Crisis in Turkey; Immigration Non- Immigration Options for Turkish Nationals living in USA
Crisis in Turkey and how Turkish National (living in USA) can cope with immigration problems generated due to this Crisis. The issues of staying in the U.S. permanently, for those individuals who are in the U.S on temporary status and going back to Turkey is not feasible under the current environment. Turkish nationals have the following options to settle in the USA.
- Asylum : An asylee or refugee is an individual who establishes a well-founded fear of persecution on account of race, religion, nationality, political opinion or membership in a particular group.
- EB-2 EB-3 Visa: EB-2 and EB-3 are “employment based” immigrant visas reserved for various classes of workers
- E-1 Visa: An E-1 is a visa is for a foreign national of a “treaty trader” country, coming to the US to carry on substantial trade occurring principally between the US and the foreigner’s country of nationality
- EB1B: An EB1B is an immigrant visa in the EB1 category that is reserved for outstanding foreign professors and researchers
- National Interest Waiver: An national interest waiver is for advanced degree/exceptional ability workers who are seeking an exemption from the labor certification process and job offer requirement
- EB-5 Visa: In 1991, Congress created the EB-5 visa program to benefit the U.S. economy and create new jobs by encouraging foreign nationals to invest in the U.S
- E-2 Visa: An E-2 is a visa is for a foreign national of a “investor treaty” country, coming to the US to direct the operations of an enterprise in which the investor has invested or is actively in the process of investing a substantial amount of capital
- L-1 Visa: An L-1A is a visa is for a foreign worker coming to the US to perform services in a managerial or executive capacity for a US branch of a multinational company
- R-1 Visa: R1 is visas are specifically for foreign workers coming to the US to perform duties of a religious worker
- H-1b Visa: H1B is an employer sponsored non immigrant visa which could be obtained for a specialty occupation
- F-1 Visa: An F-1 visa allows foreign nationals to come to the US as a full-time academic or language student enrolled in a program leading to a degree or certificate
- U-Visa: A U visa allows victims of certain qualifying criminal activity to reside and work in the United States lawfully
- Family Based Immigration
What is Asylum or Refugee Status and Who Qualifies?
An asylee or refugee is an individual who establishes a well-founded fear of persecution on account of race, religion, nationality, political opinion or membership in a particular group. The difference between an asylee and a refugee is that an asylee is a person applying for such protection within the US, and a refugee is the term used for a person applying for such protection outside the US. In addition to i) proving a well-founded fear on one of the enumerated bases, applicants for asylum should ii) apply within 1 year of entering the US.
A “well-founded fear,” again, has to be on account of a specific basis of race, religion, nationality, political opinion or membership in a particular group. This basic definition is proven to be difficult to consistently implement, particularly in cases where a person is claiming that their persecution is due to membership in a particular group. Generally, social group should be somewhat narrowly defined. Another issue within the discussion of “well-founded fear” include the fact that an applicant must prove that the fear is reasonable, and “reasonable” means that there is a reasonable possibility that the person would be persecuted. The US Supreme Court suggests that a 1/10 rule, in that if there is a 10% risk that the applicant will suffer persecution, the fear is well-founded.
People living more than one year in USA
While there is a rule requiring asylum applicants to apply within 1 year of entering the US, there are exceptions. Some of these exceptions include changed country conditions and extraordinary circumstances. In the case of changed country conditions, the applicant would have to show that the circumstances have changed in their home country, to the point a claim for asylum would accrue. At the point that the claim accrued, the asylum applicant must apply within a reasonable time. As for extraordinary circumstances leading to delay in filing, such circumstances can include serious illness or disability, which may include PTSD as a result of past harm.
When can I Apply for Asylum or Refugee Status?
As previously mentioned, there is a 1 year time limit, but otherwise, there is no annual quota on asylum. There is, however, an annual quota for refugees. An interview is generally scheduled with an asylum officer within 3-6 weeks of applying, a decision is granted 2 weeks from the interview. Cases heard before an asylum officer are called “affirmative asylum” cases. If the case is referred to the immigration judge, the applicant may plead their asylum claim before the judge. Timing of the individual hearing before the judge varies based on the judge’s calendar. Cases heard before a judge are called “defensive asylum” cases.
What Benefits does Asylum or Refugee Status Provide?
There are many benefits that come with obtaining Asylee or refugee status. At the time the an affirmative asylum application is approved, you will be authorized for employment. In cases where the application is pending 150 days, you may apply for work authorization and receive it as early as 180 days from the time the asylum application had been pending. An asylee or refugee may also apply to bring in immediate relatives to the US as derivatives who may also receive employment authorization. The most important benefit of asylee or refugee status is that you may independently file for a green card through adjustment of status after being physically present in the US for 1 year since status was granted, and refugees are required to adjust status. It is highly unadvisable to return to the country of persecution at any time before applying for citizenship.
What is the Attorney’s Role in an Affirmative or Defensive Asylum Application?
The review of asylum provided in this summary is very basic, and should not misguide anyone into believing that the process is simple. An attorney will ensure that the best evidence available will be submitted, including evidence that the applicant may secure, to relevant details emphasized in human rights reports as they apply to the applicant. The statutory and precedential case law is very nuanced, and a qualified attorney will be able to properly classify the applicant and present a strong case. In cases of defensive asylum, in which the applicant is in removal proceedings, it is critically important to have a qualified attorney to present a case before an immigration judge. Experience and success in presenting asylum cases before immigration court is key.
What Countries have the High Rates of Asylum Claims?
The following countries have high rates of asylum claims in the US: Afghanistan, Bangladesh, Belarus, Burma, Cameroon, El Salvador, Eritrea, Ethiopia, Egypt, Georgia, Guatemala, Kenya, Laos, Latvia, Lebanon, Liberia, Lithuania, Mauritania, Mexico, Nepal, Pakistan, Romania, Russia, Somalia, Tibet, Turkey, Uganda, Ukraine, Uzbekistan, and Vietnam.
EB-2 or EB3
What is an EB-2 or EB-3 Visa and Who Qualifies?
EB-2 and EB-3 are “employment based” immigrant visas reserved for various classes of workers. EB-2 is reserved specifically for Advanced Degree professionals and Exceptional Ability Workers. EB-3 is reserved specifically for Professional, Skilled, and Unskilled Workers. The difference between the EB-2 and EB-3 category is how quickly one is able to apply for a green card. The basic criteria to qualify under these worker visas is i) the US employer must file a “labor certification” with the department of labor, ii) the foreign worker must have the required qualifications set in the labor certification application, and iii) the US worker must have the ability to pay the offered wage.
A “labor certification” is a document certifying that the employer has failed to find qualified US workers after testing the US job market. There are very specific recruitment steps that an employer must take before it can file a labor certification application. The application is filed under the online Program Electronic Review Management system (PERM). Months after filing the application under PERM, the Department of Labor (DOL) will issue a labor certification, which the employer will submit its petition to allow the foreign worker to apply for an employment-based green card. The employer should set appropriate job requirements and should not tailor them exactly to the employee’s background. If you qualify for a National interest waiver (NIW) , then you can skip the labor certification process.
An EB-2 “advanced degree professional” is an individual working in a job requiring at least a US masters degree or a US bachelors degree with five years of progressive experience. The foreign worker with a foreign degree must have a single-source equivalent to qualify.
An EB-2 “exceptional ability worker” professional is an individual with exceptional ability in the science, arts, or business. The individual must prove exceptional ability by meeting three out of six exacting criteria, which includes ten years of full-time experience, a license to practice in the profession, and recognition for achievements and contributions to the industry.
An EB-3 “professional worker” is an individual working in a job in which the employer requires at least a US Bachelor’s degree or single-source foreign degree equivalent.
An EB-3 “skilled worker” is an individual working in a job in which the employer requires at least a two years of job experience or a two-year degree/vocational training.
An EB-3 “unskilled worker” is an individual working in a job in which the employer requires some training or experience, but less than two years of higher education. Labor certifications are difficult to obtain in this category since it’s difficult to demonstrate a lack of qualified US workers for such jobs.
Finally, proving ability to pay the offered wage is generally a matter of reviewing financial documentation, such as tax returns. If net annual income or net current assets show enough money to cover the foreign workers salary, the employer will have met the burden of proof. In cases where the employer is already employing the worker, paying the offered wage, pay stubs will be enough to prove ongoing ability to pay the offered wage.
What is the Attorney’s Role the EB-2 or EB-3 Visa Process?
Obtaining a green card in the EB-2 or EB-3 category is a highly complex, multi-phase process. In the recruitment and labor certification phase, the rules relating to setting job requirements, advertising specifications, and application completion are voluminous and very exacting. The DOL is unforgiving of mistakes. Employers are very restricted in what they can require of potential applicants. For example, an employer may not count any of the experience or training it provided the employee in setting job requirements. This rule also applies to the 5 years or progressive experience used to qualify Bachelor’s Degree educated workers for EB-2. Substantial experience with PERM and I-140 petitions is required to learn how to avoid the many costly pitfalls associated with the EB-2 and EB-3 process.
What is an E-1 Visa and Who Qualifies?
An E-1 is a visa is for a foreign national of a “treaty trader” country, coming to the US to carry on substantial trade occurring principally between the US and the foreigner’s country of nationality. This visa may also be obtained by key employees of the business. Key considerations include: i) whether the foreigner is a national for a country that has an E-1 trade treaty, ii) that the business is 50% owned by foreigners of the treaty country, iii) that the foreigner is either a 50% owner or a key employee of the company, iv) that and that the company’s trade is “substantial.”
In order to determine if the foreigner is a national of a qualified country, we must refer to Volume 9 of the Foreign Affairs Manual, section 41.51, Ex. 1. If the foreign national’s country is not on this list, then E-1 is not an option.
Establishing that at least 50% of the US business is owned by eligible foreigners obviously depends on the nationality of the owners. Interestingly enough, however, is that if one of the owners is a US lawful permanent resident, that person’s ownership is not considered to be that of a foreigner, even if that person is a citizen of a qualifying treaty trade eligible country.
While an owner who owns at least 50% of the US business is eligible for E-1, “key employees” are also eligible. A key employee must prove that they are either an “essential skills” worker whose skills are essential to the trading enterprise or key executives.
Proving “substantial trade” is not a precise art because the regulations do not specifically define “substantial.” One necessary factor, however, is that at over 50% of the company’s trade takes place between the US and a treaty trade country. A specific dollar amount isn’t required, but generally $200,000/year of trade volume can be considered a minimum. Trade frequency is also considered a factor. The frequency should be in regular intervals.
When can I Obtain an E-1 Visa?
Unlike H-1B visas, there is no quota on the number of E-1 visas which may be issued every year, therefore it can be obtained any time of the year. Premium processing, in which the petition will be processed within 15 calendar days, is also available.
What are the Advantages and Limitations of an E-1?
An advantage of the E-1 visa over work visas like H-1B is that it does not require any specific educational background. You may also travel in and out of the US or remain in the US continuously until your E-1 visa expires. The E-1 visa may initially be valid up to 5 years, with the possibility of 2 year extensions. The duration of status, however, can only be for a maximum of 2 years, which means that the E-1 visa holder has to depart the US and reenter to extend their status or apply for an extension of status by filing such an application in the US. A big advantage over H-1B and L-1A/L-1B is that you may extend the E-1 indefinitely. Some people consider it close to having green card status.
One limitation to E-1 is that it is a “semi-dual intent” visa. The Department of State believes it is not a dual intent visa, therefore, if you seek a visa from a consulate/embassy, and you have a green card petition pending, you are unlikely to obtain the visa. The US Citizenship and Immigration Service, however, does recognize E-1 as dual intent, therefore it is possible to obtain E-1 status extensions in the US while a green card petition is pending. Another limitation is that dependents in the US are unable to obtain work authorization.
What is the Attorney’s Role in an E-1 Application?
E-1 visa applications are difficult to document and can be painstakingly time intensive. Proving “substantial trade” is also especially challenging when the amount of trade is not toward the higher end. In such cases, a strong argument must be made that such trade is substantial in the particular business based on the nature of the trade. Knowledge of what the immigration service or department of state expects to receive from the petitioner is essential to success. In some consulates, there are particular formatting requirements that if the applicant fails to meet, the case will be immediately rejected.
What is an EB1B Visa and Who Qualifies?
An EB1B is an immigrant visa in the EB1 category that is reserved for outstanding foreign professors and researchers. Eligibility is based on i) entering the accept a specific tenure track teaching position at an institution of higher learning or a permanent research position at a research organization, ii) having 3 years of experience teaching or researching in the field, iii) being recognized as “outstanding” in the field, and iv) if the employer is a private institution, the institution must prove employment of at least 3 researchers and document accomplishments in the field.The standard for EB1B is not as high as EB1A . “Outstanding” is defined on an international standard. Immigration laws have set out specific criteria to allow the foreign worker to prove that he or she is recognized internationally as being outstanding. Applicants may establish eligibility by providing at least two out of a group of several acceptable pieces of evidence including: receipt of major prizes of outstanding achievement in the academic field, published material of your work in professional publications, proof of original scientific or scholarly research contributions, etc.
You will need a petitioning employer. As for experience, you can meet the 3 year experience requirement by combining teaching and researching experience. Also, experience gained while pursuing a Ph.D. degree is acceptable.
What is the Attorney’s Role in an EB1B Petition?
EB1B visa petitions should be presented in an organized manner. The cover letter must be written in such a way to highlight why the worker is an outstanding professor without confusing the case reviewer. Even if a worker is eligible for the EB1B classification on paper, the immigration service might not understand the significance of the worker’s contributions. An attorney will be able to portray the candidate in a manner that the immigration service will clearly be able to understand.
An attorney will also be able to determine if the petition will have the appropriate documentation to meet the criteria. For example, a petitioner might believe that they will be able to meet the “membership in associations in the academic field” by showing membership in any professional organizations. The reviewing officer must be provided proof that only select, outstanding individuals may be members, and be shown the standard of admission. An attorney familiar with the evidentiary standards will be able to assess the likelihood of success, and will act as quality control to ensure that all supporting documents, including letters of reference, are acceptable. Those considering an EB1B petition should have an qualified immigration attorney assess whether they are an eligible candidate, and determine how to properly frame your specific academic field.
National Interest Waiver
What is a National Interest Waiver and Who Qualifies?
An national interest waiver is for advanced degree/exceptional ability workers who are seeking an exemption from the labor certification process and job offer requirement. The labor certification process is discussed in the EB2 and EB3 overview. To be qualified for a national interest waiver, in addition to meeting the requirements for EB2, the worker’s presence must prospectively substantially benefit the national economy, cultural or educational interests, or welfare of the United States
There is not specific statutory definition of “national interest,” however a petitioner should confirm many relevant societal benefits of tangible national interest. A successful NIW applicant must satisfy a three-pronged test to be granted a waiver of the labor certification requirement.
The three pronged test is as follows:
- The applicant must work in an area that has “substantial intrinsic merit”–another way of saying that a reasonable person would agree that the work is important,
- the work has applications of national scope, and
- the applicant’s continued work in this area, by nature of his or her proven accomplishments and potential to make future contributions, justifies waiver of the labor certification requirement. In other words, granting the waiver of the labor certification outweighs the inherent value of preserving job opportunities for U.S. workers.
When can I Obtain an EB2 Visa Based on a National Interest Waiver?
Often, there is no wait time for EB2, unless you are from a country where the visa numbers are retrogressed. If the priority date is current, you would be able to obtain a green card as quickly as you would, had you qualified for an EB1 class petition. The process can be completed in a matter of months.
What are the Advantages and Limitations of National Interest Waivers?
As previously mentioned, the process for obtaining EB2 with a national interest waiver can be faster than other employment based green card petitions. Additionally, there is no need to test the US job market and a job offer is not required.
National interest waivers are only appropriate under limited circumstances. Often, the likelihood of success through the labor certification process is substantially higher.
What is the Attorney’s Role in a National Interest Waiver?
As previously mentioned, national interest waivers are only appropriate under limited circumstances. An experienced immigration attorney will be able to assess your eligibility for a national interest waiver, as well as ensure the quality of documentation submitted. In cases where the national benefit is not very clear, an attorney will be able to creatively present a convincing case to qualify the applicant for a waiver.
In 1991, Congress created the EB-5 visa program to benefit the U.S. economy and create new jobs by encouraging foreign nationals to invest in the U.S. To qualify for an EB-5 visa, the individual must establish that (1) he or she is coming to the U.S. to invest in a new commercial enterprise, (2) the investment occurred after November 29, 1990 (the date the EB-5 program became effective), and (3) this ongoing enterprise will benefit the U.S. economy.
Once granted an EB-5 visa, the individual, his/her spouse and children (under 21) are automatically granted conditional residency, which becomes permanent after 2 years. After 5 years in EB-5 status, an individual can apply for U.S. residency. There are 10,000 EB-5 visas available each year – 3,000 of which the USCIS sets aside for individuals who invest in approved “targeted employment” areas. “Targeted employment” typically refers to rural areas or areas that suffer from extremely low employment rates; each State’s Department of Commerce publishes a list of approved “targeted areas.” Note that the targeted employment plan is set to expire on September 30, 2008.
Generally, an individual must meet 3 requirements for an EB-5 visa: (1) the individual must invest in either a new or existing commercial enterprise; (2) the individual’s total investment must be $1,000,000; and (3) the new commercial enterprise creates at least 10 full-time jobs for U.S. workers.
- · An individual can invest in a “new commercial enterprise” in three ways. One, the individual can create a new business. Two, the individual can purchase an existing business provided that the individual immediately restructures or reorganizes the existing business to create a new commercial entity. Finally, the individual can expand an existing business by infusing it with a substantial amount of capital resulting in a 40% increase in either the business’s value or total number of employees.
- · Though the USCIS generally requires an individual to invest $1,000,000, a $500,000 investment may satisfy the requirement if it is in an approved “targeted employment” area. Furthermore, it is critical that the individual actively participates in the business endeavor instead of merely being a passive investor. For example, an individual may satisfy the “active investment” requirement if he or she purchases a warehouse and converts it into an auto body repair shop. However, if the individual merely purchased the warehouse without doing more, then he or she will likely be considered a passive investor and subsequently denied EB-5 status.
- · The investor can hire U.S. citizens, permanent residents, or immigrants with work authorization to fill the job openings. Although the individual’s spouse and children can work at the individual’s business, the USCIS does not consider them in assessing whether the individual’s business meets the minimum statutory requirement.
- · Where multiple immigrants pool their money together to invest in a commercial enterprise, each person’s individual investment in the enterprise must be $1,000,000. However, the USCIS does not require each individual investor in a commercial enterprise to meet the 10-job statutory requirement as long as the enterprise itself creates 10 or more jobs. For example, three immigrant investors can qualify for an EB-5 visa if each contributes $1,000,000 and the resulting business creates 12 jobs. Because the 12 jobs satisfy the USCIS requirements, all three investors have met the statutory requirement.
Filing Procedures and Additional Requirements
To apply for an EB-5 visa, an investor must file a Form I-526 (Immigrant Petition by Alien Entrepreneur), pay the required fees, and submit documentation supporting the individual’s I-526. These documents must evidence the individual’s intent to invest in and maintain a new commercial enterprise, and can include:
- Financial statements detailing that the individual’s capital came from a lawful source;
- A business plan evidencing the individual’s continued involvement with the new business, including the individual’s duties and responsibilities;
- Lease or purchase agreements for the new enterprise;
- Escrow account statements;
- New employment opportunities created by the qualifying enterprise. There are no minimum requirements for education, work experience, age, or English speaking abilities.
Note that the EB-5 visa does not require the individual to work in the same area as the individual’s investment, as long as the individual remains actively involved in the new business – i.e. an individual can reside in California and remain active in an out-of-state enterprise.
What is an E-2 Visa and Who Qualifies?
An E-2 is a visa is for a foreign national of a “investor treaty” country, coming to the US to direct the operations of an enterprise in which the investor has invested or is actively in the process of investing a substantial amount of capital. This visa may also be obtained by key employees of the business. Key considerations include: i) whether the foreigner is a national for a country that has an E-2 investor treaty, ii) that the business is 50% owned by foreigners of the treaty country, iii) that the foreigner is either a 50% owner or a key employee of the company, iv) that and that the investment is “substantial.”
In order to determine if the foreigner is a national of a qualified country, we must refer to Volume 9 of the Foreign Affairs Manual, section 41.51, Ex. 1. If the foreign national’s country is not on this list, then E-2 is not an option.
Establishing that at least 50% of the US business is owned by eligible foreigners obviously depends on the nationality of the owners. Interestingly enough, however, is that if one of the owners is a US lawful permanent resident, that person’s ownership is not considered to be that of a foreigner, even if that person is a citizen of a qualifying treaty trade eligible country.
While an owner who owns at least 50% of the US business is eligible for E-2, “key employees” are also eligible. A key employee must prove that they are either an “essential skills” worker whose skills are essential to the trading enterprise or key executives.
Proving “substantial investment” is not a precise art because the regulations do not specifically define “substantial.” At a minimum, the investment should produce a return that is higher than a mere income to support the investor and her/her family. Three factors to consider are 1) dollars invested ($200K is a reasonably safe minimum, but some have obtained E-2 visas on initial investments as small as $50K), 2) proof that the amount is enough to capitalize business functions (this obviously varies by business), and 3) the investment should go beyond marginal job creation (that is, at least beyond creating a job just for the investor).
When can I Obtain an E-2 Visa?
Unlike H-1B visas, there is no quota on the number of E-2 visas which may be issued every year, therefore it can be obtained any time of the year. Premium processing, in which the petition will be processed within 15 calendar days, is also available.
What are the Advantages and Limitations of an E-2?
An advantage of the E-2 visa over work visas like H-1B is that it does not require any specific educational background. You may also travel in and out of the US or remain in the US continuously until your E-2 visa expires. The E-2 visa may initially be valid up to 5 years, with the possibility of 2 year extensions. The duration of status, however, can only be for a maximum of 2 years, which means that the E-2 visa holder has to depart the US and reenter to extend their status or apply for an extension of status by filing such an application in the US. A big advantage over H-1B and L-1A/L-1B is that you may extend the E-2 indefinitely. Some people consider it close to having green card status.
One limitation to E-2 is that it is a “semi-dual intent” visa. The Department of State believes it is not a dual intent visa, therefore, if you seek a visa from a consulate/embassy, and you have a green card petition pending, you are unlikely to obtain the visa. The US Citizenship and Immigration Service, however, does recognize E-2 as dual intent, therefore it is possible to obtain E-2 status extensions in the US while a green card petition is pending. Another limitation is that dependents in the US are unable to obtain work authorization.
What is the Attorney’s Role in an E-2 Application?
E-2 visa applications are difficult to document and can be painstakingly time intensive. Proving “substantial investment” is also especially challenging when the amount of investment is not toward the higher end. In such cases, a strong argument must be made that such investment is substantial in the particular business based on the nature of the business. Knowledge of what the immigration service or department of state expects to receive from the petitioner is essential to success. In some consulates, there are particular formatting requirements that if the applicant fails to meet, the case will be immediately
What is an L-1A Visa and Who Qualifies?
An L-1A is a visa is for a foreign worker coming to the US to perform services in a managerial or executive capacity for a US branch of a multinational company. In the broadest terms, the petitioner must establish i) that it is a qualified organization, and ii) that the worker is qualified as an executive or manager.
An organization is qualified if it is either a US affiliate, parent or subsidiary of a foreign business entity. The terms “affiliate,” “parent,” and “subsidiary” are defined by immigration regulations, and not by their generic meaning. There are additional documentary requirements which the organization must meet if it is a “new office” which has been functioning for less than one year. Some of these additional documentary requirements include production of a business plan and proof of sufficient premises to house new offices (note that an actual lease agreement is required, and a virtual office is likely to be considered unacceptable).
A worker is qualified for the L-1A visa if the person has worked for the foreign counterpart of the US organization for at least one of the past three years in an executive or managerial capacity. The terms “executive” and “managerial” are also specifically defined by immigration regulations, although the definition is intuitively logical.
When can I Obtain an L-1A Visa?
Unlike H-1B visas, there is no quota on the number of L-1A visas which may be issued every year, therefore it can be obtained any time of the year. Premium processing, in which the petition will be processed within 15 calendar days, is also available.
What are the Advantages and Limitations of an L-1A?
An advantage of the L-1A visa over work visas like H-1B is that it does not require any specific educational background. After all, some of the most successful and talented CEOs have no educational degrees at all. L-1A is also considered a “dual intent” visa, meaning that you may have immigrant visa petitions (green card) pending, and still have no problem in applying for L-1A extensions. Another advantage is that your dependents, which would be in the US on L-2 status, are able to obtain work authorization. Employers on a tight budget can also be assured that they are not required to pay the worker prevailing wage. Also, as previously mentioned, L-1A visas are available year-round.
The disadvantage of L-1A is that you have a strict 7-year limit as to how long you can extend your status. Those who initially enter the US in L-1A status, may opt to change status to H-1B to take advantage of indefinite extensions based on having a pending employment based immigration petition (green card). Changing status to H-1B may not be necessary, however, because there is potential for an L-1A worker’s employer to file for an EB-1C Multinational Executive/Manager immigration petition, which is of the highest priority (generally, there is no waiting period for the “priority date” to become current).
What is the Attorney’s Role in an L-1A Petition?
L-1A visa petitions are one of the most complex visa petitions to properly document. A professional understanding of the legal definitions relating to the US organization and the candidate is necessary in order to present an effective case. In cases where a “new office” is being established, particular attention to detail is necessary. First-hand knowledge of what the immigration service expects to receive from the petitioner is essential to success.
What is an R1 Visa and Who Qualifies?
R1 is visas are specifically for foreign workers coming to the US to perform duties of a religious worker. Applicants must prove that
- they are a member of a religious denomination for at least 2 years,
- who will work at a qualified organization,
- as either a minister, a religious professional, or in another religious vocation.
“Religious denomination” is defined as a religious group or community of believers having some form of ecclesiastical government, a creed or statement of faith, some form of worship, a formal or informal code of doctrine and discipline, religious services and ceremonies, established places of religious worship, or comparable indicia of a bona fide religious denomination. The definition is not narrowly construed. For example, being a member of a Buddhist monastery would be considered for membership of a religious denomination. Even a tax-exempt inter-denominational religious organization may be treated as a religious denomination. Membership duration may be established by sworn statements from other members.
A qualified organization would be a non-profit religious organization in the United States, meaning that the organization either a tax-exempt 501(c)(3) religious organization, or that it would be eligible for such an exemption if it applied.
The most typical R1 worker is a “minister,” which is defined as a person authorized by a denomination to perform religious worship. An authorizing official of the denomination in the US must declare the worker’s qualifications; therefore, a lay preacher can not be authorized.
A “religious professionals” is an individual who will work in a professional capacity in a religious vocation or occupation. The key consideration is “professional capacity,” meaning that the religious vocation requires at least a US Bachelor’s degree or foreign equivalent for entry into the religious profession. Work experience can be given consideration to make up for a lack of formal education.
Finally, “other religious workers” include “religious occupation workers” which are those who perform a traditional religious function, which may include religious instructors, missionaries, translators, and religious health care workers. Donation solicitors, clerks, or any other jobs which are not inherently religious in nature, are not qualified. Religious occupation workers may be employed by non-profit organizations specifically affiliated with a religious organization. “Religious vocational workers” are also qualified, however, even if such a worker’s job is not inherent in nature. “Religious vocation” means that the person has committed themselves to a calling to religious life based on a specific demonstration of religious commitment. Formally taking vows, for example, would qualify. Monks or nuns serving their church are typical examples of religious vocation workers.
What is the Attorney’s Role in an R1 Petition?
Establishing eligibility for R-1 visas can be a challenge, especially in cases involving religious professionals, religious occupation workers, and religious vocation workers. Even in cases where a petition includes the necessary documents, they must be presented in a logically organized format so that the immigration officer reviewing the case is lead to make a favorable decision, particularly when the denomination is not very mainstream. Knowledge of what the immigration service or department of state expects to receive from the petitioner is essential to success.
H1B is an employer sponsored non immigrant visa which could be obtained for a specialty occupation. Usually the candidate must have a Bachelors degree in a specialty field such as computer sciences, math and engineering
What is an F-1 Visa and Who Qualifies?
An F-1 visa allows foreign nationals to come to the US as a full-time academic or language student enrolled in a program leading to a degree or certificate. Note that other non-immigrant visa holders can be students in school, just as long as it does not interfere with their status.
In summary, the requirements for an F-1 visa are that you
- must be coming to the US as a full-time student in a program which leads to the attainment of a specific vocational or educational objective,
- have already been accepted by a school approved by the government,
- have sufficient knowledge of English, and
- demonstrate the financial support needed to complete the studies without having to earn any income.
Other than the final semester of studies, there is no exemption to the rule that F-1 students maintain full-time status. For undergraduate studies, this would mean that the foreign student would have to have a course load of at least 12 units per semester, while at the graduate level, it is generally a minimum of 8 units per semester.
An F-1 visa is not issued to prospective students. The school must issue what is called an I-20, which confirms admission to the program. The foreign national submits the I-20 with the F-1 visa application. For those seeking entry to the US in order to visit schools that he or she would like to consider, such a foreign national should apply for a B-2 tourist visa, and inform the consulate that they are a prospective student. Admission in B-2 status as a prospective student allows the visitor to change status to F-1 in the US.
Knowledge of English is proven by taking and passing the Test of English as a Foreign Language (TOEFL), unless the foreigner is from country where English is an official language.
Proof of financial support can generally established an affidavit of support including the affiant’s financial documents, and financial documents of the foreign national’s proving that there are sufficient funds available to cover the expenses for one year of studies.
When can I Obtain an F-1 Visa?
There are no limits set on the number of F-1 visas which may be issued every year; therefore one may apply any time of the year. You are also not prohibited from taking classes while a change of status to F-1 is pending, although your school may have an internal policy preventing you from taking classes.
What are the Benefits and Limitations of F-1 Visas?
While on F-1 status, you may legally work part-time on-campus during the school year, and full-time off-campus during the summer breaks by applying for it. After graduation, you may apply for Optional Practical Training (OPT), to spend 12 months in employment after your studies complete. An additional 17-month extension is available for those whose degree falls under the Science, Technology, Engineering, and Math (STEM) group. As far as transfers are concerned, you may transfer from one school to another or switch programs through a simple procedure where USCIS is notified of the change.
An important limitation to be aware of is that F-1 status is not a “dual intent” visa, meaning that you may not have both the intent to be a student and intend to immigrate. Consequently, if you have a green card petition process pending, it may be difficult to obtain an F-1 visa or any extensions. During OPT, there is a 90-day unemployment limit, although volunteer work is effective to maintain employment status unless you are into your STEM extension.
What is the Attorney’s Role in an F-1 Visa Application?
An attorney may be of assistance in preparing a change of status application in the US, but otherwise, the school should be able to assist those who are overseas seeking admission as an F-1 student. No legal assistance would be required for F-1 extensions. For effectuating an extension, you should contact your designated school official (DSO).
What is a U Visa and Who Qualifies?
- A U visa allows victims of certain qualifying criminal activity to reside and work in the United States lawfully. This classification was created in the interest of assisting law enforcement and for humanitarian purposes. The Eligibility is met when
- the person was a victim,
- of qualifying criminal activity in the United States,
- who suffered substantial physical or mental abuse as a result of the criminal activity,
- and possesses credible and reliable information concerning the criminal activity,
- and has been helpful or is likely to be helpful to law enforcement.
The term “victim” does not have to be the direct victim of the crime. For example, the direct victim was murdered, then the spouse or children under 21 years of age are considered victims that are eligible to apply for a U visa. Also, if the direct victim was a child under 21 years of age, the parents and siblings under the age of 18 are considered victims that are eligible to apply for a U visa.
“Qualifying criminal activity” is defined by statute, and includes crimes such as murder, torture, blackmail, and witness tampering. There are nearly 30 crimes enumerated.
“Substantial physical or mental abuse” as a result of the criminal activity is based on a totality of circumstances, including the nature of the injury suffered, the duration of the infliction of the harm, the permanence of the harm injury, and the physical and mental soundness of the victim.
Possession of credible and reliable information and helpfulness to law enforcement may be established by police certifications and declarations.
When can I Obtain a U Visa?
While those who entered unlawfully or are out of status are free to apply for a U Visa any time of the year, there is a 10,000 visa cap. Up to 10,000 U visas are issued each year. Once the cap is reached, victims requesting U visas will be placed on a wait list and will be issued deferred action, meaning that victims will at least be no longer eligible for deportation while the petition is pending.
What Benefits does the U Visa Provide?
There are many benefits that come with obtaining a U Visa. At the time the petition is approved, you will be authorized for employment, and USCIS will send you an Employment Authorization Document as evidence. Derivative family members of the victim also receive employment authorization, but will have to apply for the Document for a fee. The most important benefit is that the U Visa may independently file for a green card through adjustment of status after being physically present in the US for 3 years since the U visa was granted.
What is the Attorney’s Role in a U Petition?
A U visa petition requires submission of reasonably substantial documentation and to establish specific legal elements with particularity. It is often necessary to coordinate efforts with law enforcement and mental health professionals to obtain documentation which will effectively meet the relevant legal elements. Preparation of an effective U visa petition generally requires the assistance of a considerate advocate with experience working with victims of trauma. A past record of success in U visa petitions is invaluable.
How Much Does it Cost to File a U Petition?
There are non-profit organizations which assist victims of crimes to obtain U visas, however, these organizations generally have limited resources and place those who are seeking assistance on wait lists. If such a wait is unacceptable, our law firm can begin to assist you immediately. Please contact us for our fee schedule.
Family Based Immigration
What is a Family Based Visa and Who Qualifies?
Family based visas are immigrant visas reserved for relatives of US Citizens and Lawful Permanent Residents (Green Card holders). The two steps in applying for lawful permanent residence in the US (a Green Card) are i) not be inadmissible, and ii) establish eligibility within one of the categories by establishing your relationship to a qualifying relative as either a spouse, child, or parent.
Foreign nationals who are inadmissible include those with certain criminal history, diseases, and those who are likely to be a public charge. A public charge is someone who is dependent on the government. An affidavit of support from the sponsor, or a joint sponsor can allow a foreign national who otherwise has no financial means, to not be considered a public charge.
There are two main classes of relative petitions; “immediate relatives” and “preference relatives.” The difference between immediate relative petitions and preference relative petitions is that preference relatives must wait until their “priority date ” (see the visa bulletin for more details) is current before they can apply for an entry visa or before they can apply for adjustment of status in cases where they are already lawfully in the United States.
Immediate Relatives are:
- Spouses of US Citizens;
- Children (single, under 21) of US Citizens; and
- Parents of US Citizens (if the US Citizen is 21 and over).
Preference Relatives are:
- First (FB1) – Unmarried sons and daughters (21 and over) of US Citizens;
- Second A (FB2A) – Spouses and unmarried children of Lawful Permanent Residents
- Second B (FB2B) – Unmarried sons and daughters of Lawful Permanent Residents
- Third (FB3) – Married sons and daughters of US Citizens; and
- Fourth (FB4) – Brothers and sisters of US Citizens.
What about Relatives of Family Based Visa Applicants (Derivatives)?
When an individual is sponsored, that person might have spouses and children who they would like to bring with them. The term for such persons is “derivatives.” Only preference relatives may include spouses and children as derivatives. So, for example, if a US Citizen sponsors their parent, that parent can’t bring their children with them. On the other hand, if a US Citizen sponsors their sibling, that sibling can bring their children with them.
What are Specific Eligibility Requirements for a Spouse?
In spousal petitions, the marriage must be legal, which means that all prior marriages must have been legally terminated and the marriage must have been legal in the place of marriage. There obviously can be no fraud, which means that you can not marry just to get the immigration benefit. And there is a 2-year conditional green card in marriages less than 2 years old at the time the beneficiary gets their green card. The condition must be removed by I-751 , either by the couple jointly, or in the event of divorce it can be done independently with more proof of bona fide marriage, or proof of abuse during the marriage.
What if my US Citizen Spouse Died?
Widows may self-petition for a green card if they were marred for at least 2 years at the time the spouse died, were not legally separated at the time of death, and the petition must be filed within 2 years of the death.
What is the Definition of a Child in Immigration Law?
There are seven classes of children as defined by immigration law, and they are as follows:
- Born in-wedlock child.
- Stepchild – legitimate or not, if the marriage took place before the child is 18 years of age.
- Legitimated child – Legitimization (eg. marriage of the parents after birth) occurring before the child is 18 years of age, and while in custody of the legitimating parent.
- Born out-of-wedlock child – of a natural mother.
- Born out of wedlock child – of natural father only if bona fide parent-child relationship exists while the child was under 21.
- Adopted child – Adoption must be final before the child is 16 years of age, and requires 2 years of legal custody and residence with adoptive parent; adopted child may not later sponsor his/her natural parents.
- Orphan – Must be under 16 years, immediate relative of a US Citizen, who has been abandoned, adopted abroad, or coming to the US only for adoption.
When can I Obtain Family Based Visa?
The most current US Department of State “Visa Bulletin ” will show how long people in preference relatives will have to wait to be able to apply for a green card based on their country of birth. Again, for immediate relatives, there is no priority date issue, which means that green cards are immediately available.
What are the Advantages and Limitations of Immediate and Preference Relative Petitions?
The advantage of the immediate relative petition is obviously the speed in which one may obtain their green card. Also, those who entered the country lawfully, but have fallen out of status may still apply for a green card, but this is not the case for those who are beneficiaries of preference based relative petitions.
While it can take years before the beneficiary of a preference relative petition can finally apply for a green card, the advantage is that preference relatives can bring their derivatives and children with them.
What is the Attorney’s Role in a Family Based Visa Applications?
Although many people do manage to work their way through the family based visa process by themselves, many others decide that an attorney would be useful. An attorney can ensure that all necessary documentation is submitted and can prepare the petition and green card application more quickly. The process of putting together the applications is time-consuming, and obtaining a law firm for assistance makes the process more convenient.
In marriage based petitions where the beneficiary lives in the US, an interview in front of an immigration officer is to be expected; therefore the benefits of having an attorney are greater still. In a marriage interview, the only individual who may be present other than the sponsor and beneficiary is a licensed attorney. An attorney can keep track of all questions and answers.
Having a written record of the questions and answers is useful in the event that the office calls the sponsor and beneficiary for a secondary interview known as a “fraud detection interview.”
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