Immigration Law Services
Deportation / Removal
Even if a person has a green card or is in lawful status, he may still be forced by the USCIS to leave the country, through a procedure known as “removal” or “deportation.” The basis for removal depends on whether the person is seeking admission or whether he is being removed after entering the country.
Someone who arrives without travel documents or with questionable documents and is not seeking asylum and is not a permanent resident or does not claim to be a U.S. citizen will likely be turned away without more than a quick interview with an immigration officer.
There are five broad categories of grounds for deportation: 1) entering the country without proper authority; 2) “status violators”, who violate the terms of their admission or work without permission; 3) persons with a broad range of criminal convictions; 4) persons who are members of certain prohibited organizations (such as communists); and 5) certain people who become public charges within 5 years of entering the U.S.
Deportation for Crimes
In recent years Congress has become increasingly concerned about non-citizens engaged in criminal activity. As a result, there are numerous provisions of the immigration law that increase the pressures on non-citizens who commit crimes. A person who is seeking permanent residence and has a criminal record will find it extremely difficult to obtain status here. Similarly, a permanent resident or other non-citizen who commits a crime will likely face deportation. In addition, there are certain categories of crimes for which a person might have been convicted in the past that could place the non-citizen’s right to remain here in serious jeopardy – even if he has been in the U.S. all of his life. These criminal provisions of the immigration laws require that the USCIS place its highest priority on the deportation of persons in state and federal prisons, especially for violent crimes.
"Aggravated" Felonies
The harshest penalties are reserved for a category of crimes called “aggravated felonies.” With a few exceptions, it does not matter how or when the person may have been convicted of the aggravated felony. It also does not matter that the person pleaded guilty or nolo contender (no contest) or went through an entire trial – the only thing the immigration judge is concerned about is whether the person was convicted of an aggravated felony. Aggravated felonies include murder, rape, illicit trafficking in a controlled substance, money laundering in transactions in exceeding $10,000, firearms, explosives or arson charges, any crime of violence, whether against people or property, for which the term of imprisonment imposed is at least 1 year, theft offenses, “national defense” offenses (such as transmitting certain defense information), commercial bribery, counterfeiting, forgery, trafficking in vehicles with altered identification numbers, and perjury. Foreign convictions will have the same effect, where the term of imprisonment was completed within the last 15 years.As an experienced immigration attorney, we will research to determine the effect of any conviction on your right to stay in the country. There might be a possibility of overturning the conviction or reducing the charge (perhaps because you pleaded guilty without being told that the conviction could lead to deportation).
Citizenship / Naturalization
These are the general requirements for Citizenship/ Naturalization:
The applicant must a lawfully admitted permanent resident.
The applicant must reside in the United States as a lawful permanent resident for a period of five (5) years immediately preceding the filing of the application for naturalization.
The applicant must reside within the state or within the USCIS district where the application will be filed for at least three (3) months immediately preceding the filing of the application.
The applicant must be 18 years of age at the time of filing the application for Naturalization.
The applicant must be a person of Good Moral Character The applicant must read, write, and speak English.
The applicant must have knowledge of the History and Government of the United States.
Temporary / Professional Work Visas
There are several temporary visas, which allow foreign professionals to work in the United States. In all of these options, there must be a petitioning entity that will offer employment to the foreign professional, sign all forms required by the United States Citizenship and Immigration Services (USCIS), and provide evidence of the employment, either by an employment letter or an employment contract.
H-1B Visa
An H-1B Visa may be issued to a foreign professional who is qualified to perform services in a “specialty occupation,” which generally means a professional position that requires a minimum of Bachelor Degree (or its equivalent), related to the position offered, to successfully perform the duties required by the position. It is an occupation that requires theoretical and practical application of a body of highly specialized knowledge.
Equivalency of a Bachelor Degree can be determined by application of the “three-for-one” rule (i.e., three years of specialized training and/or work experience can be substituted for each year of college-level training which the beneficiary lacks).
Examples of a “specialty occupation” include but are not limited to some computer specialists (such as engineers, analysts, and programmers), teachers, journalists, business analysts, high-level executives, marketing executives, accountants, physicians, etc.
TN Visas for Canadian and Mexican Professionals
The “TN Visa,” is issued pursuant to the North American Free Trade Agreement (NAFTA). USCIS regulations provide a list of over sixty (60) professions that qualify for the TN visa under NAFTA. Only Canadian and Mexican national or citizens are eligible for TN visas. This list includes, but is not limited to, Management Consultants, Social Workers, Engineers, Computer Systems Analysts, Accountants, etc. The minimum requirement is usually a Bachelor Degree.
L-1 Visa Intra-Company Transfers
When a foreign entity transfers an executive or manager to a newly formed or already existing US subsidiary, affiliate, or branch, the L-1 Visa is ideal for that Intra-company transferee. L-1 visas are available to professionals who have worked abroad for one continuous year within the preceding three years in an executive, managerial, or specialized knowledge capacity for a foreign business entity (usually the transferring entity) and who are being transferred temporarily to the United States to work in that same capacity for a qualifying, related United States business entity.
O-1 Visas professionals with extraordinary ability in business or sciences
A foreign national who has extraordinary ability in the arts, athletics, sciences, education, or business, and is coming to the United States temporarily to perform services for a U.S. employer in his/her area of expertise may be granted an O-1 visa. “Extraordinary ability” means that the alien has reached a level of expertise indicating that he/she is one of a small percentage who have risen to the very top of his/her field of endeavor. Also, the position the alien is coming to fill must require the services of an individual of extraordinary ability.
The “arts” may also include aliens in the motion picture or television industry. To qualify for an O-1 visa, individuals in this industry are held to a slightly different standard that others applying for an O-1 visa. They must document “extraordinary achievement” through a demonstrated record of “distinction” or prominent. “Distinction” means a high level of achievement and skill substantially above that ordinarily encountered to the extent that the alien described as prominent is renowned, leading, or well-known in the field.
E Visas - Treaty Traders (E-1) and Investors (E-2)
Treaty visas are part of the United States’ efforts to “enhance or facilitate economic and commercial interaction between the United States and the treaty country. The three main types of commercial treaties are treaties of friendship, commerce, and navigation (FCNs); bilateral investment treaties (BITs); and free trade agreements, such as the North American Free Trade Agreement (NAFTA).
Depending on the exact language of a treaty, and the treaty country’s reciprocal treatment of U.S. nationals, nationals of a particular foreign state may be admitted to the US as both treaty traders (E- I) and treaty investors (E-2), or only as one or the other.
E-2 Visa
The E-2 Investor Visa is issued to an investor that enters the United States, based upon treaty between the US and the country of which he/she is a national, to develop and direct the operations of an enterprise in which the alien has invested, or is actively in the process of investing a substantial amount of capital. Generally, nationals of the treaty country must own 50 percent of the business in question. The investor must show that he or she has either made a substantial investment or is actively in the process of making a substantial investment in the enterprise. “In the process of investing,” the investor must be close to the start of actual business operations, not simply in the stage of signing contracts (which may be broken) or scouting for suitable locations and property. Mere intent to invest, or possession of uncommitted funds in a bank account, or even prospective investment arrangements entailing no commitment, will not suffice.
E-1 Visa
The E-1 Trader Visa is issued to a foreign business individual that enters the United States, based upon a treaty between the US and the country of which he/she is a national, to carry on substantial trade in goods, services, or technology in a capacity that is supervisory or executive in nature or involves essential skills. Trade means the exchange, purchase, or sale of goods and/or services. The trade must (1) constitute an exchange between the United States and the treaty country and must be traceable or identifiable, (2) be international in scope, and (3) involve qualifying activities.
Permanent Residence / (Green Cards)
Family Based Petitions
Not all family relationships serve as a basis to apply for lawful permanent resident status. There are two basic categories Immediate Relatives and Preference relatives.
Immediate Relatives:
Spouses, parent or unmarried minor children (under 21) of U.S. citizens. This category includes marriage based cases. There is no quota for this category as visas are immediately available.
Preference Relatives, in which cases are based on a quota system, are set as follows:
1. First Preference
a. UNMARRIED SONS AND DAUGHTERS OF U.S. CITIZENS. Adult children of US citizens or those who have reached the age of 21 years prior to issuance of the immigrant visa.
2. Second Preference
a. SPOUSES, SONS AND DAUGHTERS (Unmarried and under 21 years of age) OF LAWFUL PERMANENT RESIDENTS.
b. UNMARRIED SONS AND DAUGHTERS, OVER 21 YEARS OF AGE, OF PERMANENT RESIDENTS.
3. Third Preference
a. U.S. CITIZEN
4. Fourth Preference
a. U.S. CITIZENS
Labor Certifications - / PERM
PERM Overview
Program Electronic Review Management (PERM): On December 27, 2004, the Department of Labor (DOL) issued regulations implementing PERM. It is a new, expedited way to obtain a Labor Certification based on an employment job offer. The goal of PERM is to shorten the processing time of Labor Certification Applications from 2-3 years to only 45-60 days.
PERM will take effect on March 28, 2005.
Pre-filing Steps:
A. Recruitment
Between 30 to 180 days before filing, the employer must:
1) Post a notice of the job offer; and
2) Place a job order with the State Workforce Agency (SWA), e.g. EDD in California; and
3) Place two Sunday advertisements in a newspaper of general circulation in the area of intended employment; and
4) Use in-house media, if used in similar positions.
For professional jobs, three additional recruitment steps must be taken, such as: job fairs, employer’s website; job search web site (other than the employer’s); on-campus recruiting; trade or professional organizations, or private employment firms; employee referral program, with identifiable incentives; notice of job opening at a campus placement office; local and ethnic newspapers; or radio and television advertisements.
B. Prevailing Wage
The employer must obtain from the SWA office a prevailing wage determination prior to filing the PERM application. The employer must pay 100% of the prevailing wage from the time permanent residency is granted or from the time the alien is admitted to take up the certified employment.
Occupations that Qualify as PERM:
1) Non-professional/skilled jobs; and,
2) Professional jobs requiring attainment of a bachelor’s or higher degree, or a combination of both education and experience.
Bona Fide Job Opportunity
To demonstrate that a “bona fide” job opportunity exists, the employer must have employees on payroll, a Federal Employer Identification Number, and no adverse factors, such as a closely-held corporation, alien’s partnership or familial relationship.
How and Where to File PERM:
The Application for Permanent Employment Certification is filed either electronically or by mail with the appropriate Employment and Training Administration Processing Center.
Conversion of a Pending Labor Certification Application to PERM:
PERM regulations allow the withdrawal and re-filing of a pending case only for an identical job opportunity. A pending Labor Certification must be withdrawn, and another re-filed within 210 days under PERM’s new procedures. A Labor Certification pending under the regular processing can only be withdrawn prior to the placement of a job order by the SWA.
A re-filed case must comply with all requirements of the new PERM final rules. It is highly recommended that you consult with your attorney to see if converting your case will be appropriate for you.
Preserving your old Priority Date:
An employer who successfully withdraws and re-files a pending application will preserve the priority date. An application, which cannot be successfully re-filed, is treated as a new application with a new priority date. Applications that are not withdrawn will continue to be processed in Backlog Processing Centers under current rules.
The Audit Request:
The Certifying Officer (CO) can request an audit of any Labor Certification Application either for cause or at random. Upon receipt of the employer’s response, the CO may also request additional information and/or document(s) or require that the employer conducts supervised recruitment.
How Labor Certifications are approved:
The decision to certify a labor certification is based on whether the employer meets the requirement that there is no U.S. worker who is able, willing, qualified and available for the job opportunity. The CO must also consider whether the wages or working conditions of U.S. workers similarly employed will not be adversely affected by the employment of the alien.
Immigrant Petition and Green Card:
Upon approval of the labor certification, you are eligible to file for the Immigrant Petition and Green Card simultaneously. In certain situations, they would have to be filed separately. Included in the filing of the Green Card application, is the application of employment authorization (work permit) and in some cases, an application for a travel visa.