Helppp - Law
Assignment 4
Incorporate terminology from the book, PowerPoint lectures.
1)
While visiting from Australia, Joe Fox wanders into a small bookstore owned by Kathleen Kelly, a US citizen. After a brief conversation, they soon realize that that Joe is Kathleens business rival, as he owns a large commercial bookstore chain that is looking to open a new store across the street from her. While it was not love at first sight when they first met, they fall madly in love after a few months of exchanging emails and a chance meeting at a party. Joe and Kathleen are engaged one month before Joes status in the U.S. expires, and they realize that they will soon have to do something about his immigration status before he returns to Australia, his country of citizenship. Based upon the above, explain:
(1) What form and types of evidence would Kathleen would have to file to obtain a fiancee visa for Joe?
(2) What form and types of evidence would Kathleen have to file if she and Joe married before he left for Australia and she wanted to bring Joe back as her spouse?
(3) What agency would Kathleen file the forms mentioned in the two questions above?
(4) What main protection does a fiancee visa give Kathleen that a spousal immigrant visa does not?
(5) What major benefit does a spousal immigrant visa give Joe that a fiancee visa does not?
2)
A. Explain the purpose and role of the U.S. Department of Homeland Security (USDHS) as it relates to immigration. (5 points)
B. Explain the mission and objectives of each subagency of the U.S. Department of Homeland Security listed below:
(i) U.S. Customs and Border Protection (5 points),
(ii) U.S. Citizenship and Immigration Services (5 points), and
(iii) U.S. Immigration and Customs Enforcement (5 points).
3)
While at a charity event, Meghan meets a dashing young Englishman named Harry, and they fall madly in love. Despite Harry not actually being a member of the Royal Family or an actual prince in this hypothetical scenario, Meghan could not stop thinking that Harry looked like a prince when compared with her ex-husband Trevor, who she legally divorced in 2013. Meghan is a U.S. citizen and lives in California. Harry is a citizen of the United Kingdom, lives in Wales, and has never been previously married. They decide to have a fairytale wedding, but shortly after their legal marriage ceremony in England, a royally large amount of family tension causes them to reconsider their future plans. Harry secures a visitor visa to the U.S. so that he and Meghan can visit with her family after the wedding. 5 months into Harrys authorized 6 month visitor visa stay, they decide that they want to live together in California. However, Harry does not have any immigrant status in the U.S. In light of the above fact scenario, answer the following 2 questions:
A. What immigration forms, supporting documents, and evidence will Meghan have to file on behalf of Harry with USCIS? (10 points)
B. What immigration forms, supporting documents, and evidence will Harry have to file with USCIS to apply for immigrant status and be able to work and travel while his application is pending? (10 points)
4)
Explain the differences between an H1B visa and an H2B visa, including:
A. the purposes for H1B visa category versus the H2B visa category (2 points),
B. requirements that must be shown in order for each visa to be issued (4 points),
C. employer qualifications or valid reasons to obtain each visa (4 points),
D. beneficiary qualifications or requirements to obtain each visa (4 points),
E. the types of job positions that each visa is used to obtain (4 points), and
F. the long-term immigration prospects of both (2 points)
5)
For employment based preference categories, what are the differences between professionals, skilled workers, and unskilled / other workers?
6)
Explain the U.S. Department of Labors role in the immigration process, and what immigration matters and applications they handle.
7)
What is the 2 part Kazarian Test, and what immigration classification is it used for?
8)
Name five qualifications that a foreign national must possess in order to demonstrate eligibility file for and obtain naturalization.
9)
State five (5) different types of evidence that aliens and spouses may present with the petition for an immigrant visa as evidence of their legitimate marriage and relationship.
10)
Amal is expecting her first child with her husband Ali. Both Amal and Ali are citizens of Turkey. While 7 months pregnant, Amal flies to the United States to stay with her aunt for one week, and she legally enters the US on her visitor visa. Unexpectedly, Amal goes into labor shortly after she arrives in the U.S., and she gives birth to her son at U of M hospital in Ann Arbor, Michigan.
1. Based upon the above facts, will Amal and Alis son be considered a U.S. citizen, even though neither parent is a U.S. citizen? (State Yes or No).
2. Would Amal and Alis son be considered a U.S. citizen if Amal did not enter the U.S. legally and instead illegally entered into the U.S.? (State Yes or No.)
11)
Explain what dual intent mean in terms of immigration, and state which nonimmigrant visa classification(s) allows for dual intent.
12)
Jose is a Mexican national who crossed the border without any visa or authorization in 2004 into the United States; he entered without inspection (EWI). He has never left the United States. He is married to a U.S.C., and they have 2 children. They run a landscaping business together, although his wife is needed at home more for the kids. Last year they bought a house and have a substantial mortgage, although a good home for their family. Unfortunately, their daughter has had seizures and has been diagnosed with epilepsy. Jose was recently placed in removal proceedings.
Joses wife has filed an I-130 relative petition for an immigrant visa on his behalf. Is Jose eligible to file for adjustment of status with USCIS and stay inside the United States? Why? If not, how would Jose apply for his immigrant visa, and what issue would he face in obtaining it?
13)
Explain in complete sentences how a foreign national studying in the U.S. on an F-1 student visa may obtain off campus employment without using CPT or OPT, including the two things the student must demonstrate to USCIS, form the student must file, and the maximum number of hours that the student may work per week.
14)
State five (5) advantages that foreign nationals gain when they are granted U.S. citizenship.
9/2/2019 Directory of Visa Categories
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Directory of Visa Categories
The purpose of your intended travel and other facts will
determine what type of visa is required under U.S.
immigration law. As a visa applicant, you will need to
establish that you meet all requirements to receive the
category of visa for which you are applying. When you apply
at a U.S embassy or consulate, a consular officer will
determine based on laws, whether you are eligible to receive
a visa, and if so, which visa category is appropriate.
Nonimmigrant Visa Categories
The chart below contains many different purposes of
temporary travel and the related nonimmigrant visa
categories available on this website. Select a visa
category below to learn more:
Purpose of Travel
Visa
Category
Required:
Before
applying
for visa*
Athlete, amateur or professional
(competing for prize money only)
B-1 (NA)
Au pair (exchange visitor) J SEVIS
Australian professional specialty E-3 DOL
Border Crossing Card: Mexico BCC (NA)
Business visitor B-1 (NA)
CNMI-only transitional worker CW-1 (USCIS)
Crewmember D (NA)
Diplomat or foreign government
official
A
(NA)
Domestic employee or nanny - must
be accompanying a foreign national
employer
B-1 (NA)
Employee of a designated
international organization or NATO
G1-G5,
NATO
(NA)
Exchange visitor J SEVIS
F i ilit l t ti d A 2
https://travel.state.gov/content/travel/en/us-visas/tourism-visit/visitor.html
https://travel.state.gov/content/travel/en/us-visas/study/exchange.html
https://travel.state.gov/content/travel/en/us-visas/tourism-visit/border-crossing-card.html
https://travel.state.gov/content/travel/en/us-visas/tourism-visit/visitor.html
https://travel.state.gov/content/travel/en/us-visas/other-visa-categories/crewmember-visa.html
https://travel.state.gov/content/travel/en/us-visas/other-visa-categories/visas-diplomats.html
https://travel.state.gov/content/travel/en/us-visas/tourism-visit/visitor.html
https://travel.state.gov/content/travel/en/us-visas/other-visa-categories/visa-employees-nato.html
https://travel.state.gov/content/travel/en/us-visas/study/exchange.html
https://travel.state.gov/content/travel/en/us-visas/other-visa-categories/renewing-visas-for-foreign-military-stationed-in-u-s.html
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Foreign military personnel stationed
in the United States
A-2
NATO1-6
(NA)
Foreign national with extraordinary
ability in Sciences, Arts, Education,
Business or Athletics
O USCIS
Free Trade Agreement (FTA)
Professional:
Chile, Singapore
H-1B1 -
Chile
H-1B1 -
Singapore
DOL
International cultural exchange
visitor
Q USCIS
Intra-company transferee L USCIS
Medical treatment, visitor for B-2 (NA)
Media, journalist I (NA)
NAFTA professional worker: Mexico,
Canada
TN/TD (NA)
Performing athlete, artist,
entertainer
P USCIS
Physician J , H-1B SEVIS
Professor, scholar, teacher
(exchange visitor)
J SEVIS
Religious worker R USCIS
Specialty occupations in fields
requiring highly specialized
knowledge
H-1B
DOL then
USCIS
Student: academic, vocational F, M SEVIS
Temporary agricultural worker H-2A
DOL then
USCIS
Temporary worker performing other
services or labor of a temporary or
seasonal nature.
H-2B
DOL then
USCIS
Tourism, vacation, pleasure visitor B-2 (NA)
Training in a program not primarily
for employment
H-3 USCIS
Treaty trader/treaty investor E (NA)
Transiting the United States C (NA)
Victim of Criminal Activity U USCIS
Victim of Human Trafficking T USCIS
Nonimmigrant (V) Visa for Spouse
and Children of a Lawful Permanent
Resident (LPR)
V (NA)
Renewals in the U.S. - A, G, and
NATO Visas
(NA)
https://travel.state.gov/content/travel/en/us-visas/other-visa-categories/renewing-visas-for-foreign-military-stationed-in-u-s.html
https://travel.state.gov/content/travel/en/us-visas/employment/temporary-worker-visas.html
https://travel.state.gov/content/travel/en/us-visas/employment/temporary-worker-visas.html
https://travel.state.gov/content/travel/en/us-visas/employment/temporary-worker-visas.html
https://travel.state.gov/content/travel/en/us-visas/tourism-visit/visitor.html
https://travel.state.gov/content/travel/en/us-visas/employment/visas-members-foreign-media-press-radio.html
https://travel.state.gov/content/travel/en/us-visas/employment/visas-canadian-mexican-nafta-professional-workers.html
https://travel.state.gov/content/travel/en/us-visas/employment/temporary-worker-visas.html
https://travel.state.gov/content/travel/en/us-visas/study/exchange.html
https://travel.state.gov/content/travel/en/us-visas/employment/temporary-worker-visas.html
https://travel.state.gov/content/travel/en/us-visas/study/exchange.html
https://travel.state.gov/content/travel/en/us-visas/other-visa-categories/temporary-religious-worker.html
https://travel.state.gov/content/travel/en/us-visas/employment/temporary-worker-visas.html
https://travel.state.gov/content/travel/en/us-visas/study/student-visa.html
https://travel.state.gov/content/travel/en/us-visas/employment/temporary-worker-visas.html
https://travel.state.gov/content/travel/en/us-visas/employment/temporary-worker-visas.html
https://travel.state.gov/content/travel/en/us-visas/tourism-visit/visitor.html
https://travel.state.gov/content/travel/en/us-visas/employment/temporary-worker-visas.html
https://travel.state.gov/content/travel/en/us-visas/employment/treaty-trader-investor-visa-e.html
https://travel.state.gov/content/travel/en/us-visas/other-visa-categories/transit.html
https://travel.state.gov/content/travel/en/us-visas/other-visa-categories/visas-for-victims-of-criminal-activity.html
https://travel.state.gov/content/travel/en/us-visas/other-visa-categories/visas-for-victims-of-human-trafficking.html
https://travel.state.gov/content/travel/en/us-visas/immigrate/family-immigration/nonimmigrant--visa-for-spouse-and-children-of-a-lawful-permanent-resident.html
https://travel.state.gov/content/travel/en/us-visas/other-visa-categories/visa-employees-nato/renewing-a-g-nato.html
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NATO Visas
( )
*What the abbreviations above mean - Before applying
for a visa at a U.S. embassy or consulate, the following is
required:
DOL = The U.S. employer must obtain foreign
labor certification from the U.S. Department of
Labor, prior to filing a petition with USCIS.
USCIS = U.S. Citizenship and Immigration
Services (USCIS) approval of a petition or
application (The required petition or application
depends on the visa category you plan to apply
for.)
SEVIS = Program approval entered in the Student
and Exchange Visitor Information System (SEVIS)
(NA) = Not Applicable - Additional approval by
another U.S. government agency is not required
prior to applying for a visa
Important Notes:
About this chart – It is not a complete list of all
travel purposes for the visa category. Select a visa
category webpage for more information. The chart
lists almost all nonimmigrant visa categories, with
the exception of several not listed above. Refer to
the Foreign Affairs Manual, 9 FAM 402.1 for all
nonimmigrant visa categories.
Canadian NAFTA Professional workers – A visa
not required; apply to U.S. Customs and Border
Protection (CBP) at border port of entry.
K nonimmigrant visas – For U.S. citizen fiancé(e)
and spouse for immigration related purposes.
Refer to Immigrant Visa Categories.
Immigrant Visa Categories
https://travel.state.gov/content/travel/en/us-visas/other-visa-categories/visa-employees-nato/renewing-a-g-nato.html
https://fam.state.gov/FAM/09FAM/09FAM040201.html
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About Visas - The Basics
What types of visas are available for
people to come to the United States?
There are more than 20 nonimmigrant visa types for
people traveling to the United States temporarily. There
are many more types of immigrant visas for those
coming to live permanently in the United States. The type
of Visa you need is determined by the purpose of your
intended travel. For an overview of visa types, please
see Types of Visas for Temporary Visitors or Visa Types
for Immigrants.
Visa Types
https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/all-visa-categories.html
https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/all-visa-categories.html
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How do I read and understand my visa?
Please use the illustrated guide below to learn how to
read your new nonimmigrant visa (for travel to the U.S. as
a temporary visitor). In addition, as soon as you receive
it, check to make sure information printed on the visa is
correct (see below). If any of the information on your visa
does not match the information in your passport or is
incorrect, please contact the nonimmigrant visa section
at the embassy or consulate that issued your visa.
What is a Visa?
Nonimmigrant Visa Types (Classifications)
Immigrant Visa Types (Classifications)
After Visa Issuance
https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/frequently-asked-questions/what-is-us-visa.html
https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/all-visa-categories.html
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My visa expires in 5 years, what does this
mean?
A visa must be valid at the time a traveler seeks
admission to the United States, but the expiration date of
the visa (validity period/length of time the visa can be
used) has no relation to the length of time a temporary
visitor may be authorized by the Department of
Homeland Security to remain in the United States.
Persons holding visas valid for multiple entries may
make repeated trips to the United States, for travel for
the same purpose, as long as the visa has not expired,
and the traveler has done nothing to become ineligible to
enter the United States, at port-of-entry.
My old passport has already expired. My
visa to travel to the United States is still
valid but in my expired passport. Do I
need to apply for a new visa with my new
passport?
No. If your visa is still valid you can travel to the United
States with your two passports, as long as the visa is
valid, not damaged, and is the appropriate type of visa
required for your principal purpose of travel. (Example:
tourist visa, when your principal purpose of travel is
tourism). Both passports (the valid and the expired one
with the visa) should be from the same country. When
you arrive at the U.S. port-of-entry (POE, generally an
airport or land border) the Customs and Border
Protection Immigration Officer will check your visa in the
old passport and if s/he decides to admit you into the
United States they will stamp your new passport with an
admission stamp along with the annotation VIOPP (visa
in other passport). Do not try to remove the visa from
your old passport and stick it into the new valid passport.
If you do so, your visa will no longer be valid.
Visa Validity
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My visa will expire while I am in the
United States. Is there a problem with
that?
No. If the Department of Homeland Security, Customs
and Border Protection Immigration Officer at the port-of-
entry admitted you into the United States for a specific
period of time, s/he will note your authorized period of
stay on your admission stamp or paper Form I-94, called
an Arrival/Departure Record. You will be able to remain in
the United States during your authorized period of stay,
even if your visa expires during the time you are in the
United States. Since your admission stamp or paper
Form I-94 documents your authorized stay and is the
official record of your permission to be in the United
States, it is very important to keep inside your passport.
What are indefinite validity visas
(Burroughs visas) and are they still valid?
Indefinite validity visas (Burroughs Visas) are
tourist/business visas manually stamped into a traveler’s
passport which were valid for ten years. Effective April 1,
2004, all indefinite validity Burroughs visas became void.
Therefore, if you have an indefinite validity visa you must
apply for a new visa for travel to the U.S.
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I changed my name. Is my U.S. visa with
my old name still valid?
If your name has legally changed through marriage,
divorce, or a court ordered name change, you will need to
obtain a new passport. Once you have a new passport,
the Department of State recommends that you apply for
a new U.S. visa to make it easier for you to travel to and
from the United States.
What is Administrative Processing?
Some refused visa applications may require further
administrative processing. When administrative
processing is required, the consular officer will inform
the applicant at the end of the interview. The duration of
the administrative processing will vary based on the
individual circumstances of each case. Except in cases
of emergency travel (i.e. serious illnesses, injuries, or
deaths in your immediate family), before making
inquiries about status of administrative processing,
applicants should wait at least 180 days from the date of
interview or submission of supplemental documents,
whichever is later. Learn more.
Administrative Processing
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My visa application has been refused. Why
cant I get my money back?
The fee that you paid is an application fee. Everyone who
applies for a U.S. visa anywhere in the world must pay
this fee, which covers the cost of processing your
application. This fee is non-refundable regardless of
whether you are issued a visa or not, since your
application was processed to conclusion. As one
example, if your application was refused under Section
214(b) and you choose to reapply for a visa, whether
applying at the same embassy or elsewhere, you will be
required to pay the visa application processing fee. See
the Fees for Visa Services page for a list of fees.
Visa Denials
I have a nonimmigrant visa that will
expire soon and I would like to renew it.
Do I need go through the whole visa
application process again?
Yes, you will have to go through the whole visa
application process each time you want to apply for a
visa, even if your visa is still valid. There are some
situations where a visa applicant may not need to be
interviewed when renewing his/her visa. See the U.S.
Embassy or Consulate website for more information.
Renewals
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After I have my visa, I will be able to enter
the U.S., correct?
A visa does not guarantee entry into the United States. A
visa allows a foreign citizen to travel to the U.S. port-of-
entry, and the Department of Homeland Security U.S.
Customs and Border Protection (CBP) immigration
inspector authorizes or denies admission to the United
States. See Admissions on the CBP website.
Entering and Departing the United States
How can I find out how long I am
authorized to stay in the United States?
A visa does not guarantee entry into the United States,
but allows a foreign citizen coming from abroad, to travel
to the United States port-of entry (generally an airport or
land border) and request permission to enter the United
States. The Department of Homeland Security, U.S.
Customs and Border Protection (CBP) officials have
authority to permit or deny admission to the United
States, and determine how long a traveler may stay. At
the port of entry, upon granting entry to the United States,
the Department of Homeland Security, U.S. immigration
inspector, provides you an admission stamp or
paper Form I-94, Arrival/Departure Record in your
passport. On this admission stamp or paper form, the
U.S. immigration inspector records either a date or D/S
(duration of status). If your I-94 contains a specific date,
then that is the date by which you must leave the United
States. Your admission stamp or paper Form I-94 is very
important to keep in your passport, since it shows your
permission to be in the United States. Review information
about Admission on the CBP Website. Also,
see Duration of Stay.
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I did not turn in my paper Form I-94 when
I left the United States, what should I do?
If you failed to turn in your paper Form I-94 Departure
Record, see Department of Homeland Security, Customs
and Border Protection website for more information.
My passport with my visa was stolen,
what should I do?
If your passport with your admission stamp or paper
Form I-94 are lost or stolen, you must get them replaced
immediately. There are a number of steps you need to
take, learn more, see Lost and Stolen Passports, Visas,
and Form I-94s.
Lost, Stolen or Damaged Visas
My visa was damaged. What should I do?
If your visa has been damaged in any way, you will need
to reapply for a new visa at a U.S. Embassy or Consulate
abroad.
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I may have a claim to U.S. citizenship. Can
I apply for a U.S. visa?
With few exceptions, a person born in the United States
acquires U.S. citizenship at birth. A state-issued birth
certificate serves as evidence of citizenship. Review
the Apply for a Passport webpage to learn more.
Persons born in countries other than the United States
may have a claim to U.S. citizenship if either parent is a
U.S. citizen under U.S. law. Learn more on the Birth of
U.S. Citizens Abroad webpage.
If a person is a U.S. citizen, he or she is not eligible for a
visa. Any prospective applicant believing he or she may
have a claim to U.S. citizenship should have his or her
citizenship claim adjudicated (officially determined) by a
consular officer at a U.S. Embassy or Consulate before
applying for a U.S. visa.
U.S. Citizens
I have dual citizenship. Which passport
should I use to travel to the United
States?
All U.S. citizens, even dual citizens/nationals, must enter
and depart the United States using his/her U.S. passport.
https://travel.state.gov/content/travel/en/passports/apply-renew-passport.html
https://travel.state.gov/content/travel/en/international-travel/while-abroad/birth-abroad.html
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How do I know whether to contact the
Department of State or Department of
Homeland Security about my issue?
Contact the Department of State, U.S. Embassy or
Consulate abroad with questions about U.S. visas,
including application, the status of visa processing, and
for inquiries relating to visa denial. Once in the United
States, the traveler falls under the authority (jurisdiction)
of Department of Homeland Security. The Department of
Homeland Security, U.S. Citizenship and Immigration
Services (USCIS) is responsible for the approval of all
petitions, the authorization of permission to work in the
United States, the issuance of extensions of stay, and
change or adjustment of an applicants status while the
applicant is in the United States.
Further Questions
I would like to know if my friend has
applied for a visa and what the status is.
Who should I contact?
Your friend, the visa applicant. Under U.S. law,
specifically the Immigration and Nationality Act (INA)
222(f), visa records are confidential. Therefore, the visa
applicant should inquire at the U.S. Embassy or
Consulate abroad where he/she applied regarding
necessary information about visa application status.
Because of confidentiality of visa records, you’ll need to
ask your friend, the visa applicant your questions about
whether a visa application was made, or a visa was
issued or denied.
http://www.usembassy.gov/
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9/2/2019 About Visas - The Basics
https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/frequently-asked-questions/about-basics.html 11/11
Visa Applicants from State Sponsors of
Terrorism Countries
To find information regarding FAQs from visa applicants
from state sponsors of terrorism countries please click
here.
Social Media Identifiers
Social Media Identifiers
On May 31, 2019, the Department of State updated its
immigrant and nonimmigrant visa application forms to
request additional information, including social media
identifiers, from most U.S. visa applicants worldwide.
Please see our Frequently Asked Questions.
https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/frequently-asked-questions/visa-applicants-from-state-sponsors.html
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9/2/2019 What is a U.S. Visa?
https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/frequently-asked-questions/what-is-us-visa.html 1/2
What is a U.S. Visa?
A citizen of a foreign country who seeks to enter the United
States generally must first obtain a U.S. visa, which is placed
in the traveler’s passport, a travel document issued by the
traveler’s country of citizenship.
Certain international travelers may be eligible to travel to the
United States without a visa if they meet the requirements
for visa-free travel. The Visa section of this website is all
about U.S. visas for foreign citizens to travel to the United
States.
(Note: U.S. citizens don’t need a U.S. visa for travel, but when
planning travel abroad may need a visa issued by the
embassy of the country they wish to visit. In this situation,
when planning travel abroad, learn about visa requirements
by country, see Country Specific Travel Information in the
Passport section of this website.)
How Can I Use a Visa to Enter the United States?
Having a U.S. visa allows you to travel to a port of entry,
airport or land border crossing, and request permission of
the Department of Homeland Security (DHS), Customs and
Border Protection (CBP) inspector to enter the United States.
While having a visa does not guarantee entry to the United
States, it does indicate a consular officer at a U.S. Embassy
or Consulate abroad has determined you are eligible to seek
entry for that specific purpose. DHS/CBP inspectors,
guardians of the nation’s borders, are responsible for
admission of travelers to the United States, for a specified
status and period of time. DHS also has responsibility for
immigration matters while you are present in the United
States.
What Types of Visas Are There?
The type of visa you must obtain is defined by U.S.
immigration law, and relates to the purpose of your travel.
There are two main categories of U.S. visas:
Nonimmigrant visas – For travel to the United States
on a temporary basis. Learn more.
https://travel.state.gov/content/travel/en/international-travel/International-Travel-Country-Information-Pages.html
https://travel.state.gov/content/travel/en/us-visas/tourism-visit.html
https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/all-visa-categories.html
9/2/2019 What is a U.S. Visa?
https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/frequently-asked-questions/what-is-us-visa.html 2/2
Immigrant visas – For travel to live permanently in the
United States. Learn more.
Reading and Understanding a Visa
Additional Resources
Please visit these webpages as well as selections on our
websites left toolbar:
Browse this useful A-Z subject index related to visas.
Review Frequently Asked Questions about visas.
See the latest Visa News.
https://travel.state.gov/content/travel/en/us-visas/immigrate.html
https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/all-visa-categories.html
https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/a-z-index.html
https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/frequently-asked-questions/about-basics.html
https://travel.state.gov/content/travel/en/us-visas.html#news
Ayodele Gansallo
Judith Bernstein-Baker
Understanding Immigration Law and Practice
Second Edition
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Note to instructors: This chapter and Power Point is quite lengthy and we recommend it be taught over two to three sessions. A natural break for a two session presentation would be to teach the first session up to slide 29, which completes the discussion regarding petitions. The Power Point then covers adjustment of status, consular processing, fianceés, conditional residency and waivers of unlawful presence.
1
Family Sponsored Immigration: Family Relationships AND ADJUSTMENT OF status
Chapter 6
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Family-Based Immigration
Sources of law
INA §201, provides quota numbers for visas
INA §202 provides per country quota limits of 7\% of visas issued
INA §203 describes preference allocations (limitation of visas based on sponsor’s status and relationship to the relative being sponsored)
INA § 204 describes the petitioning procedure
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3
Key Terms
Petitioner
Beneficiary
Priority Date
Public Charge and Affidavit of Support
Adjustment of Status vs. Consular Processing
4
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Family-Based Immigration
THE PLAYERS
Petitioner
U.S.C.
LPR
Beneficiary: qualifying family members
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Family-Based Immigration
QUALIFYING FAMILY MEMBERS FOR U.S.C.
Immediate relatives
Spouse
Minor children under 21 yrs. old
Parents
Other relatives
Unmarried sons and daughters over 21yrs old
Married sons and daughters, any age
Siblings
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Family-Based Immigration
QUALIFYING FAMILY MEMBERS FOR LPRs
Spouse
Unmarried children under 21 yrs old
Unmarried sons and daughters over 21 yrs old
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Preference Relatives
Family 1st (1st Preference): Unmarried son or daughter of U.S. Citizen over 21
Family 2A: spouse or minor child under 21 of LPR
Family 2B: unmarried child over 21 of LPR
Family 3rd: Married son or daughter of U.S. Citizen
Family 4th: Siblings of U.S. Citizen
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Treatment of Immediate
Relatives vs. Preference Relatives
Immediate Relatives: NO QUOTAS
Preference relatives: wait time depends on family relationship and country quotas depicted in the DOS VISA BULLETIN
Reading the VISA BULLETIN
https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin.html
9
2/26/2017
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9
This slide presents a good opportunity to do the following supplemental exercise in class:
Diego, a naturalized U.S. citizen, filed a relative petition for his married sister, Magdalena, in June, 2019. She is a citizen of Mexico.
Based on the visa numbers available in June, 2019 for a fourth preference relative from Mexico, how long can Magdalena expect to wait before a visa number becomes available?
This exercise helps learners understand how to use the visa bulletin in Family Preference cases. The visa bulletin is available at https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin.html
The exercise requires the student to (a) determine if the Final Action Date chart should be use or the Date for Filing Chart. This is determined by accessing the link www.uscis.gov/visabulletininfo
The correct chart is “Dates for Filing” based on the USCIS website for June, 2019.
(b) After the proper chart to be used is identified, the learner should identify which Family Preference category this case presents. (4th Preference). Then, in accessing that category, the reality of the quota system is apparent, as there is a longer wait for Mexican nationals than other groups in this category. Students should use the visa bulletin to determine the approximate wait time for a visa to become available.
Instructors can use a more recent visa bulletin, including the visa bulletin that is current during the presentation.
Derivative Relatives
Available for those immigrating under preference categories
No derivatives for immediate relatives
Applies to spouse and child (<21 yrs) of principal beneficiary
Visa petition required only for principal, but may be advantageous to file individual applications
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Cross Chargeability
Because of the quota system, it may be beneficial to “charge” an application to a particular foreign country of a family member.
Example: James from the Philippines is being sponsored by his mother, a U.S. citizen. He is married to Michiko from Japan. It is more beneficial to consider/charge the application as coming from a Japanese national due to shorter wait times for Family First visas for Japanese nationals.
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Spouses in
Family-Based Immigration
WHO IS A SPOUSE?
The marriage must be legal in the jurisdiction where it occurred
Marriage certificate
Free to marry
Effect of foreign marriages
Proxy marriage
Common-law marriage
Same-sex marriage
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Intent to establish life together? Matter of Laureano, 19 I&N Dec. 1 (BIA 1983)
Objective facts to shed light on subjective state of mind
Conduct prior to marriage: Matter of Soriano, 19 I&N Dec. 1 (BIA 1983)
Reasonable Gov’t interview: Stokes v. INS, 393 F. Supp. 24 (S.D.N.Y. 1975)
Inconsistent statements can lead to denial
Bona Fides of Relationship
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Bona Fides of Relationship
Cohabitation and consummation not prerequisite:
Elderly couple, separate bedrooms: Matter of Peterson, 12 I&N Dec. 663 (BIA 1968)
Transsexual marriage not initially recognized: Yates Memo, USCIS, HQOPRD 70/6 III (Apr 16, 2004)
Postoperative transsexual marriage recognized: Matter of Lovo, 23, I&N Dec. 746 (BIA 2005). However, USCIS memo says otherwise.
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Viability of Marriage
Separation of parties no basis for denial: Matter of McKee, 17 I&N Dec. 332 (BIA 1980)
Separation relevant to fraud at inception
Subsequent behavior doesn’t prove lack of intent: Bark v. INS, 511 F.2d 1200 (9th Cir. 1975)
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Who is a Child in
Family-Based Immigration?
Unmarried minor under the age of 21, including:
Biological child
Child born in or out of wedlock
Stepchild: if parents married when child was 18 yrs or less
Adopted child: 16 yrs or less, residing with parents for 2 years
Certain orphans
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Child Born out of Wedlock
A child born to a mother is automatically considered the mother’s child.
A father must show that he is the natural father AND that a bona fide parent-child relationship was established when the child or son or daughter was unmarried and under twenty-one years of age. Such a relationship will be deemed to exist or to have existed where the father demonstrates or has demonstrated an active concern for the childs support, instruction, and general welfare. [8 C.F.R. 204.2(d)(2)(iii)]
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Child Status Protection Act
Effective date: August 6, 2002
Extends age of child for benefits purposes
U.S.C. Children:
Petition filed pre-21 yrs? Never age out.
LPR Children:
Calculates date petition was pending and deducts the amount from the child’s age
The formula to calculate eligibility is on p. 271 of text.
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Adam Walsh Child
Protection and Safety Act
Petitioners who have committed certain offenses cannot file a petition for a beneficiary in any preference category, or their qualifying relative
Most offenses involve sexual crimes, listed on p. 265 in text
19
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Petitioning is Two Step Process
Step 1: file an I-130 petition to establish relationship and eligibility
Petitioner files this for the beneficiary
Step 2: beneficiary files adjustment of status, I-485, if in U.S., or does consular processing, if overseas
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Filing the I-130 and I-485
Immediate relatives can file the I-130 and I-485 at the same time if the beneficiary is in the U.S. and was lawfully admitted to the country. This is known as concurrent filing.
Preference relatives can only apply for adjustment of status (I-485) when their priority date has been reached and they are in lawful status.
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Other Groups That
Can File Concurrently
Special Immigrant Juveniles-if a visa is available
Self-Petitioning battered spouse or child of US citizen
Certain members of the Armed Forces
2/26/2017
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Favored Treatment to
Immediate Relatives Who Overstay
- Can adjust status in the U.S.
- Overstay is forgiven
- Unlawful employment forgiven
2/26/2017
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Revocation/Termination
of Visa Petition
Failure to apply for visa within one year of State Dept. notification visa available
Filing fee paid is not paid within 14 days of returned check
Petitioner withdraws petition
Beneficiary dies: no benefit for derivatives
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Revocation/Termination
of Visa Petition
Petitioner dies although can substitute for affidavit of support. See also widow’s petition.
Termination of marriage
Unmarried son or daughter’s marriage
Termination of LPR status
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Death of U.S.C.
Before Petition is Filed
Legal spouse at time of death
Marriage was bona fide
No legal separation prior to death or remarriage after
No inadmissibility issues
Meets adjustment requirements and warrants favorable exercise of discretion
File Form I-360: Self-petition within 2 years of death
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Death of Petitioner
After the Petition is
Filed but not Approved
Allows visa petition and adjustment of status to be approved if:
Beneficiary resided in United States at time of petitioner’s death and continues to do so through decision on pending petition
Beneficiary of a petition filed by a U.S.C., LPR, employer, refugee, asylee, or derivative of a U, T, or asylum application
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Death of Petitioner After the Petition is Approved
Beneficiary may seek a substitute sponsor who can complete the affidavit of support from a long list of relatives.
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The Marriage Application
Who is the client?
What if a conflict arises?
What if one party gives confidential information?
How do you handle issues of domestic violence?
How do you know this is a valid marriage?
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Forms Used in
Family Applications
G-28, Notice of Entry of Appearance as an Attorney or Accredited Representative for petitioner and beneficiary
*I-130, Petition for Alien Relative
*I-130A, Supplemental Information for Spouse Beneficiary (marriage cases)
*I-485, Application to Register Permanent Residence or Adjust Status
*I-864, Affidavit of Support Under Section 213A of the INA
*I-693, Report of Medical Examination and Vaccination Record
I-765, Application for Employment Authorization
I-131, Application for Travel Document
*Mandatory
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Form I-130, Petition
for Alien Relative
Supporting documents for Form I-130
Docs to prove immigration status of petitioner
Proof of relationship: 8 C.F.R. §204.2
Extra hurdles for spouses and unmarried fathers
Birth certificates, affidavits, to prove family relationship
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This may be a good opportunity for the instructor to distribute the sample homework assignment as ask students to complete an I-130 based on the case study of Vlad and Marina.
Form I-130, Petition
for Alien Relative
Termination of prior marriage, where relevant
Divorce documents, where relevant
Passport picture of petitioner and beneficiary where married
Immigration fee
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This may be a good opportunity for the instructor to distribute the sample homework assignment as ask students to complete an I-130 based on the case study of Vlad and Marina.
Form I-485Application to Register Permanent Residence or Adjust Status
Adjustment application
Used in many situations –
Refugees
Asylees
Employment based applications
Fiancé(e)
Battered spouses
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Form I-485Application to Register Permanent Residence or Adjust Status
Supporting Documents
I-94 card or passport as proof of entry
Birth certificate
Medicals: Civil Surgeon (I-693)
Criminal dispositions, if applicable
Passport photos
Check for immigration fees
Approved petition/Evidence of basis for Adjustment of Status
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Form I-864, The Affidavit of Support Under INA§ 213A
An Affidavit of Support, I-864 is required for most family-based sponsored immigrants
Sponsors are legally required to reimburse federal or state means-tested benefits the beneficiary received if the beneficiary was not eligible
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Form I-864, The Affidavit of Support Under 8 C.F.R. §213a
When is it not needed?
Diversity lottery
I-360 self-petitions for Special Immigrant Juveniles and battered spouses
Refugees/Asylees
Those with 40 qualifying quarters of SSA credits
Registrants under INA §249, entered prior to January 1, 1972 (registry program)
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Form I-864, The Affidavit of Support Under 8 C.F.R. §213a
Where family member immediately becomes U.S.C. on entry to U.S. (Complete I-864W instead)
Widow(ers)-change in law, FY 2010 (must file within 2 years of death of spouse)
Certain members of the Armed Forces only need to show 100\% of the poverty level
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Determining Household Size
Sponsor’s spouse
Sponsor’s children under 21
Intending immigrant
Dependents on sponsors tax return
Other immigrants sponsor might have sponsored previously who are not yet USC’s
2/26/2017
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What if Sponsor/Petitioner
has Insufficient Income?
Can use 20\% of sponsor/petitioner’s assets
Can add income of household members by completing I-864A, Contract between Sponsor and Household member
Can find a joint sponsor
May be able to include beneficiary’s income if s/he has permission to work
Can include beneficiary’s assets (20\%)
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Obligation of Sponsor
Completing I-864
Contractual obligation until or unless:
Beneficiary becomes U.S.C.
Beneficiary earns 40 qualifying quarters of Social Security credits
Beneficiary loses LPR status
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Obligation of Sponsor
Completing I-864
Beneficiary obtains LPR status through removal proceedings
Beneficiary leaves the U.S permanently
Beneficiary dies
Divorce of sponsored immigrant does not relieve the sponsor of obligation to support the beneficiary.
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Can Sponsored Immigrant
Get Public Benefits?
No means tested benefits
Food stamps, medical assistance, cash welfare, SSI
Some states allow medical assistance funded by the state
Sponsor and Jt. Sponsor can be sued by the state if immigrant obtains public benefits
Or petitioner by pending immigrant if s/he isn’t supported.
2/26/2017
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Public Charge Issues
Applicants likely to rely on government benefits to support themselves may be considered subject to “public charge’ grounds of inadmissible and denied adjustment of status.
In the past, a completed Affidavit of Support, Form I-864 overcame any public charge concerns.
New regulations published by the Department of Homeland Security on August 14, 2019 the Affidavit of Support would be changed to a Declaration for Self-Sufficiency and heighten the standard for overcoming public charge concerns.
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This might be a good time for an instructor to ask students to complete an I-864 based on the case study of Vlad and Marina.
43
Recap: Completing
the I-485 Package
Form I-485
Form G-28
Evidence of lawful entry to the U.S.
Birth certificate –translated into English
Form I-864
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Recap: Completing
the I-485 Package
Form I-797 Approval notice of I-130, or if filing concurrently (immediate relative), form I-130 with supporting documentation
Fees
Passport pictures
If relevant, dispositions of arrests
If needed, Application for Employment, I-765 and Travel, I-131
See https://www.uscis.gov/i-485
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Applying for
Adjustment of Status
What if no proof of entry?
What if entry EWI?
INA §245(i)
Last filing date: April 30, 2001
Prior filing date: January 14, 1998; requires physical presence in U.S. on December 21, 2000
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The Relevance of INA §245(i)
Grandfathering of INA §245(i)
Immigrant visa petition
Labor certification application
Filing of a petition that was (see 8 C.F.R. §245.10)
Properly filed: received or postmarked on or before April 30, 2001
Approvable when filed: properly filed, meritorious in fact and non-frivolous
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The Relevance of INA §245(i)
Benefits:
EWIs
Non-immediate relative overstayers
Employed without authorization
Pay fine of $1000, unless <17yrs old
Doesn’t waive inadmissibility grounds
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Form I-765, Application for Employment Authorization
Authorization to work
Category: (c)(9)
Valid one year
File if approvals for work authorization will occur before an approval of the I-485
Beneficiary may be able to use the income from employment if it helps meet 125\% of poverty level
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Application for Travel Document, Form I-131
Advanced Parole
Allows person who is filing an adjustment of status application to leave country without abandoning application
Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012)
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Immigration Marriage Fraud Amendments Act 1986
Marriage during removal proceedings: IMFA §5, INA §§204(g)
Prove by clear and convincing evidence marriage was entered in good faith: higher standard
If not, remain outside U.S. for aggregate of 2 years before reentering, unless,
Divorce and remarry outside U.S.
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Conditional to
Permanent Residency
Married < 2yrs, conditional residence
Apply to have conditions removed 90 days before 2nd anniversary
Joint application: Form I-751Petition to Remove Conditions on Residence
Documentation of living together
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Conditional to
Permanent Residency
Waivers: INA §216(c)(4)
Extreme hardship arising in conditional period
Good faith
Battered or subjected to extreme cruelty
Marriage terminated other than through death
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Adjustment v.
Consular Processing
WHERE TO APPLY
USA through USCIS
Consular process through DOS
WHEN TO APPLY
Preference list
Visa Bulletin
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Consular Processing
Petitioner is likely to be in the U.S.
Family member (Beneficiary) is abroad or returning home from the U.S. to process
Agencies involved
USCIS
Department of State
CBP
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2/26/2017
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Visa Bulletin
Review Preference Categories
1st Preference: Sons and daughters > 21
2nd Preference:
2a Spouse or child of LPR
2b Sons and daughters of LPR
3rd Preference; Married sons and daughters
4th Preference: Siblings
Priority dates
Country quotas
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Consular Processing –
Division of Labor
USCIS approves Petition (I-130)
Fees, civil docs and I-864 are sent to DOS Consular post
Consular Officer from Dept. of State can send the I-130 petition back to USCIS for further review
Consular Officers use the Foreign Affairs Manual’s guidelines
The FAM guidelines may differ from regulations governing USCIS
The intending immigrant gets further review from CBP at the border
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Consular Processing
DOS forms and documents:
DS-230 I & II
Birth certificate
Beneficiary’s passport
Marriage certificate
Divorce certs if applicable
Medicals: specified doctors abroad
Police certificates showing no criminal history
Affidavit of Support, Form I-864
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Processing Steps
I-130 is approved by USCIS
The approval letter is sent to the petitioner; the approved petition is sent to the National Visa Center (NVC)
When the priority date is current, the NVC contacts the petitioner. The process continues using Consular Electronic Application Center (ceac.gov.) All documents are submitted electronically.
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Processing Steps
4. Applicant/beneficiary fills out Choice of Agent Form DS-261 submitted through ceac.gov, if needed; all fees must be paid through ceac.gov
5. Applicant/beneficiary completes the DS-260 and sends to ceac.gov
6. Affidavit of Support, Form I-864 and required civil documents sent through ceac.gov
7. Information about the overseas interview sent to applicant/beneficiary and legal representative, if any. Instructions for medical exam sent to the applicant/beneficiary.
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The Overseas
Interview and Entry
An overseas interview at a consular post is scheduled for the applicant/beneficiary.
The applicant is approved for an immigrant visa. S/he must travel within six months of approval,
OR
The visa is not approved, and the petition is sent back to USCIS for possible revocation.
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The Overseas
Interview and Entry
When the visa is approved, the applicant travels to the U.S. and is given entry by CBP and the “green card” arrives to the applicant’s home.
OR
The applicant travels and CBP denies entry, and the applicant is placed in removal proceedings, detention or immediately sent home by CBP.
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Public Charge Issues
The Consular Office must determine if the applicant/beneficiary is likely to be a “public charge” because s/he will rely on public benefits for support. If so, the applicant will be denied a visa based on the public charge ground of inadmissibility
In the past, a completed I-864, Affidavit of Support would overcome any public charge concerns.
Now, Consular Officers are instructed by the FAM to use a “totality of the circumstances” review of each applicant, assessing their age, health, family status, assets and financial status and education and skills.
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LPR Children Who
Become Citizens Upon Entry
Child Citizenship Act of 2000
Children under 18 who
Have at least one American citizen parent by birth or naturalization;
Live in the legal and physical custody of the American citizen parent;
—and—
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LPR Children Who
Become Citizens Upon Entry
Are admitted as an immigrant for lawful permanent residence.
Become U.S. citizens upon entry as an LPR
Form I-864W Intending Immigrant’s Affidavit of Support Exemption is used instead of Form I-864
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Unlawful Presence and
Provisional Waivers
Those who enter Enter Without Status (EWI) cannot apply to adjust status in the U.S. They must apply for an immigrant visa at a consular office abroad.
When the foreign national leaves, s/he triggers the accrual of unlawful presence. Unlawful presence of 6 months to a year in the U.S. bars a person from re-entering for three years; unlawful presence for a year or more bars re-entry for ten years.
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Unlawful Presence and
Provisional Waivers
A foreign national who can show her/his absence would cause extreme hardship to a qualifying relative may apply for a waiver of the three- or ten-year bar so they can re-enter the U.S. sooner with an immigrant visa.
Qualifying relatives include a spouse, son or daughter of a U.S. citizen or permanent resident.
NOTE THAT U.S CITIZEN CHILDREN ARE NOT QUALIFYING RELATIVES FOR THE WAIVER.
67
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Copyright © 2020 CCH Incorporated
Unlawful Presence and
Provisional Waivers
Waiver request filed on Form I-601, Application for Waiver of Ground on Inadmissibility.
In some cases, the waiver can be filed while the foreign national is in the U.S. using Form 601A.
If approved, it can then be submitted to the consular office abroad when the individual applies for an immigrant visa.
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Copyright © 2020 CCH Incorporated
Form I-129F, Petition
for Alien Fiancé(e)(K Visa)
Allows entry in order for marriage to take place in U.S.
Nonimmigrant visa petition
Entry for 90 days only
Must have met at least once in last 2 yrs; waivable
Intend to marry
Legally able to marry
Copyright © 2019 CCH Incorporated
Copyright © 2020 CCH Incorporated
K/Fiancé(e) Visas
Apply for AOS after marriage
No need for Form I-130 unless marriage is outside 90 days
Conditional resident status granted; must be married to original K-1 petitioner
Children < 21yrs given K-2
K-3 available for spouse and children of U.S.C. if received Form I-130 receipt notice
K-4 for children of K-3 who are < 21yrs
Copyright © 2019 CCH Incorporated
Copyright © 2020 CCH Incorporated
In addition to the PowerPoint slide lectures, supplemental readings, and your textbook, I wanted to briefly touch upon some examples for
3 Common Pathways to LPR Status. This written lecture is designed to provide common examples of pathways to legal permanent residency through obtaining immigrant visas in following ways:
1. Fiancée Visa
2. Marriage Based Immigrant Visa
3. Employment Immigrant Visa
While there are other ways to obtain legal permanent residence through a petitioning process, such as the visa lottery and investor visas (EB3 visas), most immigrant visas are obtained through family or employers. The purpose of this lecture is to provide fact scenarios for each of the common pathways, along with detailed directions of the petitioning process, and documents that will need to be submitted.
1. FIANCEE VISA
When a US citizen decides to marry a non-citizen, the US citizen can file an I-129 F petition to obtain a fiancée visa. The USC is the “Petitioner,” and the non-citizen is the “Beneficiary.” In order to file the I-129F petition, the Petitioner and Beneficiary must have met in person at least one time within the past 2 years before filing the petition. If approved, this visa will allow their non-citizen fiancée to travel to the USA for purposes of marrying the USC petitioner. The marriage MUST take place within 90 days of the non-citizen’s arrival into the US, and the non-citizen may ONLY marry the USC petitioner.
If the beneficiary legally marries the USC petitioner within the 90 days, then the Beneficiary may file an I-485 Application for Legal Permanent Residency, which if approved will give the Beneficiary a legal permanent resident card (aka “Green Card”). If the Beneficiary does NOT marry the Petitioner within the 90 days, then the Petitioner must leave the U.S. before the 91st day, or else the Beneficiary will be deemed to have overstayed the visa and begin to accrue unlawful presence in the U.S.
If the Beneficiary enters the U.S. and marries a different US citizen than the Petitioner, then the Beneficiary may NOT apply for legal permanent resident status while in the U.S. based upon a different petitioner; rather, the different USC will have to file a new immigrant visa petition on the Beneficiary’s behalf to show that the relationship between the two is legitimate. Therefore, the Beneficiary must leave the U.S. before the 91st day or else the Beneficiary will accrue unlawful presence, AND the Beneficiary will have to wait outside of the US until his new spouse’s immigrant visa petition has been approved, after which the Beneficiary’s immigrant visa application needs to be approved. Fortunately, most who enter the U.S. on a fiancé(e) visa end up marrying the US petitioner who filed for them.
EXAMPLE SCENARIO 1.
Fact Pattern: When Harry met Sally, they were driving together for several hours in a carpool to New York City. Sally was a U.S. citizen and an aspiring journalist. Harry was a German citizen. They spent the entire drive talking about platonic relationships. Following a chance meeting at a NYC bookstore, their platonic relationship evolved into a romantic relationship, after numerous evenings spent with friends on the town and lunches at Katz’s Deli. Since his tourist visa was about to expire, Sally and Harry became engaged one week before Harry had to return to Germany, where he worked as a famous professional basketball referee for the Basketball Bundesling League (BBL).
Advice: After Harry left the U.S., Sally met with Ms. Tourney, an immigration lawyer, who recommended that she file an I-129F petition so that Harry could reenter the US to marry her. The immigrant attorney sent her the following email:
Dear Sally,
I recommend that you file an I-129 Petition for Alien Fiancé. Currently, it is taking USCIS between 11 months and 14 months to process and decide I-129F petitions filed at your local service center. Therefore, I suggest that you file this as soon as possible.
Along with your I-129F petition, you must submit proof of your U.S. citizenship, such as a copy of your biographic data page of your US passport (this is the page with her photo and personal information on it), a copy of your U.S. birth certificate if your were born in the US, or your U.S. Naturalization Certificate if you obtained citizenship through naturalization.
You will also need to submit proof that you and Harry met in person within the past two years and have a legitimate relationship. Based upon our brief conversation, evidence of your meeting and legitimate relationship may include, but not be limited to, affidavits from family and friends, affidavits from you and Harry, photos of you and Harry together, copies of receipts for any joint travel, and any proof that Harry visited NYC while you lived here.
The government’s filing fee for the I-129F petition is $535.00 and it is payable by money order or cashier’s check to the “US Department of Homeland Security.” As we discussed, my law office will charge an additional amount for our legal fees, and those terms are outlined I the retainer agreement that you signed today. Remember that this is Step 1 of the overall process. When the I-129F is approved, Harry will need to take Step 2, which is traveling to the U.S. and legally marrying you. Then you and Harry will take Step 3, which is Harry filing an I-485 Application for Permanent Residency and you filing an I-864 Affidavit of Support for him. During Step 3, Harry may also request that he be allowed to legally work and travel in the U.S. If you have any questions, please contact me.
Sincerely,
Ima A. Tourney, Esq.
------------------------------------------------------
While Sally’s immigration attorney has correctly outlined the fiancée process, documents needed, and fees associated with Step 1, think about all the variables that Sally and Harry will encounter:
· Time: Current processing times are 11 to 14 months to have the I-129F petition decided, and once Harry enters the U.S. they only have 90 days to get married. How are they to book a wedding venue or even set a date? How is Harry to look for a job in the U.S. when he doesn’t know when he will arrive or when he will be allowed to legally work?
· Financial Costs: Step 1 is $535.00 plus legal fees. Step 2 will be even more money, since they have to purchase an airline ticket from Germany to the US on fairly short notice since they have no idea when it will be approved, plus wedding. Step 3 will also cost an additional $1,225.00 in government filing fees for the I-485 application, plus an additional amount for any attorney fees.
· Logistics: How will Harry and Sally continue their relationship during this lengthy processing time? International travel will bring increased costs, and Skype and phone calls fail to provide the same level of interaction. Also, Harry has no idea when he will travel to the U.S., so if he needs to sell his house or car, when should he do so? If he plans to come to the US permanently to live, he will need to take care of packing and moving (or selling / liquidating) the belongings that he will or will not take with him to the U.S.
These are just a few common problems that USC petitioners and their fiancés face during this process; however, each situation is unique and brings different individual concerns.
To “speed up” the process, Sally may instead choose to marry Harry instead of pursuing the fiancée visa. Some people choose to travel to their fiancée’s country of citizenship to wed, or they meet in another country to have their wedding ceremony. However, if Sally does this then she will lose the protection of having more time to get to know Harry in person when reenters the U.S. on his fiancée visa. Remember that Sally is not required to marry Harry if he enters on a fiancée visa in the future; rather, Harry can only marry Sally within the 90 days or leave the U.S. before his 90 days expires. Others do not view any inconvenience in waiting to have the fiancée visa approved because they are not in a hurry to marry, regularly travel internationally, or do not have financial concerns due to a lack of possessions. Each relationship, engagement, and couple brings a unique set of circumstances surrounding it, which makes it important for the immigration attorney to fully understand the couple’s objectives and long-term plans, so that proper planning can take place and realistic expectations set regarding the immigration process.
1. MARRIAGE BASED
When a US citizen marries a non-citizen, the process is similar to the fiancé petition process in terms of evidence and filing fee costs, but it is different in terms of forms and procedures. First, the USC petitioner will file an I-130 Petition for Alien Relative on behalf of the non-citizen spouse. The filing fee is $535.00 payable to the U.S. Department of Homeland Security, plus legal fees. The USC Petitioner must still submit evidence of US citizenship. Additionally, a certified copy of the marriage certificate, certified copies of any divorce judgments, a copy of the Beneficiary’s birth certificate, copies of the birth certificates
Second, one must determine whether the non-citizen can file for adjustment of status to become a legal permanent resident while inside the US, or if the alien will have to leave the US and apply for legal permanent resident status from the alien’s country of citizenship.
1. Processing inside of the US
If Harry married Sally after he entered the U.S. legally, he could file an I-485 Application for Adjustment of Status simultaneouslywith Sally’s I-130 petition for alien relative, as long as he was legally inspected and admitted to the U.S on a valid visa. Harry does not have to be in status at the time he files, meaning he could overstay his visa and still file for adjustment of status. If he properly files his I-485 application for adjustment of status with Sally’s I-130 petition before his stay in the U.S expires, then Harry will not have any period of unlawful status. The pending I-485 application will “stay” any accumulation of unlawful presence, until the I-485 application is decided. If the I-485 application was filed by Harry after his authorized stay in the U.S expires, then he would start accumulating unlawful presence. Therefore, if Harry and Sally want to marry in the near future, it would be advisable for them to do so as soon as possible, so that Harry and Sally can simultaneously file the I-485 adjustment of status form and I-130 petition before he was required to leave the U.S.; thus, allowing Harry to remain in the U.S. while the forms are being processed, without having to worry about future unlawful presence issues.
The same marriage based evidence will be submitted with the I-130 and I-485 package to show that their relationship is legitimate. (See the Marriage Based Evidence PDF also posted in this Module). A certified copy of their marriage certificate will also need to be submitted, along with copies of each person’s birth certificates, copy of Harry’s passport, and two photos of each person. Harry will also need to submit a medical exam performed by a USCIS approved doctor, to show that he does not present a risk of threat to public health (ie he is free of communicable diseases, up to date on vaccines, and does not abuse narcotics).
1. Overseas processing
If Harry and Sally marry in the U.S. and there is a reason that Harry is ineligible to apply for adjustment of status in the U.S., then Harry would have to apply for his immigrant visa overseas and be interviewed on it at the consulate of the U.S. Embassy that oversees processing immigrant visas for his country of citizenship. Two common reasons that may require Harry to have to go through overseas processing would be illegal entry into the U.S. or a pending deportation or removal order.
After their marriage, Sally would then file an I-130 petition on Harry’s behalf, along with all the evidence mentioned above. When approved by USCIS, the petition would be forwarded b y USCIS to the National Visa Center (NVC), so that the NVC could contact Sally (petitioner) about paying the immigrant visa application fees and affidavit of support fees for Harry’s (beneficiary’s) immigrant visa application. Once the fees were paid, Harry would log on to the NVC website to complete his immigrant visa application and upload all of his documents. In addition to the I-485 application documents mentioned above, Harry would have to obtain a letter of police clearance from every national police agency for any country in which he lived more than 6 months since obtaining the age of 16 years of age. Under the above scenario, Harry’s countries would include Germany and the U.S.
After the NVC collected all documents, thee NVC would forward everything to the U.S. Embassy abroad so that Harry could be interviewed by the consular officer on his application, and a decision would then be made on his immigrant visa application. If approved, Harry would enter the U.S. as a legal permanent resident, which means he would be immediately able to work in the U.S. upon his arrival. This is a benefit to Harry over fiancée visa, which would not allow him to work upon entry. However, if Harry had been allowed to file for adjustment of status in the U.S. without leaving and going through overseas processing, Harry would have been allowed to apply for work authorization so that he could remain in the U.S. and work legally while his adjustment application was being decided, which is typically the most beneficial scenario to most couples.
1. EMPLOYMENT BASED
Example Scenario 2. Now let’s say that Harry met Sally, but it didn’t work out. Since Harry worked as a famous professional basketball referee for the Basketball Bundesling League (BBL), the NBA’s National Basketball Referee Association decides to file a petition for labor certification on behalf of Harry. The employer must submit evidence that
1. Harry is qualified for the position
2. The Employer’s needs are genuine
3. There is no US citizen or LPR ready, willing, and able to fill that position
4. The employer is willing and able to pay the prevailing wage for the position
The Department of Labor would b the once to collect, review, and issue a decision on the labor certification, which does allow some officer discretion to come into play in rendering a decision, since these are decided on a case by case basis. For example, imagine that the officer reviewing the petition for labor certification was a Denver Nuggets fan, one of the teams with the most blown calls in the NBA; one can see how he may be more inclined to grant the labor certification than say a Orlando Magic fan or Houston Rockets fan. Anyhow, if the Department of Labor approves the labor certification, then, Harry may file an I-485 application for adjustment of status if he was legally admitted into the U.S. and still in a lawful status (meaning he hadn’t overstayed his visa). This is different than the spousal based visa, where he could file for adjustment as long as he was legally admitted, and it wouldn’t prevent him from filing if he had overstayed.
This written lecture is designed to provide common examples of pathways to legal permanent residency through obtaining immigrant visas in following ways:
A. Fiancée Visa
B. Marriage Based Immigrant Visa
C. Employment Immigrant Visa
While there are other ways to obtain legal permanent residence through a petitioning process, such as the visa lottery and investor visas (EB3 visas), most immigrant visas are obtained through family or employers. The purpose of this lecture is to provide fact scenarios for each of the common pathways, along with detailed directions of the petitioning process, and documents that will need to be submitted.
A.
FIANCEE VISA
When a US citizen decides to marry a non-citizen, the US citizen can file an I-129 F petition to obtain a fiancée visa. The USC is the “Petitioner,” and the non-citizen is the “Beneficiary.” In order to file the I-129F petition, the Petitioner and Beneficiary must have met in person at least one time within the past 2 years before filing the petition. If approved, this visa will allow their non-citizen fiancée to travel to the USA for purposes of marrying the USC petitioner. The marriage MUST take place within 90 days of the non-citizen’s arrival into the US, and the noncitizen may ONLY marry the USC petitioner.
If the beneficiary legally marries the USC petitioner within the 90 days, then the Beneficiary may file an I-485 Application for Legal Permanent Residency, which if approved will give the Beneficiary a legal permanent resident card (aka “Green Card”). If the Beneficiary does NOT marry the Petitioner within the 90 days, then the Petitioner must leave the U.S. before the 91st day, or else the Beneficiary will be deemed to have overstayed the visa and begin to accrue unlawful presence in the U.S.
If the Beneficiary enters the U.S. and marries a different US citizen than the Petitioner, then the Beneficiary may NOT apply for legal permanent resident status while in the U.S. based upon a different petitioner; rather, the different USC will have to file a new immigrant visa petition on the Beneficiary’s behalf to show that the relationship between the two is legitimate. Therefore, the Beneficiary must leave the U.S. before the 91 st day or else the Beneficiary will accrue unlawful presence, AND the Beneficiary will have to wait outside of the US until his new spouse’s immigrant visa petition has been approved, after which the Beneficiary’s immigrant visa application needs to be approved. Fortunately, most who enter the U.S. on a fiancé(e) visa end up marrying the US petitioner who filed for them.
EXAMPLE SCENARIO 1. Fact Pattern: When Harry met Sally, they were driving together for several hours in a carpool to New York City. Sally was a U.S. citizen and an aspiring journalist. Harry was a German citizen. They spent the entire drive talking about platonic relationships. Following a chance meeting at a NYC bookstore, their platonic relationship evolved into a romantic relationship, after numerous evenings spent with friends on the town and lunches at Katz’s Deli. Since his tourist visa was about to expire, Sally and Harry became engaged one week before Harry had to return to Germany, where he worked as a famous professional basketball referee for the Basketball Bundesling League (BBL).
Advice: After Harry left the U.S., Sally met with Ms. Tourney, an immigration lawyer, who recommended that she file an I-129F petition so that Harry could reenter the US to marry her. The immigrant attorney sent her the following email:
Dear Sally,
I recommend that you file an I-129 Petition for Alien Fiancé. Currently, it is taking USCIS between 11 months and 14 months to process and decide I-129F petitions filed at your local service center. Therefore, I suggest that you file this as soon as possible.
Along with your I-129F petition, you must submit proof of your U.S. citizenship, such as a copy of your biographic data page of your US passport (this is the page with her photo and personal information on it), a copy of your U.S. birth certificate if your were born in the US, or your U.S. Naturalization Certificate if you obtained citizenship through naturalization.
You will also need to submit proof that you and Harry met in person within the past two years and have a legitimate relationship. Based upon our brief conversation, evidence of your meeting and legitimate relationship may include, but not be limited to, affidavits from family and friends, affidavits from you and Harry, photos of you and Harry together, copies of receipts for any joint travel, and any proof that Harry visited NYC while you lived here.
The government’s filing fee for the I-129F petition is $535.00 and it is payable by money order or cashier’s check to the “US Department of Homeland Security.” As we discussed, my law office will charge an additional amount for our legal fees, and those terms are outlined I the retainer agreement that you signed today. Remember that this is Step 1 of the overall process. When the I-129F is approved, Harry will need to take Step 2, which is traveling to the U.S. and legally marrying you. Then you and Harry will take Step 3, which is Harry filing an I-485 Application for Permanent Residency and you filing an I-864 Affidavit of Support for him. During Step 3, Harry may also request that he be allowed to legally work and travel in the U.S. If you have any questions, please contact me.
Sincerely,
Ima A. Tourney, Esq.
------------------------------------------------------ While Sally’s immigration attorney has correctly outlined the fiancée process, documents needed, and fees associated with Step 1, think about all the variables that Sally and Harry will encounter:
- Time: Current processing times are 11 to 14 months to have the I-129F petition decided, and once Harry enters the U.S. they only have 90 days to get married. How are they to book a wedding venue or even set a date? How is Harry to look for a job in the U.S. when he doesn’t know when he will arrive or when he will be allowed to legally work?
- Financial Costs: Step 1 is $535.00 plus legal fees. Step 2 will be even more money, since they have to purchase an airline ticket from Germany to the US on fairly short notice since they have no idea when it will be approved, plus wedding. Step 3 will also cost an additional $1,225.00 in government filing fees for the I-485 application, plus an additional amount for any attorney fees.
- Logistics: How will Harry and Sally continue their relationship during this lengthy processing time? International travel will bring increased costs, and Skype and phone calls fail to provide the same level of interaction. Also, Harry has no idea when he will travel to the U.S., so if he needs to sell his house or car, when should he do so? If he plans to come to the US permanently to live, he will need to take care of packing and moving (or selling / liquidating) the belongings that he will or will not take with him to the U.S.
These are just a few common problems that USC petitioners and their fiancés face during this process; however, each situation is unique and brings different individual concerns.
To “speed up” the process, Sally may instead choose to marry Harry instead of pursuing the fiancée visa. Some people choose to travel to their fiancée’s country of citizenship to wed, or they meet in another country to have their wedding ceremony. However, if Sally does this then she will lose the protection of having more time to get to know Harry in person when reenters the U.S. on his fiancée visa. Remember that Sally is not required to marry Harry if he enters on a fiancée visa in the future; rather, Harry can only marry Sally within the 90 days or leave the U.S. before his 90 days expires. Others do not view any inconvenience in waiting to have the fiancée visa approved because they are not in a hurry to marry, regularly travel internationally, or do not have financial concerns due to a lack of possessions. Each relationship, engagement, and couple brings a unique set of circumstances surrounding it, which makes it important for the immigration attorney to fully understand the couple’s objectives and long-term plans, so that proper planning can take place and realistic expectations set regarding the immigration process.
B.
MARRIAGE BASED
When a US citizen marries a non-citizen, the process is similar to the fiancé petition process in terms of evidence and filing fee costs, but it is different in terms of forms and procedures. First, the USC petitioner will file an I-130 Petition for Alien Relative on behalf of the non-citizen spouse. The filing fee is $535.00 payable to the U.S. Department of Homeland Security, plus legal fees. The USC Petitioner must still submit evidence of US citizenship. Additionally, a certified copy of the marriage certificate, certified copies of any divorce judgments, a copy of the Beneficiary’s birth certificate, copies of the birth certificates
Second, one must determine whether the non-citizen can file for adjustment of status to become a legal permanent resident while inside the US, or if the alien will have to leave the US and apply for legal permanent resident status from the alien’s country of citizenship.
a. Processing inside of the US
If Harry married Sally after he entered the U.S. legally, he could file an I-485 Application for Adjustment of Status simultaneously with Sally’s I-130 petition for alien relative, as long as he was legally inspected and admitted to the U.S on a valid visa. Harry does not have to be in status at the time he files, meaning he could overstay his visa and still file for adjustment of status. If he properly files his I-485 application for adjustment of status with Sally’s I-130 petition before his stay in the U.S expires, then Harry will not have any period of unlawful status. The pending I485 application will “stay” any accumulation of unlawful presence, until the I-485 application is decided. If the I-485 application was filed by Harry after his authorized stay in the U.S expires, then he would start accumulating unlawful presence. Therefore, if Harry and Sally want to marry in the near future, it would be advisable for them to do so as soon as possible, so that Harry and Sally can simultaneously file the I-485 adjustment of status form and I-130 petition before he was required to leave the U.S.; thus, allowing Harry to remain in the U.S. while the forms are being processed, without having to worry about future unlawful presence issues.
The same marriage based evidence will be submitted with the I-130 and I-485 package to show that their relationship is legitimate. (See the Marriage Based Evidence PDF also posted in this Module). A certified copy of their marriage certificate will also need to be submitted, along with copies of each person’s birth certificates, copy of Harry’s passport, and two photos of each person. Harry will also need to submit a medical exam performed by a USCIS approved doctor, to show that he does not present a risk of threat to public health (ie he is free of communicable diseases, up to date on vaccines, and does not abuse narcotics).
b. Overseas processing
If Harry and Sally marry in the U.S. and there is a reason that Harry is ineligible to apply for adjustment of status in the U.S., then Harry would have to apply for his immigrant visa overseas and be interviewed on it at the consulate of the U.S. Embassy that oversees processing immigrant visas for his country of citizenship. Two common reasons that may require Harry to have to go through overseas processing would be illegal entry into the U.S. or a pending deportation or removal order.
After their marriage, Sally would then file an I-130 petition on Harry’s behalf, along with all the evidence mentioned above. When approved by USCIS, the petition would be forwarded b y USCIS to the National Visa Center (NVC), so that the NVC could contact Sally (petitioner) about paying the immigrant visa application fees and affidavit of support fees for Harry’s (beneficiary’s) immigrant visa application. Once the fees were paid, Harry would log on to the NVC website to complete his immigrant visa application and upload all of his documents. In addition to the I-485 application documents mentioned above, Harry would have to obtain a letter of police clearance from every national police agency for any country in which he lived more than 6 months since obtaining the age of 16 years of age. Under the above scenario, Harry’s countries would include Germany and the U.S.
After the NVC collected all documents, thee NVC would forward everything to the U.S. Embassy abroad so that Harry could be interviewed by the consular officer on his application, and a decision would then be made on his immigrant visa application. If approved, Harry would enter the U.S. as a legal permanent resident, which means he would be immediately able to work in the U.S. upon his arrival. This is a benefit to Harry over fiancée visa, which would not allow him to work upon entry. However, if Harry had been allowed to file for adjustment of status in the U.S. without leaving and going through overseas processing, Harry would have been allowed to apply for work authorization so that he could remain in the U.S. and work legally while his adjustment application was being decided, which is typically the most beneficial scenario to most couples.
C. EMPLOYMENT BASED
Example Scenario 2. Now let’s say that Harry met Sally, but it didn’t work out. Since Harry worked as a famous professional basketball referee for the Basketball Bundesling League (BBL), the NBA’s National Basketball Referee Association decides to file a petition for labor certification on behalf of Harry. The employer must submit evidence that
1. Harry is qualified for the position
2. The Employer’s needs are genuine
3. There is no US citizen or LPR ready, willing, and able to fill that position
4. The employer is willing and able to pay the prevailing wage for the position
The Department of Labor would b the once to collect, review, and issue a decision on the labor certification, which does allow some officer discretion to come into play in rendering a decision, since these are decided on a case by case basis. For example, imagine that the officer reviewing the petition for labor certification was a Denver Nuggets fan, one of the teams with the most blown calls in the NBA; one can see how he may be more inclined to grant the labor certification than say a Orlando Magic fan or Houston Rockets fan. Anyhow, if the Department of Labor approves the labor certification, then, Harry may file an I-485 application for adjustment of status if he was legally admitted into the U.S. and still in a lawful status (meaning he hadn’t overstayed his visa). This is different than the spousal based visa, where he could file for adjustment as long as he was legally admitted, and it wouldn’t prevent him from filing if he had overstayed.
US DEPARTMENT OF HOMELAND SECURITY:
U.S. CUSTOMS & BORDER PROTECTION (“CBP”)
www.usice.gov
U.S. IMMIGRATION & CUSTOMS ENFORCEMENT (“ICE”)
www.cbp.gov
U.S. CITIZENSHIP & IMMIGRATION SERVICES (“CIS”)
www.uscis.gov
* All information contained in this lecture was taken from the above websites, along with www.dhs.gov
1
DHS: HISTORY
11 days after the September 11, 2001 terrorist attacks, Pennsylvania Governor Tom Ridge was appointed the first Director of the Office of Homeland Security in the White House.
DHS integrated all or part of 22 different federal departments and agencies into a unified, integrated Department to oversee and coordinate a comprehensive national strategy to safeguard the US against terrorism and respond to any future attacks.
Congress passed the Homeland Security Act in November 2002 that made DHS a formal stand-alone Cabinet level department to further coordinate and unify national homeland security efforts.
2
Dhs: mission
DHS seal
Created in June 2003
Symbolic of the Department’s mission: it prevents attacks and protects Americans – on the land, in the sea, and in the air.
The eagle’s wings breaking through the red ring was used to suggest that DHS will break through “traditional bureaucracy” and perform government functions differently
The eagle’s chest represents the three sections of America’s homeland: air, land, and sea. In the “air” there are 22 stars to represent the 22 entities that have come together to form the department.
4
Dhs: Organization chart
Who joined dhs for immigration purposes?
Lead up to 9/11: Today:
U.S. Customs Service (was part of Treasury Dept.) U.S. Customs & Border Protection - took over inspection, border, and ports of entry responsibilities
U.S. Immigration & Customs Enforcement – took over customs law enforcement responsibilities
The Immigration & Naturalization Service (“INS”)
(was part of the Justice Dept.) U.S. Customs & Border Protection – took over inspection functions and the U.S. Border Patrol
U.S. Immigration & Customs Enforcement – took over immigration law enforcement: detention and removal, intelligence, and investigations
U.S. Citizenship & Immigration Services – took over immigration adjudications and benefits programs
Federal Protective Service - U.S. Immigration and Customs Enforcement – took over until 2009; now it resides within the National Protection and Programs Directorate
Animal and Plant Health Inspections Service (partial – was part of the Agriculture Dept.) - U.S. Customs and Border Protection – took over agricultural imports and entry inspections
6
Dhs: core values
INTEGRITY: “Service Before Self” Each of us serves something far greater than ourselves. To our nation, we represent the President and the Congress. To the world, seeking to visit or do business with us, we are often the first Americans they meet. We will faithfully execute the duties and responsibilities entrusted to us, and we will maintain the highest ethical and professional standards.
VIGILANCE: “Guarding America” We will relentlessly identify and deter threats that pose a danger to the safety of the American people. As a Department, we will be constantly on guard against threats, hazards, or dangers that threaten our values and our way of life.
RESPECT: “Honoring our Partners” We will value highly the relationships we build with our customers, partners, and stakeholders. We will honor concepts such as liberty and democracy, for which America stands.
7
u.s. customs & border protection
With more than 60,000 employees, U.S. Customs and Border Protection, CBP, is one of the worlds largest law enforcement organizations and is charged with keeping terrorists and their weapons out of the U.S. while facilitating lawful international travel and trade.
As the United States’ first unified border entity, CBP takes a comprehensive approach to border management and control, combining customs, immigration, border security, and agricultural protection into one coordinated and supportive activity.
The men and women of CBP are responsible for enforcing hundreds of U.S. laws and regulations. On a typical day, CBP welcomes nearly one million visitors, screens more than 67,000 cargo containers, arrests more than 1,100 individuals, and seizes nearly 6 tons of illicit drugs. Annually, CBP facilitates an average of more than $3 trillion in legitimate trade while enforcing U.S. trade laws.
8
cbp: history
On March 1, 2003, CBP became the nation’s first comprehensive border security agency with a focus on maintaining the integrity of the nation’s boundaries and ports of entry.
Before CBP, security compliance and facilitation of international travel and trade were conducted by MULTIPLE organizations. The consolidation of these roles and responsibilities allowed CBP to develop seamless security procedures while ensuring compliance with the nation’s immigration, health, and international trade laws and regulations.
In establishing CBP, its leadership ensured that the best traditions of its legacy agencies continued from:
U.S. Customs Service, which traced its original functions to July 31, 1789, and noted its role as the progenitor of numerous federal bureaus and agencies. The Customs Service closed with the dawn of CBP, but its commissioner became the leader of CBP and the majority of its staff and responsibilities came to CBP.
Immigration inspectors, who traced their responsibilities to the establishment of the Office of the Superintendent of Immigration on March 3, 1891.
Agriculture inspectors, who traced their roles to the passage of the Plant Quarantine Act on Aug. 20, 1912.
Border Patrol agents, who brought their responsibility for maintaining the integrity of the U.S. borders as they have done since Congress authorized the hiring of Border Patrol personnel on May 28, 1924.
In addition to this core of specialties and responsibilities present at CBP’s founding, CBP also developed an air and marine monitoring capability with the formation of its third uniformed division, the Office of Air and Marine on Jan. 17, 2006.
MISSION STATEMENT Why CBP exists...
To safeguard Americas borders thereby protecting the public from dangerous people and materials while enhancing the Nations global economic competitiveness by enabling legitimate trade and travel.
VISION STATEMENT What the Agency aspires to become...
To serve as the premier law enforcement agency enhancing the Nations safety, security, and prosperity through collaboration, innovation, and integration.
CORE VALUES of USCBP
Vigilance is how we ensure the safety of all Americans. We are continuously watchful and alert to deter, detect and prevent threats to our nation. We demonstrate courage and valor in the protection of our nation.
Service to Country is embodied in the work we do. We are dedicated to defending and upholding the Constitution of the United States. The American people have entrusted us to protect the homeland and defend liberty.
Integrity is our cornerstone. We are guided by the highest ethical and moral principles. Our actions bring honor to ourselves and our agency.
ETHOs of cbp:
Our shared identity, beliefs and aspirations...
We are the guardians of our Nations borders.
We are Americas frontline.
We safeguard the American homeland
at and beyond our borders.
We protect the American people against
terrorists and the instruments of terror.
We steadfastly enforce the laws of the United States
while fostering our Nations economic security through
lawful international trade and travel.
We serve the American people with vigilance,
integrity, and professionalism.
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Cbp: border security
CBP’s top priority is to keep terrorists and their weapons from entering the U.S. while welcoming all legitimate travelers and commerce. CBP officers and agents enforce all applicable U.S. laws, including against illegal immigration, narcotics smuggling and illegal importation. CBP deploys highly trained law enforcement personnel who apprehend more than 1,000 individuals each day for suspected violations of U.S. laws.
CBPs border security mission is led at ports of entry by CBP officers from the Office of Field Operations, along U.S. borders by agents from the United States Border Patrol and from the air and sea by agents from Air and Marine Operations. Also at ports of entry, agriculture specialists are deployed to protect U.S. agriculture from the introduction of pests or disease from overseas sources.
CBP provides security and facilitation operations at 328 ports of entry throughout the country. Use this interactive map to find information specific to air, sea and land entries. https://www.cbp.gov/border-security/ports-entry
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Cbp: Immigration inspection program
Individuals seeking entry into the United States are inspected at Ports of Entry (POEs) by CBP officers who determine their admissibility. The inspection process includes all work performed in connection with the entry of aliens and United States citizens into the United States, including pre-inspection performed by the Immigration Inspectors outside the United States.
An officer is responsible for determining the nationality and identity of each applicant for admission and for preventing the entry of ineligible aliens, including criminals, terrorists, and drug traffickers, among others. U.S. citizens are automatically admitted upon verification of citizenship; aliens are questioned and their documents are examined to determine admissibility based on the requirements of the U.S. immigration law.
Under the authority granted by the Immigration and Nationality Act (INA), as amended, a CBP officer may question, under oath, any person coming into the United States to determine his or her admissibility. In addition, an inspector has authority to search without warrant the person and effects of any person seeking admission, when there is reason to believe that grounds of exclusion exist which would be disclosed by such search.
The INA is based on the law of presumption: an applicant for admission is presumed to be an alien until he or she shows evidence of citizenship; an alien is presumed to be an immigrant until he or she proves that he or she fits into one of the nonimmigrant classifications.
Cbp: immigration inspection program (cont.)
The mission of the inspections program is to control and guard the boundaries and borders of the United States against the illegal entry of aliens. In a way that:
Functions as the initial component of a comprehensive, immigration enforcement system;
Prevents the entry of terrorists, drug traffickers, criminals, and other persons who may subvert the national interest;
Deters illegal immigration through the detection of fraudulent documents and entry schemes;
Initiates prosecutions against individuals who attempt or aid and abet illegal entry;
Cooperates with international, Federal, state and local law enforcement agencies to achieve mutual objectives;
Contributes to the development and implementation of foreign policy related to the entry of persons;
Facilitates the entry of persons engaged in commerce, tourism, and/or other lawful pursuits;
Respects the rights and dignity of individuals;
Examines individuals and their related documents in a professional manner;
Assists the transportation industry to meet its requirements;
Responds to private sector interests, in conformance with immigration law;
Continues to employ innovative methods to improve the efficiency and cost effectiveness of the inspections process.
Cbp arrival / departure forms:
i-94 & i94w
Foreign visitors to the U.S. arriving via air or sea no longer need to complete paper Customs and Border Protection Form I-94 Arrival/Departure Record or Form I-94W Nonimmigrant Visa Waiver Arrival/Departure Record. Those who need to prove their legal-visitor status—to employers, schools/universities or government agencies—can access their CBP arrival/departure record information online. CBP now gathers travelers’ arrival/departure information automatically from their electronic travel records. Because advance information is only transmitted for air and sea travelers, CBP will still issue a paper form I-94 at land border ports of entry. If travelers need the information from their Form I-94 admission record to verify immigration status or employment authorization, the record number and other admission information they are encouraged to get their I-94 Number. Upon arrival, a CBP officer stamps the travel document of each arriving non-immigrant traveler with the admission date, the class of admission, and the date that the traveler is admitted until. If a traveler would like a paper Form I-94, one can be requested during the inspection process. All requests will be accommodated in a secondary setting. Upon exiting the U.S., travelers previously issued a paper Form I-94 should surrender it to the commercial carrier or to CBP upon departure. Otherwise, CBP will record the departure electronically via manifest information provided by the carrier or by CBP. This automation streamlines the entry process for travelers, facilitates security and reduces federal costs. CBP estimates that the automated process will save the agency $15.5 million a year.
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Cbp: border patrol history
The United States Border Patrol is the mobile, uniformed law enforcement arm of U.S. Customs and Border Protection within the Department of Homeland Security responsible for securing U.S. borders between ports of entry. The Border Patrol was officially established on May 28, 1924 by an act of Congress passed in response to increasing illegal immigration.
As mandated by this Act, the small border guard in what was then the Bureau of Immigration was reorganized into the Border Patrol. The initial force of 450 officers was given the responsibility of combating illegal entries and the growing business of alien smuggling.
Cbp: border patrol mission & daily duties
Mission: Since the terrorist attacks of September 11, 2001, the focus of the Border Patrol has changed to detection, apprehension and/or deterrence of terrorists and terrorist weapons. Although the Border Patrol has changed dramatically since its inception in 1924, its overall mission remains unchanged: to detect and prevent the illegal entry of aliens into the United States. Together with other law enforcement officers, the Border Patrol helps maintain borders that work, facilitating the flow of legal immigration and goods while preventing the illegal trafficking of people and contraband. The Border Patrol is specifically responsible for patrolling the 6,000 miles of Mexican and Canadian international land borders and 2,000 miles of coastal waters surrounding the Florida Peninsula and the island of Puerto Rico. Agents work around the clock on assignments, in all types of terrain and weather conditions. Agents also work in many isolated communities throughout the U.S.
Daily Duties :One of the most important activities of a Border Patrol agent is line watch. This involves the detection, prevention and apprehension of terrorists, undocumented aliens and smugglers of aliens at or near the land border by maintaining surveillance from a covert position, following up leads, responding to electronic sensor television systems, aircraft sightings, and interpreting and following tracks, marks and other physical evidence. Some of the major activities are traffic check, traffic observation, city patrol, transportation check, administrative, intelligence, and anti-smuggling activities.
Cbp: border patrol training
As one of the most rigorous and demanding law enforcement training programs in the country, U.S. Border Patrol training has become the envy of the federal law enforcement community. All newly hired Border Patrol Agent Trainees are required to complete a 117-day basic training program which includes instruction in Law, Operations, Spanish, Driver Training, Physical Techniques, and Firearms. Scenario-Based Training plays a significant role in the trainees development as it allows them to apply the theoretical information in life like situations. The U.S. Border Patrol Academy is located in Artesia, NM. While in training, all trainees receive full pay and benefits.
Federal Law Enforcement Center (FLETC) courses are: Communications, Ethics and Conduct, Report Writing, Introduction to Computers, Fingerprinting, and Constitutional Law. The U.S. Border Patrol Academy is located in Artesia, NM.
Cbp: border patrol operations
The primary mission of the Border Patrol is to protect our Nation by reducing the likelihood that dangerous people and capabilities enter the United States between the ports of entry. This is accomplished by maintaining surveillance, following up leads, responding to electronic sensor alarms and aircraft sightings, and interpreting and following tracks. Some of the major activities include maintaining traffic checkpoints along highways leading from border areas, conducting city patrol and transportation check, and anti-smuggling investigations.
Often, the border is a barely discernible line in uninhabited deserts, canyons, or mountains. The Border Patrol utilizes a variety of equipment and methods to accomplish its mission in such diverse terrain. Electronic sensors are placed at strategic locations along the border to detect people or vehicles entering the country illegally. Video monitors and night vision scopes are also used to detect illegal entries. Agents patrol the border in vehicles, boats, and afoot. In some areas, the Border Patrol even employs horses, all-terrain motorcycles, bicycles, and snowmobiles.
Cbp enforcement & patrols
Linewatch and Signcutting
Linewatch operations are conducted near international boundaries and coast lines in areas of Border Patrol jurisdiction to prevent the illegal entry and smuggling of aliens into the United States and to intercept those who do enter illegally before they can escape from border areas. Signcutting is the detection and the interpretation of any disturbances in natural terrain conditions that indicate the presence or passage of people, animals, or vehicles.
Traffic Checkpoints
Traffic checks are conducted on major highways leading away from the border to (1) detect and apprehend illegal aliens attempting to travel further into the interior of the United States after evading detection at the border and (2) to detect illegal narcotics.
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Cbp enforcement & patrols (cont.)
Transportation Checks
These are inspections of interior-bound conveyances, which include buses, commercial aircraft, passenger and freight trains, and marine craft.
Marine Patrol
Along the coastal waterways of the United States and Puerto Rico and interior waterways common to the United States and Canada, the Border Patrol conducts border control activities from the decks of marine craft of various sizes. The Border Patrol maintains over 109 vessels, ranging from blue-water craft to inflatable-hull craft, in 16 sectors, in addition to Headquarters special operations components.
Horse and Bike Patrol
Horse units patrol remote areas along the international boundary that are inaccessible to standard all-terrain vehicles. Bike patrol aids city patrol and is used over rough terrain to support linewatch.
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Cbp
apprehensions: drug seizures:
In FY 2012, Border Patrol agents made over 364,000 arrests of people illegally entering the country. Considerable success has been achieved in restoring integrity and safety to the Southwest border, by implementing our border-control strategy. These include Operation Gatekeeper in San Diego, CA, Operation Hold the Line in El Paso, TX, Operation Rio Grande in McAllen, TX, Operation Safeguard in Tucson, AZ, and the Arizona Border Control Initiative (ABCI) along the Arizona border.
An increase in smuggling activities has pushed the Border Patrol to the front line of the U.S. war on drugs. Our role as the primary drug-interdicting organization along the Southwest border continues to expand. The heightened presence of Border Patrol agents along the Southwest border has burdened narcotic traffickers and alien smugglers. In FY 2012, Border Patrol agents on the Southwest border seized more than 5,900 pounds of cocaine and more than 2.2 million pounds of marijuana.
Cbp: from the air & sea
U.S. Customs and Border Protections (CBP) Air and Marine Operations (AMO) is a federal law enforcement organization dedicated to serving and protecting the American people. We apply advanced aeronautical and maritime capabilities and employ our unique skill sets to preserve Americas security interests.
With approximately 1,800 federal agents and mission support personnel, 240 aircraft, and 300 marine vessels operating throughout the United States, Puerto Rico, and U.S. Virgin Islands, AMO conducts its mission in the air and maritime environments at and beyond the border, and within the nations interior.
AMO interdicts unlawful people and cargo approaching U.S. borders, investigates criminal networks and provides domain awareness in the air and maritime environments, and responds to contingencies and national taskings.
In Fiscal Year 2018, AMO enforcement actions resulted in the approximate seizure or disruption of 283,503 pounds of cocaine; 301,553 pounds of marijuana; 180,444 pounds of methamphetamine; 872 weapons and $34.2 million; 2,373 arrests and 47,744 apprehensions of illegal aliens.
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Cbp: air & marine operations missions
AMOs missions fall into four broad categories that reflect our core competencies: interdiction, investigation, domain awareness, and contingency operations and national tasking missions.
Interdiction - encompasses our efforts to intercept, apprehend, or disrupt threats in the land, sea, and air domains as they move toward or across the US borders.
Investigation - AMO leverages the expertise of our agents in the air and marine domains to conduct investigations to defeat criminal networks.
Domain Awareness - is the effective understanding of the environment and information associated with the various domains (air, land, and maritime) that could affect safety, security, the economy, or the environment. AMO employs advance systems to contribute to domain awareness.
Contingency Operations and National Tasking Missions - AMO performs a range of aviation and maritime contingency operations and national tasking missions, including Disaster Relief, Contingency of Operations, Humanitarian Operations, Enforcement Relocation, Search and Rescue, and National Special Security Events.
Cbp in the fight against
human trafficking
In 2000, Congress signed the Victims of Trafficking and Violence Protection Act into law, representing the beginning of a large-scale, coordinated effort by the United States government to fight human trafficking.
A decade later, human trafficking remains prevalent. According to the most recent figures available (Source: United Nations, International Labor Organization):
There are at least 12.3 million enslaved adults and children around the world at any given time.
Of these, at least 1.39 million are victims of commercial sexual servitude, both internationally and within national borders. More than half, 56 percent, of all forced labor victims are women and girls.
What is human trafficking?
Although the legal definition of human trafficking is complex, the simple meaning of it is not. It occurs when a person is induced by force, fraud or coercion to:
Work under the total or near-total control of another person or organization (slavery or involuntary servitude)
Forced to pay off a loan by working instead of paying money, for an agreed-upon or unclear period of time (debt bondage) or even without an agreement as to the timeframe (peonage)
Perform a sex act for money or anything of value (if under 18, force, fraud or coercion is not required)
According to U.S. Immigration and Customs Enforcement, although many people think of the sex trade when they think of human trafficking, this crime also occurs in such labor situations as:
Domestic servitude
Labor in a prison-like factory
Migrant agricultural work.
In addition, with respect to labor situations, the initial agreement to travel or to perform work does not mean that the employer is later allowed to restrict a victims freedom or use force or threats to obtain repayment. Human trafficking and human smuggling are sometimes, but not always, linked, because not all individuals who are smuggled are trafficked, and movement is not required for trafficking to occur.
A government partnership
Four executive agencies of the U.S. government, along with state and local law enforcement organizations, work together as well as with nonprofit organizations to combat human trafficking. The primary U.S. executive agencies include:
USDHS U.S. Dept. of State U.S. Dept. of Justice U.S. Dept. of Health
& Human Services
Combating human trafficking
A complex crime
Human trafficking entangles victims in a nearly impenetrable web, for a number of reasons:
The victim may not realize that he or she is imprisoned, because coercion is psychological (it may not be physical)
Victims are typically impoverished and financially dependent on their captors
Often the crime takes place in plain view-e.g. in a restaurant, worksite, or private home-and is not immediately apparent to observers
Victims can be exploited for labor, sex, or both, particularly in private homes.
Force, fraud, or coercion
These terms include any situation where an individual is forced to do something against their will, or where they are tricked into doing something by someone who is lying to them or suppressing the truth.
Force, according to U.S. Immigration and Customs Enforcement, can be active & physical or indirect & psychological (including threats). This term includes: Coercion, Compulsion, Constraint, & Restraint
Coercion refers to behaviors including: Threats of harm or physical restraint; Trying to get a person to believe that if they dont do something, it will result in serious harm or physical restraint of themselves or someone else; The abuse (or threatened abuse) of law or the legal process
Fraud refers to intentionally distorting the truth in order to get someone else (who relies on that version of the truth) to surrender a legal right or give up something valuable that belongs to them.
Us immigration & customs enforcement (“ICE”)
ICE was created in 2003 through a merger of the investigative and interior enforcement elements of the former U.S. Customs Service and the Immigration and Naturalization Service. ICE now has more than 20,000 law enforcement and support personnel in more than 400 offices in the United States and around the world.
ICES mission is to protect America from the cross-border crime and illegal immigration that threaten national security and public safety.
This mission is executed through the enforcement of more than 400 federal statutes and focuses on smart immigration enforcement, preventing terrorism and combating the illegal movement of people and goods.
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Ice: budget & Directorates
The agency has an annual budget of approximately $6 billion, primarily devoted to three operational directorates — Homeland Security Investigations (HSI), Enforcement and Removal Operations (ERO) and Office of the Principal Legal Advisor (OPLA). A fourth directorate – Management and Administration (M&A) – supports the three operational branches to advance the ICE mission.
Combating Transnational Crime
As one of the countrys premier federal law enforcement agencies, ICE is dedicated to detecting and dismantling transnational criminal networks that target the American people and threaten our industries, organizations and financial systems. Combating cross-border criminal activity is the largest single area of responsibility of HSI, and is a critical component of the overall safety, security, and well-being of our nation.
HSI investigates the criminal enterprises that engage in a broad range of illicit activity including narcotics trafficking, human trafficking, gang violence, money laundering and other financial crimes, intellectual property theft, and customs fraud. HSI also investigates a broad range of cybercrime, including child exploitation in the commitment to securing both physical and virtual borders.
HSI is committed to identifying and disrupting the movement of illicit proceeds generated by these criminal organizations and activities in an effort to safeguard our nations trade, travel and financial systems.
Our workforce maintains effective relationships throughout the global law enforcement community and works closely with our domestic and international partners at every level to ensure the safety of all Americans.
Ice: homeland security investigations (hsi)
HSI is the …
Nonimmigrant Visas
for Brief Stays, Studies, & Cultural Exchange
CHAPTER 2 (pages 39 – 87)
Differences between Nonimmigrant and Immigrant Visas
Nonimmigrant Visas
Allows a foreign national (FN) to present at border to ask permission for entry into US, which if granted, allows FN to remain for a temporary period
NO intent to remain permanently (no intent to immigrate to US)
Must demonstrate nonimmigrant intent (intent to return to country of origin after stay expires)
FN may only engage in activity allowed by the nonimmigrant visa classification granted
Immigrant Visas
Permission for a foreign national (FN) to reside permanently in US
Once immigrant visa is granted, then FN has status as a lawful Permanent Resident (LPR) and LPR card (aka “green card”) is issued
LPR card is proof of FN’s immigrant LPR status
FNs may work as LPRs for most employers in the US, open a business, attend schools of higher education, & travel to/from the US
Nonimmigrants: Rights?
There is currently NO equal protection or other constitutional safeguards given to Foreign Nationals (FNs) / nonimmigrants seeking temporary status in the US from abroad; thus, little can be done to challenge denial of a nonimmigrant visa
Result: No recourse or appeal if FN believes that s/he was unfairly denied or treated during the nonimmigrant application process
Once INSIDE the US, a FN who is authorized to legally work in the U.S. is entitled to due process of law with protection from discriminatory and unfair labor practices set forth by both state and federal laws.
Result: Entry into the U.S. gives FNs more rights
Interesting result: a FN who believes that they are denied a nonimmigrant work visa by the consular officer at the US Embassy due to his/her race, color, religion, sex, national origin, and/or sexual orientation has little recourse to overturn the decision, BUT once a FN is lawfully working in the US on an approved nonimmigrant work visa, then the FN is afforded the same protections against discriminatory & unfair practices as a US citizen
Chart of Non-
immigrant Visas in US
Considerations in Nonimmigrant Visa Applications
Each visa classification has a SPECIFIC designation and objective
Foreign National (FN) may be eligible for more than one type of nonimmigrant visa to temporarily enter the US
Thus, FN should select the type of nonimmigrant visa that best fits the type of activity that the FN wants to conduct inside the U.S
Considerations for Nonimmigrant Work Visas and U.S. workers
U.S. Citizenship and Immigration Services (USCIS), the Department of Labor (DOL), and US Immigration and Customs Enforcement (USICE) and its subagencies such as the Fraud Detection and National Security Directorate (FDNS) conduct worksite visits and investigations to ensure that employers are only hiring individuals legally allowed to work in the US
“U.S. Worker” is defined as “a U.S. citizen, LPR, asylee, refugee, or any other person granted permission to work by USCIS.”
Goal: To ensure that U.S. Workers’ wages are not undercut by FN employment
Nonimmigrant visas are also important to U.S. businesses and the economy
Nonimmigrant visas allow multinational companies to share knowledge, provide managerial services, or perform specialized work between US & overseas offices
Advantageous to US businesses by allowing companies to fill vacancies where there may not be a US professional available with equivalent backgrounds or where a current shortage may exist (such as STEM fields)
Visa Terminology
Consular Officers: Members of the foreign service of the Department of State who can rule on visa applications, assist US citizens abroad, & represent interests of US in foreign countries
Consular Processing: Applying for an immigrant or nonimmigrant visa from abroad (meaning applicant applies from outside of U.S.)
Visa Waiver Program (VWP): Allows citizens of designated countries to travel to the US without a visa for stays of 90 days or less, when they meet certain eligibility requirements
Visa Exempt: The ability to enter the US without the need for a foreign national to obtain a visa stamp
Nonimmigrant Visa Waiver: A waiver that allows a foreign national to overcome a ground of inadmissibility for a temporary stay in the US
Reciprocity Fee: An additional fee a visa applicant must pay depending on the visa classification and nationality of the applicant
The Visa Application Process
US Department of State controls Embassies and Consulate General Offices around the world, and each has a consular section where consular officers decide whether a particular visa application should be approved through a process called consular processing.
A Foreign National must obtain a visa to enter the US unless eligible for the visa waiver program OR visa exempt (only Canadians & Bermudians are visa exempt)
Think of a visa like a window of time that a FN has to present himself for entry into the US, but it does NOT guarantee entry into the US
US Customs & Boarder Patrol Officer determines whether or not FN should be allowed into the US
A visa is a colorful stamp placed in a foreign national’s passport that provides the following information:
Biographical information
Visa type
Duration of visa validity
Admission Stamps & I-94 Cards
When a Foreign National (FN) enters the U.S., an ink admission stamp is placed in the FN’s passport that states the visa category of admission and length of time that the FN may remain in the U.S.
USCBP also issues an I-94 card that states the name, country of citizenship, date of admission, class of admission, and length of stay that the FN has in the U.S.
Both the admission stamp and I-94 card are the FN’s proof that the FN was legally inspected and admitted into the U.S.
FNs may obtain copies of their I-94 cards, as well as their travel histories, for free from the following website: https://i94.cbp.dhs.gov/I94/#/home
FNs have 2 types of evidence of lawful admission into the U.S.
Admission Stamp in Passport
I-94 Card
Think about how a lack of counsel, language barriers, and understanding of immigration law could affect the overall outcome of applying for entry on an approved visa…
Several years ago, a long-time client called me to ask my opinion about his brother being denied entry to the U.S. on a visitor visa. We will call my client “Bob” and his brother “Larry”. Neither Bob nor Larry realized that brother Larry could be denied entry into the U.S. after Larry obtained the visitor visa nor did they realize that it was Larry’s job to convince the CBP officer that he should be allowed entry to the U.S.
Bob sent me a transcript of the interview between Larry and the CBP officer for me to review. The transcript showed that when Larry’s plane landed, he was interviewed by a USCBP officer who asked him why he was visiting the U.S., and Larry told him that he was here to visit with his brother Bob and Bob’s wife and kids for the summer. The CBP officer then asked Larry what his brother did for a living, and Larry said that Bob owned a gas station with an attached convenience store. The next part of the interview transcript immediately told me why Larry was denied entry and it went something like:
Transcript of interview between USCBP Officer & Larry:
CBP: If your brother asked you to visit him at his store, would you?
Larry: Yes.
CBP: While at your brother’s store, if he needed help moving boxes, would you help him?
Larry: Sure I’d help him.
CBP: If your brother asked you to help him unpack the boxes and put the items on the shelves would you help him?
Larry: Of course.
CBP: What if your brother asked you to run the cash register for him while he stepped out for a few minutes?
Larry: Yes, yes. I’d help my brother with anything that he needs because he is family.
CBP: I am denying you entry as a visitor into the U.S. because you have admitted that you intend to work in the U.S. if asked and you do not have a visa that allows you to legally work in the U.S.
Now what does Larry do?
Larry had to leave on a plane that day to return to his country of citizenship and never was able to visit with Bob or Bob’s family.
Larry and Bob come from a family that always helps each other whenever asked, so neither man saw anything wrong with Larry helping Bob if Bob needed help at his store
Through the interview, the CBP officer was able to get Larry to admit that he would perform the same type of work that is typical for a convenience store employee to perform (move / unpack boxes, stock shelves, run the cashier), so the CBP officer had a reasonable belief that Larry intended to visit Bob AND work in Bob’s store.
Larry was unaware of anything that he had to prove at the time of his entry (such as that he was ONLY there to visit and NOT to work) or questions that he would be asked regarding his nonimmigrant intent; if he had been aware, then he would have clarified his answers and understood that he could not perform any “work” in the U.S.
Nonimmigrant Visa Waivers
A Foreign National (FN) can have an approved benefit petition for a visa but still be deemed inadmissible to the U.S.
Inadmissible means the inability to demonstrate eligibility for lawful entry into the U.S., either abroad, at the border, or during an application to adjust status to a permanent resident, because of a failure to meet the criteria of one or more grounds listed in section 212a of the Immigration & Nationality Act (INA).
Not every ground of inadmissibility is eligible for a waiver.
For example, NO waiver of inadmissibility for drug trafficking or terrorism
If not eligible for inadmissibility waiver, then explore nonimmigrant waiver
When deciding whether to grant a nonimmigrant visa waiver, the embassy or consulate will consider:
Risk of harm in admitting the FN,
Serious nature of acts that caused the inadmissibility issue, AND
Importance of the FN’s reason for seeking entry to the U.S.
Obtaining a Nonimmigrant Visa Stamp
FNs must check the specific requirements and procedures in the country where the individual will be submitting the visa application.
Should check website for the Embassy for detailed instructions
Usually visa applicants between the ages of 14-79 must appear in person
Sometimes appearance for a 2nd or subsequent visa application is waived
Different visas have different requirements
Student visa requires school where students will study to accept them and produce document to show future enrollment
Work visas require USCIS approval of U.S. employer sponsor’s filed petition for the nonimmigrant worker who is seeking the work visa
All nonimmigrant visa applicants MUST complete Form DS-160, Online Nonimmigrant Visa Application, which is used for all nonimmigrant classifications
Recent Changes to Form DS-160
Both Immigrant Visa Applications and Nonimmigrant Visa Applications were revised in 2017 so that the applicant must disclose information regarding his/her social media use.
FN’s must disclose all social media accounts used within the past 5 years by providing usernames and handles, but not passwords
Dishonesty / fraud on any immigration application subjects the applicant to the possibility of future allegations by the U.S. government of inadmissibility and/or ineligibility for other immigration benefits
Rationale for this change was to promote security / safety U.S.
Those who are applying for entry under the Visa Waiver Program (VWP) are exempt from this because they do not need to apply for a visa for entry; thus, they don’t need to submit or complete Form DS-160
Visa Fees & Reciprocity
When the DS-160 is submitted, then the FN will be directed to a country specific website where they will have to pay a visa application fee.
Each visa carries a different price, and in some cases, additional fees are applied depending on visa type and nationality of applicant. These additional fees are reciprocity fees.
A consular officer is not bound to follow reciprocity schedules when deciding for how long a visa should be valid or the number of entries to the U.S. it should permit
If a consular officer suspects that a FN may engage in activities not allowed under their visa classification, then they can shorten the length that it is granted for
Effect: This discretion leads to inconsistent exercises of discretion between consular officers, as well as varying between embassies.
Final Step of Visa Process
FN appears at the US embassy or consular office for the visa application interview.
Evidence in support of the visa application is usually submitted at the interview.
FN must be aware of the types of evidence needed for the classification sought
Best for FN to submit as much evidence as possible
If Consular Officer reviews and believes that FN has met all criteria, then a visa sticker will be placed inside the FN’s passport
Remember that the FN will still have to convince the USCBP officer at the port of entry where the FN presents himself of eligibility to entry the US
Changing or Extending Nonimmigrant Status
(not employment related)
Once FN has arrived inside the US, it is possible for FN to extend the length of nonimmigrant status or change nonimmigrant categories, as long as FN did NOT enter under the visa waiver program
Overstaying without approval will always require FN to report the violation on future immigration benefit applications
Form I-539 Application to Extend / Change Nonimmigrant Status would be filed by the FN with USCIS to request the extension or change
No interview process for decision on I-539 application
Application should be timely submitted, meaning it is filed & received by USCIS before status expires
MUST submit all required evidence to support extension or change request
Additional filing fee of $455 paid to USCIS with application
TODAY: 90 DAY RULE
As of 2017, there is a presumption of willful misrepresentation for any FN whose conduct within 90 days of entry was inconsistent with the original visa category granted. After 90 days, there is no presumption but officer could seek to deny or revoke visa if there is direct or circumstantial evidence to support “reason to believe” misrepresentation occurred.
30/60 DAY RULE
Prior to 2017, US Department of State presumed misrepresentation of nonimmigrant intent if any of these occurred within 30 days (rebuttable presumption if any of these occurred between 30 – 60 days after entry):
Actively seeking or engaging in unauthorized employment
Marrying or taking up permanent residence
Enrolling in a full course of academic study without status change
Any other activity where a status change should have first been acquired
Nunc Pro Tunc
Latin term that literally means “now for then”
“Nunc pro tunc” basically amounts to a request for forgiveness
Nonimmigrants can file late I-539 Applications with a “nunc pro tunc” request to show that the delay was due to circumstances beyond the FN’s control
Factors USCIS considers with nunc pro tunc filings:
Delay was due to extraordinary circumstances beyond the control of applicant or petitioner AND USCIS finds delay commensurate with the circumstances
FN has not otherwise violated nonimmigrant status
FN remains a bond fides nonimmigrant
FN is not subject to removal procedures
Modern Day I-539 Nunc Pro Tunc Example
My phone was ringing off the hook with FNs calls stating that they had plane tickets to leave the U.S. during spring 2020, but their flights were canceled due to COVID-19, which prevented them from timely departing the U.S. All were advised to file I-539 Applications and submit evidence of intent to timely depart (copy of plane ticket, travel itinerary, email canceling flight) and a request to accept late filed I-539 due to circumstances outside of their control (the COVID-19 pandemic). Many didn’t even know that filing an I-539 application existed as an option to extend their status. I’m happy to report that I have not heard of any I-539 applications denied when submitted for the above reasons and with proper evidence.
Change/Extend Nonimmigrant Status with employment benefit
Typically if FN is seeking a benefit that provides an automatic grant of employment authorization then a petitioner (the US employer) will file a Form I-129 Petition for Nonimmigrant Worker on behalf of the FN
Examples of when to use I-129 petition include changing from:
student status to professional specialty worker
Extending status when transfer of manager from foreign branch office to branch located inside of U.S.
Different from examples of when to use I-539 which include visitor extending stay in the US to engage in additional tourism or changing status to attend college as a student
I-129 Petition has different filing fee ($460) and evidence requirements than I-539 Application
Unlawful Presence: present in U.S. without permission or beyond admission period granted
Unlawfully present Between 180 days but less than 1 year
FN who voluntarily leaves the U.S. during this time period will be barred (prevented) from reentry into the US for three (3) years
One year or more
FN who voluntarily leaves the U.S. during this time period will be barred (prevented) from reentry into the US for ten (10) years
FN who overstays visa admission date by less than 180 days is not automatically barred from reentry into U.S., but FN must disclose this unlawful presence, which the US government may consider in deciding future immigration benefits or visa requests.
Sources of Law
Title 8 of the Code of Federal Regulations sets forth regulatory sections for adjudication of nonimmigrant visa classification by USCIS
Title 20 of the Code of Federal Regulations addressed employment of FN in the US and often requires the involvement of the Department of Labor (DOL)
Department of Foreign Affairs Manual (FAM): Statutory authority detailing the Department of State’s (DOS) regulations and policies on its organizational structure and operations; handbook for consular officers deciding visas.
Frequently cited because consular officers are trained using the FAM
Case law does NOT play a role in nonimmigrant visa applications decided abroad because there is no appeal process
Doctrine of Consular Nonreviewability
Doctrine that a decision is final and cannot be appealed.
No appeals means there is NO review of the denial or reasons for it.
New application may be submitted after denial and can serve as a quasi-appeal if it contains additional evidence and arguments why the grant of the visa is appropriate.
Temporary Visitors to the US for Business (B1) and Pleasure (B2)
B visa classification permits entry for a number of varied purposes, such as
Attend business meetings
Go to a conference
Vacation in the U.S.
Does NOT allow for a FN to conduct Productive Work
May not engage in duties or activities that would normally be performed by a U.S. worker and/or activities that result in financial gain for the U.S. employee
If B1 conducts productive work, it could result in future inadmissibility and fines against US employer
Think for this as a Bystander visa
Criteria for B visitor status
B visa applicants must convince consular officer that they:
Have a residence in a foreign country which they do not intend to abandon,
Note: this does NOT mean “own a home”
Showing nonimmigrant intent (meaning an intent to return home) can be the most difficult element to prove
Intend to enter US for a period of limited duration, AND
Seek admission for the sole purpose of engaging in legitimate activities relating to business or pleasure
Best evidence to include to demonstrate nonimmigrant intent:
Letter from individual’s employer
Evidence of existence of a business, for those who are self employed
Proof of property or land ownership in country
Evidence of family members that the FN will return to following a visit to the US
Common Reasons for B2 Visitor for Pleasure:
Tourism or family visits
Seek medical treatment
Participating in social event
Short courses of study
Performing as an amateur where no compensation provided
Co-habituating partners of FNs who are present in other nonimmigrant visa classifications
Foreign Affairs Manual Prohibits following activities as valid reasons to enter as visitor:
Participate in a course of long term study
Perform work that would be considered gainful employment
Engage in paid performances or any professional performance before a paying audience
Work as a foreign press, radio, or film journalist
There are other classifications that allow FNs to engage in the above, which is why it is so important to apply for the correct nonimmigrant visa category. Applying for the wrong category could result in a denial!
B1 / B2 CHECKLIST
typical applications include:
Form DS-160 Online Nonimmigrant Visa Application
Receipt of payment of filing fee
Proof of valid visitor visa purpose of travel to the US (invitation letter)
Proof of funds to cover the trip
Itinerary outlining the activities associated with the trip if it is for a business purpose
Studying in the U.S.
F-1 Student Visa vs.
Allows FN to enroll in academic or language studies in the U.S.
May attend private primary, secondary, or public or private post-secondary school verified by DOS as authorized to support international students
Must be accepted at approved institute taking fulltime course load of at least 12 credit hours
Must possess nonimmigrant intent
M-1 Student Visa
Allows FM to pursue vocational education in the U.S., such as trade school
Similar to F-1 visa in terms of requirements
Must be accepted at approved institute taking fulltime course load of at least 12 credit hours
Must possess nonimmigrant intent
Studying in the U.S.
Step 1. Be admitted to US school
US educational institution must accept FN first before F-1 or M-1 visa application is submitted
Institution MUST provide FN with evidence of admission to school on Form I-20, Certificate of Eligibility for Nonimmigrant Student Status
Functions like approval notice and provides strong evidence of visa eligibility
School must be on the list of approved schools issued by the Student and Exchange Visitor Program (SEVP), which is a branch of USICE
Each school has a Designated School Official (DSO) who is a designated employee of an education institution that is charged with assisting FN students through the visa application process
Studying in the U.S.
Step 2. Consular Processing
FN must submit Form DS-160 and any additional evidence required
Evidence of prior education
Proof of intent to depart U.S. at end of course of study
Proof of funds to pay costs of the travel, tuition, room, & board
Pay visa processing fee
Attend interview at the consulate
Studying in the U.S.
Duration of Status
F-1 & M-1 Students are admitted for duration of status
Duration of Status: admission to the U.S. for an unspecified duration so long as underlying nonimmigrant status is maintained
Meaning that as long as student is pursuing a fulltime course of study and has up to date records in SEVIS, then s/he can continue to remain in the U.S.
Once course of study is completed & FN no longer possess valid I-20, s/he provided additional grace period of additional time to remain in valid status to prepare to leave the U.S.
F-1 students get 60 days grace period
M-1 students get 30 days grace period
Possible to stay longer if they change visa classifications or obtain employment authorization through Optional Practical Training (OPT)
Studying in the U.S.
Employment Eligibility
On-Campus Employment
Automatically available to all FN from the date that course of study begins for up to 20 hours per week
When school is not in session, F-1 students can work up to 40 hours per week
No separate petition to USCIS is needed for students to get this type of work
Off-Campus Employment
Only available after 1st academic year
Only allowed up to 20 hours per week
Must demonstrate of severe economic necessity by FN that was unforeseen at the time of visa interview (for example death of benefactor, medical bills, rapid currency exchange devaluation rates, or similar events)
Must file I-765 Application for Employment Authorization in order obtain
Employment Authorization Document
A document issued by the USCIS that confirms the ability of a Foreign National (FN) to work in the United States
F-1 SCurricular Practical Training
vs. Optional Practical Training
CPT vs.
Temporary grant of employment authorization that occurs while student is completing degree
Must be directly associated with major or primary course of study
Encourages industry experience through internships to give real world experience
EAD card is NOT necessary and is granted by DSO annotating I-20 accordingly
OPT
Can occur while student is completing degree or post-completion
In general students get 12 months of OPT and any pre-completion OPT is subtracted from the 12 months permitted
If STEM degree then may get 36 months OPT
Must file I-765 to get EAD card and prohibited from beginning employment until EAD card is issued
M-1 Students and Employment
M-1 vocational students are only eligible for employment considered practical training related to field of study that takes place AFTER student’s graduation.
Maximum employment period for M-1 is 6 months
Must file I-765 with USCIS to get employment authorization no later than the date of completion of the program
May not begin until USCIS approves I-765 application and grants EAD card
EMPLOYMENT-BASED AND SELF-SPONSORED IMMIGRATION
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1
I-94 Card
Date of Arrival
Date Authorized Stay Expires
Manner of Entry (Visa Class)
Governs ability to stay in the U.S.
May 17, 2012
Nov. 16, 2012
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Two Arms of Employment-Based Immigration Law:
Nonimmigrant
Immigrant
F
H-1B
O
TN
EB-1
EB-2
EB-3
E-3
J
Professional
Training
Temp. Visas
B
R
EB-5
H-2B
Misc.
U
T
L
H-3
EB-4
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Immigrant Visas: the “Green Card”
For foreign nationals who intend to reside permanently in the United States
Obtained through employment or family
Most categories are subject to quotas and the Visa Bulletin
(http://travel.state.gov/visa/bulletin/bulletin_1360.html)
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General Process for Obtaining a “Green Card”: LPR Status Through Employment
Foreign national obtains Nonimmigrant Working Visa
Employer files PERM Application with the U.S. Department of Labor
Employer files I-140 Immigrant Petition
with U.S. Citizenship & Immigration Services (“USCIS”)
If the foreign national is within the U.S., the foreign national files I-485 Application to Adjust Status with USCIS
(If outside the U.S., the foreign national must use Consular Process)
Requires current “Priority Date” and may take years -– many years ---
after approval of I-140 Petition!
Foreign national secures “Green Card” - Lawful Permanent Resident status (“LPR”)
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Employment-Based Choices
Options NOT requiring PERM or any recruitment
EB1: File I-140 Petition for:
Extraordinary Ability Foreign Nationals (8 C.F.R. §204.5(h))
Outstanding Researchers / Professors (8 C.F.R. §204.5(i))
EB2: File I-140 Petition for:
National Interest Waiver (8 C.F.R. §204.5(k)(4)(ii))
See also: In re New York State Department of Transportation, 22 I.&N. Dec. 215 (1998)
Schedule A Group II:
Scientists of Exceptional Ability (20 C.F.R. §656.5(b))
Options requiring PERM or any recruitment
EB2: Foreign National with Advanced Degree & Offered Position requiring same (8 C.F.R. §204.5(k))
EB3: Foreign National with Bachelor’s Degree, Associate’s Degree, or two years of experience & Offered Position requiring same
(8 C.F.R. §204.5(l))
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What is a “Priority Date”?
Review: The “Priority Date” is the cutoff date that determines a given individual’s eligibility to seek permanent resident status, based upon the numerical quota for that particular category
For family-based cases, the Priority Date is the filing date of the Immigrant Visa Petition (Form I-130).
For employment-based cases, the Priority Date is the filing date of either the PERM application (with the U.S. DOL) or the I-140 Immigrant Petition (with USCIS), depending upon the classification sought.
If the Priority Date is before the date listed in current U.S. Department of State Visa Bulletin, the foreign national is eligible to “Adjust Status” (if in U.S.) or process an immigrant visa abroad (“Consular Processing”).
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Excerpts from Visa Bulletin July 2015
Employment- Based All Chargeability Areas Except Those Listed CHINA: Mainland- born INDIA MEXICO PHILIPPINES
1st C C C C C
2nd C 01OCT13 01OCT08 C C
3rd 01APR15 01SEP11 01FEB04 01APR15 U
Other Workers 01APR15 01JAN06 01FEB04 01APR15 U
4th C C C C C
Certain Religious Workers C C C C C
5th
Targeted
Employment Areas/
Regional Centers
and Pilot Programs C 01SEP13 C C C
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The “Green Card” Three-Step Dance
Depending on the Employment Based route that is pursued and if the foreign national is impacted by retrogression, this is either a 1, 2 or 3 step process:
Step 1: The employer files the “PERM” application with the United States Department of Labor(“DOL”) (if PERM is required).
If no retrogression, can file steps 2 & 3 at the same time.
Step 2: The employer files the I-140 Immigrant Petition with the United States Citizenship and Immigration Service (“USCIS”).
Step 3: The foreign national files his/her and his/her family’s I-485 Applications for Permanent Residence, I-765 Application for Employment Authorization, and I-131 Application for Advance Parole directly with the U.S.C.I.S.
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EB-1 Foreign Nationals of Extraordinary Ability
8 C.F.R. §204.5(h)
Comments:
If no visa retrogression – 1 step process
PERM Application Step NOT required
Foreign national can self-petition
Beware of Kazarian v. USCIS, 596 F.3d 1115, C.A. 9 (Cal.) March 4, 2010 (No. 07-56774)
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EB-1 Foreign Nationals of Extraordinary Ability
8 C.F.R. §204.5(h)
Threshold requirements:
(i) Foreign national who seeks to enter the United States in the sciences, education, business or athletics fields: demonstrated by sustained national or international acclaim & achievements have been recognized in the field through extensive documentation;
(ii) Foreign national seeks to enter the United States to continue work in the area of extraordinary ability; and
(iii) Foreign national entry to the United States will substantially benefit prospectively the United States.
Note: Can be used for “rising stars” although intended for one of the small percentage who have risen to the very top of their field of endeavor.
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EB-1 Foreign Nationals of Extraordinary Ability
8 C.F.R. §204.5(h)(3) Proving National and/or International Acclaim
Regulatory requirements: Foreign national must provide evidence of a one-time achievement (that is, a major, internationally recognized award such as an Oscar/Nobel Prize) or at least three of the following ten:
1. Receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
2. Membership in associations in the field, which require outstanding achievements of their members, as judged by recognized experts;
3. Published material about the FN in professional or major trade publications;
4. Participation, either individually or on a panel as a judge of the work of others in the same or allied field;
5. Original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field (use testimonial letters);
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EB-1 Foreign Nationals of Extraordinary Ability
8 C.F.R. §204.5(h)(3) Proving National and/or International Acclaim
6. Authorship of scholarly articles in the field, in professional or major trade publications or other major media;
7. Work in the field at artistic exhibitions or showcases;
8. Performance in a leading or critical role for organizations or establishments that have a distinguished reputation;
9. Command of a high salary or other significantly high remuneration for services, in relation to others in the field; or
10. Commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales.
PLUS, pursuant to Kazarian, the foreign national must also survive a final “merits determination.”
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EB-1 Outstanding Researcher/Professor
8 CFR §204.5(i)
Comments:
If no visa retrogression - 1 step process
PERM Application Step NOT required
HOWEVER: Cannot Self-Petition
Employment must either be for university/medical school (tenure track) teacher or permanent researcher with such institutions OR in a department/ division of private employer where there are at least 3 full time researchers
Cannot be used for post-docs
Beware of Kazarian v. USCIS, 596 F.3d 1115, C.A. 9 (Cal.) March 4, 2010 (No. 07-56774)
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EB-1 Outstanding Researcher/Professor
8 CFR §204.5(i)
Requirements: Researcher/Professor, recognized internationally as outstanding in field. Evidence consists of at least 2 of following:
Receipt of major prizes or awards for outstanding achievement in the academic field;
Membership in associations which require outstanding achievements;
Published material about the FN’s work in professional or major trade publications;
Participation as editor/judge of work of others;
Original scientific contributions of major significance in the field; and/or
Authorship of scholarly books/ articles in field (in scholarly journals with international circulation; and
At least three years of experience in teaching and/or research in academic field.
PLUS, pursuant to Kazarian, the Foreign National must also survive a final “merits determination.”
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EB-2 National Interest Waiver
8 C.F.R. §204.5(k)(4)(ii)
In re New York State Department of Transportation, 22 I.&N. Dec. 215 (1998)
Requirements:
Research position:
Work is in an area of substantial intrinsic merit;
The benefits of the work is national in scope; and
The foreign national’s employment serves the national interest substantially more than would an available U.S. worker.
Physician in HPSA or MUA area:
Need full-time employment contract (or evidence of private practice);
Need letter from federal agency or state’s Dept. of Public Health attesting that work is or will be in the public interest; and
Must work in qualifying position for at least 5 years from approval date of Form I-140
Comments:
- PERM not required
Foreign national can self-petition
Difficult and very discretionary
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EB-2 & EB-3 PERM
8 C.F.R. §§204.5(k)(l)
Requirements:
EB-2: Aliens who are members of the professions holding advanced degrees or aliens of exceptional ability
A United States baccalaureate degree or a foreign equivalent degree followed by at least five years of progressive experience in the specialty shall be considered the equivalent of a masters degree.
EB-3: Skilled workers, professionals
Professional means a qualified foreign national who holds at least a United States baccalaureate degree or a foreign equivalent degree and who is a member of the profession.
Skilled worker means a foreign national who is capable, of performing skilled labor (requiring at least two years training or experience).
Comments:
Most widely used categories for obtaining permanent residency
Indian and Chinese clients will push for EB-2 instead of EB-3 filing (because of severe retrogression)
Remember: it is the standard requirements for the job with the petitioning employer that controls, assuming the foreign national possesses the required qualifications
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(EB-2) PERM Via Special Recruitment – Faculty
20 CFR §656.18
Requirements:
Only “some” classroom teaching is required;
Need to prove university pursued (normal) competitive recruitment & selection process;
Application must be filed within 18 months of foreign national’s selection; and
Recruitment must (only) include one journal ad plus “normal recruitment.”
Comments:
Perfect process where recruitment was appropriately conducted
Hard to get denial unless deadlines are missed
Less expensive advertising than PERM
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Schedule A, Group II
20 CFR §656.5(b)
Requirements (for scientists):
1) During past year, work must have been in area of exceptional ability;
2) Must intend to practice the “same science”; and
3) Must establish “widespread acclaim and international recognition” per two of the six qualifiers listed under outstanding researcher.
Note: Similar processing requirements for Schedule A Group I occupations (i.e. Registered Nurses, PTs)
Comments:
PERM Application (Labor Certification) not required to be submitted to the DOL (submit ETA 9089 directly to USCIS)
NO LONGER A SEPARATE CATEGORY
- Employer must be Petitioner
Don’t Forget Posting Notice
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Other Employment Based Immigrant Visas
Other workers: Unskilled Labor
8 C.F.R. §204.5(l)
Requires PERM labor certification; for jobs that require less than two years experience/training
Fourth Preference: Special Immigrants/Religious Workers
8 C.F.R. §204.5(m)
Limited to 10,000 immigrant visas per year and is rarely subject to retrogression. To qualify, a foreign religious worker/special immigrant must have been a member of a religious denomination having a bona fide nonprofit, religious organization in the United States for at least two years.
Fifth Preference: Employment Creation-Investors
8 C.F.R. §204.6
This category is available to the self-employed who are willing to create a business in which they have invested at least $1 million (or $500,000 if in “targeted” areas), which business will employ at least 10 United States citizens and/or Lawful Permanent Resident workers unrelated to the owner.
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“EB-5” Immigrant Investor Option:
Job Creation Through Investing in the U.S.
Purpose: To obtain a green card either via “regular” investment or via a “regional center”
Visa category: EB-5
Key Points:
10,000 Investor Visas are available each year:
In FY 2011, 1,563 I-526 petitions were approved
5,000 visas are set aside for Regular Investors
Up to 5,000 visas are set aside for certified Regional Center Investors
Increasingly being used as an immigration vehicle
There are approximately 190 certified Regional Centers in the U.S. and new ones are being created every day.
BEWARE: Investigate Regional Centers carefully! Due diligence is key.
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Pursuing the EB-5 Visa as a Regular Investor: Six Requirements
The investor must invest:
$500,000 if in a targeted employment area (TEA)
$1,000,000 if not in a TEA
The investor must invest in a new commercial enterprise:
Establish a new business;
Restructure/reorganize an existing business; OR
Expand an existing business or invest in a troubled business and retain all existing jobs.
The investor’s capital must be placed at risk.
The investor’s capital must be obtained through lawful means.
The investor’s new commercial enterprise must create at least 10 full-time positions for U.S. workers and thereby benefit the U.S. economy.
The investor must manage the enterprise OR be involved in policy decisions.
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Diversity Lottery
The Immigration and Nationality Act provides a maximum of up to 55,000 immigrant visas each fiscal year to permit immigration opportunities for persons from countries other than the principal sources of current immigration to the United States.
Entries for the DV-2014 Diversity Visa lottery began on October 2, 2012.
Applicants may access the electronic Diversity Visa entry form at:
www.dvlottery.state.gov during the registration period.
Must have the equivalent of a U.S. high school degree or two years specialized
work-related training.
If subject to Immigration “bars” individual is NOT eligible.
(There is no waiver for DV cases.)
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Adjustment of Status vs. Consular Processing
Adjustment of Status:
Adjustment of status is the process by which individuals who are already in the United States obtain Permanent Resident Status (get a “Green Card”) after completing certain steps in the immigration process.
Consular Processing:
Immigrant Visa (IV) processing abroad (Consular Processing) is a process by which an individual with an approved Immigrant Petition and Priority Date may apply at a U.S. embassy or consulate abroad for issuance of an Immigrant Visa.
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© Copyright 2016 Wolters Kluwer
Chapter 11
Citizenship and Naturalization
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Born in the U.S. or outlying possessions, INA § 301(a)
Deriving citizenship from a parent after birth, INA § 320
Acquiring citizenship at birth, INA §§ 301 (c)-(h)
Section 322 Citizenship, INA §
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Achieving Citizenship in the U.S.
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Right to vote
Right to hold office
Eligibility for certain government jobs
Citizens can’t be deported
Sponsor relatives
Eligibility for public benefits
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Benefits of Citizenship
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Holder of U.S. Passport
Always permitted to return to U.S.
Will transmit citizenship to natural-born children
Denaturalization requires Federal District Court Proceeding
Protection/help from U.S. embassy if abroad
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Benefits of Citizenship
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U.S Citizenship and Immigration Service (USCIS) will review applicant’s entire immigration record
If there are past immigration violations or criminal history, individual may be at risk of being placed into removal proceedings
Anxiety about studying for the test
Losing benefits from home country, such as pensions or property rights
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Disadvantages of Applying for Citizenship
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18 years of age
Lawful permanent resident (LPR) for
Five years
Three years if applicant living in marital union with U.S. citizen
Known as the statutory period; special exceptions for members of the military
Be physically and continuously present in the U.S. as required
Be a person of good moral character
Understand English, be able to read and write English, and understand U.S. history and civics
Be willing to sign an Oath of Allegiance to the U.S.
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Qualifications for U.S. Citizenship
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Individuals who become lawful permanent residents in any capacity and are married to a U.S. citizen can naturalize in three years, if married to the U.S. citizen throughout that period and at the time of the interview.
All other individuals (except for members of the military) can apply after being an LPR for five years.
Applicants can apply 90 days before their three or five year anniversary date.
Member of the military who served honorably for one year (or periods aggregating one year) and apply within six months of honorable discharge, can apply for naturalization after one year. INA § 328
Members who served honorably in active duty for any time period (even one day) during a period of “Active Hostilities,” which includes September 11, 2001, until the present:
Can file for naturalization immediately
no need to be 18 years of age
no need to be a lawful permanent resident
INA § 329
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Must Be an LPR for Three or Five Years Unless a Member of the Military
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Must be physically present in the U.S. for 50\% of the statutory period: either 18 months or 30 months
Must not have disrupted “continuous presence”
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Physical and Continuous Presence
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Trips outside the U.S. for six months or more raise a rebuttable presumption continuous presence has been disrupted. Applicants may also face issue of “abandonment” of lawful permanent residency.
Showing ties to U.S., emergency nature of stay, and intent to make U.S. applicant’s home can rebut presumption.
Trips of one year or more (with exceptions for those employed by U.S. government) will disrupt residency. Applicants must wait either two years and one day or four years and one day after the date of return to apply.
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Physical and Continuous Presence
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Drug abuser or addict, if USCIS has reason to believe applicant is a drug trafficker
Engaging in prostitution, commercialized vice
Engaging in illegal gambling
On probation or parole: must successfully complete probation or parole to apply
Violation of a protection from abuse order
Immigration violations: obtaining LPR status through fraud; helping a person enter the U.S. illegally
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Good Moral Character and Potential Bars to Citizenship
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Payment of taxes
Payment of child support
Males between the age of 18 and 26 registering for Selective Service (also a loyalty issue)
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Good Moral Character
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Security Concerns: Applicant was associated with a totalitarian or terrorist organization, unless under duress in certain circumstances
Applicant was “habitual drunkard”: DUIs can be used as evidence
Applicant came to U.S. to practice polygamy
Applicant has registered to vote
Applicant voted
Applicant falsely claimed to be a U.S. citizen (job/school application)
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Other Issues
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Offense Citation Description
One or More CIMTs 8 CFR 316.10(b)(2)(i), (iv)
INA 101(f)(3) Conviction or admission of one or more CIMTs (other than political offense), except for one petty offense
Aggregate Sentence of Five Yrs or More 8 CFR 316.10(b)(2)(ii), (iv)8 CFR 316.10(b)(2)(ii), (iv) INA 101(f)(3) Conviction of two or more offenses with combined sentence of five years or more (other than political offense)
Controlled Substance Violation 8 CFR 316.10(b)(2)(iii), (iv)8 CFR 316.10(b)(2)(iii), (iv) INA 101(f)(3) Violation of any law on controlled substances, except for simple possession of 30g or less of marijuana
Incarceration for 180 Days 8 CFR 316.10(b)(2)(v)
INA 101(f)(7) Incarceration for a total period of 180 days or more, except political offense and ensuing confinement abroad
False Testimony under Oath 8 CFR 316.10(b)(2)(vi)
INA 101(f)(6) False testimony for the purpose of obtaining any immigration benefit
Conditional Bars to GMC for Acts Committed in Statutory Period
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Prostitution Offenses 8 CFR 316.10(b)(2)(vii)
INA 101(f)(3) Engaged in prostitution, attempted or procured to import prostitution, or received proceeds from prostitution
Smuggling of a Person 8 CFR 316.10(b)(2)(viii)
INA 101(f)(3) Involved in smuggling of a person to enter or try to enter the United States in violation of law
Polygamy 8 CFR 316.10(b)(2)(ix)
INA 101(f)(3) Practiced or is practicing polygamy (the custom of having more than one spouse at the same time)
Gambling Offenses 8 CFR 316.10(b)(2)(x)–(xi)
INA 101(f)(4)–(5) Two or more gambling offenses or derives income principally from illegal gambling activities
Habitual Drunkard 8 CFR 316.10(b)(2)(xii)
INA 101(f)(1) Is or was a habitual drunkard
Failure to Support Dependents 8 CFR 316.10(b)(3)(i)
INA 101(f) Willful failure or refusal to support dependents, unless extenuating circumstances are established
Adultery 8 CFR 316.10(b)(3)(ii)
INA 101(f) Extramarital affair tending to destroy existing marriage, unless extenuating circumstances are established
Unlawful Acts 8 CFR 316.10(b)(3)(iii)8 CFR 316.10(b)(3)(iii) INA 101(f) Unlawful act that adversely reflect upon GMC, unless extenuating circumstances are established
Conditional Bars to GMC for Acts Committed in Statutory Period
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Applicants who commit two crimes of moral turpitude may be subject to removal if they apply for citizenship. Applicants must obtain court certified records regarding any convictions.
All past interactions with police should be evaluated even if no conviction resulted. Individuals who received sentencing diversion programs should show completion of the program.
Individuals on probation or parole cannot naturalize until their probation or parole is completed. A record showing completion must be submitted.
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Special Concern: Past Criminal Acts
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Committing murder or being convicted of an aggravated felony is a bar to citizenship. Persons with such histories who apply are likely to be placed in removal proceedings.
Voting
Military deserter
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Bars to Citizenship
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Comprehension testing during the interview when the Adjudication Officer asks the applicant about their application.
Applicants must read and write one to three sentences in English.
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Understanding English and Civics
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Applicants must answer six out of ten randomly selected questions concerning U.S. history and civics. The questions are chosen from a USCIS published list of 100 questions.
https://www.uscis.gov/sites/default/files/USCIS/Office\%20of\%20Citizenship/Citizenship\%20Resource\%20Center\%20Site/Publications/100q.pdf.
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Understanding English and Civics
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Those who have been LPRs for 20 years and are over 50 can take the civics/history test in their own language.
The same rule applies for those who have been LPRs for 15 years and are over 55.
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Waivers and Accommodations
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Those over 65 who have been an LPR for 20 years or more need only study 20 of the 100 questions and will must get 6/10 correct.
https://www.uscis.gov/sites/default/files/USCIS/Office of Citizenship/Citizenship Resource Center
Site/Publications/PDFs/65-20q.pdf.
ADA accommodations must be available.
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Waivers and Accommodations
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Individuals with mental or physical disabilities that prevent them from learning English and/or civics can apply for a waiver.
A nexus between the disability and the inability to learn English must be established by a medical doctor or licensed psychologist through completing Form N-648, Medical Certification for Disability Exceptions.
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Waiver of the English Language AND Civics/History Exam
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The fee to apply for naturalization is available on www.uscis.gov.
Fee waivers are available for those earning 150\% of the poverty level or below.
Requested on Form I-912, Request for Fee Waiver.
Supporting documentation is required.
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Fee Waivers
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Completed Form N-400, Application for Naturalization
G-28, Notice of Entry of Appearance as Attorney or Accredited Representative
Two passport photos
Front and back of “green card”
Fee: Money order or Check to Department of Homeland Security
OR
Form I-912, Request for Fee Waiver
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N-400 Package
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Application is sent to Arizona or Texas Service Center, depending on residence.
Applicant receives receipt and then an appointment notice for biometrics.
After biometrics are taken, applicant will be scheduled for an interview.
If the applicant passes the interview, s/he will be scheduled for a citizenship ceremony.
Applicant can request his/her name be legally changed at the interview and must attend special oath swearing ceremony before District Court Judge.
Applicant is a U.S. citizen after the oath ceremony.
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Process
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Approved and scheduled for an Oath Ceremony
Rescheduled for English or History Test
(2 chances)
Additional Information may be requested
Supervisor review (criminal or immigration issues)
If application is denied, applicant can file Form N-336, Request for Hearing on Decision in Naturalization Proceedings, within 30 days. Often more efficient to refile an N-400 Naturalization application.
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Interview Results
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Law since 2/27/2001 (Child Citizenship Act)
Child must be under 18 years old
Child must be an LPR
One parent must be a U.S. citizen by birth or naturalization
Child must reside in the physical and legal custody of the U.S.-citizen parent
All requirements must be met
For children born in 1983 (over 18 by 2001), the nationality chart (Fig. 11.2) must be used to determine if child derived citizenship
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Derivative Citizenship
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PERIOD IN WHICH LAST ACTION TOOK PLACE
CHILD BECAME AN LPR BEFORE STATUTORY AGE OF:
NATURALIZATION OF
PARENT(S) PRIOR TO CHILD’S STATUTORY AGE
ADDITIONAL REMARKS
Prior To
May 24, 1934
Age 21
At least one parent naturalized
None
On or After
May 24, 1934
and Prior To
Jan. 13, 1941 Age 21
Age 21 At least one parent naturalized
Both Parents Naturalized U.S. citizenship effective 5 years from date child becomes an LPR
None
On or After
Jan. 13, 1941
and Prior To
Dec. 24, 1952 Age 18 Both Parents Naturalized
Child Born out of Wedlock derived on 12/14/52 if under age 16 and had remained an LPR
Nationality Chart 3: Figure 11.2
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PERIOD IN WHICH LAST ACTION TOOK PLACE
CHILD BECAME AN LPR BEFORE STATUTORY AGE OF:
NATURALIZATION OF
PARENT(S) PRIOR TO CHILD’S STATUTORY AGE
ADDITIONAL REMARKS
On or after
Dec. 24, 1952
and Prior To
Oct. 5, 1978
Age 18
Both parents naturalized
Child unmarried
On or After
Oct. 5, 1978
and Prior To
Feb. 27, 2001 Age 18
Both Parents Naturalized Child unmarried (includes child adopted before age 16 who is residing with adoptive parent(s) at time of their naturalization
On or After
Feb. 27, 2001
Age 18 At least one parent is a USC by birth or naturalization
Child resides in U.S. in legal and physical custody of USC parent (includes adopted child of USC ; must meet INA 101(b)(1) requirements for adopted children)
Nationality Chart 3: Figure 11.2
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Form N-600, Application for Certificate of Citizenship
Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative
Two passport-style photos
Fee or Form I-912, Request for Fee Waiver
Birth certificate of applicant or other document showing relationship to U.S.-citizen parent(s)
Proof of LPR status of child
Proof of applicant’s parent(s) citizenship
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Derivative Citizenship: Compiling the Application
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Whether the applicant was born in or out of wedlock
The applicant’s date of birth
Whether one or both parents were U.S. citizens at the time of the applicant’s birth
The length of time the U.S.-citizen parent(s) resided in the U.S.
In certain cases, whether the applicant met certain residency requirements in the U.S. in order to retain citizenship
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Acquisition of Citizenship:
Five Factors to Consider
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There are different standards for children born to mothers, as opposed to fathers, if the parents are not married.
Children can acquire citizenship through the U.S.- citizen mother if the mother lived in the U.S. for the required period of time.
Children can only acquire citizenship through U.S.- citizen fathers if fathers legitimize the child and father has met the U.S. residency requirements
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Acquisition of Citizenship
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PERIOD IN WHICH CHILD WAS BORN
STEP 1: Determine period in which child was born
CITIZENSHIP OF PARENTS AT TIME OF CHILD’S BIRTH
STEP 2: Determine parents’ citizenship at time of child’s birth
PARENTS’ RESIDENCE & PHYSICAL PRESENCE PRIOR TO CHILD’S BIRTH
STEP 3: Did USC parent meet residence or physical presence requirement prior to birth? (If Yes, child was a USC at birth)
CHILD’S RETENTION REQUIREMENT
STEP 4: Did child meet retention requirement (if any)? (Child lost citizenship on date it became impossible to meet requirement)
Prior To
May 24, 1934
Either parent a USC
USC parent resided in U.S. Not Applicable
On or After
May 24, 1934
and Prior To
Jan. 13, 1941
Both parents USCs
One USC parent and one alien parent
At least one USC parent resided in U.S.
USC parent resided in U.S.
Not Applicable
** 5 years residence in U.S. or OLP between ages 13 and 21 (must start
before age 16)
OR
** 5 years continuous physical presence in U.S. between ages of 14 and 28 (must start before age 23)
OR
** 2 years continuous physical presence in U.S. between ages of 14 and 28 (must start before age 26)
OR
Exempt, if at time of childs birth, USC parent was employed by U.S. Government or specified organization (Exemption does not apply if parent used a special provision). See Notes 1, 2, 4
NATIONALITY CHART 1, FIGURE 11.3
CHILDREN BORN OUTSIDE U.S. IN WEDLOCK
*
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PERIOD IN WHICH CHILD WAS BORN
STEP 1: Determine period in which child was born
CITIZENSHIP OF PARENTS AT TIME OF CHILD’S BIRTH
STEP 2: Determine parents’ citizenship at time of child’s birth
PARENTS’ RESIDENCE & PHYSICAL PRESENCE PRIOR TO CHILD’S BIRTH
STEP 3: Did USC parent meet residence or physical presence requirement prior to birth? (If Yes, child was a USC at birth)
CHILD’S RETENTION REQUIREMENT
STEP 4: Did child meet retention requirement (if any)? (Child lost citizenship on date it became impossible to meet requirement)
On or After
Jan. 13, 1941
and Prior To
Dec. 24, 1952
One USC parent and one alien parent
USC parent resided in U.S. or OLP for 10 years, at least 5 after age 16
Special provisions for parents with honorable service in U.S. armed forces:
(1) Between 12/7/41 & 12/31/46, 10 years of residence, at least 5 after age 12
(2) Between 1/1/47 & 12/24/52, 10 years of physical presence, at least 5 after age 14.
See Note 3
5 years residence in U.S. or OLP between ages 13 and 21 (must start
before age 16)
OR
5 years continuous physical presence in U.S. between ages of 14 and 28 (must start before age 23)
OR
2 years continuous physical presence in U.S. between ages of 14 and 28 (must start before age 26)
OR
Exempt, if at time of childs birth, USC parent was employed by U.S. Government or specified organization (Exemption does not apply if parent used a special provision). See Notes 1, 2, 4
Both parents USCs
At least one USC parent resided in U.S. or OLP See Note 3
Not Applicable
NATIONALITY CHART 1, FIGURE 11.3
CHILDREN BORN OUTSIDE U.S. IN WEDLOCK
*
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On or After
Dec. 24, 1952
and Prior To Both parents USCs At least one USC parent resided in U.S. or OLP See Note 3 Not Applicable
Nov. 11, 1986
On or After
Dec. 24, 1952
and Prior To
Nov. 11, 1986 One USC parent and one alien parent USC parent physically present in U.S. or OLP 10 years, at least 5 after age 14. See Note 3 Not Applicable
On or After
Nov. 11, 1986 Both parents USCs At least one USC parent resided in U.S. or OLP See Note 3 Not Applicable
On or After
Nov. 11, 1986 One USC parent and one alien parent USC parent physically present in U.S. or OLP 5 years, at least 2 after age 14. See Note 3 Not Applicable
NATIONALITY CHART 1, FIGURE 11.3
CHILDREN BORN OUTSIDE U.S. IN WEDLOCK
*
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PERIOD IN WHICH CHILD WAS BORN
ELIGIBILITY REQUIREMENTS
Prior To
May 24, 1934
The child was born an alien. HOWEVER, the child became a U.S. citizen retroactively to birth on 01/13/41 if the child’s mother resided in the U.S. or OLP prior to the childs birth, UNLESS, the child was legitimated by alien father prior to 1/13/41.
On or After
May 24, 1934
and Prior To
Dec. 24, 1952
Mother resided in U.S. or OLP at any time prior to the childs birth
On or After
Dec. 24, 1952
Mother had at least one year of continuous physical presence in U.S. or OLP at any time prior to childs birth
NATIONALITY CHART 2, FIGURE 11.4
CHILDREN BORN OUTSIDE U.S. OUT OF WEDLOCK
TO U.S.-CITIZEN MOTHER
*
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PERIOD IN WHICH CHILD WAS BORN
ELIGIBILITY REQUIREMENTS
Prior To
May 24, 1934
Child legitimated at any time after birth under laws of fathers domicile; USC father resided in U.S. prior to childs birth; and
No residence required for child to retain U.S. citizenship.
See Nationality Chart 1
On or After
May 24, 1934
and Prior To
Jan. 13, 1941
Child legitimated at any time after birth under laws of fathers domicile; USC father resided in U.S. prior to childs birth; and
Child met retention requirements.
See Nationality Chart 1
On or After
Jan. 13, 1941
and Prior To
Dec. 24, 1952
Child legitimated before age 21 under laws of father’s or child’s domicile; USC parent(s) had the required residence at time of childs birth; and
Child met retention requirements.
See Nationality Chart 1
On or After
Dec. 24, 1952
and Prior To
Nov. 14, 1986
Child legitimated before age 21 under law of father’s or child’s domicile; Child legitimated PRIOR to 11/14/86;
Child must be unmarried;
USC parent(s) had the required residence at time of childs birth;
No residence required for child to retain U.S. citizenship.
See Nationality Chart 1
NATIONALITY CHART 2, FIGURE 11.4
CHILDREN BORN OUTSIDE U.S. OUT OF WEDLOCK
TO U.S.-CITIZEN FATHER AND ALIEN MOTHER
CHILD LEGITIMATED BY FATHER
*
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DATE RELATIONSHIP ESTABLISHED ELIGIBILITY REQUIREMENTS
On or After
Nov. 14, 1986
Child legitimated OR acknowledged before age 18* (Legitimated under law of childs residence or domicile; or Paternity acknowledged in writing under oath; or Paternity established by court order);
Blood relationship established;
Father, unless deceased, has agreed in writing under oath to provide financial support until child reaches age 18 if not married to the mother;
Child must be unmarried;
USC parent(s) had the required residence at time of childs birth (See
Nationality Chart 1).
*A child 18 or over on 11/14/86 could use the old law. A child at least age 15, but under 18, could use either law (DOB on/after 11/15/68).
NATIONALITY CHART 2, FIGURE 11.4
CHILDREN OUT OF WEDLOCK
TO U.S.-CITIZEN FATHER AND ALIEN MOTHER
CHILD LEGITIMATED OR ACKNOWLEDGED BY FATHER
*
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Form FS-240, Consular Report of Birth Abroad, of a citizen of the United States of America filed with the U.S. consulate where child is born.
N-600, Application for Certificate of Citizenship, if child is in the United States.
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Forms for Children Who Acquire Citizenship at Birth
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Available for those who reside in the physical and legal custody of a U.S.-citizen parent abroad.
Applicant can apply from abroad, but must enter the U.S. on a nonimmigrant visa and remain in status for the interview.
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INA § 322 Citizenship
for Families Living Abroad
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Especially helpful for parents who do not reside in the U.S. or who do not meet the residency requirements to transmit citizenship to their child but have parents (child’s grandparents) who are U.S. citizens who do meet those requirements.
Form N-600-K, Application for Citizenship and Issuance of Certificate Under Section 322, is used for INA § 322 citizenship and is filed with USCIS.
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INA § 322 Citizenship
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CHILD GENERAL REQUIREMENT PHYSICAL PRESENCE OF PARENT OR GRANDPARENT
Genetic or Legitimated Child
Must meet definition of child in INA 101(c)(1). This means a biological or legitimate child, or a child legitimated before their 16th birthday. Benefits under this law are not available for stepchildren or for illegitimate children.
OR
Adopted Child
Must meet definition of adopted child in INA 101(b)(1). This means the child must either have approved I-600 or be eligible to have an I-130 (which does not have to be filed) approved under INA 101(b)(1)(E).
Child has at least one U.S.-citizen parent by birth or through naturalization, (including an adoptive parent). Adoptive parent must meet requirements of either INA 101(b)(1)(E), INA 101(b)(1)(F), or INA 101(b)(1)(G).
Child’s USC parent or USC grandparent meets physical presence requirements.
Child is under 18 years of age (adjudication and the taking of the Oath, unless waived because the child is unable to understand its meaning by reason of mental incapacity or young age, must be completed before the child’s 18th birthday).
U.S.-Citizen Parent
U.S.-citizen parent was physically present in the U.S. or its outlying possessions for at least 5 years (2 after age 14)
If the child’s parent does not meet the physical presence requirement, the child may rely on the physical presence of the child’s U.S.-citizen grandparent (5 yrs, 2 after age 14)
OR
U.S.-Citizen Grandparent or Legal Guardian
If the U.S.-citizen parent has died, the child’s USC grandparent or USC legal guardian may file on the child’s behalf within five years of parents death.
At time of death, the USC parent (or grandparent) must have met physical presence requirements.
NATIONALITY CHART 4, FIGURE 11.5
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An act that voluntarily relinquishes U.S. citizenship.
Involves a very high legal standard: must be done knowingly, voluntarily, and with full knowledge of the consequences.
22 C.F.R § 50.40 explains there is a presumption a person DOES NOT relinquish citizenship merely by naturalizing in another country, takes a routine oath of allegiance, and accepts non-policy level employment with a foreign government.
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Expatriation
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Denaturalization occurs when naturalization has been procured due to concealment or willful misrepresentation of a material fact, i.e., a person who fought with a terrorist group or was a persecutor but denied it on their application.
Those that become members of an organization that call into question their allegiance and loyalty to the U.S. within five years following naturalization are specifically subject to denaturalization proceedings.
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Denaturalization
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The legal standard is “clear, unequivocal and convincing evidence” that leaves no doubt the applicant is subject to denaturalization.
Denaturalization proceedings are filed by the Department of Justice in federal court having jurisdiction over the accused citizen.
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Denaturalization
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Nonimmigrant visas for Extraordinary Ability, Religious Workers, & Ancillary Activities
CHAPTER 4 (PAGES 135-175)
Recap for Nonimmigrant Visa Chapters
Chapter 2 covered nonimmigrant visas that do NOT generally confer employment authorization.
Chapter 3 discussed the nonimmigrant visas for employment purposes that are most commonly used by corporate entities in the U.S. to hire foreign workers.
Chapter 4 will explore the remaining visa classifications that automatically granted employment authorization.
O Visa Classifications:
allows temporary entry for specific objective
O-1A Visas
Individuals with Extraordinary Ability in the Sciences, Education, Business, or Athletics
O-1B visas
Individuals with an extraordinary ability in the arts or extraordinary achievement in the motion picture or television history
Terminology regarding O Visas
Authorized Entity: an individual person, agent, or corporate organization that is permitted to file a nonimmigrant visa petition on behalf of a foreign national
Peer Group: a group or organization comprised of practitioners of the foreign national’s occupation.
Agents: the actual employers of the beneficiary who will perform at an event, the representatives of both the employer and the beneficiary of the petition, or a person or entity authorized by an employer
Event: an activity such as, but not limited to, a scientific project, conference, convention, lecture series, tour, exhibit, business project, or engagement
Shared Requirements for O-1A & O-1B Visas
Mechanics are the same: Petitions are filed with USCIS and beneficiary receives a visa overseas.
Both classifications require an advisory opinion from a recognized peer group or person with expertise in beneficiary’s area of expertise
Agents and direct employers are allowed to serve as petitioner for the beneficiary
Having an agent is helpful because then only one person can petition for O-visa beneficiary, instead of multiple petitions filed by multiple employers
Evidence for O-Visas
Approval of a petition for O-1 classification is based on successful demonstration of a beneficiary’s extraordinary ability through evidence of sustained national or international acclaim within his or her field of endeavor.
Evidence will vary based upon what type / field of O visa is being sought after
Proof showing that work & services are in area of extraordinary ability
Extraordinary Ability for O Visas
A term used to describe foreign national who are truly the best and brightest in their field.
In the field of science, education, business, or athletics, it means a level of expertise indicating that the person is one of the small percentage who has risen to the very top of the field of endeavor.
In the field of arts, it means “distinction” (a high level of achievement in the field of the arts evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that a person described as prominent is renowned, leading, or well known in the field of arts).
With respect to movies & TV production, it means a degree of skill & recognition significantly above that ordinarily encountered to the extent the person is recognized as outstanding, notable, or leading in the motion picture &/or TV field.
Consultation or Peer Advisory Opinion
Every O Visa application MUST obtain and submit a consultation or advisory opinion letter authored by the appropriate peer advisory group, such as a labor or management group or person who possesses expertise in the field
If there is a collective bargaining rep in the employer’s employees in which the foreign national will work, then the rep may serve as peer group for purpose of consultation
If no submission, then employer bears burden to show that no peer group exists
Advisory opinion must be in writing & signed
Any O Visa filing has two main components
THE MERITS
Does the foreign national qualify as extraordinary in his or her particular field of endeavor?
In the 1960’s The Beatles would have undisputedly been able to obtain O-1B visas
THE ITINERARY
What is the event that the foreign national is coming to the U.S. to perform?
This Photo by Unknown Author is licensed under CC BY-SA
The Itinerary
O-1 petitioner should submit a detailed itinerary that discusses the nature of each event
Include any contracts for performances, deal memos, or comparable proof of proposed schedule.
If fulltime employment, then letter of employment or employment contract could suffice.
The Agent for Artist Maluma may have submitted contracts and this itinerary in order to obtain an O-1B visa.
Contract between Petitioner & O Visa Beneficiary
O-1 petition must have contract between petitioner & beneficiary submitted with it showing terms of the agreement between the parties.
Contract should include but not be limited to: responsibilities to be provided with compensation, what the compensation will be, tentative timeliness regarding services to be successfully executed, and expected duration of professional partnership.
Valid contract means there is an exchange of something for the services provided
If there is only an oral agreement, then need to submit electronic correspondence between parties, an authorized synopsis of the terms of agreement, or other evidence that exhibits an oral agreement.
Duration
O-1 petitions can be granted for up to 3 years; however, USCIS will only grant the length of time that petitioner can show that the foreign national is actually needed in the United States. Thus, an O-1 visa could be as short as one day, or as long as 3 years. Length of time needed to complete specific itinerary of events dictates length of grant. A petitioner can and must apply for one-year extensions in order to have someone continue in O-visa status in order to complete an event or activity that qualified them for admission. There is no maximum period for which one can be sponsored in O-Visa status with extensions.
Petitioner must present evidence that beneficiary is top in the field in order to show MERITS for O-1 visa
Proving the Merits for O-1A: Demonstrating Extraordinary Ability
Demonstrated by beneficiary’s receipt of a major internationally recognized award, such as Nobel Prize, or evidence that shows 3 of the following 8 criteria:
Receipt of nationally or internationally recognized awards / prizes
Membership in associations requiring outstanding achievements
Published material about beneficiary & beneficiary’s work in field
Original scientific, scholarly, or business related contributions of major significance
Authorship of published scholarly articles in field
Receiving a high salary for services
Participation on as judge of other peers’ work in field
Employment in critical or essential capacity for organizations
Proving the Merits for O-1B: Demonstrating Extraordinary Ability
Extraordinary ability in the arts refers to a high level of distinction
Extraordinary ability in movies / TV refers to those that have achieved a level of superior accomplishment, like nomination or receipt of Emmy, Grammy, Academy Award or Director’s Guild Award.
Alternatively, evidence of 3 of the 6 will suffice:
Performed & will perform services as lead or starring role in productions / events of distinguished reputation
Achieved national / international recognition as shown by reviews, newspapers, journals
Performed & will perform services as lead or starring role for distinguished organizations & establishments
Record of major commercial or acclaimed success as shown by title, rating, or standing in field
Received significant recognition from critics, organizations, government agencies, & other experts
Commands a high salary for services rendered
Changes in Employment & Permanent Residency
Petitioner has duty to informed USCIS if there are changes in terms of O-1 visas employment
Some changes may require filing and approval of new O-1 petition
Additional events added for artist or entertainer will not require new petition, as long as they occur within the validity period of the petition and require foreign national of O-1 caliber
Foreign nationals seeking entry on an O-1 visa must prove they have a residence abroad that they do not intend to abandon, but they may still file for permanent residence without negative consequences
O-2 Visas:
O Visas Applicants get to bring their “essential support” entourage.
Essential support personnel can also enter the U.S. alongside the foreign national using O-2 classification.
There is a separate petition for O-2 visa , but most uses of the O-2 category are easy to access because they must have a logical connection to the activities of the principal I-1 visa holder
This Photo by Unknown Author is licensed under CC BY-SA
O-2 Visas have different criteria based on which O-1 classification is sought
O-1 artist or athlete
O-2 must be coming to assist in the performance of the O-1 visa holder, be an integral part of actual performance, & hold and present critical skills & experience with the O-1 foreign national that are not general in nature
O-1 extraordinary achievement in movies / tv
O-2 must possess skills & experience specifically in collaboration with the O-1 foreign national that are not general in nature and are critical, either based upon pre-established & long working relationship, or in correlation with performance or show, and which continuing contribution is essential to the successful completion of that production
O-2 status is NOT allowed to accompany O-1 foreign nationals in the fields of science, business, or education.
Important to note that O-2 beneficiary must file a separate petition with USCIS, necessitating an advisory opinion, in order to obtain this status.
While authorized employment for O-2 category is petitioner specific, recipient is also required to provide support only to specified O-1 foreign national and no other
Common examples of O-2 support personnel ranges from hair & makeup artists, to voice coach for singer, or athletic trainer / coach for athlete.
British Author J. K. Rowling wrote the Harry Potter series, but have you ever hear of Lia Wyler?
The Harry Potter books are available in more than 68 languages. One of the contributors to the great success of the books is Brazilian Lia Wyler. She translated the English books into European Portuguese and Brazilian Portuguese, even giving local flavors to some of the characters’ names, whenever possible.
Therefore, if J.K. Rowling was traveling to the U.S. on an O-1B to give a lecture series on writing books that have internatonal appeal for book and movie development, then Lia Wyler may be part of her “essential support” if Lia were needed to play a role in helping J.K. Rowling present her marketing and distribution efforts of the Harry Potter series in Brazil and Portugal during her lecture series.
O-3 Nonimmigrant Visas:
Spouse & Children of O-1 & O-2
Any spouse or unmarried children under the age of 21 may apply for O-3 to accompany spouse to the US, subject to the same period of visa validity as the O-1. While O-3 may not work in the U.S., O-3 may enroll in either full or part time academic study in U.S. without applying for a student visa.
Nobel Prize Winner in Chemistry Akira Yoshino may have his spouse apply for an O-3 if he enters as O-1
P Visas
must show nonimmigrant intent & mirrors the O-1 category by requiring supporting documentation.; however, it usually carries a lower threshold and is used for more specific purposes
Used for employer or a sponsor to bring athletes (P-1) and artists and entertainers (P-2)
P-1 Visas: Athletes
Atlanta hosted the 1996 Summer Olympics, and many people of extraordinary ability used P-1 visas to enter so they could compete in the games.
P-1 is for foreign nationals coming to the U.S. to compete as athletes at an internationally recognized level of performance, either as an individual or as part of a group or team, to perform as part of an entertainment group that carries an international reputation.
Artists & Entertainers
P-2 Visas
For foreign nationals coming to U.S. to perform as artists or entertainers on their own or as part of group under a reciprocal exchange programs between aligned professional organizations in U.S. & abroad.
Example: Irish PGA golfer Rory McIlroy playing in the Masters
P-3 visas
Foreign artists or entertainers coming to U.S. to perform, teach, or coach under commercial or noncommercial program that is culturally unique
Example: Ladysmith Black Mambazo, a South African male choral group who sings the mbube vocal style, coming to New York
Shared Requirements for P and O visa classifications
All P vias require the filing of a petition with USCIS
P visa requires consultation of “labor organization” if one exists in the field of endeavor to submit with application
Like the O visa, P requires a new visa petition if a change in employer or agent
P classification has a special provision for the trading of professional athletes from one team to another that allows employment authorization to continue for 30 days during which new petition is filed by new employer, and if timely filed, the employment authorization continues until application is decided.
P visas also have a merits and an itinerary components
P-1 Athlete:
In order to meet standard must show foreign national or team meet two (2) of the following:
Participated with team to significant extent prior season with major U.S. sport league
Participated in international competition with national team
Participated to significant extent with college team
Written statement from official of a major U.S. sport league detailing how foreign national is recognized
Written statement from sport media or sport expert
Evidence individual or team is ranked
Evidence of significant honor or award in sport
Yu Darvish was traded to the Dodgers from the Rangers thanks to P-1 visa employment flexibility, which helped get the Dodgers to the 2017 World Series
P-1B Members of Internationally Recognized Entertainment Group must provide proof it has been together for at least one year, & received major international award or 3 of the following criteria:
Group has performed and will perform as a starring or lead entertainment group in productions or events that have distinguished reputation as evidence by reviews, critics, endorsements, etc.
Evidence group received international acclaim
Group has performed and will perform as a starring or lead entertainment group for organizations that have distinguished reputation, as evidenced by media
Group has a record of major commercial or critically claimed success
Significant recognition for achievements
Group command high salary
P-2 visa provisions for Artists or Entertainers under Reciprocal Exchange
Rooted in the nature of exchange agreements between artistic organizations, primarily unions.
Useful tool for stage and screen acting communities
P-2 status can be issued in one-year renewable increments to complete event or activity for which they were admitted.
Petition must include formal reciprocal exchange agreement between U.S. and abroad organization, statement from sponsoring organization, evidence of appropriate U.S. labor union involved in negotiating, and that foreign national are artists or entertainers with comparable skills and terms & conditions of employment are similar
P-3 Artists or Entertainers (Culturally Unique Program)
Must be able to demonstrate that the activity is culturally unique
Purpose of P-3 entering is of developing, interpreting, representing, coaching, of teaching a unique ethnic, folk, cultural, musical, theatrical, or artistic performance presentation.
Evidence to demonstrate cultural uniqueness must be submitted with application for P-3
The Silver Birds Steel Orchestra may qualify as culturally unique; however, their application for P-3 visas may be weakened by the fact that steel drums are also played outside of Jamaica, as steel drums originated in Trinidad & Tobago.
P-4 Spouse and Children of P Visa Beneficiary
Any accompanying spouse of either P principal beneficiary or supporting personnel and/or unmarried children under the age of 21 are eligible for P-4 classification
P-4 may NOT get employment auhtorizaiton
R-1 Visas for Religious Workers
U.S. has always prided itself on the protection of religious freedom; thus, it is not surprising that religious workers have their own visa classification.
Religious Worker defined: a minister or person working in a professional religious occupation or vocation, or has worked for the religious group in a religious occupation for at least 2 years immediately preceding the filing of a petition
Religious Vocation: position where the foreign national has undertaken a lifelong commitment to religious denomination, demonstrated by the adoption of vows such as for a nun or a monk.
Bona fide Nonprofit Religious Organization: a tax-exempt religious organization as cited in sec. 501(c)(3) of the IRA Code and possessing valid letter from IRS confirming tax-exempt status
R-1 Visas for Religious Workers
Must be coming to work at least 20 hours per week
For the last 2 years, foreign national has been a member of the same religious denomination as the petitioning religious organization status.
Central tenant is that duties must be affiliated with furthering the religious beliefs of the denomination
Thus, jobs can include religious teachers, choir leaders, missionaries, and religious broadcasters, and positions that promote the faith
Administrative positions and support services are not able to qualify as religious workers
(Saint) Mother Teresa
A Nun born in Albania, Mother Teresa was awarded a Nobel Peace Prize in 1979 and traveled to the U.S. to meet with President Ronald Regan. She is famous for caring for poorest people in the streets of Calcutta and inspiring millions with her example.
(14th) Dalai lama
Born in Tibet, the 14th Dalai Lama was awarded the Nobel Peace Prize in 1989 and traveled to the U.S. to meet with President Barack Obama. He describes himself as a “simple Budhist monk,” yet his teachings have worldwide influence over millions.
Either would have easily qualified for an R-1 visa based upon long ties with their religious organizations and promotion of the faith, but keep in mind that one not be an icon in their religion on order to qualify for an R-1 visa.
R-1 Nonimmigrant Workers
Compensation: there is no prevailing wage requirement, but the petitioning organization must still provide evidence of how it will compensate the foreign national.
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Literature search
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Communication on Customer Relations. Discuss how two-way communication on social media channels impacts businesses both positively and negatively. Provide any personal examples from your experience
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Develop a community-wide intervention to reduce elevated blood pressure and hypertension in the State of Alabama that in
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You read about blockchain ledger technology. Now do some additional research out on the Internet and share your URL with the rest of the class
be aware of which features their competitors are opting to include so the product development teams can design similar or enhanced features to attract more of the market. The more unique
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One of the first conflicts that would need to be investigated would be whether the human service professional followed the responsibility to client ethical standard. While developing a relationship with client it is important to clarify that if danger or
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3. Furman v. Georgia is a U.S Supreme Court case that resolves around the Eighth Amendments ban on cruel and unsual punishment in death penalty cases. The Furman v. Georgia case was based on Furman being convicted of murder in Georgia. Furman was caught i
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4. Identify two examples of real world problems that you have observed in your personal
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We can mention at least one example of how the violation of ethical standards can be prevented. Many organizations promote ethical self-regulation by creating moral codes to help direct their business activities
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The inbound logistics for William Instrument refer to purchase components from various electronic firms. During the purchase process William need to consider the quality and price of the components. In this case
4. A U.S. Supreme Court case known as Furman v. Georgia (1972) is a landmark case that involved Eighth Amendment’s ban of unusual and cruel punishment in death penalty cases (Furman v. Georgia (1972)
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The ability to view ourselves from an unbiased perspective allows us to critically assess our personal strengths and weaknesses. This is an important step in the process of finding the right resources for our personal learning style. Ego and pride can be
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4 In order to get the entire family to come back for another session I would suggest coming in on a day the restaurant is not open
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The word assimilate is negative to me. I believe everyone should learn about a country that they are going to live in. It doesnt mean that they have to believe that everything in America is better than where they came from. It means that they care enough
Data collection
Single Subject Chris is a social worker in a geriatric case management program located in a midsize Northeastern town. She has an MSW and is part of a team of case managers that likes to continuously improve on its practice. The team is currently using an
I would start off with Linda on repeating her options for the child and going over what she is feeling with each option. I would want to find out what she is afraid of. I would avoid asking her any “why” questions because I want her to be in the here an
Summarize the advantages and disadvantages of using an Internet site as means of collecting data for psychological research (Comp 2.1) 25.0\% Summarization of the advantages and disadvantages of using an Internet site as means of collecting data for psych
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One thing you will need to do in college is learn how to find and use references. References support your ideas. College-level work must be supported by research. You are expected to do that for this paper. You will research
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3 The first thing I would do in the family’s first session is develop a genogram of the family to get an idea of all the individuals who play a major role in Linda’s life. After establishing where each member is in relation to the family
A Health in All Policies approach
Note: The requirements outlined below correspond to the grading criteria in the scoring guide. At a minimum
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Read Connecting Communities and Complexity: A Case Study in Creating the Conditions for Transformational Change
Read Reflections on Cultural Humility
Read A Basic Guide to ABCD Community Organizing
Use the bolded black section and sub-section titles below to organize your paper. For each section
Losinski forwarded the article on a priority basis to Mary Scott
Losinksi wanted details on use of the ED at CGH. He asked the administrative resident