The 14th Amendment and U.S. Citizenship

On Thursday, January 6, 2011, the 112th Congress of the United States came into power. And on the floor of the House of Representatives, the United States Constitution was read in its entirety. It is an eloquent document that defines our Democratic Republic. Yet, on January 5th, on day before it was read, 14 state legislators from throughout the United States, gathered in Washington D.C., seeking to change the 14th Amendment of the United States. This Amendment states that “all persons born or naturalized” in the United States are citizens of the U.S. These lawmakers specifically want to deny children born in the United States to immigrants U.S. Citizenship and the documentation needed to prove their citizenship. Reading and listening to the U.S. Constitution should not be two separate events.

Millions of people are unemployed, state budgets are being cut, people are losing their healthcare and these 14 state legislators think that denying U.S. citizenship to children born in the United States is or paramount importance. I wonder if they know the history behind the 14th Amendment? It was adopted on July 9, 1868 as one of the Reconstruction Amendments. Its Citizenship Clause provides a broad definition of citizenship, overruling the Dred Scott v. Sandford decision of 1857, which denied U.S. Citizenship to blacks.

The Citizenship Clause reads as follows:

“All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the State wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

These are indeed beautiful and eloquent words to live by. So let us not just read the U.S. Constitution, but listen to it.

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The United States Is Facing A Nursing Shortage

According to the American Nurse Association, the nursing population is aging rapidly and they predict that 65% of registered nurses (RN) will retire this decade. By the year 2020, the RN workforce is forecast to fall nearly 20 percent below projected RN workforce requirements. The U.S. Department of Health and Human Services estimates that the nurse shortage will reach 1.2 million by 2020. This shortage is to be taken seriously, especially with the Baby Boom generation getting older and older, the demand for RNs is expected to increase.

Hard hit areas, such as California, Florida and Texas, are turning to overseas recruitment in order to help with the shortage problem. There are two different visa categories that foreign nurses can apply for in order to enter the United States to work. There are the three nonimmigrant visas: H1-B visas, TN visas and H-1C visas. And there is the EB-3 immigrant visa.

Nonimmigrant visas are temporary visas and allow the employee to enter US for a limited amount of time. Nonimmigrant visas present problems if we wish to fill the nursing shortage. The first is that they are temporary and therefore would do little to address the nursing problem long term. The second is that there are very few available nonimmigrant visas available for foreign nurses. For example, H1-B visas are only available to those who have a bachelor’s degree or higher. Many foreign-born nurses do not have the required educational degree in order to be eligible for an H1-B visa. TN visas are only available to qualified nurses from Canada and Mexico. And H1-C visas, which were created specifically to address the nursing shortage, are limited to only 500 per year and currently only a very small number of hospitals have the required certification to qualify for thius type of visa.

The second type of visa, the EB-3 immigrant visa, makes more sense since it allows foreign nurses to receive a Green Card and therefore become permanent residents in the US. Foreign nurses can apply for EB-3 visas, or a “third priority employment-based visa.” In order to be eligible to apply for an immigrant visa, the foreign nurse must be sponsored by a US health facility, such as a hospital. The application process is lengthy, requiring the US employer to file an I-140 petition and labor certification with the US Citizenship and Immigration Services (USCIS).

The nursing shortage has to be addressed and qualified, foreign-born may be part of the solution.

What is an E2 visa?

The E2 visa is a special non – immigrant visa which is available to nationals of treaty countries. It is a visa reserved for investors from countries which have commerce and navigation treaties or bi-lateral investment treaties with the United States and who wish to invest substantial capital in any company in the United States for the purpose of developing and directing business operations of the enterprise.

The E2 visa is issued generally for four to five years. Although some consulates may issue Visas for 2 years, they may extend the visas for unlimited periods as long as the investment continues. People who apply for E2 visa must provide a documentation about the business and the plan, the amount of the business and the nature of the capital and must provide the calculation of the jobs to be created.

Eligibility for E2 visa

To qualify for the treaty visa, the applicant must satisfy the following conditions.

• must be a national of a treaty country
• investment must be substantial
• investment must be in a real operating enterprise
• investment must not be marginal
• must have the control of funds and bear the risks of investment, and
• the home country maintains a treaty of commerce and navigation, or bi-lateral treaties in the United States

Even though there is no specific amount mentioned by the law, it is required that the investment amount must be 50 percent ownership in an enterprise which generates active income. However, a minimum amount of $25,000 is necessary as a substantial investment.

The spouse and unmarried minor children may accompany the E2 visa holder to the United States on E2 visa. Though they may accompany the Visas holder, they are not allowed to work in the United States. Like the other Work Visa (H1- B), the E2 visa holder may apply for permanent residency.

The applicant must ensure he or she submits the required supporting documents for the application to be approved. The following is the list of documents that need to be submitted.

-DS-156, Non- immigrant Visa Application

-DS-156E, Non- immigrant Treaty Trader or Investor Application

-DS-157, Supplemental Non- immigrant Visa Application

-Copy of your passport

-Two identical color photographs

-Business Plan outlining future investment scheme

-Applicant's curriculum vitae

-Evidence of the employment in a supervisory or executive capacity, or possess highly specialized skills essential to the efficient operation of the firm

-Evidence of possession and control of investment funds

-Evidence of remittance to the U.S

-Evidence of establishment of business in the U.S

-Evidence of the nationality of the investors/traders

-Evidence of investment in the U.S.

-Evidence of substantiality

-Evidence that the enterprise is not marginal

-Evidence that the business is a real, operating enterprise

The application process for this visa varies from one country to the other. The applicants must generally apply at the US Embassy or Consulate with jurisdiction over their place of permanent residence. Interview will be conducted for the applicants who are aged between 14 and 79. During the interview process fingerprints will be taken. The decision of the petition will be notified in writing.

Getting a Green Card Through Employment

Green card can be obtained in many ways. Foreign nationals who are eligible can apply for a green card through employment. Based on your employment and depending on the willingness of the employer to sponsor you, you will be able to immigrate to US.

Eligibility to Apply for Green Card through Employment: (Work Visa)

It is necessary that you should fall under one of the following categories to be eligible for employment based green card or immigration,

EB-1 Priority workers who are in high demand like professors, researchers, executives and also includes professionals in sciences, arts, education, business, etc.

EB-2 Persons with exceptional ability or professionals with advanced experience in arts, sciences and professionals with undergraduate degrees and advanced degrees with extensive work experience.

EB-3 Professional or skilled workers who are skilled in the field where you need a baccalaureate degree with two years of experience of training or a bachelor degree from a university.

EB-4 Special Immigrants who are specialized professionals or otherwise skilled qualify for this EB-4 category

Getting a green card through employment starts off with developing a fair communication with an employer, as the employer is the person who is going to sponsor the green card. Applying for a green card is a multi-step process. For getting a green card through employment, first the sponsor who is the employer must petition for labor certification from the DOL which is the Department of Labor's Employment and Training Administration. The DOL, thereafter should verify that your employment in the US will not adversely affect the employment opportunities of qualified US workers. Much priority is given to the workers who prefer the job that you are being offered. If the petition is approved by the DOL, your employer must file Form I-140 with the USCIS, which is the petition for an alien worker.

After approval of the I 140 petition by the USCIS, it will be forwarded to the NVC, National Visa Center which will send information to your employer that your application has been approved. If you are in the US when the visa number is made available, you can file I 485 to adjust your status. If you are outside the US, you will have to complete the processing at the US consulate by applying for an immigrant Visas. The whole process is to be completed by submitting the necessary documents and the relevant fees .Once the process is complete and your application is approved, you will be granted conditional permanent residence which is valid for two years. You will be able to live an work in the US after getting conditional permanent residence.

If you do not have an offer of employment from a US employer, you can still apply for a green card by self-petitioning if you qualify under the suitable category. With special abilities which are in demand in the US workforce, you can self petition yourself and obtain a green card. In case you are an investor who is investing in the United States and creating new jobs, you will be able to qualify for a green card. In most cases people opt for getting a green card through employment by an employer who sponsors them.