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Immigration Law Associates, PC

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Citizenship

There are three ways to become a U.S. citizen:

  1. Through birth in the United States;
  2. If one or both of your parents are U.S. citizens; or
  3. Through naturalization.

In order to become a naturalized citizen of the United States, you must first be a U.S. permanent resident (or green card holder). To be eligible for citizenship, the following must apply to you:

  • You have been a green card holder for 5 years (or 3 years depending on how you got your green card).
  • You have continuously resided in the U.S. and have not been outside the U.S. for a consecutive period of 6 months or more.
  • You are a person of good moral character.
  • You are able to read, write, and speak English (unless you are over the age of 65 and have lived in the U.S. as a permanent residence for at least 20 years).
  • You are not otherwise deportable.

For a comprehensive guide to citizenship, we recommend that you download “A Guide to Naturalization”, which can be found on the USCIS website.

To determine whether you are eligible to become a U.S. Citizen, please contact our office to schedule a consultation.

Asylum

Non-citizens living in the U.S. may be granted asylum if they are unable or unwilling to return to their country of nationality because of persecution, or a well-founded fear of persecution on account of their race, religion, nationality, membership in a particular social group, or political opinion.

Asylum can provide relief from removal and a grant of asylum may lead to permanent residence. We win about 90 percent of our asylum cases. Beach-Oswald Immigration Law Associates offers assistance to individuals experienced in properly filing for asylum. We stand with you throughout the application process, including legal representation at interviews and hearings.

Am I Eligible?

Under U.S. immigration law you may be classified as a refugee if you have been harmed in your country of nationality or your last place of residence because of your:

  • Race
  • Religion
  • Nationality
  • political opinion, or
  • Membership in a particular social group (such as gender, homosexuality, female genital mutilation)

Additionally, you must be able to show that you are either unable or unwilling to return to the country where you have been persecuted.

If you not been physically harmed in your home country, you may nonetheless be eligible for asylum in the United States if you are able to show that you have a well-founded fear of future persecution because of your

  • Race
  • Religion
  • Nationality
  • Political opinion, or
  • Membership in a particular social group
You Might be Ineligible if…
  • If you have previously applied for asylum and were denied by the Board of Immigration Appeals (BIA), you will be ineligible for asylum unless you are able to show changed circumstances that materially affect your eligibility for asylum; or
  • If you can be sent to a safe third country with which the U.S. has a bilateral or multilateral agreement.
How Do I Apply for Asylum?

You can only apply for asylum if you are already physically present in the United States, regardless of your current immigration status. If you are not currently in immigration proceedings before an immigration judge, then you may be eligible to apply for asylum with USCIS. You must file your asylum application within 1 year of arrival in the United States, unless you are able to demonstrate extraordinary circumstances resulting in your failure to apply for asylum within one year, or if you are able to show changed circumstances that materially affect your eligibility for asylum.

Even if you apply for asylum after 1 year, you may still be granted withholding of removal. If you are in immigration proceedings before an immigration judge, you may apply for asylum before the immigration judge.

Please be aware that a grant of asylum is discretionary, and is not guaranteed even if you believe you have suffered persecution in your home country. If you are afraid of returning home, please contact our office to schedule a consultation. Our lawyers have many years of experience helping asylum applicants win their cases.

Waivers of Inadmissibility

In some circumstances, you might find that you are unable to be admitted to the United States due to certain social or economic characteristics of your background. Fortunately, this is not a dead end for you, and you can be granted a waiver and still gain admission into the United States. With more than 20 years of experience, Beach-Oswald Immigration law Associates can offer their legal assistance and expertise to help you overcome this obstacle.

Are you a Lawful Permanent Resident (LPR) facing Removal?

Then you may be eligible for a cancellation of removal waiver under the Immigration and Nationality Act (INA) §240A(a).

You may be eligible for a waiver if

  • You have been an LPR for no less than 5 years
  • You have resided continuously in the U.S. for 7 years after having been admitted
  • You have not been convicted of an aggravated felony
  • You have not previously received a grant of cancellation
Are you a Nonpermanent Resident facing Removal?

Then you may be eligible for a cancellation of removal waiver under INA §240A(b).

You may be eligible for a waiver if

  • You are in removal proceedings because you are either inadmissible or deportable
  • You have been physically present in the U.S. for at least 10 years
  • You can demonstrate you have had good moral character during your time in the U.S.
  • You have not been convicted of other offenses under the INA
  • You can demonstrate that your removal would cause exceptional and extremely unusual hardship to a spouse, parent, or child who is an LPR or U.S. citizen

Unfortunately, you will not be eligible for this waiver if

  • You have already been granted cancellation of removal or other relief
  • You are inadmissible on security or other related grounds
  • You have persecuted others
  • You are a crewman, who entered after 6/30/1964 and have not satisfied the two year foreign residency requirement
  • You are a J nonimmigrant exchange visitor who has received graduate medical education and have not satisfied the two year foreign residency requirement
  • You are a J nonimmigrant who has not satisfied the two year foreign residency requirement
Have you made a misrepresentation or used fraud in any stage of the immigration process?

Then you may be eligible for a waiver of inadmissibility for fraud or misrepresentation under INA §212(i) or a waiver of inadmissibility for document fraud under INA §212(d)(12).

Immigrants who have made misrepresentations or used fraud in any of their applications, petitions, or other contexts relating to their immigration status are inadmissible into the U.S.

You may be eligible for a waiver to this rule if

  • You have a spouse or parent who is a U.S. citizen or LPR
  • Denying your admission would cause your relative extreme hardship

You may not be eligible for a waiver if

  • You have made a misrepresentation or used fraud in other contexts unrelated to your applications or petitions
Have you been previously deported?

Then you may be eligible for permission to reapply for admission under INA §212(a)(9)(A)(iii) and 212(a)(9)(C)(ii)

If you have been previously deported and are currently barred from the U.S., you can still gain admittance into the U.S.

When examining this case, the court will consider a variety of factors, including:

  • The reason for your deportation
  • The amount of time since your deportation
  • Certain personality characteristics including good moral character and respect for law and order
  • Any hardship you have endured
  • Your family responsibilities and ties to the U.S.
Have you ever been unlawfully present in the U.S.?

Then you may be eligible for a waiver of inadmissibility for unlawful presence ground of inadmissibility under INA §212(a)(9)(B)(v)

If you are trying to seek admission into the U.S. but you were previously in the United States illegally, you might discover that you are currently barred from entering the U.S.

You may be eligible to waive this bar and gain entry into the U.S. if

  • You are an LPR
  • You are a foreign national with a spouse or parent who is an LPR, and you can demonstrate that this relative will suffer extreme hardship if you are not allowed into the U.S.
Have you been convicted of certain crimes?

Then you may be eligible for a waiver of inadmissibility for prostitution, crimes more than 15 years old, crimes of moral turpitude, and simple possession of marijuana under INA §212(h)

If you are seeking admission but possess a criminal record, you still may be able to gain admittance into the U.S.

You may be eligible for a waiver if you have ever been convicted of any of the following:

  • A crime involving moral turpitude
  • Two or more offenses
  • Prostitution or commercialized vice
  • Single possession of 30 grams or less of marijuana
  • Serious criminal activity committed by an individual who asserts immunity from prosecution

To be eligible, you also must prove

  • The activities that you were convicted of occurred mora than 15 years before the date of your application
  • Your admission into the U.S. would not be contrary to the national welfare, security, or safety of the U.S.
  • You have since been rehabilitated

You are not eligible for a waiver if you have been convicted of any of the following:

  • Controlled substance other than simple possession of marijuana
  • Money laundering
  • Export violations
  • A conviction of security-related grounds
  • Murder
  • Attempted murder
  • Acts of torture
Have you smuggled non-immigrants into the U.S.?

Then you may be eligible for a waiver of smuggling ground of deportability under INA §237(a)(1)(E)(iii)

You may be eligible for a waiver if

  • You are an LPR or a family-based immigrant who is unable to return to the U.S. because you previously smuggled a non-immigrant into the U.S.
  • You smuggled a spouse, parent, or child into the U.S.
Are you infected with the HIV virus?

Then you may be eligible for a waiver of HIV grounds of inadmissibility under INA §212(g)(1) and 212(d)(3)(A)

Individuals with certain diseases, including the HIV virus, are not allowed to be admitted into the U.S.

If you are HIV positive, you may be eligible for a waiver if

  • You are eligible for a green card or temporary visa and you would be denied solely because of your HIV status
Do you fall under any of the above criteria and have obtained eligible refugee and asylee status?

Then you may be eligible for a waiver under INA §209(c)

You may be eligible for a waiver on the following grounds:

  • Humanitarian purposes and interests
  • To assure family unity
  • To otherwise serve or promote the public interest

Immigration Through Employment

Overview

There is a wide array of employment-sponsored immigrant visas, many of which require a prospective employer to file an application for labor certification on an employee’s behalf. Beach-Oswald Immigration Law Associates offers experienced legal guidance to individuals and employers navigating through the complex and ever-changing employment-based immigration laws during an employee’s path to permanent residence (green card). Employment-sponsored immigrant visas are divided into five preference category:

1st Preference EB-1Priority workers – People with extraordinary ability; outstanding professors and researchers; and certain multinational executives and managers.
2nd Preference EB-2Workers holding advanced degrees; persons of exceptional ability; and national interest waivers.
3rd Preference EB-3Skilled workers, professionals, and other workers.
4th Preference EB-4Certain special immigrants, including ministers and religious workers.
5th Preference EB-5Employment creation- Investor.
1)      First Preference: EB-1 Aliens of Extraordinary Ability; Outstanding Researchers and Professors; and Certain Multinational Executive and Managers
The EB-1 visa category applies to three types of aliens:
  1. Aliens with Extraordinary Ability: foreign citizens possessing extraordinary ability in the arts, sciences, education, business, or athletics.
  1. Outstanding Professors and Researchers: the professor or researcher must be outstanding in his/her academic field, and must be internationally recognized for his/her work.
  2. Certain Multinational Managers and Executives: high ranking managers or executives that wish to continue to work for the same employer in a managerial or executive capacity in the U.S.

Labor Certification (PERM) is not required for any category of EB1 visa category.

A.    EB1-A: Aliens with Extraordinary Ability

Individuals may self-petition and do not need employer sponsorship. In order to qualify for the EB1-A visa category the alien must be at the top of his/her field, and should be able to provide substantial documentation of his/her qualifications, including but not limited to:

  • Evidence of receipt of lesser nationally or internationally recognized prizes or awards for excellence
  • Evidence of your membership in associations in the field which demand outstanding achievement of their members
  • Evidence of published material about you in professional or major trade publications or other major media
  • Evidence that you have been asked to judge the work of others, either individually or on a panel
  • Evidence of your original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field
  • Evidence of your authorship of scholarly articles in professional or major trade publications or other major media
  • Evidence that your work has been displayed at artistic exhibitions or showcases
  • Evidence of your performance of a leading or critical role in distinguished organizations
  • Evidence that you command a high salary or other significantly high remuneration in relation to others in the field
  • Evidence of your commercial successes in the performing arts

The documentation for the EB-1 category must be substantial, and we recommend that you contact one of our expert lawyers to discuss your qualifications, and whether the EB-1 visa category is right for you.

B.     EB1-B: Outstanding Professors and Researchers

Internationally recognized researchers and professors who qualify for EB1-B category must provide a substantial amount of documentation to qualify for a green card. The alien professor or researcher will need to show that he or she:

  1. Has at least 3 years of experience in his/her field as a professor or researcher;
  2. Is internationally recognized as being outstanding in his/her field, the evidence for which can include:
    • Receipt of major prizes or awards for outstanding achievement;
    • Documentation of the alien’s membership in associations in the academic field which require outstanding achievements of their members;
    • Published material in professional publications written by others about the alien’s work in the academic field;
    • Evidence of participation as the judge of the work of others in the same or similar academic field;
    • Evidence of original scientific or scholarly research contributions to the academic field;
    • Evidence of authorship of scholarly books or articles in the academic field;
  3. Has a job offer for a permanent research position (if a researcher) or a tenure-track teaching position (if a professor).
C.    EB1-C: Multinational Managers and Executives

Certain multinational executives and managers can qualify for permanent residence through the EB-1C category if he or she:

  • Has been employed outside the U.S. for at least 1 year within the 3 years prior to applying for the visa classification;
  • The employment must have been in a managerial or executive capacity; and
  • The employment must have been with the same company (or its affiliate) that will be employing the alien in the U.S.

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2)      Second Preference: EB-2 Aliens with Advanced Degrees or Its Equivalent; Aliens with Exceptional Ability; and National Interest Waiver
A.    Aliens with Advanced Degree: The alien employee’s job offer must require an advanced degree and alien must possess such a degree or its equivalent (a baccalaureate degree plus 5 years progressive work experience in the field).
B.     Aliens with Exceptional Ability: The alien employee documents exceptional ability in the sciences, arts, or business.  Exceptional ability “means a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.”
  1. National Interest Waiver: The alien employee seeking a national interest waiver is requesting that the Labor Certification be waived because it is in the interest of the United States.  Though the jobs that qualify for a national interest waiver are not defined by statute, national interest waivers are usually granted to those who have exceptional ability (see above) and whose employment in the United States would greatly benefit the nation.  Those seeking a national interest waiver may self-petition (they do not need an employer to sponsor them).

Labor Certification (PERM) is required for any category of EB2 visa category (except for EB2 NIW).

  1. Aliens with Advanced Degree

Individual must provide documentation, such as an official academic record showing that he/she has a U.S. advanced degree or a foreign equivalent degree, or an official academic record showing that he/she has a U.S. baccalaureate degree or a foreign equivalent degree and letters from current or former employers showing that he/she has at least 5 years of progressive post-baccalaureate work experience in the specialty.

B.     Aliens with Exceptional Ability

Individuals must meet at least three of the criteria below:

  • Official academic record showing that you have a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to  your area of exceptional ability
  • Letters documenting at least 10 years of full-time experience in your occupation
  • A license to practice your profession or certification for your profession or occupation
  • Evidence that you have commanded a salary or other remuneration for services that demonstrates your exceptional ability
  • Membership in a professional association(s)
  • Recognition for your achievements and significant contributions to your industry or field by your peers, government entities, professional or business organizations
  • Other comparable evidence of eligibility is also acceptable.
  1. National Interest Waiver

Individuals must meet at least three of the criteria above and demonstrate that it is in the national interest that he/she works permanently in the U. S. National Interest Waivers are often difficult to obtain. However, experienced attorneys at BOILA have filed many NIW petitions with much success.

 

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3)      Third Preference: EB-3 Professionals, Skilled Workers and Other Workers

The EB-3 category applies to the following individuals:

  • Professionals who hold at least a bachelor’s degree or its foreign equivalent
  • Skilled workers who have at least two years of experience
  • Other unskilled workers, who have less than two years of experience
  1. Professionals are those individuals who hold a bachelor’s degree or its equivalent, and where the degree is required for the position.
  2. Skilled Workers are those holding positions that require at least two years of training or experience.
  3. Other/Unskilled Workers. This classification applies to unskilled labor positions that require less than two years of training, experience, or higher education. There is always a long backlog in this category, and an alien in this category will therefore have to wait for many years before s/he will be eligible for a green card.

Labor Certification (PERM) is required for any category of EB32 visa category.

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4)      Fourth Preference: EB-4 Special Immigrants and Religious Workers

Special immigrants: certain religious workers and ministers of religion, certain international organization employees and their immediate family members, and specifically qualified and recommended current and former employees of the U.S. Government.

To qualify as a religious worker, you must have been a member of a non-profit religious denomination for at least two years prior to applying for the visa, and you must be coming to the U.S. to work as a minister of that religious denomination, or in another religious occupation for that religious denomination.

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5)      Fifth Preference: EB-5 Investors

Investors are individuals who create employment for at least ten unrelated persons by investing capital in a new commercial enterprise in the U.S. The foreign investor must have invested or be in the process of investing at least US $1 million, or $500,000 if the investment is in a targeted employment area.

Minimum investment amount:

  • $1,000,000, or
  • $500,000 if in targeted employment area, i.e.:
    • A rural area, or
    • An area that has experienced unemployment of at least 150% of the national average.
  • The investor must be either in the process of investing or have already invested this money.
  • If investment is in a high employment area (metropolitan area with a lower unemployment rate than the national average):
    • A higher investment amount may be required by the Attorney General.
    • Regulations don’t specify exact amount, but it can’t be more than $3 million.
    • The investor must have personally invested the minimum required amount of money — having several investors will not count.

The investor must establish a new commercial enterprise by 1 of 3 ways:

  1. By creating an original business.
  2. By purchasing an existing business and reorganizing or restructuring it in such a way that a new commercial enterprise results.
  3. By expanding an existing business by 140%. Or retaining all existing jobs in a business that has lost 20% of its net worth in the past 12-24 months.

The new enterprise must benefit the US economy:

  • Must create full-time employment for at least 10 people.
    • The immigrant and his/her immediate family cannot count as one of the 10 people.
  • The investment will also qualify if s/he invests in a troubled business (see above) and maintains the number of existing employees for at least two years.

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Immigration Through Family

Overview

Family-sponsored immigration is a multi-step process that involves both the U.S. relative and the foreign national:

  • The U.S. relative submits the Petition for Alien Relative to the USCIS
  • USCIS approves the petition and forwards it to the National Visa Center (NVC)
  • NVC notifies the foreign relative when an immigrant visa number becomes available
  • The foreign relative secures the visa number by adjusting status (if residing in the U.S., or completing the process with the local U.S. Consulate if outside the U.S.)

Family-sponsored immigrant visas are:

  1. Fiancé Visa
  2. Marriage to a U.S. Citizen
  3. Immediate Relative Petition
  4. Relatives of Legal Permanent Residents
  5. Removal of Conditions
1.  Fiancé Visa

If you are a U.S. citizen you can bring your non-citizen fiancé to the United States. If your fiancé plans on joining you in the U.S., it is important to know the following:

  • Your fiancé cannot enter the U.S. on a visitor visa if his/her intention is to marry you and become a U.S. permanent resident. Entering on any visa other than a fiancé visa will be considered fraud by USCIS and can keep your fiancé from obtaining future immigration benefits
  • After the fiancé petition is approved, your fiancé must apply for a visa at  U.S. consulate in his/her home country before he/she will be allowed to enter the U.S.
  • You must get married within 90 days after your foreign fiancé enters the U.S.
  • If you do not get married within 90 days, your fiancé must leave the U.S. If he/she overstays, your fiancé will risk being deported.
  • The petitioner must “establish to the satisfaction of the District Director” that the petitioner and the beneficiary have met in person within the two years immediately preceding the filing of the K nonimmigrant visa petition. 8 CFR Sec. 214.2(k)(2). However, this requirement may be waived by the District Director “as a matter of discretion” only if it can be established that:
    • Compliance would result in extreme hardship to the petitioner; or
    • That compliance would violate strict and long-established customs of the beneficiary’s foreign culture or social practice, as where marriages are traditionally arranged by the parents of the contracting parties and the bride and groom are prohibited from meeting subsequent to the arrangement and prior to the wedding day. 8 CFR Sec. 214.2(k)(2).
  • Keep in mind that your fiancé will not automatically become a U.S. permanent resident once you are married. He/she will need to adjust his/her status to that of a permanent residence after you are officially married.
  • Once your spouse’s adjustment of status application is approved, he/she will be considered a conditional permanent resident. It is very important to have these conditions removed later.

Removal of Conditions: You and your spouse will need to file another petition within 90 days of the two year anniversary of when your spouse’s green card was granted to have the conditions on his/her green card removed. This is a crucial part of the immigration process, and failure to file a petition for removal of conditions can have serious repercussions.

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2. Marriage to a U.S. Citizen

It’s important to keep in mind that being married to a U.S. citizen does not grant you automatic immigration benefits.  The U.S. citizen must file a visa petition to classify the spouse as an immediate relative, and both spouses will need to provide ample documentation to prove that the marriage is bona fide, and was not entered into for the purpose of gaining immigration benefits.

If you get married in the U.S.

  • You must submit Form I-130 and prove that the marriage is bona fide.
  • If the foreign-born spouse entered the U.S. legally and is not in removal proceedings, he/she can simultaneously file Form I-485 to apply for a green card.
  • The foreign-born spouse will also be eligible to apply for a work permit and a travel document.

If you get married outside the U.S.

  • If you were married outside the U.S. the foreign-born spouse may come to the U.S. to await the issuance of his/her green card by obtaining a K-3 visa.
  • The foreign born spouse will need to be interviewed at the U.S. consulate in his/her country, and will then be issued a temporary visa to travel to the U.S. within three to six months.

Keep in Mind:

  • The foreign born spouse’s green card will expire after two years, since he/she is considered to be a “conditional permanent resident”

To become a permanent resident of the U.S., you will need to file Form I-751 Removal of Conditions within 90 days immediately preceding the end of the two-year period as a conditional permanent resident.

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3. Immediate Relative Petition

Unlike most other immigrant categories, Immediate Relatives (spouses, parents or children of U.S. citizens) are not subject to numerical limits under immigration law. Apart from immediate relatives, other family-sponsored avenues to permanent residence include: spouses of legal permanent residents, children of U.S. citizens and lawful permanent residents, and siblings of U.S. citizens.

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4. Visa for Relatives of Lawful Permanent Residents

Beach-Oswald Immigration Law Associates can assist you, a lawful permanent resident (LPR), to bring your spouse, children and sons/daughters to the United States. There are two ways to do this:

  • Immigrant visa (F2A) for family second preference immigrant visa for your spouse and children;
  • Nonimmigrant (V) visa for your spouse and children to travel to the United States to wait for processing of the immigrant visa. This page provides information for the nonimmigrant (V) visa.
What Is a V Visa?

The LIFE Act allows spouses and children of lawful permanent residents (LPR) to come to the United States on V nonimmigrant visas. The purpose of this act is to reunite families who have been or could be separated during the process of immigrating to the United States. With V visas, family members can wait in the United States for the immigrant visa process to be completed.

Who Can Get a V Visa?

Spouses (husbands and wives) and unmarried children under the age of 21 of lawful permanent residents may apply for V visas under these conditions:

  • Lawful Permanent Resident (LPR) petitioner MUST have filed the I-130 immigrant visa petition on or before December 21, 2000;
  • Priority date is at least three years old;
  • Priority date is not current;
  • Applicant has not already had an immigrant visa interview or been scheduled for an interview;
  • Petition is not already at an embassy or consulate abroad; and
  • Applicant is otherwise eligible as an immigrant.

The priority date is the date the US Citizenship and Immigration Services (USCIS) received the petition.

How Do I Know If My Family Members Are Eligible for V Visas?

The National Visa Center (NVC) sends a letter to potential V visa applicants and the petitioner. This letter tells you, the potential V visa applicants, to contact the embassy or consulate where you can apply. You will get information about setting up a V visa appointment. When you contact the embassy or consulate, you must have this information with you:

  • your full name as on the petition and on your passport;
  • your date and place of birth;
  • your nationality; and
  • your mailing address and telephone number.
How Will the Embassy or Consulate Know That the Applicant Is Eligible for a V Visa?

The applicant’s name appears in the Department of State’s computer system. That is how the embassy or consulate abroad knows that the person is eligible for a visa.

A V Visa Applicant Is Also an Immigrant

You, the V Visa applicant, have an immigrant visa petition which your parent or spouse has filed for you. Therefore, you must meet some of the requirements of an immigrant visa. Some of the usual requirements of the nonimmigrant visa are not required. The consular section will tell you what to bring to the interview.

Derivative Status for Children

Children get derivative status from their parent’s I-130 immigrant visa petition. It is not necessary that they have a separate petition to apply for a V visa. However, if the US Citizenship and Immigration Services (USCIS) has not approved the petition, the derivative status children are not listed in the Department of State’s computer as eligible for a V Visa.

In such cases, these children must prove their relationship to the principal applicant for a V visa when they apply for a visa. Remember that children must be unmarried and under 21 years of age in order to apply for V visas.

Can a V Visa Holder Work in the United States?

A V visa holder can apply to the United States Citizenship and Immigration Services (USCIS) for permission to work in the United States.

How Long Does It Take?

The length of time varies from case to case according to the circumstances of the person. The time it takes each consular office to process the case varies. Some cases are delayed because the applicants do not follow instructions carefully or supply incomplete information. (It is important to provide correct postal addresses and telephone numbers.) The embassy or consulate may need to get security clearances, which often take time.

What If the Applicant Is Ineligible for a Visa?

Certain conditions and activities may make you, the applicant, ineligible for a visa. Examples of these ineligibilities are:

  • Trafficking in drugs
  • Having HIV/AIDS
  • Overstaying a previous visa
  • Submitting fraudulent documents

The consular officer will tell you if you are ineligible for a visa, whether there is a waiver of the ineligibility and what the waiver process is.

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5. Removal of Conditions

After the foreign born spouse’s green card is granted, both spouses will need to submit a joint petition on Form I-751 to remove the two year condition on the foreign born spouse’s permanent residence.

  • This petition must be filed within 90 days immediately preceding the end of the two year period.
  • If the marriage has terminated because of divorce, death of the U.S. citizen spouse, or because of spousal abuse, the foreign born spouse may be able to waive the joint petition requirement and file on his/her own.

We recommend that you consult one of our experienced attorneys to determine whether you qualify for such a waiver.

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Special Immigrant Juvenile Status (SIJS)

Overview

Special Immigrant Juvenile Status (SIJS) is an available form of legal relief, primarily for undocumented children, to obtain a green card. A child is eligible for SIJS if they have been abused, abandoned or neglected by one or both of their parents and that reunification with one or both of their parents is not advisable or viable for the well-being of the child. Children are eligible for SIJS even if they are in removal proceedings.

Am I Eligible?
  • The intending applicant must be under the age of 21 and unmarried.
  • Most applicants must have all juvenile court proceedings finished before they turn 18.
  • The intending applicant must have been abused, abandoned or neglected by one or both of their parents and reunification with one or both parents, is not in the best interest of the child.
  • The intending applicant must be declared a dependent on a ‘juvenile court’ in the United States.
How Do I Apply for SIJS?

SIJS is a two-step process; the first step is in “Juvenile Court” and the second step in “Immigration Court.”

  • First, a child must be must be declared a dependant on a ‘juvenile court’ in the United States, or the court must have legally committed the child to, or placed him or her under the custody of an agency or department of a state, or an individual or entity appointed by a state or juvenile court, while the child is in the United States.
  • The child must remain under the jurisdiction of that court during the SIJS application process.
  • The judge in the juvenile court proceedings MUST include the “Special Juvenile” language in their finding.
  • Once the child has been found to be a “Special Juvenile,” the child is either placed in the custody of the parent or relative in the U.S. or placed in the care of the State.

The next step is to proceed in “Immigration Court.”

  • If a child is not in removal proceedings s/he can simultaneously apply to USCIS for an I-360 (Family Based Petition), I-485 (Application to Register Permanent Residence) and I-765 (Work Authorization).

If a child is in removal proceedings s/he has two options:

  1. Their immigration proceedings can be terminated with the permission of an Immigration Judge and the child can then simultaneously file his/her I-360, I-485 and I-765 to USCIS.
  2. If his/her immigration proceedings are not terminated, a lawyer can ask the Immigration Judge for a Continuance or Administrative Closure and whether these are granted or not, apply for the I-360. After the I-360 is submitted then the I-485 and I-765 can be submitted.

If you are a child that has been abused, abandoned or neglected by one or both of your parents and reunification is not advisable, or you know a child who meets this criteria, please contact our office to schedule a consultation. Our lawyers have many years of experience helping applicants win their cases.

Deportation and Removal

Overview

Facing deportation can be an incredibly scary and difficult process. If you have been served with a notice to appear before an Immigration Judge, Beach-Oswald’s experienced immigration lawyers can help you fight for the right to remain in the U.S.

Our law firm has more than 20 years of experience successfully representing clients after they have been ordered deported from the U.S.

Our areas of expertise include:

  • Cancellation of Removal
  • Appeals to the Board of Immigration Appeals (BIA) and federal circuit courts
  • Motions to reopen a case
  • Applications for asylum and withholding of removal
  • Petitions for habeas corpus on behalf of detained aliens

If you are facing deportation it is very important that you consult with an attorney as soon as possible, even if you have been told by an immigration officer that you do not need an attorney.

IMPORTANT: Please be aware that if you have been given a notice to appear before an Immigration Judge and you do not show up to court on your scheduled date, you will be ordered deported by the Immigration Judge. Therefore, it is very important that you consult a lawyer as soon as you are given a notice to appear in court. If you must go to court by yourself, tell the judge that you would like extra time in order to find a lawyer to assist you.

Temporary Visas

Overview

The non-immigrant visa classification covers a broad range of visas used to enter the United States for work, pleasure or study. Some visas are considered “dual status”; you may attempt to obtain permanent residency (a green card) while under that classification. Most non-immigrant visas, however, require you establish the demonstration of non-immigrant intent. This means you should demonstrate that you have a permanent residence in your home country that you have no intention of abandoning. The duration of time you may spend in the U.S. can range from a few days to several years, depending on the visa. In most situations, your spouse and unmarried children under the age of 21 may accompany you on a derivative visa.

Exchange Visitors – J and Q Visas

There are two nonimmigrant visa categories available for those seeking to participate in exchange visitor programs in the U.S. – the “J” Visa and the “Q” Visa.  The J Visa is for educational and cultural exchange programs that have been specifically designated by the Department of State.  The Q Visa is for international cultural exchange programs that have been designated by the USCIS.

J Visa

The J Visa is intended for educational and cultural exchange programs that have been designated by the Department of State.  The J visa program was created for the purpose of increasing mutual understanding between the people of the US and other countries through educational and cultural exchange.

To be eligible for a J Visa, your U.S. sponsor must be accredited through the State Department’s Exchange Visitor Program.  Some examples of such programs include:

  • Physicians
  • Au pairs
  • Interns
  • Teachers
  • Camp Counselors
  • Research Scholars

Q Visa

The Q Visa is designated for educational and cultural exchange programs that have been designated by USCIS.  The Q cultural exchange program was created for the purpose of providing practical training and employment and to share the history, culture, and traditions of the participant’s home country to the US and vice versa.

To have the exchange program approved by USCIS, the sponsoring US employer must file Form I-129Q.  The employer will need to file a new petition every time she or he wants to bring additional persons into the US in Q status.  Please note that there are no derivative visas for the children or spouses of Q Visa holders.

 

F-1 Student Visas

If you are going to the US primarily for tourism, but want to take a short course of study of less than 18 hours per week, you may be able to do so on a visitor visa.  If your course of study is more than 18 hours a week, you will need a student visa.

In most countries, first time student visa applications are required to appear for an in-person interview.  However, each embassy and consulate sets its own interview policies and procedures regarding student visas.

Keep in mind that June, July, and August are the busiest months in most consular sections and interview appointments are the most difficult to get during that period.  Students need to plan ahead to avoid having to make repeat visits to the Embassy.  To the extent possible, students should bring the documents suggested below, as well as any other documents that might help establish their ties to their home country.

Changes introduced shortly after September 11, 2001 involve extensive and ongoing review of visa issuing practices as they relate to our national security.  It is important to apply for your visa well in advance of your travel departure date.

When do I apply for a student visa?

Students are encouraged to apply for their visa early to provide time for visa processing.  Students may apply for their visa as soon as they are prepared to do so.

The consular officer may need to get special clearances depending on the course of study and nationality of the student.  This can take some additional time.  For more information on applicants who may have additional processing requirements see the USCIS website page titled Special Processing Requirements.

Students should note that Embassies and Consulates are able to issue your student visa 120 days or less in advance of the course of study registration date.  If you apply for your visa more than 120 days prior to your start date or registration date as provided on Form 1-20, the Embassy or Consulate will hold your application until it is able to issue the visa.  Consular officials will use that extra time to accomplish any of the necessary special clearances or other processes that may be required.

Students are advised of the Department of Homeland Security regulation which requires that all initial or beginning students enter the U.S. 30 days or less in advance of the course of study start/report date as shown on the Form I-20.  Please consider this date carefully when making travel plans to the U.S.

A beginning student who wants an earlier entry into the U.S. (more than 30 days prior to the course start date), must qualify for, and obtain a visitor visa.  A prospective student notation will be shown on his/her visitor visa and the traveler will need to make the intent to study to the U.S. immigration inspector at port of entry.  Before beginning any studies, he or she must obtain a change of classification by filing Form I-539, Application for Change of Nonimmigrant Status, and also submit the required Form I-20 to the Department of Homeland Security office where the application is made.  Please be aware that one may not begin studies until the change of classification is approved.

Continuing students may apply for a new visa at any time, as long as they have been maintaining student status and their SEVIS records are current.  Continuing students may also enter the U.S. at any time before their classes start.

What is SEVIS and SEVP?

The Student and Exchange Visitor Program (SEVP) is designed to help the Department of Homeland Security and Department of State better monitor school and exchange programs and F, M and J category visitors.  Exchange visitor and student information is maintained in the Student and Exchange Visitor Information System (SEVIS).  SEVIS is an internet-based system that maintains accurate and current information on nonimmigrant students (F and M visas), exchange visitors (J visa), and their dependents (F-2, M-2 and J-2 visas).  SEVIS enables schools and program sponsors to transmit mandatory information and event notifications via the internet to the Department of Homeland Security and Department of State throughout a student or exchange visitor’s stay in the U.S.

All student applications must have a SEVIS generated I-20 issued by an educational institution approved by the Department of Homeland Security, which they submit when they are applying for their student visa.  The consular officer will need to verify your I-20 record electronically through the SEVIS system in order to process your student visa application.  Unless otherwise exempt, participants whose SEVIS I-20 was issued on or after September 1, 2004 must pay a SEVIS I-901 Fee to the Department of Homeland Security for each individual or program.

What is needed to apply for a Student Visa?

As part of the visa application process, an interview at the embassy consular section is required for visa applicants from age 14 through 79.  Persons age 13 and younger, and age 80 and older generally do not require an interview unless requested by the embassy or consulate.  The waiting time for an interview appointment for applicants can vary, so early visa application is strongly encouraged.  It is important to remember that applying early and providing the requested documents does not guarantee that the student will receive a visa.  Visa wait times for interview appointments and visa processing time information for each U.S. Embassy or Consulate is available on most embassy websites.

During the visa application process, usually at the interview, an ink-free, digital fingerprint scan will be quickly taken.  Some applicants will need additional screening, and will be notified when they apply.  Also, because each student’s personal and academic situation is different, two students applying for the same visa may be asked different questions and be required to submit different documents.  For that reason, the guidelines that follow are general and can be abridged or expanded by consular officers overseas depending on each student’s situations.

All Applicants for a Student Visa Must Provide:

  • Form I-20A-B, Certificate of Eligibility for Nonimmigrant (F-1 Student Status for Academic and Language Students or Form I-20M-N, Certificate of Eligibility for Nonimmigrant (M-1) Student Status for Vocational Students.  You will need to submit a SEVIS generated Form, I-20 that was provided to you by your school. You and your school official must sign the I-20 form.  All students, as well as their spouses and dependents must be registered in the SEVIS.  Your school is responsible for entering your information for the I-20 student visa form into SEVIS.  Students will also have to pay a SEVIS I-901 fee for each program of study.  Questions regarding your exchange program should be directed to your program sponsor;
  • A completed application, Nonimmigrant Visa Applicant, Form DS-156, together with a Form DS-158.  Both forms must be completed and signed.  Some applicants will also be required to complete and sign Form DS-157.  A separate form is needed for children even if they are included on a parent’s passport.
  • An interview at the embassy consular section is required for almost all visa applicants.  The waiting time for an interview appointment can vary so early visa applications are strongly encouraged.  During the visa interview, an ink-free, digital fingerprint scan will be quickly taken, as well as a digital photo.  Some applicants will need additional screening and will be notified when they apply.
  • A passport valid for travel to the United States and with a validity date at least 6 months beyond the applicant’s intended period of stay in the U.S.
  • One 2″x 2″ photograph.
  • A MRV fee receipt to show payment of the visa application fee, a visa issuance fee if applicable and a separate SEVIS I-901 fee receipt.  While all F visa applicants must pay the MRV fee, including dependents, only the F-1 principal applicants must pay the SEVIS fee.

All Applicants Should be Prepared to Provide:

  • Transcripts and diplomas from previous institutions attended.
  • Scores from standardized tests required by the educational institution such as TOEFL, SAT, GRE, GMAT.
  • Financial evidence that shows you or your parents who are sponsoring you have sufficient funds to cover your tuition and living expenses during the period of your intended study.  For example, if you or your sponsor is a salaried employee, please bring income tax documents and original bank books and/or statements.  If you or your sponsor own a business, please bring business registration, licenses and tax documents, as well as original bank books and/or statements.

Applicants with Dependents Must also Provide:

  • Proof of the student’s relationship to his/her spouse and/or children (marriage and birth certificates).
  • It is preferred that families apply for F-1 and F-2 visas at the same time, but if the spouse and children must apply separately at a later time, they should bring a copy of the student visa holder’s passport and visa, along with all other required documents.

Additional Information

No assurances regarding the issuance of visas can be given in advance.  Therefore final travel plans or the purchase of nonrefundable tickets should not be made until a visa has been issued.

Unless previously canceled, a visa is valid until its expiration date.  Therefore, if the traveler has a valid U.S. visa in an expired passport do not remove the visa page from the expired passport.  You may use it along with a new valid passport for travel and admission to the U.S.

Entering the U.S. – Port of Entry

A visa allows a foreign citizen coming from abroad to travel to the U.S. port of entry and request permission to enter the U.S. Applicants should be aware that a visa does not guarantee entry into the U.S.  The Department of Homeland Security and U.S. Customs and Border Protection officials have authority to permit or deny admission to the U.S.  Student visitors must have their Form I-20 in their possession each time they enter the U.S.  Students should review important information about admissions/entry requirements on the Department of Homeland Security, Customs and Border Protection website.  Upon arrival (at an international airport, seaport, or land border crossing) you will be enrolled in the US-VISIT entry-exit program.  In addition, some travelers will also need to register their entry into and their departure from the U.S> with the Special Registration program.  If you are allowed to enter the U.S. the CBP official will determine the length of your visit on the Arrival-Departure Record (Form I-94).  Since Form I-94 documents your authorized stay in the U.S. it is very important to keep it in your passport.

Staying Beyond Your Authorized Stay in the U.S. and Being out of Status

You should carefully consider the dates of your authorized stay and make sure you are following the procedures under the U.S. immigration laws.  It is important that you depart the U.S. on or before the last day you are authorized to be in the U.S. on any given trip based on the specified end date on your Arrival-Departure Record, Form I-94.  Failure to depart the U.S. will cause you to be out-of-status.  Additional information on successfully maintaining your immigration status while a student or exchange visitor can be found on the Immigration and Customs Enforcement (ICE) website.

Staying unlawfully in the U.S. beyond the date Customs and Border Protection (CBP) officials have authorized, even by one day, results in your visa being automatically voided, in accordance with INA 222(g).  Under this provision of immigration law, if you overstay on your nonimmigrant authorized stay in the U.S., your visa will be automatically voided.  In this situation you are required to reapply for a new nonimmigrant visa, generally in your country of nationality.

For nonimmigrants in the U.S. who have an Arrival-Departure Record, Form I-94 with the CBP admitting officer endorsement of Duration of Status or D/S, but who are no longer performing the same function in the U.S. that they were originally admitted to perform (e.g. you are no longer working for the same employer or you are no longer attending the same school), a DHS or immigration judge may make a finding of status violation resulting in the termination of the period of authorized stay.

What Items do Returning Students Need?

All applicants applying for renewals must submit:

  • A passport valid for at least 6 months
  • An application Form DS-156, together with a Form DS-158. Both forms must be completed and signed.  Some applicants will also be required to complete and sign Form DS-157. Blank forms are available without charge at all U.S. consular offices and on the Visa Services website under Visa Applications Forms
  • A receipt for visa processing fee.  A receipt showing payment of the visa application fee for each applicant, including each child listed in a parent’s passport who is also applying for a U.S. visa, is needed
  • A new I-20 or an I-20 that has been endorsed on the back by a school official within the past 12 months

All applicants applying for renewals should be prepared to provide:

  • A certified copy of your grades from the school in which you are enrolled
  • Financial documents from you or your sponsor showing your ability to cover the cost of your school

Students Away from Classes More than 5 Months

Students in or outside the U.S. who have been away from classes for more than five months will likely need a new visa to enter the U.S.

How Long May I Stay on my F-1 Student Visa?

When you enter the U.S. on a student visa you will usually be admitted for the duration of your student status.  That means you may stay as long as you are a full time student even if the F-1 visa in your passport expires while you are in the U.S.  For a student who has completed the course of studies shown on the I-20 and any authorized practical training, the student is allowed the following additional time in the U.S. before departure:

  • F-1 Student – an additional 60 days to prepare for departure form the U.S. or to transfer to another school.
  • M-1 Student – an additional 30 days to depart the U.S. (fixed time period, in total not to exceed 1 year).  The 30 days to prepare for departure is permitted as long as the student maintained a full course of study and maintained status.  An M visa student may receive extensions for up to three years for the total program.

As an example of duration of status, if you have a visa that is valid for 5 years that will expire on January 1, 2014 and you are admitted into the U.S. for the duration of your studies, you may stay in the U.S. as long as you are a full time student.  Even if your January 1, 2014 date passes and your visa expires while in the U.S. you will still be in legal student status.  However, if you depart the U.S. with an expired visa you will need to obtain a new one before being able to return to the U.S. and resume your studies.  A student visa cannot be renewed or reissued in the U.S.; it must be done at an embassy or consulate abroad.

Public School

There are certain restrictions on attending public school in the U.S. Persons who violate these restrictions may not receive another visa for a period of 5 years.

The restrictions apply only to students holding F-1 visas.  They do not apply to students attending public school on derivative visas such as F-2, J-2, or H-4 visas.  The restrictions also d o not apply to students attending private schools on F-1 visas.

The Restrictions Are…

Students who attend public high schools in the U.S. are limited to 12 months of study.  Public school attendance in the U.S. prior to November 30, 1996 does not count toward this limit.

F-1 visas can no longer be issued to attend public elementary or middle schools (Kindergarten – 8th grade) or publicly funded adult education programs.

Before an F-1 visa for a public school can be issued, the student must show that the public school in the U.S. has been reimbursed for the full, unsubsidized per capita cost of the education as calculated by the school.  Reimbursement may be indicated on the I-20.  Consular officers may request copies of canceled checks and/or receipts confirming the payment as needed.

 

Tourist Visas:  Visas for Business & Pleasure

If you are coming to the U.S. for a short business trip then you will need a B-1 visa.  If you are coming for pleasure or for medical treatment then you will need a B-2 visa.

The B-1 visa classification allows foreign visitors to enter the U.S. temporarily to engage in business related activities such as conventions, conferences, and consultations, but not employment.  Spouses and children under 21 may receive B-2 visa status for the same duration as the B-1 visa holder.  A B-1 Visa Business visitor may be approved for up to one year but many times the duration of status is simply for the period of that particular business trip.

B visas are issued by U.S. consulates to foreign nationals seeking to enter the U.S. as tourists (B-2) or business visitors (B-1).  B visas are generally issued for a 10 year period allowing the holder to make multiple entries into the U.S. during that time.  At the airport or land port of entry, U.S. Citizenship and Immigration Services (USCIS) inspects the B visa, questions the visitor, and makes a determination of length of stay in the U.S.  The length of stay is recorded on an I-94 card put into the visitor’s passport and can vary in length from a few days to six months.

B visas and admission as a B-1 (as opposed to B_2) can be difficult to obtain.  The US has agreements with approximately 24 countries that allow foreign visitors to enter the U.S. on a 90-day card under the Visa Waiver Pilot Program.  Thus, foreign nationals from these countries are encouraged to use the no-visa system and discouraged from formal application for B visas.  Foreign visitors from other countries are often suspected of seeking to work in the U.S. and are refused B visas.

B visa applicants must show: (1) an un-abandoned foreign residence to which they intend to return; (2) an intention to enter the U.S. for a specifically limited period of time and (3) that their sole purpose in the U.S. will be to visit.  Applicants for B visas must show specific and realistic plans, credible support arrangements for time in the U.S., and sufficient support arrangements for dependent family members abroad, and that they have not begun a U.S. permanent resident application.  B-1 visas are available for business purposes including:  taking orders for goods manufactured abroad, negotiating contracts, consulting with associates, litigation, participation in conferences or research projects.  Examples of other specific fact patterns that fit the B-1 category include: servants of U.S. citizens, professional athletes, missionaries, and volunteers of international service organizations, investors and Board members.

DOS and USCIS have attempted but failed to issue a joint regulation on B visas, as a result both agencies have considerable discretion on whether to issue B-1 visas or admit B-1 visitors.  In the absence of a joint regulation, the ‘law’ in the area is comprised of unofficial interpretations that apply to specific fact patterns and have no precedential value.  As a practical matter, oversight and enforcement of B-1 rules is almost nonexistent.  Thus, the four hurdles in the B-1 area are (1) getting a B visa issued, (2) obtaining admission to the U.S. as a B-1 visitor, (3) extending B status by internal petition to the USCIS, and (4) changing to a work authorized visa category without committing misrepresentation.

As a general rule, B-1 visitors should adhere to the following tips to facilitate entry into the U.S.:

  1. Always have a round trip ticket with the return trip booked for a date six months or less in the future;
  2. Always demonstrate that the employer is a non-U.S. employer and the particular project requiring a visit to the U.S. is a project that benefits the non-US company and requires only consultation, training, negotiating or marketing in the U.S.;
  3. If asked, always demonstrate that the salary and travel expenses are paid by a non-U.S. company on a non-U.S. payroll dispersed into a non-U.S. bank account, and that the profit center for the project is the non-U.S. company;
  4. If asked, always state that the particular project will be completed before the return date on the plane ticket (i.e. within six months at the longest);
  5. If asked, always state no intention to remain in the U.S. or to apply for a work visa (H visa, L visa or immigrant visa or ‘green card’);
  6. Avoid using the words ‘work’ or ’employment’ with regard to the U.S. location or company;
  7. Bear in mind that intentions may reasonably change after admission, and that status can be extended by petition to the USCIS through the mail.  For example, it is perfectly legitimate to state at entry a desire to enter the U.S. for a 3 month period of time, but once admitted, petition the USCIS for an extension of stay for an additional six months, and
  8. If applying for admission as a B-1 or B-2 visitor stating the intent to participate in an academic activity for which an honorarium payment will be awarded, have in hand a latter of invitation from the organization sponsoring the honorarium related activity.  The letter of invitation should clearly specify the honorarium-related event or activity and the date(s) and the location of the event.  The letter must be produced for inspection if requested by an inspecting officer at the U.S. port of entry where the visitor is applying for admission.

Nonimmigrant Business Visas & Religious Workers

Overview

Non-immigrant visas are for international travelers, (citizens of other countries), coming to the U.S. temporarily. These visas allow an individual to travel to a U.S. port-of-entry (airport, for example) and request permission of the Department of Homeland Security immigration inspector to enter the U.S. A visa does not guarantee entry into the United States.

International travelers come to the U.S. for a wide variety of reasons, including tourism, business, medical treatment and certain types of temporary work. The type of visa needed is defined by immigration law, and relates to the principal purpose of your travel.

 

H-1B Specialty Occupation Visa

The American H-1B visa is one of the most sought after temporary non-immigrant visas as it allows qualified foreign workers entry into the U.S. for the purpose of undertaking employment.  The visa only applies to certain foreign workers and requires that the U.S. employer petition the USCIS on behalf of the prospective foreign employee.

A Specialty Occupation is one which requires:

  • Theoretical and practical application of a body of highly specialized knowledge in such fields of human endeavor such as architecture, engineering, mathematics, physical sciences, medicine and health, education, business specialties, accounting, law, theology and the arts; and
  • A bachelor’s degree or higher in the specific specialty or its equivalent.

Qualifications for an H-1B Visa

In order to qualify for the H-1B visa, the foreign employee must meet one of the following criteria:

  • Hold a U.S. bachelor’s degree or higher as required by the occupation from an accredited college or university, or the equivalent in a foreign degree;
  • Hold an unrestricted state license, registration, or certification authorizing full practice of the specialty occupation if a license is required:
    • If a temporary license is available and the foreign person is allowed to perform the duties of the occupation without a permanent license then a visa may be granted; and
    • In certain occupations generally requiring a license, a state may allow an individual to practice the occupation under the supervision of a licensed individual;
  • have education, specialized training, and/or experience equivalent to a bachelor’s degree and have the relevant work experience directly related to the specialty occupation;
  • An evaluation from an official who has authority to grant credit for the training and/or experience the employee has undertaken;
  • An evaluation of education by a reliable credentials evaluation service that specializes in evaluating foreign educational credentials;
  • Evidence or certification of registration from a nationally recognized professional association or society which is known for granting accreditation; or
  • A determination by the USCIS has obtained the equivalent professional level through a combination of education, specialized training, and/or work experience in the specialty occupation.

How long is the H-1B Visa Issued For?

The H-1B visa is issued for a period of 3 years, but may be extended once for an additional 3 years if the employer can prove they require the employee for longer and the employee maintains their intent to leave the U.S. at the end of the visa extension.

Treaty Traders and Investors

E-1 and E-2 Visas

The Immigration and Nationality Act provides nonimmigrant visa status for a national of a country, with which the United States maintains a treaty of commerce and navigation, who is coming to the United States to carry on substantial trade, including trade in services or technology, principally between the United States and the treaty country, or to develop and direct the operations of an enterprise in which the national has invested, or is in the process of investing a substantial amount of capital. This is known as the E-1 or E-2 Visa.

Requirements: Treaty Trader (E-1 Visa)
  • The applicant must be a national of a treaty country;
  • The trading firm for which the applicant is coming to the U. S. must have the nationality of the treaty country;
  • The international trade must be “substantial” in the sense that there is a sizable and continuing volume of trade;
  • The trade must be principally between the U.S. and the treaty country, which is defined to mean that more than 50 percent of the international trade involved must be between the U.S. and the country of the applicant’s nationality;
  • Trade means the international exchange of goods, services, and technology. Title of the trade items must pass from one party to the other; and
  • The applicant must be employed in a supervisory or executive capacity, or possess highly specialized skills essential to the efficient operation of the firm. Ordinary skilled or unskilled workers do not qualify.
Requirements: Treaty Investor (E-2 Visa)
  • The investor, either a real or corporate person, must be a national of a treaty country;
  • The investment must be substantial. It must be sufficient to ensure the successful operation of the enterprise. The percentage of investment for a low-cost business enterprise must be higher than the percentage of investment in a high-cost enterprise;
  • The investment must be a real operating enterprise. Speculative or idle investment does not qualify. Uncommitted funds in a bank account or similar security are not considered an investment;
  • The investment may not be marginal. It must generate significantly more income than just to provide a living to the investor and family, or it must have a significant economic impact in the United States;
  • The investor must have control of the funds, and the investment must be at risk in the commercial sense. Loans secured with the assets of the investment enterprise are not allowed; and
  • The investor must be coming to the U.S. to develop and direct the enterprise. If the applicant is not the principal investor, he or she must be employed in a supervisory, executive, or highly specialized skill capacity. Ordinary skilled and unskilled workers do not qualify.
Applying for the Visa

Applicants for visas should generally apply at the U.S. Embassy or Consulate with jurisdiction over their place of permanent residence. Although visa applicants may apply at any U.S. consular office abroad, it may be more difficult to qualify for the visa outside the country of permanent residence. As part of the visa application process, an interview at the embassy consular section is required for visa applicants from age 14 through 79. Persons age 13 and younger, and age 80 and older, generally do not require an interview, unless requested by embassy or consulate. The waiting time for an interview appointment for applicants can vary, so early visa application is strongly encouraged. Visa wait times for interview appointments and visa processing time information for each U.S. Embassy or Consulate worldwide is available on our website at Visa Wait Times, and on most embassy websites. During the visa application process, usually at the interview, an ink-free, digital fingerprint scan will be quickly taken. Some applicants will need additional screening, and will be notified when they apply.

Required Documentation

For current fees for Department of State government services select Fees.

  • An application Form DS-156E, completed and signed. Blank forms are available without charge at all U.S. consular offices.
  • A passport valid for travel to the United States and with a validity date at least six months beyond the applicant’s intended period of stay in the United States (unless country-specific agreements provide exemptions). If more than one person is included in the passport, each person must complete an application.
  • One (1) 2×2 photograph. See the required photo format explained in Nonimmigrant Photograph Requirements.
  • All male nonimmigrant visa applicants between the ages of 16 and 45, regardless of nationality and regardless of where they apply, must complete and submit a form DS-157 in addition to the Nonimmigrant Visa Application (DS-156E).
  • As part of the visa application process, an interview at the embassy consular section is required for almost all visa applicants. The waiting time for an interview appointment for applicants can vary, so early visa application is strongly encouraged. During the visa interview, an ink-free, digital fingerprint scan will be quickly taken, as well as a digital photo. Some applicants will need additional screening, and will be notified when they apply.
Optional Documentation

An applicant for a Treaty Trader (E-1) or Treaty Investor (E-2) visa must first establish that the trading enterprise or investment enterprise meets the requirements of the law. The consular officer will provide the applicant with special forms for this purpose. An applicant may also be asked to provide evidence, which illustrates that the stay in the U.S. will be temporary. It is impossible to specify the exact form the evidence should take since applicants’ circumstances vary greatly.

Time Limits

Holders of E visas may reside in the United States as long as they continue to maintain their status with the enterprise.

Artists, Scientists, Entertainers and Athletes

Overview

The O and P categories are available to certain outstanding scientists, educators, business persons, artists, entertainers, athletes, and others. The standard of achievement which must be met varies depending on the precise occupation and category.

  • O-1 scientists (including doctors), educators, business persons, and athletes must demonstrate “a level of expertise indicating the person is one of a small percentage who has risen to the very top of his field of endeavor.” This is the highest possible standard, and is the same standard applied to EB-1 Green Card applications. This ability must be demonstrated by extensive documentation or receipt of a major international prize.
  • O-1 artists and entertainers must meet a more relaxed standard. The standard for this category is “distinction.” This is further defined as “a high level of achievement…evidenced by a degree of skill and recognition substantially above that ordinarily encountered.” The term “arts” is defined very expansively, and includes the culinary arts (chefs), set designers, music coaches, and even animal trainers.
  • O-1 artists and entertainers in the movie and TV industry must meet an intermediate standard. They must demonstrate a “very high” level of achievement.
  • The O-2 category is available to persons assisting O-1 nonimmigrants in the arts, motion pictures, TV productions, and athletes, such as coaches and stage managers. O-2s must be an integral part of the performance or event, have critical skills not of a general nature, and must have a foreign residence they do not intend to abandon.
  • The O-3 category is for dependents of O-1s and O-2s.
  • P visas are generally used for group performers and athletic teams. Athletes may be accorded P-1 status based on their own internationally recognized ability, or based on membership on a team with an outstanding reputation. P-1 athletes must usually have a contract with a major U.S. sports team or league. P-1 entertainers are admitted solely on the basis of membership in an internationally recognized entertainment group.
  • The P-2 category is reserved for artists and entertainers who perform as part of a reciprocal exchange program with another country. This is not a widely used category.
  • The P-3 category is used for artists and entertainers coming to the United States to develop, interpret, represent, coach, or teach their culturally unique art or discipline.

Most petitions for O or P artists, entertainers, athletes and their accompanying personnel must be accompanied by consultations from a labor union in the same field. The labor union will offer an opinion whether the person meets the required standard, or may simply provide a “no objection letter.” The opinion must be considered by = Citizenship and Immigration Services (CIS) but is not binding.

Os may be admitted for an initial period of three years, and one year extensions may be obtained without limitation. Individual P athletes may be admitted for five years, while other Ps may be admitted for the length of the “event,” up to one year. One five year extension is available to individual athletes, while other Ps may obtain extensions in one year increments.

Victims of Violence and Trafficking

Violence Against Women Act (VAWA)

The Violence Against Women Act (VAWA) offers new protection for persons who have been abused by their U.S. citizen or lawful permanent resident spouse or parent. The law allows women to petition for adjustment of status for themselves.

To be for adjustment of status under VAWA, a woman must show one of the following:

  1. Their marriage was ended within the past two years for reasons connected to domestic violence;
  2. The abuser lost his or her immigration status within the past two years for reasons related to domestic violence;
  3. If a US citizen, the abuser died within the past two years; or
  4. The abuser was or is a bigamist.

Appeals

If an immigration judge has denied your petition or application, there is still hope for your case.  U.S. immigration law allows you to appeal your case and have it heard by a higher authority.  This means that a higher authority can modify or even reverse the denial of your petition or application.

If you wish to file an appeal you must discuss this with an attorney.  

Beach-Oswald Immigration Law Associates has over 20 years of experience in appeals and can offer their legal assistance and expertise in all types of appeals.

There are two main appellate courts that can hear your case:

  1. The Board of Immigration Appeals (BIA)
  2. The U.S. Citizenship and Immigration Services’ (USCIS) Administrative Appeals Office (AAO)

The Board of Immigration Appeals will hear appeals of the following types of cases:

  • Orders of removal (deportation)
  • Denials of applications for relief of removal
  • Unfavorable decisions of USCIS District Directors and immigration judges on waiver applications
  • Relative visa petition denials and approval revocations

The Administrative Appeals Office will hear the following types of cases:

  • Denials of employment-based preference petitions
  • Denials of petitions for temporary workers
  • Workers under the E, H, L, O and P class
  • Denials of re-entry permit applications
  • Denials of applications of two year foreign residency requirement based on exceptional hardship or fear of prosecution
  • Revocation of approvals of immigrant visa petitions

What if the BIA or AAO affirms the unfavorable decision?

The U.S. Court of Appeals

In most cases, if the BIA affirms the lower court’s decision, then you can still appeal in the U.S. Court of Appeals (also known as the Circuit Courts).  These appeals must be filed within 30 days of receiving your BIA decision.  Jurisdiction of the Circuit Court depends on where the Immigration Judge heard your case.

While many times a Motion to Reopen to the BIA may be a better solution, appealing to the U.S. Court of Appeals can still be effective.

The associates at Beach-Oswald Immigration Law Associates have extensive experience in winning appeals to the U.S. Court of Appeals and Motions to Reopen.  At the U.S. Court of Appeals, we do approximately 20 to 30 cases a year that include an oral argument.  This can be very helpful and persuasive to your case.

The U.S. District Court 

In most cases, if the AAO affirms the lower decision, then you can still appeal in the local U.S. District Courts.

The U.S. District Court can also hear the following types of appeals:

  • Mandamus Action
    • This can be a very effective method if the USCIS has delayed in adjudication on your case.
  • Naturalization Appeals
    • These can be appeals when the USCIS has denied the application or when the USCIS has not taken action in 120 days since the interview.
  • Summary Judgment Actions and Responses
  • Some Appeals from the BIA

Are there any other ways I can appeal?

If your labor certification is revoked, you can appeal to the Board of Alien Labor Certification (BALCA).

What do I do if my petition or application has been denied?

You will receive a notice of your denial through either a hearing or by mail.  You will also receive instructions for appealing your case.  These instructions will include:

  • The appropriate appellate authority for your decision – this will either by the BIA or the AAO
  • The deadlines for your appeal
  • The correct form for filing your application to appeal
  • You then must file a notice of appeal

If the AAO has jurisdiction over your appeal. you must file an I-290B Appeal

  • This includes appeals from USCIS to the Service Center that denied your case
  • Appeals to the USCIS based on errors in their decision
  • If there was a USCIS service error, then your fee payment can be waived

What are the deadlines for filing a notice of appeal?

The notice of appeal must be filed 30 days after the date of the decision.  If you were notified by mail the notice of appeal must be filed 33 days after the date of the decision.

If you wish to appeal a revocation of an approved immigration petition, you must file 15 days after the date of the decision, 18 days if you were notified by mail.

Where do I file the notice of appeal?

The notice of appeal must be filed with the office that made the original decision.

What do I submit with my notice of appeal?

You may file a brief or explanation to support your appeal.  A fee is also required with your notice of appeal and this fee must be included when you file the notice of appeal.  If you are seeking to waive this fee, then you must check with the USCIS fee waiver policy and request procedures.

 

Start Today

If you would like to arrange for a personal consultation with a U.S. immigration attorney, please contact us by telephone at (202) 331-3074, or click here for additional contact information. We look forward to assisting you.

The contents of these web pages are provided for general informational purposes and do not constitute legal advice for specific cases, which should only be obtained from an attorney. Beach-Oswald Immigration Lawyers can assist with all forms of temporary or permanent immigration to the United States.