Immigration and Naturalization Law

Green Card: EMPLOYMENT

 

You may be eligible to become a permanent resident based on an offer of permanent employment in the United States. Approximately 140,000 immigrant visas are available each fiscal year for aliens (and their spouses and children) who seek to immigrate based on their job skills. If you have the right combination of skills, education, and/or work experience and are otherwise eligible, you may be able to live permanently in the United States. Some immigrant visa preferences require you to already have a job offer from a U.S. employer and most categories require the employer to get a labor certification issued by the Department of Labor (DOL).

In general, the DOL works to ensure that the admission of foreign workers to work in the U.S. will not adversely affect the job opportunities, wages and working conditions of U.S. workers. The five employment-based immigrant visa preferences (categories) are listed below.

First Preference (EB-1), this category is designated for persons of extraordinary ability, outstanding professors and researchers, and multinational executives and managers. There are significant advantages (i.e. no labor certification is required) if you qualify and the case can proceed much more quickly than other employment based applications. 

Second Preference (EB-2), This preference is reserved for persons who are members of the professions holding advanced degrees or for persons with exceptional ability in the arts, sciences, or business. Unless you can obtain a national interest waiver a labor certification is required. 

Third Preference (EB-3), You may be eligible for this immigrant visa preference category if you are a skilled worker, professional, or other worker. Labor certification and a full-time job offer required. 

Fourth Preference (EB-4), You may be eligible for an employment-based, fourth preference visa if you are a special immigrant. The following special immigrants are eligible for the fourth preference visa: religious workers, special immigrant juveniles, broadcasters, G-4 International Organization or NATO-6 Employees and their family members, international employees of the U.S Government abroad, armed forces members, Panama Canal Zone employees, certain physicians, Afghan and Iraqi Translators, Afghan and Iraqi Nationals who have provided service in support of U.S. operations.

Fifth Preference (EB-5), This preference is reserved for business investors who invest $1 million or $500,000 (if the investment is made in a targeted employment area) in a new commercial enterprise that employs at least 10 full-time U.S. workers.

More on the EB-5 Immigrant Investor Program. see Green Card: Investment

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Green Card: FAMILY

One of the most important aspects of immigration law is the ability to unite families through immigration.

Oftentimes individuals become lawful permanent residents of the U.S. based on sponsorship from a qualifying family member. Application processing times vary depending on the qualifying family relationship. Immediate relatives of U.S. citizens can immigrate to the United States without being subject to any numerical restrictions and can apply for permanent resident status without having to deal with any waiting time. Whereas other close family members of a U.S. citizen can or lawful permanent resident (LPR) are subject to a numerical limit of immigrant visas available to them each year.

Which category are you?

  • Immediate relative of a U.S. citizen, this includes spouses, unmarried children under the age of 21, and parents of U.S. citizen petitioners 21 or older;
  • Family member of a U.S. citizen fitting into a preference category, this includes unmarried sons or daughters over the age of 21, married children of any age, and brothers and sisters of U.S. citizen petitioners 21 or older; 
  • Family member of a green card holder, this includes spouses and unmarried children of the sponsoring green card holder;

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Green Card: INVESTMENT

 

Congress created the EB-5 Program in 1990 to stimulate the U.S. economy through job creation and capital investment by foreign investors. In 1992, Congress created the Immigrant Investor Program, also known as the Regional Center Program. This sets aside EB-5 visas for participants who invest in commercial enterprises associated with regional centers approved by USCIS based on proposals for promoting economic growth.

More on the EB-5 Immigrant Investor Program.

USCIS administers the EB-5 Program. Under this program, entrepreneurs (and their spouses and unmarried children under 21) are eligible to apply for a green card (permanent residence) if they:

  • Make the necessary investment in a commercial enterprise in the United States; and
  • Plan to create or preserve 10 permanent full-time jobs for qualified U.S. workers.

The program is available to individuals who have and are ready to invest in a “new” business enterprise with $500,000 or 1,000,000 (depending on the investment and its location). This option offers a significant advantage and a good immigration solution for those who have the financial resources to qualify and a tolerance for risk in their investments.

Fifth Preference (EB-5), This preference is reserved for business investors who invest $1 million or $500,000 (if the investment is made in a targeted employment area) in a new commercial enterprise that employs at least 10 full-time U.S. workers.

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Green Card: OTHER

Although most immigrants come to live permanently in the United States through a family member’s sponsorship, employment, or a job offer, there are other ways a Green Card (permanent residence) can be obtained.

Other Green Card Programs: Amerasian Child of a U.S. Citizen, American Indian Born in Canada, Cuban Native or Citizen, Haitian Refugee, Help HAITI Act of 2010, Informant (S Nonimmigrant), Indochinese Parole Adjustment Act, Lautenberg Parolee, Nicaraguan and Central American Relief Act (NACARA), Registry, Victim of Trafficking (T Nonimmigrant).

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Green Card: SELF-PETITION

 

Extraordinary ability: Individuals of extraordinary ability are not required to have a job offer and may self-petition (the worker does not need an employer to sponsor them). Individuals of extraordinary ability are considered to be the best of the best in their field and it is an eligibility category that applies to very few individuals. Examples of who may be considered an E11 immigrant include Nobel Prize winners, notable athletes, and others who have achieved great successes in their field.

To establish eligibility, you must demonstrate sustained national or international acclaim and that your achievements have been recognized in the field of expertise by showing: (a) that you have received a major internationally recognized award, similar to a Nobel Prize; or (b) that you meet at least three of the ten requirements listed below and all your evidence, when evaluated together, shows that you are among the small percentage of individuals that have risen to the very top of your field.

Do you meet the requirements?

  1.  Have you received any lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor?
  2. Are you a member of associations that require outstanding achievements of their members as judged by recognized national or international experts?
  3. Is there published material in professional or major trade publications or major media about you which relates to your work in the field?
  4. Have you participated on a panel or individually as a judge of the work of others in the same or in an allied field of specialization?
  5. Have you made original scientific, scholarly or business contributions that are of major significance?
  6. Have you authored scholarly articles in professional journals or other major media?
  7. Has your work been displayed at artistic exhibitions or showcases?
  8. Have you played a leading or critical role for an organization with a distinguished reputation?
  9. Have you or will you command a high salary or other remuneration for your services in comparison to others in your field?
  10. Have you enjoyed commercial successes in the performing arts?
  11. Individuals of extraordinary ability in the sciences, arts, education, business or athletics are considered to be the best of the best in their field.

National Interest Waiver: Below are some key requirements you mist fulfill to demonstrate that your request to waive the job offer requirement, and therefore, the labor certification, is in the “national interest.”

(1) You must show that you plan on working the United States in an area of substantial intrinsic merit.

  • Under the first prong of the NYSDOT test, it is important for you to focus on the proposed employment. USCIS will look at your documents to determine whether the importance of your proposed work is readily apparent.  Some of the evidence you may submit to demonstrate that you plan on working in the United States in an area of substantial intrinsic merit includes:
    • A letter from you and/or your company describing the work and its importance
    • Articles or other published media discussing your and/or your company’s work and its importance
    • Letters from experts in the field attesting to your work and its importance

(2) You must show that the proposed impact of your work is national in scope.

  • While your employment may be limited to a particular geographic area, you must establish a benefit to more than a particular region of the country. Under the second prong of the NYSDOT test, you must demonstrate that the proposed benefit to be provided will be national in scope. USCIS will give due consideration to entrepreneurs who establish that their entrepreneurial enterprise will serve the national interest to a substantially greater degree than the work of others in the same field. Some of the evidence you may submit to demonstrate that the proposed impact of your work is national in scope includes:
    • Published articles or media reports
    • Copies of contracts, agreements, or licenses showing the scope and impact
    • Letters from current and former employers discussing your work and its national importance
    • Letters from experts in the field attesting to your work and its national importance

(3) You must show waiving the labor certification requirement would benefit the national interest of the United States.

  • The purpose of the labor certification process is to protect the national interests of the United States by ensuring that the wages and working conditions of U.S. workers employed in the same field would not be adversely affected. Thus, when deciding whether to grant a waiver of the labor certification requirement, USCIS looks at all of the evidence to see whether the national benefits you offer are so great that they outweigh the national interests inherent in the labor certification process. This means that your evidence must show that you serve the national interest to a substantially greater extent than the majority of your colleagues and that you have a degree of influence on your field that distinguishes you from your colleagues. The national interest evaluation is prospective. This means you must show that you have a past record of specific prior achievements that indicate future benefits to the national interests of the United States.

Demonstrating that your business enterprise will create jobs for U.S. workers or otherwise enhance the welfare of the United States may qualify you for an NIW.  However, you still have to show that the creation of jobs domestically for U.S. workers may serve the national interest to a substantially greater degree than the work of others in the same field.

Some of the evidence you may submit to demonstrate that waiving the labor certification requirement would benefit the national interests of the United States includes:

  • Copies of published articles that cite or otherwise recognize your achievements
  • Copies of grants or other funding you received listing the amount and terms of the grants, as well as the principal and co-investigators
  • Documents showing how your work is being implemented by others, for example:
    • Contracts with companies using your or your company’s products
    • Documents showing licensed technology that you and/or your company invented or co-invented, and how that licensed technology is being used by others
    • Patents or licenses awarded to you and/or your company with documents showing how they are being used and why they are significant to your field

Temporary Visa: HUMANITARIAN

 

The U nonimmigrant status (U visa) is set aside for victims of certain crimes who have suffered mental or physical abuse and are helpful to law enforcement or government officials in the investigation or prosecution of criminal activity.

Congress created the U nonimmigrant visa with the passage of the Victims of Trafficking and Violence Protection Act (including the Battered Immigrant Women’s Protection Act) in October 2000. The legislation was intended to strengthen the ability of law enforcement agencies to investigate and prosecute cases of domestic violence, sexual assault, trafficking of aliens and other crimes, while also protecting victims of crimes who have suffered substantial mental or physical abuse due to the crime and are willing to help law enforcement authorities in the investigation or prosecution of the criminal activity. The legislation also helps law enforcement agencies to better serve victims of crimes.

Eligibility:

  • You are the victim of qualifying criminal activity.
  • You have suffered substantial physical or mental abuse as a result of having been a victim of criminal activity.
  • You have information about the criminal activity. If you are under the age of 16 or unable to provide information due to a disability, a parent, guardian, or next friend may possess the information about the crime on your behalf.
  • You were helpful, are helpful, or are likely to be helpful to law enforcement in the investigation or prosecution of the crime. If you are under the age of 16 or unable to provide information due to a disability, a parent, guardian, or next friend may assist law enforcement on your behalf.
  • The crime occurred in the United States or violated U.S. laws.
  • You are admissible to the United States. If you are not admissible, you may apply for a waiver on a Form I-192, Application for Advance Permission to Enter as a Nonimmigrant.

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Temporary Visa: STUDY

You must have a student visa to study in the United States. Your course of study and the type of school you plan to attend determine whether you need an F-1 visa or an M-1 visa.

F-1 Overview

  • University or college
  • High School
  • Private elementary school
  • Seminary
  • Conservatory
  • Another academic institution, including a language training program

M-1 Overview

  • Vocational or other recognized nonacademic institution, other than a language training program

Temporary Visa: TRAVEL

 

Foreign travelers to the United States for short visits, for example tourism, vacation, visiting family and friends, or medical treatment, need visitor visas unless they qualify for entry under the Visa Waiver Program. Visitor visas are nonimmigrant visas for persons who want to enter the United States temporarily for business (visa category B-1), tourism, pleasure or visiting (visa category B-2), or a combination of both purposes (B-1/B-2).

Business (B1)

  • consult with business associates
  • attend a scientific, educational, professional, or business convention or conference
  • settle an estate
  • negotiate a contract

Tourism and Visit (B2)

  • tourism
  • vacation (holiday)
  • visit with friends or relatives
  • medical treatment
  • participation in social events hosted by fraternal, social, or service organizations
  • participation by amateurs in musical, sports, or similar events or contests, if not being paid for participating
  • enrollment in a short recreational course of study, not for credit toward a degree (for example, a two-day cooking class while on vacation)

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Temporary Visa: WORK

 

In order for you to come to the United States lawfully as a nonimmigrant to work temporarily in the United States your prospective employer must generally file a nonimmigrant petition on your behalf with USCIS.

Only a few nonimmigrant classifications allow you to obtain permission work in this country without an employer having first filed a petition on your behalf.  Such classifications include the nonimmigrant E-1, E-2, E-3 and TN classifications, as well as, in certain instances, the F-1 and M-1 student and J-1 exchange visitor classifications.

Temporary (Nonimmigrant) Worker Classification

  • CW-1: CNMI-Only transitional worker
  • E-1: Treaty traders and qualified employees
  • E-2: Treaty investors and qualified employees
  • E-2C: Long-term foreign investors in the CNMI
  • E-3: Certain “specialty occupation” professionals from Australia.
  • H-1B: Workers in a specialty occupation and the following sub-classifications:
    • H-1B1 – Free Trade Agreement workers in a specialty occupation from Chile and Singapore.
    • H-1B2 – Specialty occupations related to Department of Defense Cooperative Research and Development projects or Co-production projects.
    • H-1B3 – Fashion models of distinguished merit and ability.
  • H-1C2: Registered nurses working in a health professional shortage area as determined by the U.S. Department of Labor.
  • H-2A: Temporary or seasonal agricultural workers.
  •  H-2B: Temporary non-agricultural workers.
  • H-3: Trainees other than medical or academic. This classification also applies to practical training in the education of handicapped children.
  •  I: Representatives of foreign press, radio, film or other foreign information media.
  •  L-1A: Intracompany transferees in managerial or executive positions.
  • L-1B: Intracompany transferees in positions utilizing specialized knowledge.
  • O-1: Persons with extraordinary ability in sciences, arts, education, business, or athletics and motion picture or TV production.
  • O-2: Persons accompanying solely to assist an O-1 nonimmigrant.
  • P-1A: Internationally recognized athletes.
  • P-1B: Internationally recognized entertainers or members of internationally recognized entertainment groups.
  • P-2:  Individual performer or part of a group entering to perform under a reciprocal exchange program.
  • P-3: Artists or entertainers, either an individual or group, to perform, teach, or coach under a program that is culturally unique.
  • Q-1: Persons participating in an international cultural exchange program for the purpose of providing practical training, employment, and to share the history, culture, and traditions of the alien’s home country.
  • R-1: Religious workers.
  • TN: North American Free Trade Agreement (NAFTA) temporary professionals from Mexico and Canada.

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Removal Defense

 

If you have received a Notice to Appear (NTA) from the Department of Homeland Security (DHS) alleging that you are removable from the United States, do not assume that the situation is hopeless; there may be options and forms of relief available to you. Forms of relief may include: Forms of relief that may be available to you include: adjustment of status, asylum, cancellation of removal, voluntary departure, and/or waiver(s) of inadmissibility.

What to Expect?

Removal Proceedings begin when the government issues you a  Notice to Appear (NTA), which is a charging document that triggers the initiation of removal proceedings against you. If you receive an NTA, it means that you must appear in Immigration Court on the date specified or at a date to be determined in the future. Before appearing in Immigration Court it is important you determine the various forms of relief that may be available to you and work with your attorney to develop a detailed strategy based upon your priorities, concerns, and likelihood of success.

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REMOVAL DEFENSE

Removal Defense

 

If you have received a Notice to Appear (NTA) from the Department of Homeland Security (DHS) alleging that you are removable from the United States, do not assume that the situation is hopeless; there may be options and forms of relief available to you. Forms of relief may include: Forms of relief that may be available to you include: adjustment of status, asylum, cancellation of removal, voluntary departure, and/or waiver(s) of inadmissibility.

What to Expect?

Removal Proceedings begin when the government issues you a  Notice to Appear (NTA), which is a charging document that triggers the initiation of removal proceedings against you. If you receive an NTA, it means that you must appear in Immigration Court on the date specified or at a date to be determined in the future. Before appearing in Immigration Court it is important you determine the various forms of relief that may be available to you and work with your attorney to develop a detailed strategy based upon your priorities, concerns, and likelihood of success.

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