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IMMEDIATE RELATIVES

Immediate Relatives are not subject to a numerical limit within the overall cap, and are restricted to: children, spouses, and parents of a U.S. Citizen, and certain widows and widowers of U.S. Citizens. If applying for a parent, the U.S. Citizen son or daughter must be 21 years or older, and if applying for a child, the child must be under 21 years of age and unmarried.

FAMILY-SPONSORED PREFERENCE CATEGORIES

• First Preference (F1) - Unmarried sons and unmarried daughters of United States Citizens
• Second Preference:
  • (F2A) - Spouses and unmarried children under 21 of legal permanent residents.
  • (F2B) - Unmarried sons and daughters over 21 of legal permanent residents
• Third Preference (F3) - Married sons and daughters of United States Citizens
• Fourth Preference (F4) - Brothers and sisters of United States Citizens.

A nonimmigrant visa allows citizens of other countries to temporarily visit the United States for a specific purpose. The length of time that a noncitizen can stay in the United States depends in part upon the type of nonimmigrant visa that person holds. Noncitizens must apply for a visa at a United States consulate or embassy abroad. Upon arrival at a United States port of entry, a United States Customs and Border Patrol Officer usually inspects and grants the noncitizen permission to enter and stay a certain period of time in the United States by endorsing a card called an arrival/departure record, or Form 1-94. This authorized period of stay may exceed the validity date of the noncitizen's visa. In certain circumstances, these individuals can extend their period of stay or change their status. Nationals of some countries are not required to obtain tourist or business (B-1/B-2) visas to travel to the United States for stays of 90 days or less; but such individuals cannot extend their stay or change their status while still in the United States.

Here are some common Nonimmigrant Visa Categories:

• B-1 / B-2 Visitor - Visitors for Business or Visitor for Pleasure - Noncitizen having a foreign residence which he has no intention of abandoning and who is visiting the United States temporarily. May be granted an initial stay of up to 6 months with the possibility of an extension.
• E-1 Treaty Trader, Spouse and Children included - Permits one to conduct substantial trade between the United States and his/her home country where one is a national or a citizen. Trade includes services, technology, banking, insurance, transportation, communications, engineering, management consulting, etc. Not all countries have an E-1 treaty with the United States.
• E-2 Treaty Investor, Spouse and Children included - Permits investor and/or certain employees of a qualifying entity to direct and develop the operations of an enterprise where the investor or entity has invested a substantial amount of capital. Such investment may not be made solely to earn a living. Not all countries have an E-2 treaty with the United States.
• F-1 Student - Permits one to pursue a full course of study in university, college, high school, academic institution or Language program in the United States. Must initially have sufficient financial support to pay fees and stay without the necessity of working; special rules permit work on or off campus under certain circumstances. Spouse and children can apply for F-2 status.
• H-1B Specialty Worker - Permits certain persons in specialty occupations to work when the person possesses the credentials necessary to enter those specialty occupations. A specialty occupation requires theoretical and practical application of highly specialized knowledge and attainment of a Bachelor's or higher degree or its equivalent or a fashion model. The employer must demonstrate that the position is one requiring a professional in a specialty occupation and that the intended employee has the required qualifications. Visa may be granted up to a maximum initial period of 3 years with extensions of stay up to a maximum of 3 additional years. In some specific circumstances, an individual may qualify for post-6-year H-1B extensions. Spouses and children can qualify for H-4 visas.
• J-1 Exchange - Permits admission of trainees, students, scholars, professors and researchers who participate in a designated exchange program. Usually permits one to complete a degree plus 18 months for practical training. Noncitizen may be required to reside abroad for 2 years after J-1 completion. Spouse and children qualify for J-2 status and are subject to any foreign residency requirements. Waivers of the foreign residency requirement may be available through exceptional hardship, fear of persecution, interest of a United States government agency, a "no-objection' statement, or the Conrad 30 program.
• K-1 Fiance(e) of United States Citizen - Permits admission for a noncitizen coming to the United States to marry a United States Citizen whom the noncitizen has met within the last 2 years. Must be married within 90 days after entry. The noncitizen must adjust status in the United States, and is granted conditional permanent residency. Minor children may qualify for a K-2 visa.
• L-1 Intra-Company Transferee - Noncitizen who within 3 years preceding application has been employed by a firm or corporation or other legal entity at least one year continuously and will be coming to the United States temporarily to work for the same employer or a subsidiary or affiliate in a managerial, executive, or position of specialized knowledge. Usually authorized to stay a total of 5 years if specialized knowledge, and 7 years for managers and executives. Spouse and children and qualify for the L-2 visa.
• O-1 Extraordinary Ability - Noncitizen with extraordinary ability in the sciences, arts, education, business, or athletics demonstrated by sustained national or international acclaim, or demonstrated record of extraordinary achievement in movies or television, or accompanists and assistants as integral part of actual performance with critical skills and experience not of a general nature.
• P-1 Athletes/Artists/Famous Entertainment Groups and Teams Internationally Known - An athlete, individually or part of a team, at an internationally recognized performance and with sustained and substantial relationship with the group for one year, entering U.S. temporarily and solely for the purpose of performing as an artist or entertainer.
• R-1 Religious Worker - Noncitizen who for two years immediately preceding filing application has been a member of a religious denomination having a bona fide non-profit religious organization in the United States entering for a period not to exceed five years as a minister or in a religious vocation or occupation in the same denomination.
• Change of Status/Extension of Status - Depending on each individual case, persons may be able to change status from one nonimmigrant status to another, or to extend their current nonimmigrant status.

To determine which nonimmigrant visa option may be available to you, please contact our office for a consultation.

Certain young people who were brought to the United States through no fault of their own as young children and who meet several key criteria will be considered for relief from removal from the country. This process takes away the immediate threat of deportation.

Those who meet the criteria be eligible to receive deferred action for a period of two years, subject to renewal, along with work authorization. Deferred action does not provide lawful status.

You may request consideration of deferred action for childhood arrivals if you:

• Are under the age of 31 as of June 15, 2012;
• Came to the U.S. before reaching your 16th birthday
• Have continuously resided in the U.S. since June 15, 2007, up to the present time;
• Were physically present in the U.S. on June 15, 2012, and are physically present in the U.S. at the time of request for deferred action;
• Entered without inspection before June 15, 2012, or lawful immigration status expired as of 15, 2012;
• Are currently in school, have graduated from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the U.S.;
• Have not been convicted of a felony, significant misdemeanor, three or more misdemeanors, or otherwise pose a threat to national security or public safety; and
• Are 15 years of age or older, if not subject to a final order of removal.

Individuals must also complete a background check. All cases are reviewed on a case-by-case basis. If you require assistance with your case or want to see if you qualify for deferred action, contact our office for a consultation.

I. PREFERENCE CATEGORIES

The Immigration Act of 1990 altered traditional employment-based immigration by creating five preference categories for permanent residence:

First Preference (EB1) - Priority Workers

• Noncitizens with extraordinary ability in the sciences, arts, education, business, or athletics.
• Outstanding professors and researchers.
• Certain multi-national executives and managers.

Second Preference (EB2) - Certain Professionals

• Members of professions with advanced degrees or the equivalent.
• Noncitizens of exceptional ability in the sciences, arts, or business.

Third Preference (EB3) - General Workers

• Skilled workers with at least two years training or experience.
• Professionals with baccalaureate degrees and professional jobs.
• Other workers or unskilled labor.

Fourth Preference (EB4) - All Special Immigrants Except Returning Residents and Former United States Citizens

• Ministers of religion with 2 years' experience.
• Religious workers who are not ministers.
• Certain United States mission employees in Hong Kong.
• Certain international organization noncitizens.

Fifth Preference (EB5) - Employment Creation

Aliens engaging in a new commercial enterprise which has been established or is actively in the process of investing a specified amount creating full-time employment for not fewer than 10 United States workers and which will benefit the United States economy.

The amount of investment is $1.8 million in a standard metropolitan statistical area in excess of 20,000 inhabitants or $900,000 in a smaller town or a targeted high unemployment area in an inner city or other area.

Such investor will be granted conditional permanent residence on behalf of himself and his family which can be converted to permanent residence after 2 years when such investor files another petition with USCIS illustrating: (1) A commercial enterprise was established by the noncitizen; (2) The noncitizen invested the requisite capital and 10 full-time employees were hired; (3) The investment was funded; and (4) The business is viable.

II. LABOR CERTIFICATION

Some employment-based preference categories require a first step referred to as "labor certification" through the United States Department of Labor (DOL). The certification is from the Secretary of Labor to the secretary of State and the Attorney General that (1) there are not sufficient United States Citizens or lawful permanent resident workers able, willing, qualified, and available at the time of application for a visa and admission to the United States and at the place where the noncitizen is to perform such skilled or unskilled labor, and (2) the employment of such noncitizens will not adversely affect the wages and working conditions of workers in the United States similarly employed.

Some preference categories do not require a labor certification:

• The 1st preference, 4th preference, and 5th preference do not require a labor certification.
• The 2nd preference requires a Labor certification unless a "National Interest Waiver' is approved by USCIS.
• The 3rd preference requires a labor certification. There is no waiver of the labor certification requirement.
• Schedule A does not require a labor certification. This group includes nurses, physical therapists, and persons of exceptional ability in the sciences, arts, and performing arts.

III. ALTERNATIVES TO LABOR CERTIFICATION

A. National Interest Waiver

The minimum requirements for this waiver includes: (1) the person seeks employment in an area of substantial intrinsic merit; (2) the benefit will be national in scope; and (3) the national interest would be adversely affected if a labor certification were required.

The "national interest" exemption must be significantly higher than that required to establish prospective national benefit for all persons seeking "exceptional" status. Thus, having exceptional ability is not by itself sufficient to grant the waiver. The petitioner must prove that the benefit his unique skills would provide substantially outweighs the inherent national interest in protecting United States workers through the Labor Certification process.

B. Schedule A

Schedule A is comprised of certain occupations for which the DOL has determined there are not sufficient United States workers who are able, willing, qualified, and available. Schedule A occupations establishes that the employment of noncitizens in such occupations will not adversely affect the wages and working conditions of United States workers similarly employed.

The occupations listed under Schedule A include: (1) physical therapists; (2) professional nurses; (3) exceptional ability in the sciences or arts; and (4) exceptional ability in the performing arts.

There are a variety of ways that one can become a Citizen of the United States:

• Birth in the United States or in United States Territories - Children born in the United States or in certain United States' territories including Guam., U.S. Virgin Islands, and Puerto Rico are automatically United States Citizens, regardless of the immigration status of their parents
• Birth outside the United States to a United States Citizen parent - Certain children automatically acquire United States citizenship even if they were born outside the United States if one of their parents has fulfilled the physical presence requirement in the United States. Physical presence requirements are determined by the date of birth of the child.
• Adoption by U.S. Citizen Parents - Children who are Legally adopted and in the legal and physical custody of their United States Citizen parents for at Least two years may acquire United States Citizenship, but the child must be under the age of 16 at the time of the adoption
• Naturalization - An individual who has been a. Legal permanent resident for the general rule of five years, or three years if married to a United States citizen, may be able to fire 90 days prior to the end of the 5th or 3rd year, respectively.

- Requirements: Most individuals must fulfill the requirements of good moral character, be attached to the principles of the United States Constitution, be willing to bear arms on behalf of the United States, fulfill the physical presence requirement of 1/2 of the 5 or 3 years within the United States, Live at Least 3 months within the state in which the application is filed, be able to demonstrate a basic ability to read, write, speak, and understand the English language, and pass the oral civics test conducted at an interview with USCIS.

- Exemptions from the English and Civics Test Requirements: Some persons may be exempt from the English requirement if they have been a legal permanent resident for 20 years and are over age 50; if a legal permanent resident for 15 years and are over age 55; or if a legal permanent resident for 20 years and are over age 65. Waivers of all testing requirements are available to persons who can demonstrate a physical or developmental disability or a mental impairment rendering them unable to learn the English Language and the civics test.

- Expedited Naturalization: Some legal permanent residents may be eligible for expedited naturalization if they fall into certain categories. If you are married to a United States Citizen working for certain organizations overseas, you may be able to naturalize without having resided at all in the United States. This is sometimes called "expedited" naturalization and is authorized under section 319(b) of the Immigration and Nationality Act.

If you believe you are eligible to become a United States Citizen by virtue of your length of time as a legal permanent resident, through your parents, due to your location of birth, or based on special exceptions such as expedited naturalization, we can help steer you through the complexities of citizenship laws and explore your options.

Please contact us for a consultation.

People come to the United States seeking protection because they have suffered persecution or fear that they will suffer persecution due to:

• Race
• Religion
• Political Opinion
• Nationality
• Membership in a particular social group

VAWA

The Violence Against Women Act of 1994 allows certain spouses (whether men or women), children, and parents of U.S. citizens and spouses and children of lawful permanent residents (Green Card holders), who are battered or subject to extreme cruelty, to file a self-petition independently of the abusive U.S. citizen or lawful permanent resident spouse or parent. This allows victims to seek both safety and independence from their abuser, who is not notified about the filing. The child of a battered spouse can be included without a separate petition. The spouse, child, or parent must demonstrate that he or she resided with USC/LPR spouse/parents/son or daughter, was battered or subject to extreme cruelty, and that they have good moral character. Additionally, the spouse must demonstrate that the marriage was entered in good faith.

Permanent Residence under VAWA: The purpose of the VAWA program is to allow victims the opportunity to “self-petition” or independently seek legal immigration status in the U.S. Victims of domestic violence, battery, and extreme cruelty whose VAWA self-petitions are approved may file Adjustment of Status applications directly to become a lawful permanent resident (Green Card holder).

E-2 TREATY INVESTOR

Permits investor and/or certain employees of a qualifying entity to direct and develop the operations of an enterprise where the investor or entity has invested a substantial amount of capital. Such investment may not be made solely to earn a living. Not all countries have an E-2 treaty with the United States. For a List of E-2 countries, please visit: https://travel.state.gov/content/visas/en/fees/treaty.html

FIFTH PREFERENCE (EB-5) — EMPLOYMENT CREATION

Noncitizens engaging in a new commercial enterprise which has been established or is actively in the process of investing a specified amount creating full-time employment for not fewer than 10 United States workers and which will benefit the United States economy.

The amount of investment is $1.8 million in a standard metropolitan statistical area or $900,000 in a smaller town or a targeted high unemployment area in an inner city or other area.

Such investor will be granted conditional permanent residence on behalf of himself and his family, which can be converted to permanent residence after 2 years when such investor files another petition with USCIS illustrating: (1) A commercial enterprise was established by the Noncitizen; (2) The noncitizen invested the requisite capital and 10 full-time employees were hired; (3) The investment was funded; and (4) The business is viable.

AU cases are reviewed on a case-by-case basis. If you require assistance with your case or want to see if you qualify for any of these Investor options, please contact our office for a consultation.

If you have been placed in removal or deportation proceedings or are in an immigration detention facility, our attorneys can help you determine your eligibility for bond, waiver, cancellation, or other forms of relief, Our attorneys are experienced in practicing before the Immigration Court and the Board of Immigration Appeals. We specialize in the following areas of litigation against the Department of Homeland Security.

• Adjustment of Status under Section 245 of the, INA - To obtain relief under this section, the noncitizen must have an approved immigrant family or work petition. Criminal history, medical examinations, and the affidavit of support requirements will factor this type of relief.
• Cancellation of Removal of a Lawful Permanent Resident under Section 240A of the INA - In order to request this type of cancellation of removal, a noncitizen must demonstrate: (1) he has been a noncitizen lawfully admitted for permanent resident status for not Less than five (5) years; (2) he has resided in the United States continuously for seven (7) years after having been admitted in any status; and (3) he has not been convicted of an "aggravated felony" as defined by the Immigration Law.
• Cancellation of Removal of Non-Lawful Permanent Resident under 245A(b) of the INA - In order for a noncitizen to request this type of cancellation of removal, a noncitizen must demonstrate: (1) he has been physically present in the United States for ten (10) years preceding the date of the request; (2) he has been a person of good moral character during those ten (10) years; (3) he has not been convicted of an offense as described under '5§ 2120)(2), 237(a)(2), 237(a)(3); and (4) that removal would result in exceptional and extremely unusual hardship to the noncitizen's spouse, parent, or child who is a citizen of the United States or a lawful permanent resident.
• 212(c) Waivers for Lawful Permanent Residents under the INA - Former section 212(c) of the Act provides that a noncitizen lawfully admitted for permanent resident who temporarily proceeds voluntarily and not under an order of deportation, and who is returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted to the United States in the discretion of the Attorney General despite the applicability of certain grounds of exclusion specified in INA Section 212(a).

- This waiver has been expanded to also be available to lawful permanent residents who did not proceed abroad, but risked losing their LPR status due to charges of deportability or removability.

- However, section 212(c) relief applies only to charges of deportability or removability for which there are comparable grounds of exclusion or inadmissibility.

- In addition to establishing statutory eligibility for an INA Section 212(c) waiver, the applicant also bears the burden of demonstrating that this application merits a favorable exercise of discretion.