Get on the path to results today. immigration
Get on the path to results today. immigration
Our office has over 20 years of experience practicing several aspects of Immigration Law. We have successfully defended thousands of immigrants. We successfully help reunite families, help investors, appeal denials and protect and defend those who are in deportation proceedings. Our focus is to create and maintain a relationship with our client in order to have a stress free immigration process.
WE ALSO HANDLE:
REQUESTS FOR EVIDENCE (RFE), NOTICE OF INTENT TO DENY (NOID), I-290B MOTIONS, 601 WAIVERS, BIA APPEALS, and AAO APPEALS.
An introduction to the family preference system.
Much of the immigration to the U.S. that occurs is through sponsorship by a family relative. Family-based immigration allows for close relatives of U.S. Citizens and legal permanent residents to rejoin their families here in the U.S.
However, the system is based on categories, each of which has strict annual limits in the number of immigrants allowed each year. This creates backlogs, some of them quite lengthy, in some of these family categories.
The priority is given to “Immediate relatives”. This category does not have any limit or cap on the number of visas and therefore, there is no “waiting period” other than the amount of time the Department of Homeland Security (or the U.S. consulate abroad) takes to process these visas. These “immediate relative” categories are:
• Spouses of U.S. citizens;
• Unmarried minor children of U.S. citizens; and
• Parents of U.S. citizens.
Obtaining a green card through marriage.
In the case of marriage, an application must be submitted along with documents to prove the validity of the marriage and an interview takes place at the DHS office, if they are in the U.S. It generally takes approximately six months to obtain conditional permanent residence for the spouse. Conditional permanent residence is granted for two years.
In the case of all immediate relatives in the U.S., an application for a green card can be processed here. It is not necessary for the relative to be in legal status, but they must have come to the U.S. legally, with a valid visa. If they crossed the border without a visa, they do not qualify.
If the spouse is outside the U.S., then an application is filed here and once approved, the relative goes through “consular processing” back home in their home country.
Obtaining permanent residence through family members other than spouses.
You can sponsor other members of your family besides those in this “immediate relative” category, but in each case there will be a long wait for them to get a green card. The other relative categories have limits on the number of visas and therefore, there are waiting periods, which can run from five to ten years or more.
These relative categories are:
• Adult children (unmarried) of U.S. citizens (1st preference category)
• Spouses and minor children of legal permanent residents (2nd preference)
• Adult children (married) of U.S. citizens (3rd preference category)
• Brothers and sisters of U.S. citizens ( 4th preference category)
The waiting periods for each of these visas can be determined (approximately) by checking the U.S. Department of State website or the Visa Bulletin which they publish.
The U.S. Department of State visa bulletinlists each category and the date on which an individual applied in each category who is being processed for a green card currently. From this date, one can try to extrapolate how long it will take for an application filed today to take before a relative qualifies for permanent residence.
As you’ll see when you check this bulletin, there are long waits for every category of family sponsorship. In addition to per category limits to family-based immigration, there are also per country limits.
Because of higher numbers of immigration to the U.S., persons coming from the countries of Mexico, the Philippines, China, and India have an even longer wait than those from the rest of the world.
While it may seem absurd to file to sponsor your relative given that the wait is over five years, there still are good reasons to do so. If the annual limits per category are raised in the future, this waiting period will decrease.
In any case, the sooner you file to bring your relative, the sooner the person will join you here as a green card holder.
Under present law, a person who came to this country on a valid visa can apply for permanent residency if they marry a US citizen. The laws are complicated but here’s a basic introduction:
• K-1 visa or Fiancée visa. If the person came to the US on a fiancée visa, they must marry within 90 days to the person who sponsored their visa in order to qualify for adjustment of status to permanent residence in this country.
• Adjustment of Status for immigrants with a visa. All other persons can apply for adjustment of status to permanent resident in this country based upon marriage to a U.S. citizen, as long as they entered the United States on a valid visa and have not committed a crime or some other act which makes them ineligible. Of course, the marriage must be a valid and bona fide one.
• 245i law. Also persons who qualify for a special law called Section 245i can also file for a green card here in the U.S. based on marriage – even if they came here without a visa. You only qualify for Section 245i if you had a family member or employer file to sponsor you for permanent residence before April 30, 2001. Many persons who have been sponsored by parents or siblings and have been waiting many years for their case to be “current” can file instead through a U.S citizen spouse under Section 245i. (However, it is very important to get good legal advice before filing to make sure you are eligible.)
• I601A Waiver of Inadmissibility for unlawful presence. For those not eligible for adjustment of status, If approved, and there are no other inadmissibility issues, they can consular process.
Adjustment of Status (I485) process.
If one is eligible to proceed to apply for a green card in the U.S., here’s a few basic facts about the process and the requirements.
• There are many necessary forms and documents necessary to submit with the marriage petition, including photos, birth and marriage records and other immigration forms.
• It generally takes only 9-15 months to finish the adjustment of status process. There is typically an interview at the end of the application process, which both spouses must attend.
What documentation supports the Adjustment of Status Process.
In order to prove that the marriage is valid at the interview, it is necessary to provide certain documentation to support AOS. This includes but is not limited to the following:
• financial records such as leases with both spouses names,
• joint bank account statements,
• joint credit cards,
• utility bills and other evidence that the couple is living together.
It is also helpful to bring photographs of the couple together, including photos of the wedding.
Other personal documents support the I485 application such as correspondence before marriage or even personal mementos can be helpful to show the immigration officer.
The I485 Adjustment of Status Interview.
The AOS interview at USCIS are intended to determine whether the marriage is legitimate or not.
If there is any significant doubt about whether the marriage is real, the applicants are required to come for a second, more intensive interview. In these second interview, the spouses are separated and questioned at greater length by trained officers.
If the officer is satisfied the marriage is bona fide, and all other requirements for permanent residence are met, the adjustment of status application is approved.
How long is my green card valid?
If the marriage is less than two years old, the immigrant is given conditional permanent residence. This status gives the immigrant all the same rights as a permanent resident except that it expires after 24 months.
Petition to Remove Conditions on Residence (I751)
Two years after the granting of conditional permanent residence, a new application must be submitted to USCIS, documenting that the marriage still exists.
A U.S. citizen can sponsor their future spouse to come to this country on a fiancée visa known as a K-1 visa.
If the visa is approved, the couple must marry within 90 days to the person who sponsored their visa in order to qualify for adjustment of status to permanent residence in this country.
How to apply for a fiancé visa.
To start the process to obtain a fiancée visa, an application is submitted to the Bureau of Citizenship and Immigration Services (USCIS) of the Department of Homeland Security.
Later, once the K1 visa is approved by the USCIS, the fiancé or fiancée has a consular interview at the U.S. Consulate abroad.
What documents support the fiancée visa?
In order to prove that the relationship is valid, it is necessary to provide certain documentation with the application such as:
• evidence of the past relationship,
• correspondence,
• travel records,
• other evidence of their time spent together and their courtship.
It is helpful to submit photographs of the couple together, including photos with family members if possible. We recommend that clients also submit statements from family members confirming that the relationship exists.
It is also necessary to submit financial documents proving that the petitioner US citizen can support the fiancée in the United States financially. This usually includes tax returns, W2s from an employer and a letter confirming present employment.
Upon submission of the application, the Immigration Service attempts to determine if the relationship is bona fide.
Once approval in the U.S. occurs, there is a consular interview at the Consulate overseas at which the applicant may be asked questions about the relationship. Usually only the intending immigrant attends this interview. At the end of the interview, if the officer is satisfied the relationship is bona fide, and all other requirements for the visa are met, the visa is approved.
Adjustment of status in the U.S.
Once the person comes to the United States, the couple must marry within 90 days. At that point, there is another procedure known as Adjustment of Status required to obtain permanent residence for the immigrant. There are more forms to file and documents to submit, with an interview at the end of the application process, which both spouses must attend.
If the officer is satisfied the marriage is bona fide, and all other requirements for permanent residence are met, the adjustment of status application is approved. If the marriage is less than two years old, the immigrant is given conditional permanent residence.
This status gives the immigrant all the same rights as a permanent resident except that it expires after 24 months.
Two years after the granting of conditional permanent residence, a new application must be submitted to the immigration service, documenting that the marriage still exists.
U.S. law does not allow the individual to switch to a different U.S. visa under any circumstances. If the marriage does not occur, the foreign national generally must return to their home country. So the fiancée visa is not a good option unless the couple are relatively sure they will be married.
Pluses and minuses of the K-1 visa.
The fiancée visa is useful for persons who cannot obtain a tourist visa and are not eligible for a visa waiver; they often have no other way of coming to the U.S. to spend time with a future spouse.
The visa has the benefit of allowing the foreign national to spend up to 3 months with their fiancée living in the U.S. to “test the waters” of their relationship before actually getting married.
One problem with the fiancée visa: it can be a long process, especially now during the Trump Administration.
And once the petition is filed, it is often difficult for the intending immigrant to visit the U.S. on a tourist visa or visa waiver (ESTA). The U.S. Consulates are often unwilling to grant a tourist visa if a foreign national has a fiancée visa application pending; likewise even if the fiancée has a tourist visa or is eligible to enter the U.S. without a visa, U.S. border officials might turn the fiancée away at the airport because of the pending application.
Therefore, Clients should carefully consider their future travel plans before filing the visa application and be prepared for the possibility of being apart for long periods of time.
It has always been important for persons eligible to apply for naturalization and obtain their American citizenship. This is true now more than ever.
Eligibility.
To be eligible for naturalization in the United States, you must meet certain requirements.
• First, you must be at least 18 years of age.
• You'll also need to have been admitted lawfully into the U-S as a permanent resident.
• You're required to have lived continuously in the US for at least five years, staying in one state or district for at least three months.
• Additionally, you must show that you've been "of good moral character" for the required period.
Several actions can exclude you from good moral character, such as committing certain crimes, smuggling illegal aliens, habitual drunkenness, polygamy, and more.
To apply for naturalization, you'll need to be able to read, write, speak, and understand words in English as well as show knowledge of the basics of history and the government of the US. Some people are exempt from the language and history requirements, and eligible for exclusions and waivers.
You'll be asked to take an oath of allegiance, where you promise to support the Constitution and obey the laws of the US, renounce any foreign allegiance or title, and be ready to bear arms for the armed forces of the US if it's required.
How does one obtain Citizenship?
There are many ways to obtain citizenship in the United States. Citizenship is automatically granted if the individual was born in the US or its possessions, or if the individual was born outside the United States to citizen parents. Most individuals seeking citizenship are interested in naturalization.
The basic requirement of naturalization is that the applicant must have been a continuous lawful permanent resident of the United States for five or more years, or have been married to a permanent resident for more than three years and be currently married to that spouse.
An absence from the US for one year or more without advance approval from USCIS breaks the continuity of five years.
Can I avoid taking the exam in English?
Persons who are over 55 years old with permanent residence for more than 15 years can take the exam in their own language. Those over fifty years of age who are a resident for more than 20 years also qualify for this.
What about my children?
Often individuals who are naturalized can provide derivative citizenship to their minor children when they turn 18.
The application procedure.
There are three basic steps in the application procedure:
• The first step is to submit a complete and accurate application form with all the necessary attachments and requirements.
• Next, prepare for a multiple choice exam about US history and the English language.
• Third, prepare for your citizenship interview with an officer of the Bureau of Citizenship and Immigration Services, and finally, wait for approval from USCIS and attend your naturalization ceremony.
Under the Violence Against Women Act (VAWA), spouses and children of United States citizens or lawful permanent residents may request lawful permanent residency if they have been the victims of domestic violence.
This law applies even if the person applying is undocumented, and entered the United States illegally. If the VAWA application is granted, the person’s unlawful presence here is forgiven, and they become eligible for a green card.
The person applying must have been legally married in good faith to a U.S. citizen or lawful permanent resident who committed the domestic violence. The law also allows the unmarried children of the battered spouse under the age of 21 to get status as derivative beneficiaries. Likewise, VAWA allows an opportunity to apply for status for a battered child under 21 years of age and unmarried. The parents of a child who has been abused and unmarried minor children can also apply as derivative beneficiaries.
A battered spouse only qualifies for relief if the abuse occurred in the United States. The only exception is when the abusive spouse is an employee of the United States government or a member of the uniformed services of the United States.
It is important to know that the emotional or psychological abuse also qualifies; it is not absolutely necessary to show that the victim suffered physical attacks. The law requires the victim to prove they were subjected to “extreme cruelty”, which can include threats, verbal abuse, harassment and other forms of emotional abuse, without the necessity of physical abuse. Our office has had great success obtaining VAWA status for women and men who were subject to various forms of cruelty or violence. In these applications, a police report of the abuse is helpful, but not necessary. We have been able to succeed in winning these cases with statements from witnesses including family members.
The U nonimmigrant status (U visa) is a form of humanitarian relief created by the U.S. government to protect victims of certain serious crimes. In order to be eligible, an individual must have suffered mental or physical abuse as a result of the crime and be willing to assist law enforcement or government officials in the investigation or prosecution of criminal activity related to the crime. If approved, the applicant will be granted lawful status in the United States for up to four years with the possibility of applying for permanent residence. Additionally, the U visa recipient may be eligible for certain benefits, such as work authorization and access to public benefits.
The U nonimmigrant visa was created by Congress as part of the Victims of Trafficking and Violence Protection Act, which was passed in 2000. The purpose of the U visa is to provide protection to foreign nationals who have been victims of certain crimes, including human trafficking, domestic violence, and sexual assault. The visa allows the recipient to remain in the United States legally and to obtain employment authorization, allowing them to financially support themselves and their families. Additionally, the visa also provides access to certain benefits such as medical care, mental health services, and English language training. The U visa is an important tool for victims of these violent crimes to seek safety and justice in the United States.The legislation also helps law enforcement agencies to better serve victims of crimes.
This is an overview of the current law applying to applications for permanent residence in the U.S. based upon employment or business purposes.
There are five basic types of business immigrant visas. All categories are limited by annual levels and per-country levels.
These immigrants become permanent residents and obtain the indefinite right to live and work in the United States, as long as they do not commit any offense that would render them deportable.
Business immigrants usually are sponsored by a U.S. employer based on a demonstrated need. Some business immigrants may self-petition if they meet statutory criteria for extraordinary ability in their field, or if their entry would be in the national interest.
Most business immigrant cases require Department of Labor certification that no U.S. workers are able, qualified or willing to take the position offered to the foreign national and that admitting the immigrant will not negatively impact the wages and working conditions of similarly situated U.S. workers. The only categories exempt from this requirement are those for individuals who are extraordinary or outstanding in their field or whose presence is in the national interest.
A permanent labor certification issued by the Department of Labor (DOL) allows an employer to hire a foreign worker to work permanently in the United States. In most instances, before the U.S. employer can submit an immigration petition to the Department of Homeland Security's U.S. Citizenship and Immigration Services (USCIS), the employer must obtain a certified labor certification application from the DOL's Employment and Training Administration (ETA). The DOL must certify to the USCIS that there are not sufficient U.S. workers able, willing, qualified and available to accept the job opportunity in the area of intended employment and that employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.
To improve the operations of the permanent labor certification program (PERM), ETA published a final regulation on December 27, 2004, implementing a new, re-engineered permanent labor certification program, effective March 28, 2005. This new electronic program has improved services to our various stakeholders.
As of March 28, 2005, ETA Form 750 applications were no longer accepted under the regulation in effect prior to March 28, 2005, and instead new ETA Form 9089 applications had to be filed under the new PERM regulation at the appropriate National Processing Center (NPC). Applications filed under the regulation in effect prior to March 28, 2005, continued to be processed under the rule in effect at the time of filing at an appropriate Backlog Elimination Center until such time as the backlog was eliminated. Where an employer chose to withdraw an application filed under the regulation in effect prior to March 28, 2005, and still in process, and to refile an application for the identical job opportunity under the refile provisions of the PERM regulation, the employer was permitted to use the previously filed ETA Form 750 application filing date.
DOL processes Applications for Permanent Employment Certification, ETA Form 9089, with the exception of Schedule A and sheepherder applications filed under 20 CFR § 656.16. The date the labor certification application is received by the DOL is known as the filing date and is used by USCIS and the Department of State as the priority date. After the labor certification application is certified by DOL, it should be submitted to the appropriate USCIS Service Center with a Form I-140, Immigrant Petition for Alien Worker. The certification has a validity period of 180-days and expires if not submitted to USCIS within this period.
Requirement for U.S. employers seeking to employ certain persons whose immigration to the United States is based on job skills or nonimmigrant temporary workers coming to perform services for which qualified authorized workers are unavailable in the United States. Labor certification is issued by the Secretary of Labor and contains attestations by U.S. employers as to the numbers of U.S. workers available to undertake the employment sought by an applicant, and the effect of the alien’s employment on the wages and working conditions of U.S. workers similarly employed. Determination of labor availability in the United States is made at the time of a visa application and at the location where the applicant wishes to work.
An L-1 intracompany transferee visa is available to qualified international executives, managers, and specialized knowledge employees transferred from an overseas organization to work for the same organization in the United States or for its American subsidiary or affiliate.
How Long Can I stay on an L-1 visa?
An intracompany transferee is accorded an L-1 visa initially for one to three years. Extensions are available for a total of six years in the case of specialized knowledge employees and up to seven years for managerial or executive employees.
What are the Advantages of an L-1 visa?
• L-1 visas are particularly advantageous because it is not necessary to prove either that the applicant has a residence abroad to which he or she intends to return or that the applicant lacks immigrant intent to receive an L-1 visa stamp from a U.S. Consul.
• Moreover, in many cases, an L-1 visa holder is eligible to receive permanent resident status without a determination by the Department of Labor that there are insufficient U.S. workers for the job available to the intracompany transferee.
What are the Requirements of an L-1 visa?
• To qualify for intracompany transferee status, it must be demonstrated that within the three years preceding the time of application the employee has been employed continuously abroad for one year by a firm, corporation or other legal entity, or a branch, affiliate or subsidiary thereof, and
• that the employee seeks to enter the United States temporarily to continue rendering services for the same employer, or a branch, subsidiary or affiliate thereof in a capacity that is managerial, executive, or involves specialized knowledge.
Thus, L-1 cases present two basic issues: whether the U.S. employer is a branch, subsidiary or affiliate of the employee's employer abroad; and, whether the employee worked abroad continuously for one year during the past three years in a capacity which is managerial, executive, or involves specialized knowledge.
What is a subsidiary, affiliate or branch office?
"Branch" means an operating division or office of the same organization housed in a different location.
"Subsidiary" means
• a firm, corporation, or other legal entity of which a parent owns, directly or indirectly, more than half of the entity and controls the entity;
• owns, directly or indirectly, half of the entity and controls the entity;
• owns, directly or indirectly, less than half of the entity, but in fact controls the entity.
"Affiliate" means
• one of two subsidiaries both of which are owned and controlled by the same parent corporation or individual,
• one of two legal entities owned and controlled by the same group of individuals, each individual owning and controlling approximately the same share or proportion of each entity.
What jobs are “managerial” for purposes of an L-1 visa?
"Managerial capacity" means an assignment within an organization in which the employee personally manages the organization, department, subdivision, function or component; supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function within the organization or department or subdivision of the organization; has authority to hire and fire or recommend personnel actions (if another directly supervises employees), or if no direct supervision, functions at a senior level and exercises discretionary authority over day-to-day operations of the activity or function.
What jobs are “executive ” for purposes of an L-1 visa?
"Executive capacity" means an assignment in an organization in which the employee primarily directs the management of an organization or a major component or function; establishes goals and policies; exercises wide latitude in discretionary decision-making and receives only general supervision or direction from higher level executives, the Board of Directors, or stockholders of the business.
What jobs involve “specialized knowledge” for purposes of an L-1 visa?
"Specialized knowledge" is defined to include persons who have "special knowledge of the company product and its application in international markets" or who have "an advanced level of knowledge of processes and procedures of the company." Characteristics of a specialized knowledge employee include the possession of knowledge that is valuable to the employer's competitiveness in the market place; unique qualifications that contribute to the U.S. employer's knowledge of foreign operating conditions; possession of knowledge which can be gained only through extensive prior experience with that employer; and, employees abroad who have been given significant assignments which have enhanced the employer's productivity, competitiveness, image, or financial position. Significantly, a specialized knowledge employee is not simply a highly skilled or professional worker.
What documents should I submit with my L-1 visa application?
An application for intracompany transferee L-1 status must be supported by the following:
• Evidence that the overseas company has established a subsidiary, affiliate, or branch office in the United States.
• A detailed description of the services to be performed in the United States by the L-1 beneficiary.
• Evidence that the L-1 beneficiary has at least one continuous year of full-time employment abroad with the overseas company in the last three years and evidence that this employment abroad was in a position that was managerial, executive or involved specialized knowledge.
• Evidence that the beneficiary's prior education, training, and employment qualify him or her to perform the intended services in the United States.
• Evidence that sufficient physical premises to house the U.S. employer have been leased.
• Evidence that the U.S. company has sufficient financial resources to support its business activities in the United States and pay the salary of the beneficiary.
In the case of a new business, evidence that within one year of approval of the L-1 petition, the U.S. operation will support an executive or managerial position as documented by a description of the following: the proposed number of employees and the type of positions they will hold; the size of the United States investment and the financial ability of the foreign entity to remunerate the L-1 beneficiary and support the U.S. company's conduct of business; and, the size and staffing levels of the overseas company.
Once the petition is approved, it is forwarded to the United States Consulate in the beneficiary's home country for visa issuance.
What about my spouse and dependents?
The L-1 beneficiary's spouse and unmarried children under 21 are eligible for L-2 status. L-2 spouses are eligible to apply for employment authorization.
I. Aliens Eligible for Cancellation of Removal: You may be eligible to have your removal cancelled under section 240A(b) of the Immigration and Nationality Act (INA). To qualify for this benefit, you must establish in a hearing before an Immigration Judge that:
A.1. Prior to the service of the Notice to Appear, you have maintained continuous physical presence in the United States for ten (10) years or more, and you have been a person of good moral character as defined in section 101(f) of the INA during such period;
2. You have not been convicted of an offense covered under sections 212(a)(2), 237(a)(2), or 237(a)(3) of the INA; and
3. Your removal would result in exceptional and extremely unusual hardship to your United States citizen or lawful permanent resident spouse, parent, or child, and you are deserving of a favorable exercise of discretion on your application. OR
B. 1. You have been battered or subjected to extreme cruelty in the United States by your United States citizen or lawful permanent resident spouse or parent, or you are the parent of a child of a United States citizen or lawful permanent resident and the child has been battered or subjected to extreme cruelty in the United States by such citizen or lawful permanent resident parent;
2. Prior to the service of the Notice to Appear, you have maintained continuous physical presence in the United States for three (3) years or more and you have been a person of good moral character as defined in section 101(f) of the INA during such period;
3. You are not inadmissible under sections 212(a)(2) or 212(a)(3) of the INA, you are not deportable under section 237(a)(1)(G) or sections 237(a)(2)-(4) of the INA, and you have not been convicted of an aggravated felony as defined under the INA;
4.a. Your removal would result in extreme hardship to you or your child who is the child of a United States citizen or lawful permanent resident; or
b. You are a child whose removal would result in extreme hardship to you or your parent; and
5. You are deserving of a favorable exercise of discretion on your application. Note: If you have served on active duty in the Armed Forces of the United States for at least 24 months, you do not have to meet the requirements of continuous physical presence in the United States. You must, however, have been in the United States when you entered the Armed Forces. If you are no longer in the Armed Forces, you must have been separated under honorable conditions.
In 2011, the Department of Homeland Security (DHS) announced a newprocess to ensure that its resources are focused on its highest enforcement priorities. This process is referred to as "prosecutorial discretion," or "PD." Under PD, DHS reviews pending cases to see whether theymeet certain criteria for cases that are considered a low enforcement priority. If a case meets the criteria, DHS may request "administrative closure" of the case.
"Administrative closure" is an order by the court that removes the case from the court's calendar of hearings. Administrative closure does not mean that your case is completed or that the court has granted any application for relief that you may have filed with the court. If the court orders your case administratively closed, it simply means you will have no further hearings unless you or DHS specifically ask the court to schedule a hearing.
DHS is currently reviewing cases already filed with and pending before the Immigration Court to see whether any cases should be administratively closed. If DHS agrees that your case meets the PD criteria, then DHS may file a motion asking the court to administratively close your case. Immigration judges are prepared to adjudicate these motions on a case-by-case basis as they are filed.
If you need further guidance regarding PD, you should contact an attorney or representative.
WARNING: The Information above is not intended to be a substitute for legal advice. We recommend that you get competent legal advice specific to your case.
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