Immigration Law

             A. Immigrant Visas and Naturalization

1. Citizenship

If you have continuously resided in the U.S. and have been a permanent resident for a period of either, three years for a spouse of a U.S. Citizen or a member of the military, or five years for other residents, you are eligible for naturalization. You should be aware that having a criminal record makes it very difficult, but not impossible, to be eligible for citizenship status. Continuous residency does not mean you have to have been in the U.S. for all three/five years. It means that you have to have maintained your residency status but not being outside of the U.S. for more than six months and live in the U.S half of the required residency requirement.

2. Permanent Residency

If a person intends to live and work in the U.S. on a permanent basis, such a foreign national needs to obtain a permanent residency. There are many ways to become a permanent resident. Adoption, the diversity lottery, investment, employment, family ties, refugee or asylee status, are some of the ways for a person to become an immigrant and a permanent resident. Citizens of some countries such as Cuba, Iraq, Cambodia, Syria… have special immigrant status which allows them to become permanent residents a lot faster than others. Permanent residents are given an alien registration card (green card) as a proof of their lawful permanent residency. Each year, the government sets a quota for the number of people who can become immigrants. This quota does not pertain to people who are immediate relatives of US Citizens. Your country of origin and the way you obtained your adjustment matter since these are directly related to the amount of time you have to wait to obtain your permanent residency. Immediate relatives of U.S. citizens (spouses, children, parents) are exempt from numerical quotas. Refugees and diversity immigrants are also given a separate quota.

3. Asylum/Refugee

Asylum and refugee laws fall under a separate category altogether. Both asylees and refugees have refugee status. But while refugees as we commonly term it are processed outside of the U.S., asylees are already in the U.S. or at a U.S. port of entry when they apply for asylum. People seeking refugee status are people whom have been persecuted in the past or have a well-founded fear of persecution on the basis of their race, religion, nationality, or membership in a particular social group or political opinion, and who are unable or unwilling to return. An asylum applicant must petition for asylum status within a year after his/her arrival in the U.S. Only those who can show changed circumstances in the home country or extraordinary circumstances are exempt from the one-year limit.

            B. Non Immigrant Visas and Other Benefits

1. Business

a. Labor Certificates

Employers, who wish to offer permanent full time employment to their foreign born employees immigrating to the US, need to file a labor certificate with the Department of Labor (DOL). What the certificate does is show that qualified U.S. workers are not available for the employment offered to the foreigner, and that the wages and working conditions offered do not adversely affect U.S. workers. Before filing the certificate, the employer needs to have already tried to hire U.S. workers at the prevailing wages by advertising, posting notice of the job opportunity, and by any other proper means. If the employer is unable to find a US worker, then it is allowed to file an application and ask the State workforce Agency (SWA) for a determination of prevailing wage and condition through a labor condition application. The process is now made easier and faster by allowing employers to file the application online. Once SWA determines that the employer has fulfilled the DOL requirements, it sends the file to the national DOL office which would either grant or deny the application. If the certificate is denied, the employer receives a notice of finding and has 35 days to appeals the decision with the DOL.

 b. B-1 Business Visas

B-1 visas are visitors visas and are for those who wish to visit the U.S. temporally to conduct business. The visas are usually issued for a period, anywhere from 3 months to ten years. Those who wish to work or study in the U.S should not seek visitor visas.

 c. H-1BTemporary Professional, Seasonal and Agricultural Workers Visas

The H-1 visas are the most common forms of employment visas and they allow a foreign national to legally work in the U.S. for a period of three years, renewable for another three years. Since it is quicker to obtain an H-1 visa than a green card, most employers obtain the H-1 visas for their employee and then apply for the permanent residency afterwards. The advantages of having an H-1visa is that it allows the holder to both work and travel outside of the U.S. It also gives (through the H-4 visa) family members the benefits of legally residing in the U.S. Note only employers are able to apply for the H-1. A foreign national cannot apply for him/herself. Also note that there is a quota of H-1 beneficiaries on any given year. Some H-1 visa holders such as those who are employed at institutions of higher learning are exempt from the quota.

 d. J-1 and Q-1 Exchange Visa

J-1 and Q-1 visas are exchange visitors visas and are usually given to au pair, physicians, teachers, researchers and students. These visa holders participate in an exchange visitor program in the United States through a designated sponsoring organization. Spouses and minor children of J-1 visas holders are able to accompany the J-1 holder but may not work in the U.S. but they can study without having to obtain an F-1 visa. There is a two year foreign residency requirement for many people with J-1 or Q-1 visas and this means that such persons cannot adjust their status unless they have returned to their country for two years or obtained a waiver.

 e. L1 Intra-company transferees

L1 visas allow businesses which are both in the US and abroad to transfer certain key employees from their foreign operations to the U.S for up to seven years. The L-1 visa holder must have worked for the business outside of the US for at least one year out of the last three years.

 f. P-1-3 Entertainers Visas

The P-1 visa allows foreign nationals who are internationally recognized athletes, artists or entertainers to enter the U.S. for a specific occasion, competition or show. A P-2 visa allows the athlete, artist or entertainer to visit the U.S through an exchange program. While the P-3 visa is for those culturally unique performances conducted in the U.S. The P-4 allows spouses and minor children of P1 through 3 visa holders to accompany them to the U.S.

 g. E1/E2

E-1 visas are for those foreign nationals who are key employees of businesses in countries which have entered into a treaty trade agreement with the U.S. Spouses and minor children of E-1 visa holders are able to accompany the E-1 person and are also able to work in the U.S.

E-2 visa holders are entrepreneurs whom are nationals of countries which have entered into treaties with the U.S. and who plan to invest substantially in a U.S. enterprise. Immediate relative of E-2 visa holders are able to accompany them into the U.S.

 h. TN-1 Visas

Under NAFTA, Canadians have preferential treatments over other nationals. The TN1 visa is the same as the H-1 visa but it is only for Canadians. The TN visa is granted for a year and can be renewed indefinitely and it can be applied at the border as well as in the U.S.

                                                                           2. Personal

a. Tourist Visas

Tourist visas are for those who plan to visit the U.S. temporally, for pleasure. Those who plan to scout for schools are able to use such visa but should let the consular service know beforehand of their intention. The visas are usually good for a period of three months to ten years, and once in the U.S. the visa holder can extend the visa for another six months.

 b. F-1 and J-1 Visas

The F-1 visa allows foreign nationals to enter the U.S. to attend colleges, universities or high schools or language training programs full time. Note an F-1 visa holder is allowed to work at the school attended for 20 hours during school year and 40 hours during summer time but should be very careful with working without authorization outside of those parameters.

c. K-1 and K-3 Fiancee and Spouse Visa

K-1 visas allow U.S. citizens to bring their fiancé/e into the U.S. The citizen needs to marry said fiancé/e within 90 days of entry into the U.S. Unmarried minor children of fiancé/e are able to accompany the fiancé/e into the U.S. K-3 visas are for the spouses of U.S citizens who are waiting in their country for an immigrant visa. This is a temporary visa which will allow them to enter the U.S and await the adjustment of their status.
K-3 visas are for the spouses of U.S citizens who are waiting in their country for an immigrant visa. This is a temporary visa which will allow them to enter the U.S and await the adjustment of their status.

 d. V Visa spouse and children of Permanent residents

This is for those who are immediate relative of a green card holder who petitioned for adjustment of status on or before December 21, 2000.

C. Other Issues

1. Appeals

a. Administrative Appeals Office (AAO)

Deals with certain appeals from USCIS.

b. Immigration Court

Once someone is on removal proceedings they receive a Notice to Appear (NTA) and must appear before the immigration court. Asylum case referred or denied from the asylum office are sent to the immigration court. Other immigration matters are often brought to immigration judge attention if immigration and customs enforcement (ICE) decides to prosecute someone here illegally. This often happens after a denial of an application or after someone is detained for whatever reasons.

c. Board of Immigration Appeals (BIA)

The Board or BIA, located in Virginia, has nationwide jurisdiction on cases decided by immigration judges and district directors. It usually does not conduct courtroom proceedings but decides appealed cases through the review of the paperwork in the case. Very seldom does the Board hear oral arguments of appealed cases. The Board decides removal cases, exclusion of foreign nationals for admission in the U.S., fines for violation of immigration laws, and motions to re-open or reconsider a pervious decision as well as a variety of other issues. It deals with appeals from both the Immigration court as well as the Administrative Appeals Office (AAO)

 d. Federal Court of Appeals

All BIA decisions are subject to judicial review in the Federal courts. An appeal from a BIA decision goes to the federal court of appeals that has jurisdiction over the case. In some instances such as in denial of citizenship, review starts in federal district court, in other cases, review starts in district court by petition for habeas corpus. Both cases can be appealed at the courts of appeals level. The majority of cases on appeal at the federal level involve foreign nationals who were unable to obtain relief from deportation orders in their petitions to the BIA.

 e. Supreme Court

This is the last resort and the last court for appeals. Since the Supreme Court only hears about 300 cases on any given year, and it has to decide whether it wants to hear an immigration case, only those cases with meaningful legal issues are likely to be heard.

2. Custody/Deportation

Any foreign national who is in the U.S. out of status is deportable. When the service apprehends such individuals they are put in detention and then deported to their home country. Many foreign nationals who have broken the law of the U.S. or are in the final stages of court proceedings are held by the Office of detention and removal (DRO) and then removed to their country of origins. Foreign nationals who have become illegal have the right to a removal proceeding before an immigration judge to decide both inadmissibility and deportability. If the immigration judge decides that the person should depart from the U.S., the foreign national does have the right to appeal such decision to the BIA. But in the meantime many, unless the Service agrees to have them released on a bond, are held in custody and if no further action is taken removed from the U.S. Note, arriving foreign nationals, if not paroled into the country can be held in custody and removed through expedited removals.

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