Employment Immigration

Employment-Based Green Cards

Temporary Visas

EB-1A Extraordinary Ability

Overview of the EB-1A

The EB-1A classification applies to foreign nationals who can demonstrate that they have risen to the very top of their field of endeavor. Because these individuals are viewed as being very valuable, a benefit is that they may apply for an EB-1A petition without having to file a PERM labor certification with the U.S Department of Labor or a job offer (i.e. an employer’s sponsorship).

Qualifying for the EB-1A

A foreign national living in the U.S. or abroad may apply for the EB-1A if he/she meets the following requirements:

  • Extraordinary ability in the sciences, arts, education, business or athletics which has been demonstrated by sustained national or international acclaim
  • Achievements have been recognized in the field through extension documentation

To establish that the foreign national is a top member within his/her field, evidence of receipt of an internationally recognized award (such as the Nobel Prize) is accepted. However, in the absence of an internationally recognized award, the foreign national can establish Extraordinary Ability by providing documentation in any 3 of the following 10 criteria:

  • Receipt of lesser nationally or internationally recognized prizes or awards for excellence
  • Membership in associations which require outstanding achievements of their members, as judged by recognized national or international experts in their field or discipline
  • Published material about the foreign national in a professional or major trade publication or other major media and relating to the foreign national’s work in the field for which classification is sought
  • Participation as a judge (either individually or as part of a panel) evaluating the work of others
  • Original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field
  • Authorship of scholarly articles in professional or major trade publications or other major media
  • Work displayed at artistic exhibitions or showcases
  • Performance of a leading or critical role in distinguished organizations
  • Commanding a high salary or other significantly high renumeration in relation to others in the field
  • Commercial success within the performing arts, as shown by either box office receipt figures or cassette, compact disk or video sales

To learn more about your options contact us to speak with one of our immigration attorneys.

EB-1B Outstanding Researchers

Overview of the EB-1B

The EB-1B classification is for foreign nationals who are internationally recognized as outstanding in a particular scientific or scholarly field. The foreign national must have 3 years of experience in teaching or research in their academic area. The individual must also be entering the United States in order to pursue tenure or tenure track teaching or comparable research position at a university or other institution of higher education. Unlike the EB-1A classification, EB-1B cases are employer sponsored. This means that the petitioning employer must demonstrate that the foreign national has outstanding ability as a researcher or professor and has a permanent job offer from the petitioning employer.

Qualifying for the EB-1B

To be internationally recognized as an Outstanding Researcher or Professor in one’s field requires at least 2 of the following types of evidence:

  • Receipt of major prizes or awards for outstanding achievement
  • Membership in associations that require their members to demonstrate outstanding achievement
  • Published material in professional publications written by others about the foreign national’s work in the academic field
  • Participation as a judge (individually or as part of a panel) evaluating the work of others in the same or allied academic field
  • Original scientific or scholarly research contributions in the field
  • Authorship of scholarly books or articles in journals with an international circulation in the field

To learn more about your options contact us to speak with one of our immigration attorneys.

EB-1C Managers and Executive Transferees

Overview of the EB-1C

The EB-1C was created for managers and executive who meet the L-1A nonimmigrant requirements and are interested in becoming lawful permanent residents. L-1A status is offered to intercompany executive or managerial transferees that will be coming to the U.S. only temporarily. Therefore, the major difference between the EB-1C and the L-1A is the permanent nature of the EB-1C visa.

Qualifying for the EB-1C

A multinational manager or executive is eligible for priority worker status if he or she has been employed outside the U.S. in the three years preceding the petition for at least one year by a firm or corporation and seeks to enter the U.S. to continue service to that firm or corporation. The employment must have been outside the U.S. in a managerial or executive capacity and with the same employer, affiliate, or a subsidiary of the employer.

The petitioning employer must be a U.S. employer, doing business for at least one year, and is an affiliate, subsidiary, or the same employer as the firm, corporation or other legal entity that employed the foreign national abroad.

To learn more about your options contact us to speak with one of our immigration attorneys.

EB-2 National Interest Waiver

Overview of the National Interest Waiver

A national interest waiver is for advanced degree/exceptional ability workers who are seeking to waive the normal labor certification requirement for employment-based 2nd preference (EB-2) individuals. In addition to meeting the requirements for EB-2, the worker’s presence must substantially benefit the national economy, cultural or educational interests, or welfare of the U.S. Although the jobs that qualify for a national interest waiver are not clearly defined, these waivers are usually granted to individuals who have exceptional ability and whose employment in the U.S. would greatly benefit the nation.

 Qualifying for the National Interest Waiver

To qualify for a National Interest Waiver, the applicant must satisfy a three-pronged test:

  • The applicant must work in a field of substantial intrinsic merit;
  • The work has applications of national scope; and
  • Waiving the labor certification is in the national interest

To learn more about your options contact us to speak with one of our immigration attorneys.

PERM/Green Card Process

PERM Labor Certification

The Labor Certification process, commonly referred to as PERM, is the first step in a three-step process for many employment-based permanent residency cases. PERM requires employers to test the U.S. labor market to demonstrate to the U.S. Department of Labor (DOL) that there are no willing, able, and minimally qualified U.S. workers available for the position in which the foreign national is being sponsored and that employment of the foreign national will not adversely affect the wages and working conditions of similarly employed U.S. workers. Additionally, the employer must attest that they will pay at least the prevailing wage for the position, as determined by the DOL.

I-140 Visa Petition

If the PERM Labor Certification is approved, the second step of the process is to file the Form I-140 Visa Petition. At this step, the employer is required to show it has the ability to pay the offered wage to the employee. The foreign national must also provide evidence that he or she qualifies for the position by submitting documentation such as copies of diplomas, transcripts and experience letters from prior employers.

I-485 Adjustment of Status Application

The third and final step of the process is filing the I-485 Adjustment of Status application. An adjustment of status application can be filed once an applicant’s priority date becomes current. The priority date is established on either the date that the PERM labor certification was filed, or the date that the I-140 was filed if the petition is exempt from the PERM requirement.

Approximately 90 days after filing the adjustment of status application, the foreign national will receive an Employment Authorization Document (EAD Card), which will permit him/her to work in the US while the I-485 is pending. Approximately 90-120 days after filing, the employee will receive Advance Parole Travel Authorization from USCIS. This permits the employee to travel outside the U.S. while the I-485 is pending.

 To learn more about your options contact us to speak with one of our immigration attorneys.

E-1/E-2 Treaty and Investor Visas

E-1 Treaty Traders

Overview of the E-1 Visa

The E-1 classification permits a national of a treaty country (a country with which the U.S. maintains a treaty of commerce and navigation) to be admitted to the U.S. solely to engage in international trade on his or her own behalf. The foreign national must be entering the U.S. to engage in trade of a substantial nature principally between the U.S. and the foreign national’s country of nationality. Items of trade include but are not limited to goods, services, international banking, insurance, transportation, tourism, and technology and its transfer.

E-1 visa holders are initially allowed a maximum stay of two years. Requests for extension of stay can be filed and may be granted for periods of up to two years each. If the foreign national is inside the U.S., he or she may apply for a change of status, extension of stay or change of employment. If the foreign national is outside of the U.S., he or she may apply for an E-1 visa on his or her own behalf directly to a U.S. consular office abroad.

The E-1 visa does not require a petition for employment. Certain employees of the foreign national or of a qualifying organization may also be eligible for the E-1 classification.

Qualifying for the E-1 Visa

To qualify for an E-1 Treaty Trader Visa, the treaty trader must:

  • Be a national of a country with which the U.S. maintains a treaty of commerce and navigation
  • Carry on substantial trade
  • Carry on principal trade between the U.S. and the treaty country with which qualified the treaty trader for E-1 classification

E-2 Investor Visas

Overview of the E-2 Visa

The E-2 non-immigrant classification allows a national of a treaty country (a country with which the U.S. maintains a treaty of commerce and navigation) to be admitted to the U.S. when investing a substantial amount of capital in a U.S. business.

E-2 visa holders are initially allowed a maximum stay of two years. Requests for extension of stay can be filed and may be granted for periods of up to two years each. If the foreign national is inside the U.S., he or she may apply for a change of status, extension of stay or change of employment. If the foreign national is outside of the U.S., he or she may apply for an E-2 visa on his or her own behalf directly to a U.S. consular office abroad.

The E-2 visa does not require a petition for employment. Certain employees of the foreign national or of a qualifying organization may also be eligible for the E-2 classification.

Qualifying for the E-2 Visa

To qualify for an E-2 Investor Visa, the treaty investor must:

  • Be a national of a country with which the U.S. maintains a treaty of commerce and navigation
  • Have invested, or be actively in the process of investing, a substantial amount of capital in a bona fide enterprise in the U.S.
  • Be seeking to enter the U.S. solely to develop and direct the investment enterprise. This is established by showing at least 50% ownership of the enterprise or possession of operational control through a managerial position or other corporate device.

To learn more about your options contact us to speak with one of our immigration attorneys.

E-3 Visas for Australians

Overview of the E-3 Visa

The E-3 visa is a temporary work visa available exclusively to citizens of Australia. It enables them to live and work in the U.S. for a period of up to two years. Similar to the H-1B visa, the E-3 visa allows for the admission of a temporary worker to perform services in a “specialty occupation,” or an occupation that requires specialized knowledge and skills. Although the E-3 visa is initially granted for a period of up to two years, it can be extended in two-year increments.

Qualifying for the E-3 Visa

To qualify for an E-3 visa, an applicant must be an Australian citizen and have a legitimate offer of employment in the U.S. The E-3 applicant must be coming to the U.S. to work in a specialty occupation requiring a bachelor’s degree or higher (or its equivalent). The applicant must also possess the appropriate degree (or its equivalent) in the field in which the applicant wishes to work.

To learn more about your options contact us to speak with one of our immigration attorneys.

F-1 Student Visas

Overview of the F-1 Visa

The F-1 visa allows a foreign national to enter the U.S. as a full-time student at an accredited college, university, seminary, conservatory, academic high school, elementary school, other academic institution or language training program. The individual must be enrolled in a program or course of study that culminates in a degree, diploma, or certificate. The school must also be authorized by the U.S. government to accept international students.

Qualifying for the F-1 Visa

To qualify for a F-1 visa, the following requirements must be met:

  • The foreign national must be enrolled in an “academic” educational program, a language-training program, or a vocational program
  • The school must be approved by the Student and Exchange Visitors Program, Immigration & Customs Enforcement
  • The foreign national must be enrolled as a full-time student at the institution
  • The foreign national must be proficient in English or be enrolled in courses leading to English proficiency
  • The foreign national must have sufficient funds available for self-support during the entire proposed course of study
  • The foreign national must maintain a residence abroad which he/she has no intention of giving up

Employment

F-1 students are not permitted to work off-campus during the first academic year, however they may accept on-campus employment subject to certain restrictions and conditions. After completion of the first academic year, F-1 students may engage in three types of off-campus employment:

  • Curricular Practical Training (CPT)
    CPT allows F-1 students to engage in an off-campus academic internship (paid or unpaid) that is a required part or integral part of their academic curriculum
  • Optional Practical Training (OPT)
    OPT is employment that is directly related to a F-1 student’s major area of study. Students can apply to receive up to 12 months of OPT employment authorization before completing their academic studies (pre-completion) and/or after completing their academic studies (post-completion). However, all periods of pre-completion OPT will be deducted from the available period of post-completion OPT.

    • Pre-Completion OPT
      A F-1 student may apply for pre-completion OPT after they have been enrolled in school for one full academic year. Students must work part-time while school is in session and may work full time when school is not in session.
    • Post Completion OPT
      A F-1 student may apply for post-completion OPT after completing their academic studies. Students with post-completion OPT may work part-time (at least 20 hours per week) or full-time.
  • Science, Technology, Engineering, and Mathematics (STEM) Optional Practical Training Extension (OPT)
    Certain F-1 students who receive science, technology, engineering, and mathematics degrees, and who meet other specific requirements, may apply for a 24-month extension of their post-completion OPT.
    To qualify for the 24-month extension, the foreign national must:

    • Have been granted OPT and currently be in a valid period of OPT
    • Have earned a bachelor’s, master’s or doctoral degree from an accredited school and is certified by the Student and Exchange Visitor Program (SEVP) when he/she submits the STEM OPT extension application
    • Work for an employer who meets certain specific requirements (for example, be enrolled in E-Verify)
    • Submit the Form I-765, Application for Employment Authorization up to 90 days before his/her current OPT expires, and within 60 days of the date the designated school official (DSO) enters the recommendation for OPT into his/her Student and Exchange Visitor Information System (SEVIS) record.

To learn more about your options contact us to speak with one of our immigration attorneys.

H-1B Visas for Specialty Workers

Overview of the H-1B Visa

The H-1B visa is a temporary work visa for individuals who will be employed in a specialty occupation requiring specialized knowledge and skills. This visa enables the temporary worker to live and work in the U.S. for an initial period of up to three years. The visa can also be extended beyond the initial period for an additional three years. One of the things that make the H-1B visa so desirable is that, unlike most other non-immigrant visas, it is a “dual-intent” visa, and may provide a pathway to permanent residency.

Qualifying for the H-1B Visa

To qualify for an H-1B visa for temporary specialty workers, the sponsoring employer and prospective employee must meet specific requirements:

  • The foreign national must have a job offer from a U.S. employer for work to be performed in the U.S.
  • The foreign national must be coming to the U.S. to perform services in a “specialty occupation,”– meaning one that requires “theoretical and practical application of a body of highly specialized knowledge,” and attainment of a bachelor’s or higher degree in the specialty or its equivalent in work experience
  • The employer must be offering the foreign national at least the prevailing wage that is paid in the same geographic area for the same type of position (or the actual wage paid to similar workers at that employer (whichever is the higher of the two)
  • The foreign national must have the correct background to qualify for the job he/she has been offered
  • The Employer must have filed a Labor Condition Application (LCA) with the U.S. Department of Labor before the employer can proceed with the visa application

To learn more about your options contact us to speak with one of our immigration attorneys.

J-1 Visas for Interns and Trainees

Overview of the J-1 Visa

The J-1 visa is a non-immigrant visa for an exchange visitor wishing to stay temporarily in the U.S. There are a number of different programs within the J-1 category. These include interns, trainees, professors or scholars, research assistants, students, teachers, specialists, nannies/au pairs, and camp counselors.

Qualifying for the J-1 Visa

J-1 Interns

The purpose of the J-1 intern visa is to reinforce a student’s academic study, recognize the need for work-based experience, provide on-the-job exposure to U.S. techniques, methodologies and expertise, and enhance the intern’s knowledge of U.S. culture and society. The maximum duration for a J-1 intern visa is 12 months.

To qualify for the J-1 intern visa, the applicant must be:

  • Currently enrolled in and pursuing studies at a degree- or certificate-granting post-secondary academic institution; OR have graduated from such an institution no more than 12 months before their exchange visitor program “begin” date
  • 18 years or older and speak English at an advanced level

J-1 Trainees

The purpose of the J-1 trainee visa is to enhance a trainee’s understanding of U.S. culture and society and his/her occupational field through exposure to U.S. techniques, methodologies and expertise. The maximum duration for a J-1 trainee visa is 18 months.

To qualify for the J-1 trainee visa, the applicant must:

  • have either a degree or professional certificate from a foreign post-secondary academic institution and at least one year of prior related work experience in his/her occupational field acquired outside of the U.S. OR five years of work experience outside the U.S. in his/her occupation field
  • be 20 years old or older and speak English at an advanced level

J-1 Waivers

Some foreign nationals who enter the U.S. in J-1 visa status are subject to a two-year home residency requirement. The requirement must either be satisfied or waived by USCIS before the foreign national can change status to H, L, or K or seek permanent residency (apply for green card status).

If the foreign national is unable to comply, the individual may petition the government to waive the requirement. There are four ways to obtain a waiver of the two-year home residency requirement:

  • No Objection Statement from the individual’s home country
  • Request by an Interested U.S. Federal Government Agency
  • Persecution based on race, religion or political opinion
  • Exceptional Hardship to a U.S. citizen (or lawful permanent resident) spouse or child of an exchange visitor

To learn more about your options contact us to speak with one of our immigration attorneys.

L Visas for Intracompany Transferees

Overview of the L Visa

The L-1 visa is a temporary work visa which allows companies doing business in both the U.S. and abroad to transfer certain employees from its foreign operations to its U.S. operations for a period of up to 7 years. The employee must have been employed by a parent, subsidiary, affiliate or branch office of the U.S. company outside of the U.S. for at least one year out of the last three years. There are two types of L-1 visas. The L-1A visa allows employers to transfer their foreign managers and executives to their offices in the U.S. The L-1B visa allows employers to transfer their employees with specialized knowledge to their offices in the U.S.

Qualifying for the L-1A Executive/Manager Visa

Both the Employer and Employee must meet specific requirements to qualify for the L-1A visa.

To qualify for the L-1A visa, the employer must:

  • Have a qualifying relationship with the foreign company, such as being the parent company, branch, subsidiary, or affiliate; and
  • Be currently doing business in the U.S. as well as a foreign country for the duration of the employee’s stay in the U.S

To qualify for the L-1A visa, the employee must:

  • Have worked for the foreign organization for at least one continuous year within the past three years of seeking admission into the U.S.; and
  • Be seeking to enter the U.S. to provide services in an executive or managerial capacity

Qualifying for the L-1B Specialized Knowledge Visa

Both the Employer and Employee must meet specific requirements to qualify for the L-1B visa.

To qualify for the L-1B visa, the employer must:

  • Have a qualifying relationship with the foreign company, such as being the parent company, branch, subsidiary, or affiliate; and
  • Be currently doing business in the U.S. as well as a foreign country for the duration of the employee’s stay in the U.S

To qualify for the L-1B visa, the employee must:

  • Have worked for the foreign organization for at least one continuous year within the past three years of seeking admission into the U.S.; and
  • Be seeking to enter the U.S. to provide services in a specialized knowledge capacity. Specialized knowledge means either special knowledge possessed by an individual of the petitioning organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization’s processes and procedures.

Additional Requirements for New Offices

For foreign companies who want to transfer an employee to the U.S. specifically for the purpose of establishing a new office, the following requirements must also be met:

  • The employer has secured sufficient physical premises to house the new office;
  • The employee has been employed as an executive or manager for one continuous year in the three years preceding the filing of the petition; and
  • The new U.S. office will support an executive or managerial position within one year of the petition being approved

To learn more about your options contact us to speak with one of our immigration attorneys.

O Extraordinary Ability Visas

Overview of O-1 Visa

The O non-immigrant visa is a temporary visa for individuals who possess extraordinary ability in the sciences, arts, education, business or athletics, or who have extraordinary achievement in the motion picture or television industry and have been recognized nationally or internationally for those achievements. O-1 visas are initially granted for three years. There are two types of O-1 visas:

  • O-1A Visas
    Individuals with an extraordinary ability in the sciences, education, business, or athletics (not including the arts, motion pictures or television industry)
  • O-1B Visas
    Individuals with an extraordinary ability in the arts or extraordinary achievement in motion picture or television industry

O-2 visas are issued to individuals who will accompany the O-1 artist or athlete, to assist in a specific event or performance. For an O-1A, the O-2’s assistance must be an “integral” part of the O-1A’s activity. For an O-1B, the O-2s assistance must be “essential” to the completion of the O-1B’s productions.

Qualifying for the O-1A Visa (For Science, Education, Business, or Athletics)

O-1A visas are for foreign nationals with extraordinary ability in the sciences, education, business and athletics. The foreign national must demonstrate that he/she is at the top of his/her respective field. This may be established by providing evidence of receipt of a major, internationally recognized award such as a Nobel Prize, or evidence of at least three (3) of the following types of evidence:

  • Receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor
  • Membership in associations in the field for which classification is sought which require outstanding achievements, as judged by recognized national or international experts in the field
  • Published material in professional or major trade publications, newspapers or other major media about the beneficiary and the beneficiary’s work in the field for which classification is sought
  • Original scientific, scholarly, or business-related contributions of major significance in the field
  • Authorship of scholarly articles in professional journals or other major media in the field for which classification is sought
  • A high salary or other remuneration for services as evidenced by contracts or other reliable evidence
  • Participation on a panel, or individually, as a judge of the work of others in the same or in a field of specialization allied to that field for which classification is sought
  • Employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation

If the above criteria do not readily apply to the beneficiary’s occupation, the petitioner may submit comparable evidence in order to establish the beneficiary’s eligibility.

Qualifying for the O-1B Visa (For the Arts or The Motion Picture or Television Industry)

O-1B visas are for foreign nationals with extraordinary ability in the arts or the motion picture or television industry.  The petition must include evidence that the foreign national has received, or been nominated for, significant national or international awards or prizes in the particular field, such as an Academy Award, Emmy, Grammy or Director’s Guild Award, or evidence of at least (3) three of the following:

  • Performed and will perform services as a lead or starring participant in productions or events which have a distinguished reputation as evidenced by critical reviews, advertisements, publicity releases, publications, contracts or endorsements
  • Achieved national or international recognition for achievements, as shown by critical reviews or other published materials by or about the beneficiary in major newspapers, trade journals, magazines, or other publications
  • Performed and will perform in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation as evidenced by articles in newspapers, trade journals, publications, or testimonials
  • A record of major commercial or critically acclaimed successes, as shown by such indicators as title, rating or standing in the field, box office receipts, motion picture or television ratings and other occupational achievements reported in trade journals, major newspapers or other publications
  • Received significant recognition for achievements from organizations, critics, government agencies or other recognized experts in the field in which the beneficiary is engaged, with the testimonials clearly indicating the author’s authority, expertise and knowledge of the beneficiary’s achievements
  • A high salary or other substantial remuneration for services in relation to others in the field, as shown by contracts or other reliable evidence

If the above standards do not readily apply to the beneficiary’s occupation in the    arts, the petitioner may submit comparable evidence in order to establish eligibility (this exception does not apply to the motion picture or television industry).

To learn more about your options contact us to speak with one of our immigration attorneys.

R Religious Worker Visas

Overview of the R Visa

The R-1 visa is for a foreign national who is coming to the U.S. temporarily to be employed as a minister or in another religious occupation. The religious worker must be employed at least part time (average of at least 20 hours per week) by:

  • A non-profit religious organization in the U.S.;
  • A religious organization that is authorized by a group tax exemption holder to use its group tax exemption; or
  • A non-profit religious organization which is affiliated with a religious denomination in the U.S.

Qualifying for the R Visa

To qualify, the foreign national must have been a member of a religious denomination having a bona fide nonprofit religious organization in the U.S. for at least two years immediately before the filing of the petition.

R-1 status can initially be granted for up to 30 months. Subsequent extensions may be granted for up to an additional 30 months. The religious worker’s total period of stay in the U.S. in R-1 classification cannot exceed five years (60 months).

 To learn more about your options contact us to speak with one of our immigration attorneys.

P Visas for Athletes, Artists and Entertainers

Overview of the P Visa

The P non-immigrant visa is divided into four sub-classifications that allow for temporary employment in the U.S. by qualified athletes, artists, and entertainers. The types of P visas are:

  • P-1A visas
    The P-1A classification applies to those who are coming to the U.S. temporarily to perform at a specific athletic competition as an athlete, individually or as part of a group or team, at an internationally recognized level of performance.
  • P-1B visas
    The P-1B classification applies to those who are coming to the United States temporarily to perform as a member of an entertainment group that has been recognized internationally as outstanding in the discipline for a sustained and substantial period of time.
  • P-2 visas
    The P-2 classification applies to those who are coming temporarily to perform as an artist or entertainer, individually or as part of a group, who will perform under a reciprocal exchange program between an organization in the U.S. and an organization in another country.
  • P-3 visas
    The P-3 classification applies to those who are coming temporarily to perform, teach or coach as artists or entertainers, individually or as part of a group, under a program that is culturally unique.

To learn more about your options contact us to speak with one of our immigration attorneys.

TN Visas for Canadians and Mexicans

Overview of the TN Visa

The TN visa is a temporary work visa for certain qualified citizens of Mexico and Canada. This visa was created as part of the North American Free Trade Agreement (NAFTA) and allows qualified individuals to enter the U.S to work in a professional occupation listed in the NAFTA treaty. The TN visa is initially granted for a period of up to three years and can be renewed for additional three-year periods.

Qualifying for the TN Visa

To qualify for a TN visa, the following requirements must be met:

  • The applicant must be a citizen of Canada or Mexico
  • The applicant’s profession is listed on the NAFTA occupations list
  • The position in the U.S. requires a NAFTA professional
  • The applicant will be working full-time or part-time with a U.S. employer (self-employment is not permitted)
  • The applicant possesses the qualifications to practice the profession

To learn more about your options contact us to speak with one of our immigration attorneys.

Family Immigration

Immediate Relatives vs. Non-Immediate Relatives

Immediate Relatives vs. Non Immediate Relatives (Preference Categories)

Immediate Relatives

U.S. citizens can petition for certain relatives to come and live permanently in the United States. Immediate relatives have special immigration priority and there is no limit on the number of visas for the immediate relatives. Immediate relatives of a U.S. citizen are SpouseUnmarried child under the age of 21 and Parent (if the U.S. citizen is over the age of 21).

Preference Categories for Non-Immediate Relatives

Certain relatives of a U.S. citizen or permanent resident who are not considered immediate relatives may have to wait for a visa to become available before they can apply for permanent residency. Congress has limited the number of relatives who may immigrate under these categories each year so there is usually a waiting period before an immigrant visa number becomes available.

These categories are known as Preference Categories and include:

  • First Preference(F1): Unmarried, adult (21 years of age or older) sons and daughters of U.S. citizens
  • Second Preference A(F2A): Spouses of permanent residents and the unmarried children (under the age of 21)) of permanent residents
  • Second Preference B(F2B): Unmarried sons and daughters (21 years or age or older) of permanent residents
  • Third Preference(F3): Married sons and daughters of U.S. citizens, their spouses and their minor children
  • Fourth Preference(F4): Brothers and sisters of adult U.S. citizens, their spouses and their minor children

Immediate relatives in the United States may qualify to file Form I-485 to adjust status while preference relatives often face very long waiting times, due to strict annual limits on permanent immigration benefits.

Adjustment of Status vs. Consular Processing

Adjustment of Status – Green Card While Inside the United States

If your relative is already in the U.S. legally, then you can simultaneously file Form I-130, along with the I-485 “adjustment of status” packet.

Once you provide the USCIS with all the required information, in most cases you will be sent a notice to attend an interview at the local USCIS office having jurisdiction over your case.

Consular Processing – Green Card While Outside the United States

Petitions for immediate family members may take approximately eight months to a year to get processed. For other relatives, it may take several years to obtain permanent U.S. residence.

Once the I-130 relative petition is approved, your foreign relative’s case will be first transferred to the National Visa Center (NVC), and you will be required to provide all the information about your relative(s) who intend to come to the United States, as well as an affidavit of support.

After the National Visa Center is satisfied with all the documents and fees you have submitted, the petition will be forwarded to the United States Consulate having jurisdiction over your foreign relative’s residence abroad. Thereafter, the Consulate will notify you or your relative for an interview for permanent residence accordingly.

Immediate relatives:

  • A visa number will be issued right away when the petition is approved, the petition will be transferred to the National Visa Center, and then finally to the Consulate. The average time for processing cases for immediate relatives is approximately one year.

Non-immediate relatives:

  • There is a limited yearly amount of immigrant visas issued to non-immediate relatives. Based on the filing date of your petition (Priority date) the Department of State’s Visa Bulletin determines if an immigrant visa is available. Immigrant visas cannot be issued until an applicant’s priority date is current. In certain categories there may be a waiting period of several years, or more, before a priority date is reached. When your priority date becomes current, it means that you can apply for an immigrant visa. You will be notified when the NVC receives your approved petition, and also when the visa number becomes available.

To learn more about your options contact us to speak with one of our immigration attorneys.

Immediate Relative

Spouses of U.S. Citizens (Marriage Based Green Cards)

Obtaining a green card through marriage is the fastest way to obtain residency in the US. Marriage based green card petitions are closely examined by the USCIS to ensure that the marriage is legitimate and not entered into for the sole purpose of obtaining the residency.

Our firm works with clients around the world who are seeking marriage based green cards and other family visas. Our attorneys have successfully handled hundreds of marriage green card cases and we can guide you through the entire process and prevent unnecessary mistakes or delays. The entire process can be efficiently handled over the phone and through email.

Adjustment of Status

You can apply for the adjustment of status if you are inside the United States and entered legally. If you entered unlawfully/without inspection you might not “admissible” and eligible for adjustment of status. In that case. However, you might be eligible to apply for a provisional waiver in the United States.

Consular Processing

If the foreign national spouse is outside of the U.S. the process begins when the citizen spouse submits a visa petition to the USCIS. This process can take over 6 months.

Once the petition is approved, the USCIS will forward the petition to the National Visa Center (NVC). You will be required to provide additional information about your relative(s) who intend to come to the United States, as well as an affidavit of support. After the NVC is satisfied with all the documents and fees you have submitted, the petition will be forwarded to the U.S. Consulate having jurisdiction over your foreign relative’s residence abroad. Thereafter, the Consulate will notify you or your relative for an interview for permanent residence accordingly.

Marriage green card Process:

Once the marriage has taken place, the couple files the application with USCIS along with all appropriate forms, supporting documents and filing fees. Thirty days after the application is filed, the USCIS will contact you regarding the Biometrics Appointment. The USCIS will then issue the work and travel authorization approximately 90 days after filing. The USCIS will contact you next to schedule an interview. This will be anywhere from 4-8 months after filing the initial application. Following a successful interview, the foreign national spouse will receive the green card. USCIS will mail the green card approximately within 30 days after the successful interview. The green card will be valid for 2 years if you were married for less than 2 years at the time of the green card approval. Before the 2 year mark you should apply for the removal of conditional residency.

Fraud Interview/ Stokes Interview

If the USCIS suspect the legitimacy of the marriage it will summon you and your spouse for the second interview called “Stokes” interview.

During this interview you and your spouse will be separately questioned and the officer will compare your answers at the end of the interview and see whether they match up. You should consider hiring a lawyer to prepare you for the interview, and attend the interview with you. The experienced attorney will be able to prepare you and follow up with any additional requests by the USCIS.

Government fees: (subject to change)

  • $535 for the Immigrant Relative Petition and
  • $1,225 for the Adjustment of Status Application and Biometrics. Filing fees for work authorization and advance parole are waived when these two items are applied for as part of the green card through marriage application.
  • Medical Examination- Rates vary by physician.

Important Information:

  • If you depart the U.S. while your I-485 application is pending without first obtaining advance parole, your case will be denied unless you fit into a narrow exception for those maintaining certain non immigrant statuses.

To learn more about your options contact us to speak with one of our immigration attorneys.

Parents of U.S. Citizens

To petition for your parents to live in the United States as green card holders, you must be a U.S. citizen and at least 21 years old. Permanent residents may not petition to bring parents to live permanently in the United States.

If your parents have entered the US lawfully and are currently living in the US they are eligible for adjustment of status.

If your parents are living abroad at the time you petition, the process begins when the citizen son or daughter submits a petition to the USCIS.

Once the petition is approved, the USCIS will forward the petition to the National Visa Center (NVC). You will be required to provide additional information about your relative(s) who intend to come to the United States, as well as an affidavit of support. After the NVC is satisfied with all the documents and fees you have submitted, the petition will be forwarded to the U.S. Consulate having jurisdiction over your foreign relative’s residence abroad. Thereafter, the Consulate will notify you or your relative about an interview for permanent residence accordingly.

If your parents have entered the U.S. unlawfully/without inspection, the process becomes much more complex. In this case you should consult an experienced immigration attorney before attempting to submit any applications to the government.

To learn more about your options contact us to speak with one of our immigration attorneys.

Children of U.S. Citizens

There are two ways to obtain citizenship through U.S. citizen parents, one at birth and one after birth but before the age of 18.

Citizenship at Birth for Children Born Outside the U.S. and its Territories

A child born outside the U.S. is a citizen at birth when the child’s parents are married to each other at the time of birth IF:

  • Both parents are U.S. citizens at the time of birth and at least one parent lived in the U.S. prior to the birth, OR
  • One parent is a U.S. citizen at the time of birth and the birth-date is on or after November 14, 1986 and, The U.S. citizen parent had been physically present in the U.S. for a period of at least 5 years at some time in his or her life prior to the birth, of which at least 2 years were after his or her 14th birthday.

A child born outside the U.S. is a citizen at birth when the child’s parents are not married to each other at the time of birth IF:

  • The genetic or non-genetic gestational legal mother is a U.S. citizen at the time of birth, and the birth date is after December 23, 1952 and the mother had previously been physically present in the United States for a continuous period of at least 1 year.
  • The genetic father is a U.S. citizen at the time of birth, the mother is an alien, and the birth-date is on or after November 14, 1986 and a blood relationship between the person and the father is established by clear and convincing evidence. The father had the nationality of the US at the time of the person’s birth and the father (unless deceased) has agreed in writing to provide financial support for the person until the person reaches the age of 18 years. Additionally, while the person is under the age of 18 years one of the following occurs:
    • The person is legitimated under the law of the person’s residence or domicile
    • The father acknowledges paternity of the person in writing under oath, o
    • The paternity of the person is established by adjudication of a competent court, and
  • The U.S. citizen parent was physically present in the U.S. or its territories for a period of at least 5 years at some time in his or her life prior to the birth, at least 2 of which were after his or her 14th birthday.

Automatic U.S. Citizenship After Birth – But Before the Age of 18

A Child Born Outside the U.S. is a Citizen after Birth IF:

  • The child was under 18 or not yet born on February 27, 2001 and at least one parent is a U.S. citizen. The child is currently under 18, and residing in the U.S. in the legal and physical custody of the U.S. citizen parent pursuant to lawful admission for permanent residence.
  • The child was under 18 from December 24, 1952 to February 26, 2001 and The child was residing as a Green Card holder in the U.S. and both parents naturalized before the child’s 18th birthday; OR
  • If one parent died, that the surviving parent naturalized before the child turned 18.
  • If the parents legally separated, that the parent maintaining legal and physical custody naturalized before the child turned 18.
  • If the child was born out of wedlock and paternity has not been established by legitimation, the mother naturalized before the child turned 18.
  • The child was adopted by a U.S. citizen parent and the child resides legally in the U.S. in the legal and physical custody of the U.S. citizen parent and meets the following conditions after February 27, 2001 but before his or her 18th birthday:
    • The adoptive parent adopted the child before his or her 16th birthday (or, in some cases, 18th birthday) and had legal custody of the child and resided with the child for at least 2 years; OR
    • The child was admitted to the United States as an orphan (IR-3) or Convention adoptee (IH-3) whose adoption by his or her U.S. citizen parent(s) was fully completed abroad; OR
    • The child was admitted to the United States as an orphan (IR-4) or Convention adoptee (IH-4) who was coming to the United States to be adopted and the child’s adoptive parent(s) completed the adoption before his or her 18th birthday.

To learn more about your options contact us to speak with one of our immigration attorneys.

Non-Immediate Relative

Unmarried Sons and Daughters of U.S. Citizens (F1)

For immigration purposes, a “child” is defined as being unmarried and under 21, whereas if a person is married and/or over 21, that person is defined as a “son” or “daughter”.

If you are a U.S. Citizen you may petition for:

  • Unmarried children 21 and under and
  • Unmarried sons and daughters 21 or over and their children

If your son or daughter is 21 or older, the process can be lengthy because they are not considered your immediate relatives, and Congress has put a limit on the number of persons that can immigrate under this category annually.

To learn more about your options contact us to speak with one of our immigration attorneys.

Spouses and Children (unmarried under 21) of Permanent Residents (F2A)

A permanent resident may petition for his/her spouse and unmarried children of any age to immigrate to the United States. Congress has limited the number of relatives who may immigrate under these categories each year so there is generally a waiting period before an immigrant visa number becomes available.

Family Member Currently Inside the United States

If your relative is currently in the United States in a valid non-immigrant status they can become permanent residents in two steps.

  • Step One – Permanent resident files Form I-130, Petition for Alien Relative and receives a priority date. Once the priority date becomes current you can move to the next step.
  • Step Two – Once I-130 petition is approved and priority date is current you can file the adjustment of status with Form I-485 and supporting documents. Keep in mind that in order to adjust status your foreign relative must be in a valid non-immigrant status the green card is approved.

Family Member Currently Outside  the United States

If your relative is currently outside the United States they can become permanent residents through consular processing.

  • Step One – Permanent resident files Form I-130, Petition for Alien Relative and receives a priority date. Once the priority date becomes current you can move to the next step.
  • Step Two- Once the petition is approved, the USCIS will forward the petition to the National Visa Center (NVC). As their priority dates come closer, the NVC will request the required paperwork and filing fees for the interviews they will attend at the US Consulate/Embassy abroad. You will be required to provide additional information about your relative(s) who intend to come to the United States, as well as an affidavit of support. After the NVC is satisfied with all the documents and fees you have submitted, the petition will be forwarded to the U.S. Consulate having jurisdiction over your foreign relative’s residence abroad. Thereafter, the Consulate will notify you or your relative about an interview for permanent residence accordingly.

To learn more about your options contact us to speak with one of our immigration attorneys.

Unmarried Adult Sons and Daughters of Permanent Residents (F2B)

Permanent resident files Form I-130, Petition for Alien Relative and receives a priority date. Once the priority date becomes current you can move to the next step. This process can take many years under the F2B category since the number of permanent resident relatives that could immigrate to the U.S. through this category per year is very limited.

Once the priority date is current your relative will either file for adjustment of status or consular processing depending on whether the relative is inside or outside the U.S.

If the petitioner becomes a U.S. Citizen, the preference category changes and a visa may be available sooner. This is because you would now be getting a green card as a relative of a U.S. citizen.

If you are the unmarried son or daughter of a permanent resident, and you get married prior to becoming a permanent resident, you no longer qualify for permanent residence through your permanent resident family member. There is no visa category for a married child of a permanent resident. You must notify the USCIS of any change in marital status after the Form I-130 has been filed for you and prior to becoming a permanent resident or obtaining an immigrant visa. [INA 203a]

To learn more about your options contact us to speak with one of our immigration attorneys.

Married Sons and Daughters of U.S. Citizens (F3)

The U. S. citizens are eligible to sponsor their married children for green cards. Their spouses and unmarried children, under the age of 21, may also immigrate with them. If their children turn 21 during the petitioning process, they can subtract the time that the visa petition was pending from their ages at the time that their priority date becomes current under the Child Status Protection Act.

This can be a lengthy process because Congress has put a limit on the number of persons that can immigrate under this category annually.

To learn more about your options contact us to speak with one of our immigration attorneys.

Brothers and Sisters of U.S. Citizens (F4)

To petition to bring your brother or sister to live in the United States as a green card holder, you must be a U.S. citizen and at least 21 years of age. Permanent residents may not petition to bring siblings to live permanently in the United States.

Your sibling’s marital status is not relevant but, if they are married, their spouses and children can immigrate at the same time. The children have to be unmarried and under the age of 21 at the time you apply. If they turn 21 during the process, you can subtract the time that your visa petition was pending from their age at the time that their priority date becomes current under the Child Status Protection Act.

The process of sponsoring siblings for US green cards can be lengthy because Congress has put a limit on the number of persons allowed to immigrate under the sibling category each year.

 To learn more about your options contact us to speak with one of our immigration attorneys.

Other Categories

Naturalization and Citizenship

There are four ways to become a citizen of the United States:

  • Birth in the US or one of its territories;
  • Birth outside of the US but to parents who are citizens of the US;
  • Naturalization;
  • Through the naturalization of one’s parents.

Birth in the US or one of its territories
Any child born within the territorial confines of the United States or any of its territories is ipso facto a citizen of the United States, regardless of the immigrant status of either one or both of his or her parents.

Birth outside of the US but to parents who are citizens of the US
Both parents are citizens
If both parents are US citizens, but the child is born outside the US, the child is a citizen so long as:

  • The parents were married at the time of the child’s birth and
  • Either parent lived in the US or its territories prior to the child’s birth.

One parent is a citizen
If the child is born on or after November 14, 1986 and either parent is a US citizen, the child will also be a US citizen provided:

  • The parents were married at the time of the child’s birth and
  • The US citizen parent spent at least five years of her or his life in the US prior to the birth of the child of which at least two years were after the US citizen parent’s 14th birthday.

Note: For those born before November 14, 1986 but after October 10, 1952 to a US citizen parent, the requirements are the same as for a child born after November 14, 1986 EXCEPT the US citizen parent must have resided in the US for a minimum of ten years, five of which must have been after his or her 14th birthday.

Children born outside the US who still qualify for automatic US citizenship:
If the child is under 18 years of age and was born after February 27, 2001, he or she is a citizen provided that:

  • At least one parent is a US citizen,
  • The child is under 18 and,
  • The child is in the lawful physical custody of the US citizen parent.

Naturalization

Naturalization is the process by which U.S. citizenship is granted to a foreign citizen or national after he or she fulfills the requirements established by Congress.

Eligibility requirements:

  • Be at least 18 years of age;
  • Be a lawful permanent resident;
  • Have resided in the United States as a lawful permanent resident for at least five years (in some cases three);
  • Have been physically present in the United States for at least 30 months (in some cases 18 months);
  • Be a person of good moral character;
  • Be able to speak, read, write and understand the English language;
  • Have knowledge of U.S. government and history; and
  • Be willing and able to take the Oath of Allegiance.

Naturalization Timeline:

First you need to file Form N-400, Application for Naturalization, with USCIS. USCIS will mailing you receipt letter confirming that they received your application. The receipt notice will arrive approximately 2-3 weeks after filing.

Next, you will receive a biometrics appointment notice within the first 30 days from filing. Every applicant is required to undergo a security clearance and criminal background check. The appointment will take approximately 15-30min. You should bring some form of photo identification to enter the building such as passport or national photo identification issued by your country, driver’s license or state issued photo ID.

Next, USCIS will send another appointment notice for your naturalization interview. This notice can come anywhere from 5-8 months from filing.

At the interview, a USCIS officer will review the entire N-400 application to confirm that the answers previously provided are still correct. Your ability to understand these questions and answers is part of your English comprehension test. Additionally, you will be asked to read and write a sentence in English, and pass the history/civics examination.

If your interview was successful, you will soon receive a notice to take the Oath of Allegiance (N-445, Notice of Naturalization Oath Ceremony). You are not a U.S. citizen until you take the Oath of Allegiance at a naturalization ceremony. After taking the Oath of Allegiance, you will turn in your green card and receive your Certificate of Naturalization.

Deriving citizenship automatically through naturalization of one parent

A child can, in some situations, derive U.S. citizenship automatically through the naturalization of a parent. This will depend upon the laws in place when certain key events occurred. In most cases, you need to have already held U.S. lawful permanent residence.

  • Parents naturalized before May 24, 1934: You derive citizenship if either parent naturalized prior to your 21st birthday and you held a green card at the time. You must have been a biological child, not adopted or a stepchild.
  • Parents naturalized between May 24, 1934 and January 12, 1941:You derive citizenship if both your parents naturalized prior to your 21st birthday and you had a green card at the time. If only one parent naturalized before you turned 21, you derived U.S. citizenship if you already had a green card for five years at that time.
  • Parents naturalized between January 13, 1941 and December 23, 1952: You derive citizenship if you held a green card and both parents naturalized before your 18th birthday; or one parent naturalized but the other parent was dead, or your parents were legally separated and the parent with legal custody of you naturalized.
  • Parents naturalized between December 24, 1952 and October 4, 1978: You derive citizenship if you were unmarried, received a green card before your 16th birthday, and both parents naturalized. Or, if only one parent naturalized, you can derive citizenship if the other parent was dead, or your parents were legally separated and the parent with legal custody of you naturalized. You must have been a biological child, not adopted or a stepchild.
  • Parents naturalized between October 5, 1978 and February 26, 2001: You derive citizenship if one of your parents was a U.S. citizen when you were born, never ceased to be a citizen, and the other parent was naturalized before your 18th birthday; or the naturalization of both parents occurred before your 18th birthday; and you were unmarried and held a green card at the time.
  • Parents born in U.S. or naturalized between February 27, 2001 and the present: You derive citizenship if one of your parents was born in the U.S. or if one of your parents naturalized prior to your 18th birthday and while you were living in the U.S. in the legal and physical custody of that parent, provided you already had a green card (lawful permanent residence). Both biological and adopted children qualify under this law. This allows some children to become U.S. citizens the minute they receive a green card through a U.S. citizen parent.

To learn more about your options contact us to speak with one of our immigration attorneys.

K-1 Fiancé Visa Petition

If you are a fiancé of a U.S. citizen, the K-1 visa may be the perfect option. The K-1 visa allows the foreign-citizen fiancé(e) to travel to the United States and marry his or her U.S. citizen sponsor within 90 days of arrival.

 The foreign-citizen will then apply for adjustment of status to a permanent resident (LPR) with U.S. Citizenship and Immigration Services (USCIS).

Requirements:

  • The foreign national fiancé must be living outside of the U.S;
  • The U.S. citizen must first file a Petition for Alien Fiancé with USCIS and have it approved before the foreign national fiancé may apply for a K visa;
  • Both the U.S. citizen and the K-1 visa applicant must have been legally free to marry at the time the petition was filed and must have remained so thereafter;
  • The foreign national fiancé and U.S. citizen must have met personally at least once in the two years before the K visa petition was filed.

The First Step: Filing the Petition

  • The U.S. citizen sponsor, must file Form I-129F, Petition for Alien Fiancé(e), with the USCIS office that serves the area where you live.
  • After USCIS approves the petition, it is sent to the National Visa Center (NVC). The NVC will provide a case number and send the petition to the U.S. Embassy or Consulate where fiancé(e) lives.

The Second Step: Applying for a Visa

  • The NVC sends the fiancé(e) case to the U.S. Embassy or Consulate and schedules the interview.
  • Eligible children of K-1 visa applicants may apply for K-2 visas. Separate applications must be submitted for each K visa applicant, and each K visa applicant must pay the visa application fee.

Before the issuance of an immigrant or K visa, every applicant must undergo a medical examination which must be performed by an authorized panel physician.

The Third Step: Adjustment of Status – USCIS

  • After entering the U.S. and after getting married, the K-1 nonimmigrant may apply for adjustment to lawful permanent resident status.
  • During the adjudication process, USCIS again conducts background checks on both parties, including fingerprint checks on the foreign spouse, and schedule an interview for both spouses.
  • If married for less than two years at the time the Form I-485 is approved, the applicant will be granted conditional permanent resident status and issued a Permanent Resident Card valid for 2 years.

Government Fees:

  • Filing an Alien Fiancé(e) Petition, Form I-129F
  • Nonimmigrant visa application processing fee, Form DS-160 (required for each K visa applicant)
  • Medical examination (required for each K visa applicant; costs vary from post to post)
  • Filing Form I-485, Application to Register Permanent Residence or to Adjust Status

Additional Information:

  • The I-129F petition is valid for four months from the date of approval by USCIS. A consular officer can extend the validity of the petition if it expires before visa processing is completed.
  • With your visa, you can apply for a single admission at a U.S. port-of-entry within the validity of the visa, which will be a maximum of 6 months from the date of issuance. You must marry your U.S. citizen fiancé(e) within 90 days of your entry into the United States.
  • Eligible children may apply for K-2 visas based on the approval of Form I-129F, Petition for Alien Fiancé(e), that your U.S. citizen fiancé(e) filed on your behalf, but your U.S. citizen fiancé(e) must list the children on the petition. Separate visa applications must be submitted for each K-2 visa applicant, and each applicant must pay the K visa application fee. After your marriage, your children will need to file separately from you for adjustment of status. Your children may travel with (accompany) you to the United States or travel later (follow-to-join).

To learn more about your options contact us to speak with one of our immigration attorneys.

I-751 Removing Conditional Residency

If you are married for less than two years at the time you receive your green card through your U.S.

Citizen spouse USCIS will grant you a conditional green card, which will be valid for two years. Failure to file the I-751 application will result in the termination of your green card and can result in removal proceedings being initiated by the USCIS.

You may apply to remove your conditions on permanent residence if you:

  • Are still married to the same U.S. citizen or permanent resident after 2 years;
  • Are a child and, for a valid reason, cannot be included in your parent’s’ application;
  • Are a widow or widower who entered into your marriage in good faith;
  • Entered into a marriage in good faith, but the marriage ended through divorce or annulment; or
  • Entered into a marriage in good faith, but either you or your child were battered or subjected to extreme hardship by your U.S.-citizen or permanent-resident spouse.

If the marriage has terminated or the sponsoring individual refuses to cooperate, you may also file for a waiver of the joint filing requirement. In such instances, you should definitely consider the services of an experienced immigration attorney.

If you are still married:

You and your spouse must apply together to remove the conditions on your residence. You must file Form I-751 with supporting documents ninety days before the expiration of your conditional green card.

If you file Form I-751 on time, USCIS will automatically extend your conditional resident status until a decision has been made on your application.

If You Are In Divorce Proceedings But Are Not Yet Divorced and:

  • Your waiver request is pending.USCIS will issue a request for evidence (RFE) requesting a copy of the final divorce decree or annulment.
  • You filed a Form I-751 petition jointly.USCIS will issue a request for evidence (RFE) requesting a copy of the final divorce decree or annulment and a statement that you would like to have your joint filing petition treated as a waiver.

If You Are No Longer Married or If You Have Been Battered or Abused:

You can apply to waive the joint filing requirement. In such cases, you may apply to remove the conditions on your permanent residence at any time after you become a conditional resident, but before you are removed from the country. You must provide evidence that removal from the United States would cause you extreme hardship.

You may request a waiver of the joint petitioning requirements if:

  • Your deportation or removal would result in extreme hardship;
  • You entered into your marriage in good faith, and not to evade immigration laws, but the marriage ended by annulment or divorce, and you were not at fault in failing to file a timely petition;
  • You entered into your marriage in good faith, and not to evade immigration laws, but during the marriage you or your child were battered by, or subjected to extreme cruelty committed by your U.S. citizen or permanent resident spouse, and you were not at fault in failing to file a joint petition.

 If You Are Late In Applying:

The Form I-751 can be filed after the 90-day period if you can prove in writing to the director of the appropriate Service Center that there was good cause for failing to file the petition on time. The director has the discretion to approve the petition and restore your permanent resident status.

Otherwise, if you fail to properly file Form I-751 within the 90-day period before your second anniversary as a conditional resident:

  • Your conditional resident status will automatically be terminated and USCIS will begin removal proceedings against you by issuing a Notice to Appear at a hearing in front of the immigration judge.

To learn more about your options contact us to speak with one of our immigration attorneys.

LGBT Immigration Options

Prior to June 2013, immigration law was governed by the Defense of Marriage Act (DOMA) which stated that a qualifying “marriage” for the purposes of federal law exists only between a man and a woman. Once DOMA was declared unconstitutional, USCIS was able to begin adjudicating both immigrant and nonimmigrant visa petitions for legally married same sex couples.

Marriage-Based Green Cards Process

A U.S. citizen or permanent resident may petition to have his or her LGBT spouse come to the United States and receive a green card. The couple would need to marry in a state where same sex marriages are legal. The couple could also marry in another country where same sex marriages are legal and then the foreign national could seek to enter on an immigrant visa.

Fiancee Visa K-1 K visas are also available to same-sex couples. U.S. citizen can apply for a K visa for his or her foreign born same-sex fiancé or fiancée who is living abroad. Once in the United States, they can marry anywhere in the country in order to become eligible to apply for a greencard.

NonImmigrant Visas (NIVs) The same-sex spouse of a nonimmigrant visa holder will be eligible for a derivative visa. For example, the same-sex spouse of an H1B visa holder will also be eligible to accompany his or her spouse in the United States with an H4 visa.

LGBT Asylum Refugee or asylum status may be granted to an individual seeking protection because they have suffered persecution or fear that they will suffer persecution due to race, religion, nationality, membership in a particular social group or political opinion. Homosexual applicants for asylum can constitute a particular social group who may seek protection in the United States because of the persecution on account of their sexual orientation in their home countries.

To learn more about your options contact us to speak with one of our immigration attorneys.

Humanitarian Relief and Waivers

Humanitarian Relief

Asylum

Asylum is a protection granted to foreign nationals already in the United States or at the border who meet the international definition of a “refugee.”

To qualify for asylum in the US you must demonstrate that you have been persecuted or have a “well-founded fear of persecution” in your country based on (1) political opinion, (2) religion, (3) race, (4) nationality, or (5) membership in a particular social group.

Benefits:

An asylee is authorized to work in the U.S., may apply for a social security card, may request permission to travel overseas, and can petition to bring family members to the United States.

After one year, an asylee may apply for lawful permanent resident status (i.e., a green card). Once the individual becomes a permanent resident, he or she must wait four years to apply for citizenship.

Asylum application process:

There are two primary ways in which a person may apply for asylum in the United States. Both processes require the asylum-seeker to be physically present in the United States.

  • Affirmative Asylum:A person who is not in removal proceedings may affirmatively apply for asylum through U.S. Citizenship and Immigration Services (USCIS). If the USCIS asylum officer does not grant the asylum application, the applicant is referred to removal proceedings, where he or she may renew the request for asylum through the defensive process and appear before an immigration judge.
  • Defensive Asylum:A person who is in removal proceedings may apply for asylum defensively by filing the application with an immigration judge at the Executive Office for Immigration Review (EOIR) in the Department of Justice.

If you are still in your home country, and the above applies to you, you may be able to get refugee status, instead of asylee status. “Refugee” is a person who is living outside the United States and intends to enter the U.S. because he or she fears persecution in his or her home country.

If you are in lawful immigration status, you can submit an application for asylum directly with the appropriate USCIS Service Center. Should your application be denied, you will remain in lawful status.

However, if you are not in lawful status, should your application not be approved by the USCIS, you will be placed in removal proceedings. If you are in removal proceedings before an Immigration Judge, in addition to applying for asylum, you may be eligible to apply for withholding of removal and for relief under the Convention Against Torture (CAT).

Additional Information:

  • Generally, you must apply for asylum within one (1) year of your last arrival into the U.S. Exceptions may apply, such as: (1) changed circumstances in your home country that affect your eligibility, or (2) extraordinary circumstances related to your lateness in filing.
  • You may be barred from applying for asylum if:
  • You applied for asylum before and were denied by an immigration judge or the Board
  • You did not apply within one (1) year of your last arrival; or,
  • You could be removed to a safe third party country

To learn more about your options contact us to speak with one of our immigration attorneys.

Temporary Protective Status (TPS)

The Secretary of Homeland Security may designate a foreign country for TPS due to conditions in the country that temporarily prevent the country’s nationals from returning safely, or in certain circumstances, where the country is unable to handle the return of its nationals adequately. TPS can be granted to eligible applicants who are already in the United States.

The Secretary may designate a country for TPS due to the following temporary conditions in the country:

  • Ongoing armed conflict (such as civil war)
  • An environmental disaster (such as earthquake or hurricane), or an epidemic
  • Other extraordinary and temporary conditions

During a designated period, TPS beneficiaries or who are found preliminarily eligible for TPS upon initial review of their cases (prima facie eligible):

  • Are not removable from the United States
  • Can obtain an employment authorization document (EAD)
  • May be granted travel authorization

Once granted TPS, an individual also cannot be detained by DHS on the basis of his or her immigration status in the United States.

TPS is a temporary benefit that does not lead to lawful permanent resident status but registration for TPS does not prevent you from:

  • Applying for nonimmigrant status
  • Filing for adjustment of status based on an immigrant petition
  • Applying for any other immigration benefit or protection for which you may be eligible

Eligibility Requirements

  • You must be a national of a country designated for TPS, or a person without nationality who last habitually resided in the designated country;
  • You must file during the open initial registration or re-registration period, or you meet the requirements for late initial filing during any extension of your country’s TPS designation
  • You must be continuously physically present (CPP) in the United States since the effective date of the most recent designation date of your country; and
  • Have been continuously residing (CR) in the United States since the date specified for your country.

To learn more about your options contact us to speak with one of our immigration attorneys.

Violence Against Women Act (VAWA)

The Violence against Women Act (VAWA) allows certain spouses, children and parents of U.S. citizens and permanent residents to file a petition for an immigrant visa on their own behalf based on their relationship to the abuser and without the knowledge of the abuser. The main idea behind this immigrant visa is that the battered spouse, child or parents can seek independence and safety from the abuser without their knowledge. Even though it is called the Violence against Women Act, it applies to both males and females equally.

Requirements for a Spouse

  • Qualifying spousal relationship.
  • You have suffered battery/extreme cruelty by your U.S. citizen or permanent resident spouse.
  • You entered into the marriage in good faith, not solely for immigration benefits.
  • You have resided with your spouse.
  • You are a person of good moral character.

Requirements for a Child

  • Qualifying parent/child relationship.
  • You have suffered battery/extreme cruelty by your U.S. citizen or permanent resident parent.
  • You have resided with your abusive parent.
  • You are a person of good moral character; a child less than 14 years of age is presumed to be a person of good moral character.

Requirements for a Parent

  • Qualifying parent/son or daughter relationship.
  • You have suffered battery or extreme cruelty by your U.S. citizen son or daughter.
  • You have resided with the abusive son or daughter.
  • You are a person of good moral character.

Before you file the I-360 petition you need to determine are you the immediate relative of your abuser or do you have a current priority date (based on a previously filed I-130).

You can save a lot of time by filing your I-360 at the same time as your green card application. Otherwise you will have to wait for USCIS approval of the I-360 before moving forward with your green card application.

Once you submit the I-360 petition USCIS will review the self-petition to see whether it can be approved and if everything you said is true. If so, USCIS will send you a “Prima Facie Approval” letter. This means that you can qualify for some types of public assistance. After that USCIS will take more time to look carefully at your self-petition.

USCIS will either approve your I-360, send you a request for more evidence or if USCIS does not believe you qualify as an abused spouse, parent, or child, it may send you a “Notice of Intent to Deny.” The notice will state the reasons why they believe you do not qualify, and it will give you additional time to send evidence that will change their mind. USCIS can also deny your I-360 without sending you a Notice of Intent to Deny.

Adjustment of Status

If the abuser is a U.S. citizen, you are eligible to apply as soon as your I-360 has been approved. If the abuser is a permanent resident (green card holder), you will have to wait for a visa to become available in order to apply for your green card. You can apply for work authorization while you wait. Your place on the waiting list is based on your “priority date,” which is the date that your I-360 was approved. However, if the abuser previously filed an I-130 visa petition for you, you can use that priority date instead.

To learn more about your options contact us to speak with one of our immigration attorneys.

U Visas for Victims of Crimes

The U non-immigrant status (U visa) was created for foreign nationals who are the victims of serious crimes that have occurred in the United States. The U visa is available to victims of certain crimes who have suffered mental or physical abuse and are helpful to law enforcement or government officials in the investigation or prosecution of criminal activity.

The U visas allow foreign national victims to remain in the U.S. and gain employment authorization during their stay. The USCIS grants 10,000 U visas per year.

Eligibility requirements:

  1. The foreign national should have been a victim of one of the qualifying crimes.
  2. The victim should have suffered substantial physical or mental abuse as a result of one of the above crimes;
  3. The victim should have useful information concerning the crime that occurred;
  4. The victim has helped, or should be ready to help, in the investigation or prosecution of the crime; and,
  5. The crime committed against the victim should have violated the laws of the United States or should have occurred in the United States.

The First Step: Filing the Form I-918, Supplement B, U Nonimmigrant Status Certification

  • Prior to filing a U visa application, a foreign national victim must obtain a certification from federal, state, or local law enforcement agency, or a prosecutor, judge or other authority, which is responsible for the investigation or prosecution of the crime. A U visa application will not be accepted without this certification.

The Second Step: Applying for a U Nonimmigrant Status

  • After the certified Form I-918, Supplement B is received a foreign national has 6 months to file the U visa application with appropriate supporting documentation with USCIS.

Fees to File U Nonimmigrant Status Application

  • All U nonimmigrant status applications are filed with the USCIS Vermont Service Center and U nonimmigrant status applications are free. You may request a fee waiver for any other form that is necessary for your U nonimmigrant status application

Additional Information:

  • When U nonimmigrant status is granted, it is valid for four years;
  • After three years as an immigrant with U visa status you may be eligible to apply for a Green Card if you meet certain requirements;
  • If a U nonimmigrant status is granted, you are automatically granted employment eligibility;
  • Certain qualifying family members are eligible for a derivative U visa based on their relationship to you, the principal, filing for the U visa. The principal petitioner must have their petition for a U visa approved before their family members can be eligible for their own derivative U visa. If the U visa applicant is less than 21 years old, the U visa applicant can file for their spouse, children, unmarried siblings under 18, and their parents. If the U visa applicant is 21 years or older, the applicant can file for their spouse and their children.

To learn more about your options contact us to speak with one of our immigration attorneys.

Deferred Action for Childhood Arrivals (DACA)

Deferred Action for Childhood Arrivals, or DACA, is a federal program initiated in 2012 to provide protection from removal from the United States and employment authorization for certain young undocumented individuals who entered the United State as minors.

To be eligible for DACA if you must demonstrate:

That on June 15, 2012 you:

  • Were under the age of 31 years
  • Were physically present in the United States
  • Had no lawful status

As of the date you file your request you:

  • Have resided continuously in the U.S. since June 15, 2007;
  • Had come to the United States before your 16th birthday, and you are now at least 15 years old
  • Were physically present in the United States; and
  • Are in school, have graduated from high school in the United States, or have a GED; or
  • Are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States

You will not be eligible for DACA if you have been convicted of:

  • A felony offense;
  • A significant misdemeanor offense; or
  • Three or more other misdemeanor offenses not occurring on the same date and not arising out of the same act, omission, or scheme of misconduct, or
  • You are otherwise deemed to pose a threat to national security or public safety.

Difference between “significant misdemeanor”, “non-significant misdemeanor”, and “felony”:

  • A felony is a federal, state or local criminal offense punishable by imprisonment for a term exceeding one year.
  • A significant misdemeanor is a misdemeanor as defined by federal law (specifically, one for which the maximum term of imprisonment authorized is one year or less but greater than five days) and:
  1. Regardless of the sentence imposed, is an offense of domestic violence; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or, driving under the influence; or,
  2. If not an offense listed above, is one for which the individual was sentenced to time in custody of more than 90 days. The sentence must involve time to be served in custody, and therefore does not include a suspended sentence.
  • A crime is considered a non-significant misdemeanor (maximum term of imprisonment is one year or less but greater than five days) if it:
  1. Is not an offense of domestic violence; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or, driving under the influence; and
  2. Is one for which the individual was sentenced to time in custody of 90 days or less.

DACA Renewal

If your initial two-year grant of deferred action for childhood arrivals (DACA) is expiring, you may request a renewal.

You may request a renewal if you:

  • Did not depart the United States on or after Aug. 15, 2012, without advance parole;
  • Have continuously resided in the United States since you submitted your most recent DACA request that was approved; and
  • Have not been convicted of a felony, a significant misdemeanor, or three or more misdemeanors, and do not otherwise pose a threat to national security or public safety.
  • You should submit your DACA renewal request between 150 days and 120 days before the expiration date located on your current Form I-797 DACA approval notice and Employment Authorization Document (EAD). Filing during this window will minimize the possibility that your current period of DACA will expire before you receive a decision on your renewal request.

If your DACA expires before you receive a renewal:

  • You will accrue unlawful presence for any time between the periods of deferred action, unless you were under 18 years of age at the time you submitted your renewal request
  • Not be authorized to work in the United States regardless of your age at the time of filing

To learn more about your options contact us to speak with one of our immigration attorneys.

Waivers

I-601A Provisional Waivers

Foreign nationals who enter the United States without a visa or without inspection may not seek permanent residence from within the United States. Instead, they must leave the United States to obtain an immigrant visa at a consulate abroad and are usually barred from reentering the U.S. for three or ten years. Foreign nationals who are unlawfully preset must obtain a waiver before they can apply for an immigrant visa and re-enter the United States.

To qualify for a provisional waiver, they must prove that their qualifying relative – a U.S. citizen or permanent resident spouse or parent – would suffer “extreme hardship” if they were not allowed to return to the United States. Children are not considered qualifying relatives.

The applicant must submit Form I-601A, with supporting documents and filing fee to the USCIS. Separation from a qualifying relative is not sufficient to show extreme hardship. The application must present additional factors that rise to the level of extreme hardship, such as a serious medical condition, personal circumstances (caring for the spouse’s elderly or ill relative), the spouse’s financial dependence on the foreign national, and problems in the foreign national’s home country that would make it extremely difficult for the foreign national and the petitioning relative to relocate there.

First Step- I-130 Petition

The first step in the immigration process is for the U.S.citizen or lawful permanent resident petitioner to submit a visa petition to USCIS on Form I-130.  This step takes about 6-9 months.

USCIS will, upon approving the I-130, transfer the file to the National Visa Center (NVC) for further action and transfer to the consulate. The NVC will schedule your immigrant visa interview only after USCIS has made a decision on your provisional waiver application.

Second Step- I-601A Provisional Waiver Application

After your I-130 has been approved can you file your provisional waiver application. Application is filed with the USCIS. The application should include the I-130 approval notice, proof of your relationship to your qualifying relative, documents showing that your qualifying relatives would suffer extreme hardship if you were denied the U.S.visa, and receipts showing that you paid the DOS-required immigrant visa processing fees.

Third Step- Immigrant Visa Interview at the Consulate Abroad

After your case has been approved you need to attend the interview in your home country. This is the same procedure every green card applicant goes through.

The National Visa Center (NVC) will collect the required documents and you will be scheduled for an interview at the U.S. consulate in your home country.

Once the I-601A is approved, your case will be first transferred to the National Visa Center (NVC), and you will be required to provide additional documents as well as an affidavit of support.

After the National Visa Center is satisfied with all the documents and fees you have submitted, the petition will be forwarded to the United States Consulate having jurisdiction over your foreign relative’s residence abroad. Thereafter, the Consulate will notify you and summon your relative for an interview for permanent residence accordingly.

After you attend your interview, the consulate will process your case and grant or deny your visa. If your visa is granted, you will return to the United States and be granted legal permanent residency upon your arrival. Your actual green card will arrive some weeks later.

To learn more about your options contact us to speak with one of our immigration attorneys.

I-601 Waiver of Grounds of Inadmissibility

An I-601, Application for Waiver of Grounds of Inadmissibility, is filed to permit an alien who has been denied admission to the United States gain admission under certain circumstances. This waiver is based on extreme hardship to United States citizen or lawful permanent resident relatives of the alien which would result if the alien’s inadmissibility cannot be waived.

Whether an applicant is eligible for a waiver depends on the benefit that they are applying for and the reason that they are inadmissible.

The qualifying relatives for an I-601 waiver vary depending upon the reason for the alien’s inadmissibility. If the alien is denied admission for unlawfully residing in the United States in the past or for misrepresentation, only United States citizen or lawful permanent resident spouses and parents may claim extreme hardship due to the alien’s absence. If the alien is denied admission for criminal reasons, United States citizen and lawful permanent resident spouses, parents, and children may claim extreme hardship due to the alien’s inadmissibility.

The purpose of the I-601 waiver application is to prove that the degree of hardship suffered by the alien’s relative(s) is extreme, and that this situation cannot be remedied by a move abroad on the part of the United States citizen or lawful permanent resident relative.

I-601 waiver must be supported with strong evidence such as doctors letters, government findings,  as well as personal documentation.

Eligibility Requirements:

You may file Form I-601 to request the waiver for any applicable grounds of inadmissibility only in conjunction with one of the following applications:

  • Immigrant visa;
  • Adjustment of status;
  • K-1 or K-2 nonimmigrant visa ;
  • K-3, K-4, or V nonimmigrant visa;
  • Temporary Protected Status;
  • Nicaraguan Adjustment and Central American Relief Act;
  • Haitian Refugee Immigrant Fairness Act;
  • Violence Against Women Act self-petition, or
  • T nonimmigrant visa status holder filing for adjustment of status who is inadmissible due to a ground that has not already been waived.

To learn more about your options contact us to speak with one of our immigration attorneys.

I-212 Consent to Reapply for Admission

If you were removed from the U.S., or barred from reentering the country for a set number of years or permanently, to be admitted to the U.S. while the bar still applies, you must obtain an I-212 waiver.

If you are subject to the 5, 10 or 20 year-bar, and you wait outside the U.S. for the duration of the bar before you seek admission to the U.S., you do not need the I-212 waiver. If you wish to return to the U.S. before the bar expires, you must obtain an I-212 waiver.  When a permanent bar applies to you, you are always required to obtain an I-212 waiver.

Five-Year Bar applies to you if:

  • You were removed upon arrival in the U.S., in an expedited removal proceeding by U.S. Customs & Border Protection (CBP) at a U.S. port of entry.
  • You were placed in removal proceedings upon arrival in the U.S. and then ordered removed by an immigration judge as an arriving alien.

Ten-Year Bar applies to you if:

  • You were ordered removed, other than as an arriving alien, by an immigration judge in removal proceedings.
  • You failed to timely depart the U.S. under an order of voluntary departure issued by an immigration judge, causing the voluntary departure to be converted to removal order.
  • You departed the U.S. willingly, but before removal proceedings were concluded.
  • You left the U.S. while a removal order was outstanding.

Twenty-Year Bar applies to you if you were ordered removed from the U.S. more than once, whether as an arriving alien or not.

Permanent Bar applies to you if:

  • You were convicted of an aggravated felony.
  • You reentered or attempted to reenter the U.S. illegally after you accrued more than one year of unlawful presence in the U.S. and left, or after you were ordered removed from the U.S.

Form I-212 only gives you permission to apply for a visa, it does not waive the other grounds of inadmissibility, and it is often filed in conjunction with I-601 waiver.

Filling address of the Form I-212 depends on the reason you are inadmissible to the U.S. and your current location. You will file with either U.S. Customs and Border Protection (CBP), the U.S. Department of State (DOS), the Executive Office for Immigration Review (EOIR), or USCIS.

The I-212 application does not require a qualifying relative. The following factors are to be considered by the adjudicating officer: the basis for deportation, recency of deportation, length of legal residence in the U.S., moral character of the applicant, his respect for law and order, evidence of reformation and rehabilitation, family responsibilities of applicant, inadmissibility to the U.S. under other sections of law, hardship involved to himself and others, the need for his services (employment) in the U.S. Any negative factors involved will be weighed against the favorable factors in making a determination.

To learn more about your options contact us to speak with one of our immigration attorneys.

Parole in Place (PIP) for Family of Military Personnel

Parole in place was created for undocumented spouses, parents and unmarried children of U.S. citizens, who are members of the U.S. military (current or past), to allow them to apply for legal status in the United States. PIP is available to noncitizens with a clean criminal history and otherwise admissible into U.S..

Eligibility requirements:

To qualify you must be a spouse, parent, or a child of:

  • Active duty members of the U.S. Armed Forces
  • Current members of the Selected Reserve or the Ready Reserve, or
  • Former members of the U.S. Armed Forces or Selected Reserve or the Ready Reserve

Applicants need the following:

  • A completed Form I-131, Application for Travel Document with the U.S. Citizenship and Immigration Services (USCIS)
  • Evidence of relationship to armed forces member
  • Evidence of active duty membership or past membership in the U.S. Armed Forces, the Selected Reserve, or the Ready Reserve, such as copy of the service member’s military identification card (DD Form 1173)
  • Two identical, color, passport style photographs
  • Evidence of favorable discretionary factors (e.g. statement of hardship to the military service member, applicant’s participation in the community etc.)

The application should be sent to the USCIS office having jurisdiction over the applicant’s address. There is no filing fee. The applicant will then receive an appointment for the taking of biometrics.

After being granted parole, applicants can apply for employment authorization, and those who qualify can apply for adjustment of status.

The parole and employment authorization are valid for one year the parole is valid for one year with reparole as appropriate.

To learn more about your options contact us to speak with one of our immigration attorneys.