LAW OFFICE OF TAQUITA M. HOGAN-CLAIBORNE

IMMIGRATION LAW:

We represent businesses and individuals in filing the proper INS forms and planning the right strategy to achieve their objectives which include seeking working visas such as H-1B visas, employment and family based green cards, student visas, and other immigration objectives. Our clients range from large companies with assets in excess of $7 million to individuals.

Immigrating to the United States to live here permanently is an important and challenging decision. There different types of immigrant visas, different types of forms, and several steps in the immigrant visa process. In general, to apply for an immigrant visa, a foreign citizen must be sponsored by a U.S. citizen relative(s), U.S. lawful permanent resident, or by a prospective employer, and be the beneficiary of an approved petition. Therefore, a first step is filing a petition with U.S. Citizenship and Immigration Services (USCIS).

Changes In Immigration Law and Procedures

Changes After the 9/11 Attacks.   As a result of the September 11 attacks, inspection and visa procedures have been tightened and made more restrictive. All visas and entry documents are being given greater scrutiny.

A person will no longer be able to change to Student Status (F-1) while in the US unless they inform the US Airport/Border Inspector of the possible plan to attend school here. It is probably better for person to apply for a student visa at a US consulate or inform the consul that they might want to go to school so the visit visa can be marked "Potential Student"

Nationals of Islamic and Arabic nations are being especially questioned by US consuls regarding their background and the reasons for coming to or being in the US.

In the past, Border and Airport Inspectors have had discretion to excuse or forgive technical errors in visas or passports. For example, a person who had an H-1B work petition approved, departed from the US then came back without obtaining the correct H-1B visa was generally allowed to enter with a visit visa since it was considered to be a minor problem. Now the Inspectors no longer have this discretion. Applicants for entry with even minor visa problems are being taken into custody and immediately Removed from the US. This includes H-1B, L-1, E, and P status applicants. These business related visas had been given the benefit of the doubt in the past. Not any more. Applicants must be sure to have the exact, correct visa when arriving in the US else they could be on the next plane back home.

The Homeland Security Act was enacted into law December 2002.   This new law creates the Department of Homeland Security and consolidates many US government agencies and functions relating to security into one agency to be more efficient. The US Immigration and Naturalization Service (INS) has now become the Bureau of Citizenship and Immigration Services (BCIS) in the new Homeland Security Department. Changes in immigration, border, and visa procedures can be expected as part of this major re-organization.

Special Registration   Nationals of specified countries must comply with Special Registration rules. The previous requirement to re-register annually has been dropped but those subject to Special Registration must exit the US only at designated ports and must report to a special officer at the airport before leaving. Also, Special Registration requires that information about change of address, employment, or school be reported to BCIS within 10 days. Failure to follow the Special Registration rules can result in severe penalties including criminal prosecution. Up to date information is available form the US Consuls or the Bureau of Citizenship and Immigration Services.

Law to Help Some Children Over 21. Some over 21 year old children can keep benefits of their parent's petitions. Previously when a child became 21, the child was dropped from a parent's case. The rules and Regulations implementing are complicated but allow some children to benefit even after they turn 21.

British Commonwealth Nationals residing in Canada need a visa and passport to visit the US.   Visitors to the US who reside in Canada and have a common nationality with Canadians are now required to have a passport and a US visa to enter the US. Includes most British Commonwealth citizens who have been able to enter the US without a visa or passport.

Spouses of Persons in the US In E Treaty or L Intra-Company Status Can Apply for Work Authorization.   The law now allows the spouse of person in the US in E-1, E-2, or L-1 status to apply for work authorization. This applies to spouses in the US in E-1 or E-2 Dependent status or in L-2 status. These spouses will be required to apply for an Employment Authorization Document (EAD). The EAD is a photo ID card verifying the right to work in the US. Children will not be authorized to work.

The "LIFE" Act Allows Use of Section 245i of the Immigration Act if papers were submitted by April 30, 2001.   Originally Section 245i allowed people with an Immigration petition or a Labor Certificates filed on or before January 14, 1998 to apply for a green card in the US even if they entered the US illegally or were out-of-status in the US. The LIFE Act extended the qualifying filing date from January 14, 1998 to April 30, 2001. This allows the beneficiary of a Labor Certificate or BCIS petition filed on or before April 30, 2001 to apply for Adjustment of Status if they are eligible and have an approved BCIS petition. They can apply even if out-of-status. Caution: anyone who is the beneficiary of a Labor Certificate or petition filed after January 14, 1998 must also prove that they they were physically present in the US on 21 December 2000, the date of enactment of the LIFE law.

Some people are confused by Section 245i of the Immigration Act. This section applies to people who are in the US and who are out of status (stayed too long, worked without permission, etc.); or who entered the US illegally. These people not usually permitted to apply for a green card in the US (some exceptions for the spouse of a US citizen) but if a person meets the requirements of Section 245i, the person can apply for the green card in the US by paying a larger filing fee. Important: to use Section 245i the applicant must have an approved immigrant petition from an employer or a qualified family member. Section 245i is NOT an amnesty, it does not create a new way to get a green card. It just allows more people to apply in the US if they have an approved and current immigrant petition.

The LIFE Act Will Allow Family Members Waiting for a Green Card to Come to the US.   A new "V" visa will allow the spouse and minor children of Legal Residents (spouse and children who are under 21 and unmarried in Family 2A Preference) to come to the US if they have been waiting for a green card for at least three years.

Here is a summary of the rules for the "V" visa:

Must have filed an Immigrant Petition for FAMILY 2A Preference for the qualifying family ON OR BEFORE 21 December 2000, the date the law was signed by the President.

The petition must have been pending with the BCIS for at least three years or the family must have been waiting for the quota or for consular processing for at least three years Consuls are now issuing V visas.

More Good News: The LIFE Act allows those who were in the US and who were out-of-status will be eligible for the V visa. The law barring re-entry for these applicants will not be applied. The LIFE Act also allows eligible family members who are in the US to apply to change the new V status even if they are in the US illegally, and with the extension of Section 245(i), V visa holders should be eligible to apply for Adjustment of Status to green card status.

The LIFE Act Allows Spouses Of U.S. Citizens Waiting for an Immigrant Visa to Enter the US with a "K" Visa.   The LIFE Act enlarges the eligibility for the so called "Fiance" visa (K) by allowing the spouse of a U.S. citizen to come to the US and be authorized to work while waiting for the petition to be processed. This new visa is a K3 visa. Minor children who will accompany the spouse can also apply for K3 visas. (Caution: minor children of a US citizen's spouse usually need their own petition and cannot "accompany" a parent).

Here are the rules:

The Petitioner must be a US citizen. The US citizen must already be married to the K3 visa applicant. (Do not confuse this with the existing K visa for Fiances To be eligible for the original "K" visa the couple cannot be married.) An immigrant visa petition must be submitted before the application for a "K3" visa can be made.

The applicant for the new K3 visa must be outside the US. A spouse already in the US in unauthorized status cannot apply for a K3 visa. The K3 visa petition is filed in the US. It is NOT filed at a consulate.

  Where the marriage to the U.S. citizen occurred outside of US, the K3 visa applicant must apply for the K-3 visa at a US consulate in the country where the marriage took place.

K3 status is available those with currently pending petitions as well as those who apply in the future. A K3 visa allows a person to work in the US.

Changes to H-1B Regulations.  Employees in valid H-1B status can transfer to a new H-1B petitioner employer when the new employer has filed the new petition with the Immigration Service. Employees should use caution in making such a pre-approval transfer since serious consequences may occur if the new petition is not approved.

A petition extending an existing H-1B for the same employer is not affected by the number of H-1B visas available. An extension with the same employer (and a next-day transfer to another employer) is not subject to the limit of H-1B visas.

With Section 245i no longer in effect, an unauthorized person will not be issued a Diversity Lottery visa in the US.   If they go back home to apply, they are subject to the 3 year and 10 year bars to re-entry. It seems that the Lottery is no longer a possibility for those in the US in unauthorized status for over 6 months.

Summary Exclusion at the Border/Airport.   Any person who comes to the US with no passport, with fraudulent documents, or who is belived entering in violation of the type of visa they hold, can be sent back immediately unless the person can show a credible fear of persecution. All applications for asylum must be made within 1 year of entering the US.

Comments:

These are not all the provisions and are not the official wording of new laws. Some of the provisions contain waivers and exceptions not noted here. These few extracts are just to give the reader an idea of the kinds of provisions contained in some of the new laws.

 Travel Permission (Advance Parole) While Waiting for Adjustment of Status Decision

Applications for Advance Parole (travel) can be filed with an adjustment application. Generally applicants who have been in the US in out-of-staus condition for 6 months or more should not travel even with Advance Parole. Even if a person has been given Advance Parole, if they travel out of the US and return in parole status, they can still be denied an Adjustment of Status if they were in the US in unauthorized status for more than 6 months before they filed the adjustment application.

Will all children born in the US be citizens at birth?

There have been several news reports that a law was passed so that children born in the US of non-citizen parents will no longer be US citizens at birth. These reports are not accurate.

There has some discussion of such a change. The right of a person born in the US to be a citizen at birth comes from the 14th Amendment to the US Constitution passed in 1868 after the US Civil War. To change this would require amending the Constitution. It could not be done by passing a law.

To amend the Constitution, a proposed amendment must be passed by both Houses of Congress then ratified by the legislatures of three-quarters of the States. It is very difficult to get 38 States to agree on anything so amendments are not common. In over 200 years since adoption of the Constitution and the original Bill of Rights, there have been only 16 amendments to the US Constitution.

The idea of having some children born here treated differently and not be Citizens at birth is not a popular idea. In this writer's opinion, it is an extreme view held by a small minority at this time with little chance of being adopted as a Constitutional amendment.

So for now at least, all children born in the US subject to the jurisdiction of the US will continue to be US citizens at birth.

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Immigration Law Basics

I. WHO IS A LEGAL IMMIGRANT?

A legal immigrant is a foreign-born person who has been issued a U.S. immigrant visa(commonly referred to as a green card), which allows that person to live and work permanently in the United States. Persons in the United States who have obtained an immigrant visa are called a lawful permanent resident.

II. HOW DO I OBTAIN A U.S. IMMIGRANT VISA?

U.S. immigration laws have strict requirements and annual limitations as to who is eligible to obtain an immigrant visa, or permanent residence status. Generally, before you can apply for an immigrant visa at the American consulate if you are outside the U.S., or apply for an immigrant visa through the adjustment of status procedure if you are in the U.S. and if you are eligible to adjust status (many restrictions apply), you must have a family or employer sponsor. In some very limited circumstances, you may be able to sponsor yourself. There are several immigrant visa categories of family, employer and self-sponsorship. Most of these categories have a limited number of immigrant visas allotted each year. Some immigrant visa categories have more visa applicants waiting for visas than there are available visas. Consequently, there is a long wait in some of these visa categories.

III. WHO CAN BE A FAMILY SPONSOR?

To obtain an immigrant visa through a family sponsor, the sponsor must be a U.S. citizen or a lawful permanent resident, or LPR. A U.S. citizen can sponsor her parents, her spouse, her children (including her spouses children if they were under age 18 at the time of the marriage of their parent to the U.S. citizen), and her sisters and brothers. A U.S. citizen must be at least 21 years old to sponsor her parents. A U.S. citizens parents, spouse and unmarried children (including step children) under age 21 are called immediate relatives. The immediate relative visa category does not have an annual limited visa allotment, so there are always immigrant visas available for this category. All other relatives who may be sponsored by a U.S. citizen (married children, unmarried children age 21 and older, and brothers and sisters) are subject to annual visa limitations. An LPR can sponsor only a spouse and unmarried children of any age. Immigrant visas for spouses and unmarried children of LPRs are subject to annual visa limitations. All family members who are subject to annual visa limitations are categorized into four (4) visa , or preference, categories  1, 2(A and B), 3, and 4: 

 

 

Family Preference CategoryAnnual visa allotments
1 unmarried adult children of U.S. citizen23,400 visas per year
2A LPRs spouse & children under age 2187,900 visas per year
2B LPRs children age 21 and older26,300 visas per year
3 married children of U.S. citizen23,400 visas per year
4 brothers and sisters of U.S. citizen65,000 visas per year

 

If you can be sponsored by a U.S. citizen or LPR as a family member within one of the four Family Preference Categories 1, 2(A or B), 3 and 4 your place in line for the immigrant visa is established by the date that your relative filed the immigrant visa petition with the Bureau of Citizenship and Immigration Services  USCIS (formerly the Immigration and Naturalization Service  INS). This date is called your priority date. The U.S. Department of State publishes a monthly Visa Bulletin that contains the progress of priority dates, which can be found at http://www.travel.state.gov/visa_bulletin.html.


IV. IF I AM ELIGIBLE TO BE SPONSORED BY A U.S CITIZEN OR LPR RELATIVE, CAN MY FAMILY ALSO IMMIGRATE WITH ME?

If you can be sponsored by a U.S. citizen as a family member within the Third or Fourth Family Preference categories, your spouse and unmarried children under age 21 can also immigrate to the U.S. with you as your derivative family members. If your are sponsored by a U.S. citizen or LPR as a family member within the First or Second(B) categories, your unmarried children under age 21 can immigrate with you. If you are sponsored by your LPR spouse (category 2A), your unmarried children under age 21 can immigrate with you.

However, under U.S. immigration laws, if you are an immediate relative of a U.S. citizen (which includes the U.S. citizens parents, spouse, and unmarried children under age 21), the derivative rule does not apply. The U.S. citizen must separately sponsor her spouse and each child of her spouse who is unmarried, under age 21 and who was under age 18 at the time of the marriage to parents marriage to the U.S. citizen. Also, the U.S. citizen must separately sponsor each of her parents. If the U.S. citizens parents have unmarried children under age 21 (the U.S. citizens younger sisters or brothers) who also want to immigrate to the U.S., the younger children cannot immigrate to the U.S. with their parents as derivative family members. The U.S. citizen can sponsor her younger siblings as Fourth Preference relatives. Also, after immigrating to the United States, the parents can sponsor the younger children as Second Preference relatives. Unfortunately, due to backlogs in the Family Second and Fourth Preference categories, it will be a few years before the younger siblings can immigrate to the U.S.


V. CAN I GET A GREEN CARD IF HAVE A JOB IN THE U.S.?

A U.S. employer who wants to hire you, or who is already employing you, can sponsor you for an immigrant visa. In most cases, the employer must prove to the U.S. Department of Labor (DOL) that the employer made an effort to find a qualified U.S. worker for the job offered to you, and that the effort was unsuccessful. This process, which is referred to as the labor certification process, requires the employer to actually try to find a U.S. worker for the job through advertising and other means, and to explain to DOL why no qualified U.S. worker was found through these recruitment efforts. If DOL accepts the employers explanation, DOL will certify that there is no qualified U.S. worker available for the job. Next, the employer must file an immigrant visa petition to sponsor you, with BCIS. If you are in the U.S. and eligible to adjust status, you can also file your application for the immigrant visa (the application to adjust status). If you are outside the U.S., or if you are in the U.S. but not eligible to adjust status, you must wait until BCIS approves the employers petition before you can apply for the immigrant visa at the American consulate in your home country.

You might also qualify for an immigrant visa if you are an outstanding researcher or professor, or if you are a long-standing employee of a U.S. affiliate company abroad, or if you are a religious minister, or if you are internationally prominent in your field of expertise, or if you have unique expertise that will benefit the U.S., or if you have at least $1,000,000 million to invest in a U.S. business that you will manage. In the latter three instances, you may be able to sponsor yourself.

There are five (5) immigrant visa categories for employment-based visa applicants, each of which is subject to annual visa limitations:

Employment Preference CategoryAnnual visa allotments
1 Priority workers (outstanding researchers and professors, multinational executives and managers, persons with extraordinary ability40,000+ visas per year
2 Persons holding advanced degrees or having exceptional ability40,000+ visas per year
3 Professionals (holding bachelors degree), skilled and unskilled workers40,000+ visas per year
4 Special immigrants (includes religious ministers)9,900 visas per year
5 Foreign investors 9,000 visas per year

 If you are sponsored for an immigrant visa by a U.S. employer, or if you are eligible to sponsor yourself, your spouse and unmarried children under age 21 can also immigrate to the U.S. with you as your derivative family members.

VI. IS THE VISA LOTTERY ANOTHER WAY TO GET A GREEN CARD?

Each year, the U.S. government holds a visa lottery to give up to 55,000 immigrant visas to citizens of countries that have had low immigration to the U.S. Citizens from countries with high immigration to the U.S. (such as Mexico, India, Philippines, and several other countries) cannot participate in the lottery. There is usually a one-month period during which applications for the lottery will be accepted.

To be eligible to apply for the visa lottery, you must have at least a high school diploma, or have at least two years of work experience or training in an occupation that requires at least two years of experience or training for entry-level positions. Each member of your family who meets these requirements can apply, but only one application per person can be submitted. Applicants who will receive the visas are selected at random by a computerized process.

If you are selected to receive a visa, you will receive instructions for completing the immigrant visa application process at the American consulate in your home country, or through the adjustment of status application process if you are in the U.S. and eligible to adjust status. Receiving the visa is not automatic; you must satisfy all requirements for receiving an immigrant visa which also apply to the family and employment sponsored processes. Information about the Visa Lottery program can be found at http://www.travel.state.gov/ .

Your spouse and unmarried children under age 21 can also immigrate to the U.S. with you as your derivative family members. The diversity visa process for you and all family members must be completed by September 30 of the lottery year, or the opportunity to obtain the lottery visa will be lost.

VII. DO REFUGEES GET A GREEN CARD?

If you came to the U.S. as a refugee, or if you applied for political asylum after coming to the U.S. and your application was approved, you can apply for an immigrant visa one year after arriving as a refugee or after approval of your asylum application.

Your spouse and unmarried children under age 21 can also receive refugee or asylum status through a special application process with BCIS if the application is filed within 2 years of the date that you arrived in the U.S. as a refugee or the date that your asylum application was approved.


How to Get a Work Permit

U.S. employers must check to make sure all employees, regardless of citizenship or national origin, are allowed to work in the United States. If you are not a citizen or a lawful permanent resident, you may need to apply for an Employment Authorization Document (EAD) to prove you may work in the United States.

You may be eligible to file Form I-765 electronically. The procedures for forms electronically filed with USCIS are different than described in the following paragraphs. If you are not eligible for electronic filing,you must file an Form I-765 (Application for Employment Authorization) by mail with the USCIS Regional Service Center that serves the area where you live. Please read the entire application carefully and submit the right documents, photos, and fee.


If USCIS does not approve or deny your Employment Authorization Document application within 90 days (within 30 days for an asylum applicant; note: asylum applicants are eligible to file for EADs only after waiting 150 days from the date they filed their properly completed original asylum applications), you may request an interim Employment Authorization Document. You must go to your local USCIS office and bring with you proof of your identity and any documents that USCIS has sent you about your employment authorization application.

How to bring your spouse to live in US

Information for Citizens
If you are a U.S. citizen, your spouse is considered an immediate relative and is immediately eligible for an immigrant visa if your petition is approved. Generally, if your spouse is in the U.S. (through a lawful admission or parole) at the time you file the Form I-130, Petition for Alien Relative, your spouse may file a Form I-485, Application to Register Permanent Residence or to Adjust Status at the same time.  While In the United States? If he or she is outside the U.S., your spouse will need to go to the nearest U.S. consulate to apply for an immigrant visa.

Information for Lawful Permanent Residents
If you are a lawful permanent resident and your petition for your spouse is approved, your spouse will be notified by the Department of State when a visa number becomes available. If your spouse is outside of the United States at the time of notification, he or she must then go to the local U.S. consulate to complete visa processing. If your spouse is inside the U.S. through a lawful admission or parole and is maintaining that status at the time of notification, he or she may file the Form I-485 when the visa number becomes available. If that is not the case but the petition was filed on or before 04/30/01, he or she may be eligible to benefit under section 245(i).

If you do not have the visa number issued by the Department of State, you must wait for a number to become current. Your spouse may need to depart the United States to avoid accruing unlawful presence.

If you were married to your spouse before you became a permanent resident, your spouse may be eligible to receive following-to-join benefits. This means that you would not have to submit a separate Form I-130, Petition for Alien Relative, for your spouse, and your spouse would not have to wait any extra time for an immigrant visa to become available.

US Citizenship through Naturalization

You may be eligible to obtain U.S. citizenship if:
 
        •   You are a foreign national with 5 years permanent residence in the U.S. and at least half that time you were physically present inside the U.S. with no periods of absence over six months.
        •   You are a permanent resident for 3 years, who is currently married to a U.S. citizen, and has been married to the same U.S. citizen for the past 3 years.
        •   You have served the U.S. Armed Forces for at least three years
        •   You performed active duty military service in the U.S. Armed Forces during:
 
       
World War I (November 11, 1916 - April 6, 1917)
        
World War II (September 1, 1939 - December 31, 1946)
        
Korea (June 25, 1950 - July 1, 1955)
         
Vietnam (February 28, 1961 - October 15, 1978) or
        
Persian Gulf (August 2, 1990 - April 11, 1991)
 
        •   You were married to a U.S. citizen who died during a period of honorable active duty service in the U.S. Armed Forces
        •   You served on a vessel operated by the U.S. and have been a U.S. permanent resident for the past five years
        •   You are an employee or an individual under contract to the U.S. Government and have been a U.S. permanent resident for the past five years
         •    Are a person who performs ministerial or priestly functions for a religious denomination or an interdenominational organization with a valid presence in the U.S., and have been a U.S. permanent resident for the past five years
        •   You are a spouse of a U.S. citizen who is one of the following:
 
         A member of the U.S. Armed Forces
          
An employee or an individual under contract to the U.S. Government
        
An employee of an American institution of research recognized by the Attorney General
         
An employee of a public international organization of which the United States is a member by law or treaty
        
An employee of an American-owned firm or corporation engaged in the development of foreign trade and commerce for the United States
        
A person who performs ministerial or priestly functions for a religious denomination or an interdenominational organization with a valid presence in the United States

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