MENTOR LAW FIRM
Karen P. Mentor, Esq.
8811 SE Bridge Road
Hobe Sound, FL 33455
Toll Free 1 800 889-5079
Telephone: (772) 545-7590
Facsimile: (772) 546-2978
E-mail: mentorlawfirm@bellsouth.net Table of Contents:
Nonimmigrant Visas
B1 – Temporary Business Visa
B2 – Temporary Non-Business Visitor Visa
E1 – Treaty Trader Visa
E2 - Treaty Investor Visa
F1 - Student Visa
H1B - Specialty Occupation Visa
H2A - Temporary Agricultural Labor Visa
H2B - Temporary Non-Agricultural Labor
H3 - Temporary Training Visa
J1 - Exchange Visitor Visa
K1 - Fiancé Visa
K2 - Minor Children of the Fiancé (K-1)
K3 - Spouse of U.S. Citizen
L1 - Intracompany Transfer Work Visa
M1 - Vocational Student Visa
O - Extraordinary Ability or Achievement Visa
P - Athletes, Artists, and Entertainers Visa
TN - Treaty NAFTA Visa
Immigrant Visas
Employment-Based Immigrant Visas
First Preference: EB-1 Visas
Labor Certification
Second Preference: EB-2 Visas
Third Preference: Professionals, Skilled Workers, and Other Workers
Schedule A Occupations
Fourth Preference: Religious Workers and Translators
Fifth Preference: The Employment Creation Green Card
Family Petitions
Adjustment of Status
Detention and Deportation Mentor Law Firm is practiced in crafting immigration solutions. The firm represents clients in all types of visa applications before the United States Citizenship and Immigration Services (USCIS) (formerly the Immigration and Naturalization Service). Mentor Law Firm has extensive experience handling all types of Business visas including E-1, E-2, H-1B, H-2A, H-2B, J-1, L-1A, L-1B, O, and P. The attorney and tri-lingual staff takes pride in the meticulous preparation of visa petitions and supporting documentation for the most professional presentation possible. We also have very extensive experience defending clients in deportation (removal) proceedings before the Executive Office for Immigration Review (“EOIR”). We have successfully presented dozens of cases of political asylum, cancellation of removal, and various waivers of inadmissibility.
Mentor Law Firm is authorized to represent immigration clients in every state. Nonimmigrant VisasB-1/B-2 visas are for temporary visitors for business or pleasure, who have a foreign domicile that they have no intention of abandoning. B-1: Temporary Business Visa.B-1 visas authorize entry for business purposes and permit an individual to conduct business-related activities that do not constitute entry into the United States workforce. The types of activities authorized under the B-1 visa can lead to a great deal of confusion, since “business related” activities are synonymous in most people’s minds with work, and working without authorization is strictly forbidden under the United States Immigration laws, carrying the penalty of a permanent bar to adjustment of status (except for immediate relatives of United States Citizens). Some of the activities that have been considered consistent with B-1 status are: business acquisition and formation activities, trips to make feasibility studies, business conventions held in the United States, sales meetings between international companies where the sales person receives payment or commissions outside the U.S. by a non-U.S. firm, job interviews, and some international commercial truck drivers. Please arrange for a consultation for answers to specific questions. B-2: Temporary Non-Business Visitor Visa.B-2 visas are for visitors for pleasure. This is the most common type of visa for visitors on vacation or another short term purpose. “Pleasure” has been defined in 22 C.F.R.§ 41.31(b)(2) as “legitimate activities of a recreational character, including tourism, amusement, visits with friends and relatives, rest, medical treatment and activities of a fraternal, social or service nature.” E-1: Treaty Trader Visa.The E-1 allows a beneficiary to enter the United States to engage in substantial international trade between the U.S. and the beneficiary’s home country. Trade is defined as the international exchange of goods or items of trade for monetary or other gain, between the United States and the treaty country. “Items of trade” is are not limited to goods, but may also include services, banking, insurance, communications, tourism, management consulting, tangiblecommodities, merchandise, data, data processing, advertising, and technology. The beneficiary’s company must be the petitioner, and it may be either a foreign-based entity or a U.S. affiliate. In either event, at least 50% of the petitioning entity must be owned by nationals of the treaty country, and none of the persons comprising the 50% foreign ownership may be individuals who are lawful permanent residents. Trade must be principally between the United States and the treaty country, and at least 50% of the petitioner’s trade must be international as opposed to domestic (within the United States). The E-1 is a very common visa for persons engaged in importing and exporting many types of goods and services. 49 countries have treaties with the United States that permit their citizens to obtain the E-1 visa and work lawfully in the United States. The E-1 is granted for an initial period of two years and is renewable for two year extensions. All E recipients must demonstrate a foreign residence with no intention to abandon it. E-2: Treaty Investor Visa.The E-2 visa is for principals and employees of businesses that are at least 50% owned by nationals of the participating treaty country, who establish entrepreneurial, commercial ventures in the United States comprised of a “substantial investment.” The dollar amount necessary to constitute a substantial investment has not been clearly defined by USCIS, and it is evaluated on a case-by-case basis depending on the type of enterprise. Suffice to say that the dollar amount must be truly “at risk,” meaning that the amount of the start-up funds should be “substantial” in proportion to the total cost of start-up or acquiring the business. In addition, the lower the initial start-up costs, the higher the proportion of the initial investment. Thus, for small businesses, the infusion of start-up cash will need to be a higher percentage of the whole cost of the business than for a high start-up cost business. Finally, the business cannot be marginal, i.e., it must be anticipated to create a return on investment that is well in excess of the investor’s bare living expenses. The type of business must be one that requires active management and entrepreneurship. Passive investment, as a silent partner or an investor in real estate, will not satisfy this criterion. 73 countries have treaties with the United States that permit their citizens to obtain the E-2 visa and work lawfully in the United States. F-1: Student Visa.This visa is the most well known and highly used visa for foreign students coming to the United States temporarily to pursue a full time course of academic study in an accredited school. The F applicant will be scrutinized closely as to immigrant intent and should be prepared to document his or her foreign domicile and an intention not to abandon it. An F applicant must demonstrate that he or she has been accepted at an accredited academic institution that participates in SEVIS (Student and Exchange Visitor Information System). This requires the applicant to submit an I-20 form issued in his or her name by the foreign student department or advisor from the applicant’s school. In addition, the applicant must produce proof of having paid the SEVIS fee. The F-1 is intended for academic institutions as opposed to vocational ones. It is not permitted for an applicant to attend public elementary school, although it is frequently used for children of nonimmigrant parents to attend private schools. F-1’s may attend secondary public school as long as the attendance is less than twelve months and the student reimburses the school district the per-student cost of attendance. In order to maintain F-1 status, a student must be enrolled in at least twelve credit hours per semester. In addition, an F-1 may not change schools without approval from SEVIS. Remember that a school’s foreign student department is required to advise SEVIS as soon as F-1’s fail to maintain full-time student status, including graduation. An applicant should not attempt to change status or apply for F-1 status at a consulate more than 120 days before the start of the academic term in question, as the visa will be denied. Once the visa is granted, the recipient may enter the US no more than thirty days before the start of school. H-1B: Specialty Occupation Visa.This visa is a nonimmigrant working visa for persons engaged in a Specialty Occupation or certain Fashion Models of Distinguished Merit and ability who seek entry to the United States temporarily to engage in such activities for a United States employer. The H-1B is probably the most popular visa considered by aliens who are planning for permanent residence. This is because it can be converted to a green card through a labor certification in many cases, and because it is very flexible and recognizes the Doctrine of Dual Intent (below). However, its availability has been curtailed significantly because of limitations on the total number of H-1B’s that are issued each year. The current cap is 65,000 H-1B’s for new employment (i.e., renewals are not subject to the numerical limitation.) USCIS begins accepting H-1B petitions in April of the fiscal year preceding the fiscal year beginning on October 1. By way of example, H-1B applications for Fiscal Year 2007 began being accepted in April, 2006 for an October 1, 2006 employment start date. The 65,000 cap was reached in a matter of weeks. There is a separate cap of 20,000 for holders of a Master’s Degree (or higher) or the equivalent. The cap for FY 2007 was reached in July of 2006. No cap exists for individuals who will be working for certain types of educational organizations that are not H-1B dependent, as well as certain other exemptions. Specialty Occupation has been defined one as in which the nature of the duties are so specialized and complex that the knowledge required to perform them is normally only found in individuals who possess a B.A. or higher degree. Note that the position to be filled by the H-1B beneficiary must be one for which the industry custom ordinarily requires a bachelor’s degree or better. The proposed beneficiary must have the required degree (or commensurate experience) in the same field as the position opening. Fashion Models of Distinguished Ability means that the individual is prominent in his or her field and the position to be filled in the United States requires prominence. “Prominence” means well-known, high profile or renowned in the fashion industry. An H-1B fashion model applicant must be prepared to document the extent of her or his reputation through proof of participation in prominent events, copies of contracts demonstrating high salary, and/or recognition by fashion critics.
Initial validity and extensions: An initial H-1B is granted for the period of proposed temporary employment not to exceed three years. The visa may be extended. Doctrine of Dual Intent: While the vast majority of nonimmigrant visas require the beneficiary or applicant to demonstrate that he or she has a permanent domicile outside the United States that he or she has no intention of abandoning, this requirement is overlooked for H-1B , L-1, O-1 and P-1 recipients. The significance of this is that a holder of a visa in any one of these categories will be permitted to enter the U.S. as a nonimmigrant if he or she is the beneficiary of an immigrant petition or an application to adjust status, provided he or she continues to work in H-1B status for the same employer, has a valid visa, and presents his or her original approval notice to the borderofficial on entry. Chileans and Singaporeans: A new visa category was created with the signing of the US-Chile and the US-Singapore free trade agreements: the H-1B1. The H-1B1 is reserved for nationals of Chile and Singapore. It is similar to the H-1B Specialty Occupation, but more expansive: the H-1B1 includes as additional categories of “Specialty Occupation” workers that are not found under the H-1B visa. These are the Agricultural Manager and Physical Therapist for Chileans, and Management Consultants and Disaster Relief Claims Adjusters for nationals of either Chile or Singapore. 6,800 of the 65,000 annual cap on H-1B visas are set aside for nationals of Chile or Singapore. The H-1B1 visa application process is extremely streamlined. A would-be H-1B1 beneficiary applies for the visa directly at the US Consulate in Chile or Singapore and in most cases the visa is adjudicated on the spot. There is no need for an employer to file a separate petition with the Department of Homeland Security, as in the case of the H-1B. H-2A: Temporary Agricultural Labor Visa.This visa is for people seeking entry to perform agricultural labor or services of a temporary or seasonal nature. The applicant must be coming to US temporarily, to be performing temporary services/labor, and employer must demonstrate through a temporary labor certification that there are no available lawful permanent resident or United States Citizen workers capable of performing such service or labor. H-2B: Temporary Non-Agricultural Labor Visa.This visa is for a skilled or unskilled applicant coming to the US temporarily to perform temporary nonagricultural services or labor, based on a seasonal need or a peak season type of situation. The employer-petitioner must get a temporary labor certification, in other words, a statement from the United States Department of Labor that there does not exist any United States Citizen or Lawful Permanent Resident workers available for the position, and that employment of the alien worker will not adversely affect US wages and working conditions for similarly employed workers in the US. Consideration is taken of prevailing wage rates for the type of work and the geographical location in question. The employer must further demonstrate that the request for temporary labor is based on a seasonal need or a unique or occasional occurrence. H-2B’s are limited to 66,000 visas per year. Initial approval is granted for one year, with up to three one year extensions (maximum three years). H-3: Temporary Training Visa.Temporary workers entering for the purpose of receiving training or instruction. The H-3 must have an invitation from a U.S. petitioner offering specialized training in a position that is not intended to result in employment in the United States. The proposed training must not be available in the beneficiary’s home country, and the position filled must not deprive citizen or lawful permanent resident workers of employment. Any employment must be incidental and necessary to the training offered, and the training must benefit the alien in seeking a career outside the United States. The beneficiary must also demonstrate that he or she has a foreign domicile that he or she intends to return to at the end of the training. Maximum stay permitted: The lesser of two years or the length of the training program. No extensions or changes of status. Beneficiary must reside outside the United States for at least six months before being readmitted in H-3 status. H-3 Special Education Exchange Program: This program allows applicants to receive training in special education working with disabled children. The beneficiary must have a U.S. sponsor/petitioner that is a facility for educating disabled children, and the facility must have regular faculty that is trained in special education. The maximum stay permitted is 18 months, and the beneficiary must be a BA or higher degree candidate or the equivalent. J-1: Exchange Visitor Visa.This is a nonimmigrant exchange visitor with no intention of abandoning his or her foreign residence. The J-1 category probably extends to the largest number or different activities (aside from the B1/B-2). The activities include but are not limited to: Professor, research scholar, trainee, college or university student, teacher, physician, or simply a waiter or waitress on a temporary exchange program. Some J-1 holders are subject to the two year foreign residence requirement. This means that they must return to their home country for a period of two years at the end of the J-1 training, in order to render services there in the area of expertise. The theory behind this requirement is that the J-1 holder’s country participated in an exchange program that enabled and encouraged its nationals to receive specialized training that is not highly available in that person’s country, and the country is entitled to receive the benefit of having its nationals receive that training. In other words, for certain types of categories, the J-1 will be required to “give back” to his or her home country before qualifying for another nonimmigrant visa category, or before becoming eligible to immigrate. Not surprisingly, the J-1 categories that are subject to the two-year foreign residency requirement are usually the “learned” professionals, like physicians. J-1 recipients who are subject to the 2 year residency requirement may be eligible for a waiver under certain circumstances. K-1: Fiancé Visa.The K-1, also known as the Fiancé Visa, enables a US citizen to bring his or her intended to the United States for marriage here. A K-1 petitioner must demonstrate that he or she has personally met his or her fiancé within the two years of filing the petition, that both parties are eligible to marry, and intend to do so within 90 days of the beneficiary’s entry into the U.S. A K-1 visa petition must also be accompanied by a certified copy of the petitioner’s criminal record, if any. This is to prove that the petitioner has not been charged with any crime involving spousal abuse or domestic violence, which creates a bar to the petition unless the petitioner can prove that he or she was battered or subjected to extreme cruelty and that he or she was not the primary perpetrator of the violence. Once the petition is approved stateside, notice is wired to the consulate with jurisdiction over the fiancé's place of residence, and the beneficiary may process for the K-1 visa. This will involve police checks, medical clearance, and an in-person interview. Note that the K-1 visa holder can neither extend his or her stay nor change status. Once the parties marry the K-1 visa holder can simply file an application to adjust status to lawful permanent residence without the necessity of a spousal petition. Conditional residence is granted for a period of two years, as in a spousal petition, and both parties must petition for removal of conditions within six months of the two year anniversary of the granting of conditional residence. K-2: Minor Children of the Fiancé (K-1).Note: it is very important to establish that the K-1 has permission from the K-2’s other parent or a court order to remove the child or children out of the country. K-3: Spouse of U.S. Citizen.The K-3 is a recently created phenomenon (2000) that addresses the all too common situation of a US Citizen whose alien spouse wants to enter the US but has not yet processed for lawful permanent resident status. The US Citizen petitions the USCIS for permission to bring his or her spouse into the United States, and must include proof that an Alien Relative Petition has been filed. The petitioner must also include the petitioner’s criminal record, if any. This is for the purpose of proving that the petitioner has not been convicted of any crime involving spousal abuse or domestic violence (waivers are possible; see discussion under K-1, above). Once the petition has been approved, the consular post processes for visa issuance. The Beneficiary (visa applicant) must produce a standard immigrant visa medical examination, criminal background check, local police certificates, and the affidavit of support from the US Citizen spouse to overcome the public charge presumption. The K-3 visa is valid for a period of two years and is a multiple entry visa (unlike the K-1), meaning that the recipient may travel in and out of the United States without obtaining advance parole. As with the K-1, K-3 holders may not change their nonimmigrant status. In addition, a K-3 beneficiary may not adjust his or her status in any category. Employment authorization is permitted. L-1: Intracompany Transfer Work Visa.The L-1A visa may be obtained by a foreign company that owns or starts up a United States subsidiary, on behalf of an intracompany transferee manager or executive coming to the United States for the purposes of managing or directing the functions of the US subsidiary. The L-1B is for employees with specialized knowledge (usually of trade product or processes or the company’s specialized manner of doing business). The employee must have worked abroad for the foreign company for at least one year out the three years preceding the L-1 petition. Where a foreign company starts a new US business, the L-1 is granted for an initial period of one (1) year, with two three (3) year extensions for a total permissible period of seven years. In such a case the foreign petitioner must make a satisfactory demonstration of growth and anticipated success of the start-up after the initial one year period, in the form of additional employees, new orders, or plans for expansion. The L-1A is greatly favored by immigration practitioners, because it offers two distinct advantages:
1) It recognizes the doctrine of “dual intent,” meaning that an L-1 beneficiary can maintain his L status and simultaneously apply for permanent residence. He or she may also leave the country and reenter with impunity;
2) A foreign petitioner may in many cases petition almost immediately for permanent residence for the L-1A intracompany transferee executive/manager, under the employment-based first preference immigrant visa category. There is no labor certification requirement, and the priority dates for EB-1 visa petitions are current, meaning that the only waiting time is for the adjudication of the I-140 (several months to one year). This is a highly significant advantage, since all other employment based immigrant petition categories have a waiting list of several years. M-1: Vocational Student Visa.The M-1 is for vocational students, which the Service defines as students enrolled in either an academic or a purely vocational curriculum. This visa is often used by flight training students or those who wish to enroll in a trade school. (Note that there are specific regulations for flight training students who wish to be trained on an aircraft with a maximum certified takeoff weight of 12,500 or more.) It is also used for English language instruction. Note that the duration of status is limited to three years, which is significantly shorter than the F-1. O: Extraordinary Ability or Achievement VisaThe O is for “persons with extraordinary ability in the sciences, arts, education, business or athletics which has been demonstrated by sustained national or international acclaim.” While the O is limited to persons who have achieved a certain status in their field, it covers an extremely broad range of endeavors. The O-2 extends to support personnel integral to the principal O visa holder. An O visa beneficiary must demonstrate national and/or international recognition in his or her field, through critical reviews, news articles in the field of specialty, a record of commercial success through lucrative contracts or highly paid appearances, and significant recognition by experts in the field or trade organizations. The petitioning entity (not the O beneficiary him- or herself) must include an itinerary. The O is granted authorization to remain in the U.S. for such time as the Service determines, but in no event more than three years. The doctrine of dual intent is recognized for O visa holders (see discussion of dual intent under H-1B, above). P: Athletes, Artists, and Entertainers Visa.The P visa is for athletes and group entertainers, that are internationally recognized (P-1A) or members of his/her entertainment group of at least one year (P-1B). The P-2 is for reciprocal exchange artists. The P-3 is for essential support personnel, and the P-4 is for dependents of any of these categories. TN: Treaty NAFTA Visa.The TN, or Treaty NAFTA, visa is reserved for citizens of Canada and Mexico. The North American Free Trade Agreement facilitates the conduct of business between the US, Canada and Mexico. The TN visa is a streamlined working visa for certain types of professionals recognized by the Free Trade Agreement. Professional is defined in terms of the necessity of achieving at least a baccalaureate degree or other appropriate credentials demonstrating status as a professional. The list of professionals can be found at 8 CFR 214.6( c). Canadians seeking entry as a TN professional may apply at the port of entry or a Pre Flight I with a letter from the U.S. employer describing the position, why a professional degree is required, the temporary nature of the position, and requesting that the applicant be conferred TN status. TN status is granted in one year increments only, with no definite limit on the number of times a person may extend. The doctrine of Dual Intent does NOT apply to TN holders. IMMIGRANT VISASAn immigrant is defined by the Immigration and Nationality Act as any person seeking admission as other than a nonimmigrant. In other words, every alien seeking admission to the United States is presumed to be coming with the intention of remaining permanently, and he or she must disprove immigrant intent. Persons holding nonimmigrant visas are still presumed to be seeking admission as immigrants, and when they present themselves at the port of entry they should be prepared to produce evidence of their intent to remain temporarily, if necessary. A person seeking to immigrate permanently to the United States must have a basis for doing so, usually through employment or family. EMPLOYMENT-BASED IMMIGRANT VISASThere are five categories of employment based immigrant visas: First Preference:EB-1 Visas.First Preference: EB-1 visas do not require a Labor Certification. EB-1 is reserved for: Persons of Extraordinary Ability: people with extraordinary ability in the arts, sciences, arts, education, business, or athletics, as demonstrated by sustained national or international acclaim and whose contributions to the field have been documented extensively. Extraordinary Ability applicants may petition for themselves, but they must be able to demonstrate that their entry will substantially benefit the United States. Outstanding Professors and Researchers: These applicants must have a minimum of three years experience in teaching or research in an academic discipline, and they must have achieved international recognition as being outstanding in their field. No labor certification is required, although the applicant must have a written job offer from an employer sponsor. Multinational Executives and Managers: These individuals must have been employed abroad for at least one year out of the last three years, by a foreign entity, corporation that is a subsidiary or affiliate of the U.S. petitioning entity. The individual must be seeking to enter the U.S. to continue to render managerial or executive services for the petitioner. A labor certification is not required, but the petitioning entity must produce a written job offer. The EB-1 category is “Current,” which means that the beneficiary of an approved petition is eligible to apply for his or her permanent residence immediately. Labor Certification.A Labor Certification is a required step for many employment-based immigrant petitions under the Second, Third and Fourth preference. Prior to filing a visa petition, the sponsoring employer must first get a certification from the United States Department of Labor that there do not exist able, qualified, and willing US employees to fill the position in question. New regulations about Labor Certifications have greatly reduced the processing time; however, there are very stringent recruitment and other requirements that must be adhered to before a Labor Certification will be granted. Second Preference: EB-2 Visas.EB-2 visas do require a Labor Certification, with exceptions. EB-2 is reserved for: Members of the Professions Holding Advanced Degrees: The degree must be a master’s degree or its equivalent. In addition, the position the beneficiary will fill must be one that normally requires the degree in question. An EB-2 may sidestep the labor certification requirement if he or she qualifies for a National Interest Waiver or if the person’s occupation is a Schedule A occupation (See discussion of Schedule A Occupations under EB-3, below). A National Interest Waiver is only available to EB-2 applicants, and it requires a demonstration that the person will be employed in an area of substantial merit, that the employment will provide a national benefit, and that to require a labor certification would impart a detriment to the national interest. Persons of Exceptional Ability: A person of exceptional ability has achieved a high level of expertise in his or her field but does not necessarily rise to the level of an EB-1 Person with Extraordinary Ability. May be exempted from Labor Certification requirement if applicant can also meet the criteria for a National Interest Waiver or applicant is in a Schedule A, Group II category. To prove exceptional ability, a person must show that he or she possesses at least three of the following: A university degree relating to the area of exceptional ability;
- Evidence in the form of letter(s) from current or former employer(s) showing that the alien has at least ten years of full-time experience in the occupation for which he or she is being sought;
- A license to practice the profession or certification for a particular profession or occupation;
- Evidence that the alien has commanded a salary, or other remuneration for services, which demonstrates exceptional ability; Evidence of membership in professional associations; or Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations. The EB-2 category is “Current,” which means that the beneficiary of an approved petition is eligible to apply for his or her permanent residence immediately. Third Preference: Professionals, Skilled Workers, and Other Workers.“Professional” is defined as a qualified alien who holds at least a United States baccalaureate degree or a foreign equivalent degree and who is a member of the professions. The Service acknowledges that “professions” include, but is not limited to: architects, engineers, lawyers, physicians, surgeons, and teachers. The list expands constantly. “Skilled worker” is defined as an alien who is capable, at the time of petitioning for this classification, of performing skilled labor (requiring at least two years training or experience), not of a temporary or seasonal nature, for which qualified workers are not available in the United States. Relevant post-secondary education may be considered as training for the purposes of this provision. “Other worker” is defined as a qualified alien who is capable, at the time of petitioning for this classification, of performing unskilled labor (requiring less than two years training or experience), not of a temporary or seasonal nature, for which qualified workers are not available in the United States. The EB-3 category requires a labor certification, unless the position in question is a “Schedule A Occupation,” which is considered to be an occupation in which the US labor market suffers from a shortage of qualified workers. Schedule A Occupations.These are occupations that are considered to have a shortage of qualified and able US or lawful permanent residents available to fill. An applicant need not get a labor certification to file an immigrant petition based on one of these occupations, although he or she will need a job offer and a petitioning employer/sponsor: -Physical Therapists;
-Professional Nurses;
-Aliens of exceptional ability in the Arts (other than performing arts) or Sciences (must be recognized, outstanding performance well above the standard for professional competence in the occupation). This category also extends to college and university teachers who have exceptional ability. Fourth Preference: Religious Workers and Translators.This is the Special Immigrant category and primarily includes religious workers. The Fourth Preference is nearly current. Fifth Preference: The Employment Creation Green Card.The fifth preference employment-based green card is the investor’s green card. Up to 10,000 immigrant visas each year are reserved for immigrant investors who invest a minimum of $1,000,000 in a United States business ($500,000 for businesses located in un-populated regions or areas of low economic growth). This visa is also known as the “employment creation visa,” because it requires a showing that the business will create or save at least ten jobs in the United States. Family members of the immigrant investor may be employed in the enterprise, but their jobs may not be counted toward the ten job requirement. To qualify as an immigrant investor, the alien must invest in a new commercial enterprise. This can be done by starting a new business, or by expanding and substantially changing the net worth of a business, or increasing the number of workers by 40%. The investment must be in a for profit enterprise of any type of structure (partnership, holding company, sole proprietorship, corporation, joint venture, or any other type of entity, publicly or privately held). EB-5 visas are current. The regulations governing the adjudication of EB-5 petitions have historically been interpreted by the Service very narrowly. FAMILY PETITIONSImmediate Relatives: Spouses, unmarried children under 21 (including stepchildren if under 18 at the time of parents’ marriage) and parents of United States Citizens. The category also includes widows and widowers of USC’s if they self-petition within two years of the spouse’s death, they were married for at least two years, and the survivor is unmarried. Battered spouses may also self-petition under certain criteria. All beneficiaries of approved immediate relative petitions are immediately eligible to adjust status to lawful permanent resident. All other family petitions are subject to a quota system based on order of preference, as follows: First Preference: Unmarried sons and daughters of US Citizens (waiting time between 6 and 17 years depending upon nationality of beneficiary). Second Preference: A) Spouses and unmarried children of Lawful Permanent Residents (waiting time approximately 5 years);
B) Unmarried sons and daughters of Lawful Permanent Residents (waiting time approximately 10 to 15 years); Third Preference: Married sons and daughters of US Citizens (waiting time 8 to 16 years); Fourth Preference: Brothers and sisters of US Citizens (waiting time 11 to 22 years). ADJUSTMENT OF STATUSAdjustment of status is the process by which an alien obtains lawful permanent residence within the United States. If the alien gets his or her green card at a consulate, it is known as “consular processing.” For an individual to adjust status to lawful permanent residence, he or she must be the beneficiary of an approved employment petition or a family petition. Once an immigrant petition has been approved, the alien must establish that he or she is admissible, in other words, that he or she is not inadmissible on some criminal or health-related ground, or because of violation of some other provision of the Immigration and Nationality Act. Even if an alien is subject to a ground of inadmissibility, there are sometimes waivers available for the specific ground. Difficulties can occur in the event the alien has been convicted of certain crimes, for example, people who have been convicted of certain “aggravated felonies” or “crimes of moral turpitude” are not eligible to become lawful permanent residents. DETENTION AND DEPORTATIONOccasionally a person who is subject to deportation (“Removal”) will be detained by ICE (“Immigration and Customs Enforcement”) and placed in an immigration detention facility. Depending on the ground of removability, the detainee may be eligible for bond. Defenses for removal proceedings include cancellation of removal, in which an alien demonstrates that he or she has resided continuously in the U.S. for at least ten years, has been a person of good moral character, has filed income taxes, has assimilated into and contributed to his or her community, and that his or her removal will impart an extreme hardship upon a US citizen relative. Other defenses include political asylum, marriage to a US Citizen and ensuing adjustment of status, citizenship, or various waivers if the ground for removal is a based on a criminal conviction. Criminal convictions as grounds for removal may also be attacked for legal sufficiency, i.e., that the crime charged does not give rise to deportability for one reason or another. Schedule a confidential consultation with an experienced immigration and visa attorney today by calling us toll free at 1 (800) 889-5079, e-mailing us, or filling out intake form our Contact Us page.
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