ Co.’s petition to sponsor Vishal for an H-1B visa as full-time, entry-level Software Developer in Cupertino, California was approved for three years. XYZ Co. soon opened a new office in Venice, California and relocated Vishal to oversee the startup. He was promoted to Head Software Developer, offered a substantial raise, and his duties were expanded to include supervising other engineers.

Question: Is XYZ Co. required to file an amended H-1B petition?

In July 2015, the USCIS issued a policy memorandum implementing the AAO’s holding in Matter of Simeio Solutions, LLC, on when employers are required to file an amended H-1B petition.

Employers are required to file an amended H-1B petition when there is a material change in employment. Material change can include:

• A change in the place of employment to a new geographical area requiring a new certified Labor Condition Application (LCA)
• Change in the terms and conditions of employment

The H-1B employee can begin working at the new location upon filing of the amended petition, even before a final decision has been made.

An amended H-1B petition is not needed when:

• The employee is moving to a new job location within the same area of intended employment and a new LCA is not required
• The employee is temporarily placed at a new worksite for 30-60 days, but is still based at the original worksite where the H-1B was approved for
• The employee is going to a non-worksite location to participate in activities such as attending conferences or seminars, or other short-term duties such as delivering goods

Conclusion: In the aforementioned scenario, XYZ Co. should file an amended H-1B petition on behalf of Vishal. First, he was relocated from Cupertino to Venice, constituting a new job location requiring a new LCA. Second, the terms and conditions of his employment were drastically modified: his job title changed, he was promoted, he was given a raise, and his job duties were expanded.

Employers must be diligent in ensuring that they abide by the USCIS and Department of Labor’s requirements over the entire duration of their H-1B employees’ status. Many things can happen over the course of employment that may require an amended H-1B petition and a failure to notify the Department of Labor or the USCIS could result in punishment via civil fines and penalties.

As of May 2015, spouses of H-1B visa holders who are in H-4 status may be eligible to apply for employment authorization if the H-1B spouse’s employer has an approved I-140 petition or if the spouse is in the 2nd H-1B extension under AC21. In either of these cases, H-4 spouses can file an I-765 petition for work authorization which would allow them to seek employment in the United States without any restrictions. This means employment can be full-time or part-time, salaried employee or independent contractor. H-4 visa holders with EAD may also start their own businesses should they choose. Unlike visas where employment is restricted to a certain occupation, EAD offers much more flexibility.

Wit the start of a new year comes the start of a new opportunity for U.S. employers to file H-1B visa petitions on behalf of foreign nationals in specialized occupations. We at Maximilian Law Inc. have written several posts over the past few years on various issues involving the H-1B visa. Below are links to our previous posts:

How to Get a U.S. Work Visa

Who Pays the Filing Fees for a Work Visa?

A Guideline for Foreign Entrepreneurs Who Are Starting a Business in the United States

H-1B Regular Cap vs. Masters Cap: What’s the Difference?

Logistical Considerations for F-1 Students and OPT

U.S. Employer Obligations to H-1B Employees

As always, feel free to call or email us for more information about the H-1B visa. You can also learn more about the H-1B by clicking here