IMMIGRATION LAW

One of the ways to immigrate to the US is through a family based petition.  Your relative may be a US Citizen or a green card holder.  If you are the spouse, unmarried child under 21 years or parent of a US citizen you are what is known as an ‘immediate relative’ and you always have a visa number available. Other categories for family immigration are called ‘family preference categories’ and this includes unmarried sons and daughters over 21, adult brothers and sisters of the US Citizen. US Citizens can also petition for married children of any age through a family preference category.

Green card holders can petition for their spouses, unmarried children of any age and parents to immigrate to the US. However unlike US citizens a visa number is not immediately available for relatives of green card holders. There is generally a waiting period for a visa number to become available for qualifying relatives of green card holders because Congress has placed a limit on the number of people who can immigrate every year through these categories. Note that there is no visa category for married children of permanent residents. If you are the unmarried son or daughter of a green card holder and you get married before you become a permanent resident, you no longer qualify for the green card through your family member.

Every fiscal year in the United States about 140,000 immigrant visas are available for aliens (and their spouses and children) who want to immigrate based on their job skills. With the right combination of education, work experience, skills and if you meet all the requirements you may be able to live permanently in the United States. The five employment-based categories are:

EB-1 [people with extraordinary ability in specified fields and multinational managers]

EB-2 [people with advanced degrees or exceptional ability in the arts, sciences, or business]

EB-3 [professionals, skilled workers and other workers]

EB-4 [Eligiblie religious workers and other ‘special immigrants’]

EB-5 [Investors of $1 million [$500,000 in certain areas] who create at least 10 full-time U.S. jobs

For some of the employment based categories you must have a job offer from a U.S. employer who will be your sponsor. Employers usually have to get approved labor certification from the U.S. Department of Labor (DOL) before they can submit the immigration petition to USCIS.

Naturalization is the process by which a person who was not born in the United States becomes a US citizen. Before a person applies for naturalization he or she must meet some basic requirements including being a green card holder for at least 5 years, showing that you have lived continuously in the US for the 5 years just before you apply, and being a person of good moral character. Applicants for naturalization are also required to pass basic English and Civics test as part of the process. Green card holders may be ineligible for citizenship if they fail to meet all the requirements for citizenship.

Under the Immigration and Nationality Act, a person who was inspected and admitted or paroled into the United States who meets all the qualifications for a green card can change their immigration status from temporary to permanent. This is commonly known as ‘adjustment of status’. Adjustment of status is the process by which an eligible individual who is already in the United States can become a permanent resident [green card holder] without having to go back to his/her home country to complete visa processing. The first step in the process is to determine whether you fit into an immigrant category [whether through a family or employment petition]. Some people become permanent residents by first getting some other lawful status [for example T-Visa, U-Visa, Refugee, Asylee, Religious Worker] and after fulfilling all the requirements, they adjust their status to green card holders.

Investor Visas are another means of living and working in the United States. In this category we have Nonimmigrant business visas [B-1 temporary business visa and E-2 Investor visa]. The E-2 Investor visa is a non-immigrant business visa for Investors and investor employees from countries that have commerce and navigation treaties with the U.S. An E-2 investor must invest a substantial amount of capital in a U.S. business and meet all other legal and regulatory requirements. You can also get an E-2 visas if you are an employee from treaty countries who has a supervisory or executive role or other special qualifications. In addition, treaty investors must show that they can support themselves independent of the business being invested in. E-2 visas are usually issued for an initial maximum two-year period and can be renewed for 2 years at a time. There is no maximum limit to the number of extensions an E-2 nonimmigrant may be granted. Family members of Treaty investors and treaty employees [that is, their spouses and unmarried children under 21 years of age] can also seek E-2 nonimmigrant classification as dependents.

The EB-5 visa is an immigrant visa. Under the EB-5 Investor program, entrepreneurs (and their spouses and unmarried children under 21) are eligible to apply for a green card (permanent residence) if they meet the requirements by making necessary investment in a commercial enterprise in the United States and showing that they will create or preserve 10 permanent full-time jobs for qualified U.S. workers.

Religious visas may be obtained for religious workers whose lives are dedicated to religious practices and functions and are employed by a religious organization for a minimum of 20 hours a week. To qualify, the religious worker must have been a member of the denomination for at least two years immediately before filing the petition. USCIS may grant R-1 [religious worker] status for an initial period of admission for up to 30 months which may be extended for up to 30 months. Religious workers cannot stay in the United States under R-1 classification for more than 5 years [60 months] in total. Holders of R-1 visas can adjust their status in the United States for the purpose of performing religious work in a full-time, compensated position under the EB-4 visa classification.

Religious workers must perform traditional religious functions which are recognized within the denomination. Their duties performed by religious workers must be clearly related to and carry out the religious beliefs and doctrines of the denomination and must not be primarily administrative, support or clerical functions.

Consular processing is another way of immigrating to the United States. Here an individual who is outside the United States obtains a visa abroad and enter the United States as a permanent resident. This process is called ‘consular processing’. Similarly individuals who are already in the United States but are not eligible for adjustment of status may return to their home country to complete the visa processing or ‘consular process’. In consular processing cases, after the initial petition is approved by USCIS it is sent to the National Visa Center [NVC] where it remains until an immigrant visa is available. The person [or employer] who files the petition is the ‘petitioner’ and the person who is trying to immigrate to the US is the ‘beneficiary’. NVC informs the petitioner and beneficiary when the visa number is about to become available, when they must pay the visa processing fees and submit their documents for processing. Next the consular office wil; schedule the beneficiary for an interview and grant him an immigrant visa if they decide he [or she] is eligible. The beneficiary is given a ‘Visa Packet’ which must not be opened until arrival in the US. At the port of entry, the Visa Packet will be handed over to a Customs and Border Protection officer who inspects the beneficiary. If found admissible, the beneficiary will be admitted as a permanent resident of the United States.

Deportation is the formal removal of an alien from the United States when the alien has been found removable for violating the immigration laws. Deportation is ordered by an immigration judge without any punishment being imposed or contemplated. A deportation case may arise against a permanent resident or an undocumented alien who has violated the immigration laws of the United States. In the case of legal permanent residents, deportation or removal proceedings are often triggered by the commission of certain criminal acts, felonies and crimes involving moral turpitude. For undocumented aliens, a deportation or removal case may be triggered by criminal convictions, smuggling activities and violations of immigration laws of the country. Defenses to deportation include cancellation of removal, prosecutorial discretion, withholding of removal, voluntary departure, deferred action and asylum.

K-1 nonimmigrant visa is a visa issued to a foreign citizen fiancé(e) of a United States (U.S.) citizen. After the foreign-citizen fiancé(e) gets a K-1 visa, he or she must travel to the United States and marry his or her U.S. citizen sponsor within 90 days of arrival. The K-1 holder will then apply for adjustment of status to a legal permanent resident of the United States. K-2 visas are issued to eligible children of K-1 visa applicants. K-1 visa applicants must have met each other in person at least once within two years of filing the petition, unless it is against the customs or culture of the foreign citizen or the requirement to meet would result in extreme hardship to the US citizen petitioner. If the US citizen and the fiancé [e] have not met in person within the two years as the law requires, they need a waiver based on the exceptions stated above. Fiancé(e) status automatically expires after 90 days and cannot be extended. The K-1 applicant should leave the United States at the end of the 90 days if they do not get married within the period to avoid violating U.S. immigration law and possible removal (deportation).

T Nonimmigrant Status (T Visa) is set aside for victims of human trafficking who are willing to assist law enforcement in investigating or prosecutiing acts of trafficking. Human trafficking [trafficking in persons] is a form of modern-day slavery in which traffickers trick their victims with false promises of employment and a better life. The T nonimmigrant visa allows victims to remain in the United States to help the authorities investigate and prosecute human trafficking cases. The two categories of trafficking covered by T-visas are sex trafficking and labor trafficking. To qualify for a T-visa you must be admissible to the US [or get a waiver], be a victim of severe trafficking, be physically present in the US as a result of the trafficking, help law enforcement in their investigation and show extreme hardship if you are removed from the United States. T-visas are valid for 3 years, after which the T-visa holder may be eligible to apply for permanent residence. T-visa holders can apply for their immediate relatives [unmarried children under 21, spouses and in some cases parents and unmarried siblings under 18].

If you are inadmissible to the United States and are seeking an immigrant visa, adjustment of status, certain nonimmigrant statuses or certain other immigration benefits, you may seek a waiver of inadmissibility. A waiver is simply put ‘forgiveness’ from the government from certain grounds of inadmissibility such as unlawful presence, obtaining immigration fraud through fraud or misrepresentation and certain criminal charges, arrests or convictions. Different grounds of inadmissibility have different waiver requirements and applicants for waiver must meet the basic criteria before submitting a waiver application.

Deferred action for childhood arrivals (DACA) allows certain individuals who came to the United States as children and who meet specific guidelines, to request deferred action [DACA] from USCIS. People who are granted DACA will not be placed into removal proceedings or removed [deported] from the United States while it is still current unless it is terminated. DACA recipients can also request employment authorization [work permit]. You can request DACA if you:

-Were under 31 years old on June 15, 2012

-Came to the United States before you were 16 years old

-Have been living in the United States continuously from June 15, 2007 till you applied from DACA

-Were physically present in the United States on June 15, 2012, and also when you applied for DACA

-Entered without inspection before June 15, 2012, or your immigration status had expired by June 15, 2012

-Are currently in school, have graduated from high school, have a general education development (GED) certificate, or are an honorably discharged veteran

-Have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and -Do not otherwise pose a threat to national security or public safety.