Immigration
Employment Based Permanent Residence
The Immigration Law allows certain qualified aliens to receive permanent residence in the United States based on their employment. The visa petition and or labor certification must be filed in the U.S., then the alien can apply for the visa at the American Consulate nearest to his place of residence or changing his status in the United States. These visas are subject to overall numerical limitations.
First Employment Preference Priority Workers
The first employment based preference usually requires a job offer in the U.S., in the following categories:
a) Managers and executives subject to international transfer to the United States.
b) Outstanding professors and researchers with universities or private employers.
c) Aliens of extraordinary ability in the sciences, arts, education, business and athletics.
Second Employment Preference
The second employment based preference requires a job offer and a labor certification, unless it is waived in the National Interest, and is available to the following categories:
a) Aliens of exceptional ability in the sciences, arts or business
b) Advanced degree professionals
Third Employment Preference
The third employment based preference requires a job offer and a labor certification.
a) Professional with bachelor's degrees not qualifying in the second preference.
b) Skilled workers filling positions requiring at least two years experience and training.
c) Unskilled workers.
Fifth Employment Preference for Alien Investors
The fifth employment based preference is set aside for alien investors in new commercial enterprises. Investors must invest at least $1 Million in the enterprise, capital must be from lawful means, enterprise must benefit the U.S. economy and must create full time employment for 10 U.S. workers, in a new enterprise or a troubled business. There are specially targeted areas which require $500,000.00.
Permanent Residence based on Diversity Immigration Program (Lottery) To qualify for the diversity program, the alien must be a native of a low-admissions foreign state, and must have at least a high school education. A qualified applicant files an application with the State Department which each year randomly selects those aliens who will be eligible to apply for this type of visa.
Special Immigrants
a) Religious Worker who has for the past 2 years been a member of a religious denomination which has a bona fide nonprofit religious organization in the U.S. and who has been carrying on the vocation, professional work continuously for the past 2 years, and who seeks to enter the U.S. solely as a minister, or in a religious vocation.
b) Employment with a Panama Canal Company
c) International Organization Employee.
Family Visas
The Immigration law allows the following family-sponsored petitions for permanent residency:
Spouses, unmarried children under 21, and parents of a US Citizen qualify for immediate relative status. This group is so highly preferred that no numerical limitation has been placed on this group, and no visa number is required. There is a special category set aside for orphans who will be adopted by U.S. citizens, Special Immigrant Juveniles, Amerasiah, widow(er) of U.S. citizens who died within the last 2 years, and self petitioning spouses and children of abusive U.S. citizens or permanent resident aliens.
Other family members of citizens or permanent resident aliens can qualify to immigrate to the United States, but are not considered as preferred as immediate relatives. As such, these aliens are subject to numerically limited number of immigrant visas available each year. This group includes unmarried sons and daughters of U.S. citizens, married sons and daughters of U.S. citizens, spouses and unmarried sons and daughters of permanent resident aliens, brothers and sisters of citizens.
Additionally, the Immigration law allows a United States citizen to petition his fiancée to come to the United States for the purpose of marriage within 90 days. This visa may include unmarried children of the fiancée under the age of 21. The newly enacted LIFE act authorizes spouses and unmarried minor children who concluded a valid marriage with a U.S. citizen outside the United States to enter the United States on the "K" visa to await the approval of such petition and the processing of an immigrant visa.
The newly enacted LIFE ACT creates a V Visa available to spouses and unmarried children under 21 of permanent residents who have been waiting for permanent residence for 3 years or more from the time the visa petition was filed on his or her behalf, provided the visa petition was filed on or before 12-21-00
If the alien is in the United States in legal status, at the time of his application for permanent residence, and a visa number is not required or immediately available, he may in most cases remain in the United States and file for adjustment of status.
If the alien is in the United States illegally, and qualifies for the new Section 245(i) provision of the LIFE Act, he may adjust status in the United States upon paying $1,000.00 penalty fee. To qualify for this provision an alien must have filed a visa petition or labor certification prior to January 14, 1998; or file a visa petition or labor certification after January 14, 1998, before April 30, 2001, and prove that they were physically present in the United States on December 21, 2000.
If the alien is outside the United States or for some reason ineligible to receive the visa in the United States, he may process the visa at the American Consulate nearest to his place of residence.
Temporary Visas
The following temporary visas are available to those who qualify. Generally, temporary visas must be obtained outside the United States at an American Consulate nearest the place of residence of the alien. However, if the alien is in the United States, he may in certain cases, change to another type of temporary visas without leaving the United States.
The B Visa Category
The B nonimmigrant visa category covers alien visitors for business (B-1) and pleasure (B-2). Generally, stays in the United States are brief, and involve such activities as touring, visiting family members, or conducting business on behalf of an overseas employer. This category does not allow employment in the United States.
The WT Visa Category
Nationals of certain countries do not need to obtain "B" visas for business or tourist visits to the United States. They are allowed to enter the United States on a Visa Waiver program for 90 days. This visa category cannot be extended or changed in the United States. The Country must be listed on the Visa Waiver Pilot Program List.
The F Visa Category
Foreign students may enter the United States to study in approved institutions, which can range from elementary school students to doctoral candidates and postdoctoral studies. F-1 students can pursue their academic goals in the U.S.A. and can remain for many years in order to complete a full academic program. They may engage in a specific period of practical training upon completion of their studies, which will allow them to gain some work experience in the United States.
The M Visa Category
Students in vocational or nonacademic programs are allowed to enter the United States to study on the M visa.
The J Visa Category
Students, scholars, experts, medical interns and residents, international visitors, and industrial business trainees can be admitted to the United States in the J visa category, which is for exchange visitors who have been sponsored in the exchange visitor program recognized by the U.S.A. Information Agency. The J visa category has a major disadvantage for some students, if the program is funded by the student's government or the U.S. government, then the student may be required to return to his home country for two years upon completion of the program, before being permitted to change status or immigrate to the United States.
The E Visa Category
The E category is used by business owners, managers, and employees who wish to remain in the United States for extended periods of time to oversee or work in an enterprise engaged in trade between the United States and a foreign country or that represents a major investment in the United States. The E category is only available if a "treaty of commerce and navigation" or a "bilateral investment treaty" exists between the United States and the foreign country.
The L Visa Category
The L nonimmigrant visa category is available to international companies who wish to bring foreign employees to the United States. To qualify for the L-1 status the employee must have worked abroad for the overseas company for a continuous period of one year in the preceding three years. This employment must be in a managerial or executive capacity, or a position involving "specialized knowledge." The company abroad must be the same employer or a subsidiary or affiliate of the U.S. Company.
The TN Visa Category
The United States, Canada, and Mexico have entered into the North American Free Trade Agreement (NAFTA), which allows expedited admission of businesspersons of each country into the other country. A designated group of H-1 level professionals can be employed and paid in the United States as employees of U.S. companies or as employees of Canadian and Mexican companies who work on contract with a U.S. company.
The H-1B Visa Category
The H-1B category is for foreign workers in "Specialty Occupations" who have a United States employer who wishes to employ them in the United States. H-1B candidates must posses a bachelors degree or higher.
H-2A Visas For Temporary Agricultural Workers
The H-2A is a visa for temporary agricultural workers. For H2-A visa, the employer must demonstrate that there are not sufficient able, willing and qualified US workers available at the time and place needed and the employer must show the use of foreign workers will not create an adverse effect on the wages or working conditions of similarly employed US workers. Under the H-2A program H-2A workers must be offered the same wage as US workers.
The H-2B Visa Category
U.S. companies to temporarily employ skilled or unskilled foreign nationals in positions where U.S. workers are unavailable use the H-2B visa category. The company must intend to employ the alien for a temporary period of time, and the need for the skill provided by the alien must be temporary.
The H-3B Visa Category
U.S. companies to bring foreign employees to the United States to participate in an established company-training program use the H-3 visa category. The training program must provide classroom training or a combination of classroom and on the job training, which is unavailable in the alien's home country.
The Q Visa Category
The Q nonimmigrant category is for aliens participating in an international cultural exchange program. This designated program must provide practical training, employment and the sharing of history, culture and traditions of the country of the alien's nationality. This is program is limited to 15 months.
The R Visa Category
The R category is for aliens who for at least 2 years have been a members of a religious denomination having a bona fide nonprofit organization in the U.S. and are coming to work temporarily in the U.S. as a minister or in a religious vocation for that organization.
The O Visa Category
The O category is for aliens of extraordinary ability in the sciences, arts, education, business or athletics.
The P Visa Category
The P category is for alien athletes who compete individually or as part of a team at an internationally recognized level, and aliens who perform with or are an integral and essential part of the performance of an entertaining group that has received international recognition as outstanding.
The V Visa Category
The newly enacted LIFE Act creates a V Visa available to spouses and unmarried children under 21 of permanent residents who have been waiting for permanent residence for 3 years or more from the time the visa petition was filed on his or her behalf, provided the visa petition was filed on or before 12-21-00
Family Members
In most of the above visas family members, spouses or children under 21, are allowed to accompany the principal alien to the United States on a temporary visa which corresponds with the principal alien's visa.
Political Asylum
Any alien may file an application for Political Asylum and Withholding of Removal.
This form of relief may be filed affirmatively with the Immigration Service or defensively with the Immigration Court. The burden of proof is on the alien to establish that he qualifies as a refugee and that he is unable or unwilling to return to his country for that reason. This may be shown by establishing that he has experienced severe past persecution or a has well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.
The applicant will need to provide background material to prove his claim to asylum, such as newspaper articles, affidavits of witnesses or experts, periodicals, journals, books, photographs, official documents, other personal statements or evidence regarding incidents that have occurred. The applicant must establish how the general evidence is relevant to his specific circumstance and why he has a well-founded fear of persecution.
The application for asylum should be filed within one year after arrival in the United States unless exceptional circumstances exist to excuse late filing. The application for asylum may include the spouse and unmarried children under 21 years of age regardless of whether or not they are living in the United States. Employment authorization may be granted to an asylum applicant after the application for asylum has been pending for at least 150 days..
Relief from Deportation and Removal
Sometimes, no matter how law abiding an alien may be, he finds himself in removal proceedings before the Immigration Court. When this happens, the services of an experienced Immigration Attorney are essential to defense of deportation or removal.
There are numerous grounds for removal from the United States, and equally numerous grounds for relief from removal.It is very important that each case is reviewed individually, to determine the best possibility for success in relief from removal and deportation. Each alien has the right to a hearing before the Immigration Court, and if this is not successful, he may appeal the case to the Board of Immigration Appeals, and on limited bases to higher courts if desired.
If an alien is in custody of the Immigration Service there is the possibility for a bond hearing before the Immigration Court to allow his release from custody on bond.
The 1996 IIRAIRA added new offenses to the aggravated felon category and changed the definition of the existing aggravated felonies significantly. An aggravated felony now includes defined as certain offenses that have a sentence of one year imposed, even if it is suspended and no jail time at all was served. Additionally IIRAIRA made these changes completely retroactive, as to those convictions included in the aggravated felony definition.
The incredible breadth of these aggravated felony offenses means that an alien faced with possible conviction of a crime which may be considered to be an aggravated felon is in desperate need of the assistance of an experienced Immigration attorney in both pre and post conviction relief.
6847A W. Charleston Blvd.
Las Vegas, Nevada 89117
Ph (702) 382-4061
Fx (702) 382-4071